August 29, 2007

Obama Picks Political Expediency Over Principle on Roberts Nomination

Excuse me, but wasn’t Obama supposed to be, as one of his friends puts it in an article in Monday’s Washington Post, “a new kind of politician?” Wasn’t he supposed to unite the country and lead us all into a new era of bi-partisanship in which we all hold hands and sing politically correct songs about diversity and tolerance?

Apparently, not.

According to the article Obama was actually ready to vote for the nomination of John Roberts until he was disabused of that silly notion by his veteran political consigliere and chief of staff, Pete Rouse. According to the Post, “[Obama] expressed admiration for Roberts's intellect. Besides, Obama said, if he were president he wouldn't want his judicial nominees opposed simply on ideological grounds.”

That sounds fair, reasonable and logical to me. But Rouse, who has been working inside the Beltway since Obama was in grade school, knew that Obama’s thinking was naïve:

“This was no Harvard moot-court exercise, [Rouse] said. If Obama voted for Roberts, Rouse told him, people would remind him of that every time the Supreme Court issued another conservative ruling, something that could cripple a future presidential run. Obama took it in. And when the roll was called, he voted no.”

Is kowtowing to Ralph Neas, Nan Aron and the extreme left-wing of the Democratic base part of the politics of hope?

Gathering support for Southwick

As Washington DC prepares (braces?) for the post-recess return of the 110th Congress after Labor Day, perhaps now is a fitting time to gather in one place all the support that has been voiced for the confirmation of Judge Leslie Southwick to the Court of Appeals for the 5th Circuit.

Most recently, both the Washington Times and the Washington Post published editorials supporting Southwick's confirmation:
Times editorial: "Borking Judge Southwick", 29 August 2007
Post editorial: "Qualified to Serve", 18 August 2007

Several other newspapers, including a few local to Southwick's home state of Mississippi, have also urged the Senate to confirm this qualified jurist:
Jackson Clarion-Ledger, Jackson, Mississippi: "Southwick: Judicial principle worth fighting for", 3 August 3007
Hattiesburg American, Hattiesburg, Mississippi: "Bravo to Sen. Feinstein for Approving Southwick", 11 August 2007
Rocktown Weekly, Harrisonburg, Virginia: "Approve Judge Southwick", 24 August 2007

All four major Republican presidential candidates came out in support of Southwick at the beginning of August:
Fred Thompson's blog post
John McCain's letter to the Senate Judiciary Committee
Mitt Romney's statement
Rudy Giuliani's statement

And many others have also written in favor of Southwick's confirmation:
Senator Trent Lott, in the Jackson, Mississippi Clarion-Ledger, 9 August 2007
Wendy Wright, President of Concerned Women for America
Quin Hillyer, in the Guardian (UK), 3 August 2007
Editors of the National Review, 31 July 2007

The fight for Southwick is not over. It will take continued support from all quarters to press the Senate to give Southwick his due, with an up-or-down vote on the Senate floor.

August 28, 2007

6th Circuit nominees deserve fair treatment, too

An editorial in yesterday's Detroit News focused attention on the 49 remaining vacancies in the federal judiciary, of which 2 are judgeships in the 6th Circuit Court of Appeals. Stephen Joseph Murphy and Raymond M. Kethledge were both nominated initially in June 2006, and then re-nominated in March 2007. Neither of these qualified nominees has been scheduled for a hearing in the Senate Judiciary Committee.

This editorial urges the Senate to "help end judicial emergencies" and rightly points out that
"These nominees don't deserve to be political pawns. While the president's approval rating is low, that of Congress is even lower. Playing politics with judicial nominations isn't likely to change that. Murphy and Kethledge should get a hearing and a vote."

August 27, 2007

Some Senators still going after Roberts and Alito

A post at the American Civil Rights Union blog reminds us to be suspicious of claims about the current Supreme Court's purported 'judicial activism', condemnations of its 'hard turn to the right', and (as has become popular recently) allegations that Justices Roberts and Alito somehow 'misled' the Judiciary Committee during their confirmation hearings. See, for example, Senator Schumer's remarks last month at the American Constitution Society's convention, in which he openly wondered whether the Committee was "duped" by Roberts and Alito.

Horace Cooper of ACRU points out that comments like Senator Schumer's only "demonstrate the senators' [Leahy's and Schumer's] significant misunderstanding about the role of the Supreme Court and reveal their own flawed judicial philosophy."

August 22, 2007

More distortion of Southwick's record

The Washington Post published yesterday a piece written by Nan Aron, President of the Alliance for Justice, in which Ms. Aron continues the campaign of character assassination that has been relentlessly carried out by liberal special-interest groups opposing Judge Leslie Southwick, nominee to the 5th Circuit Court of Appeals.

Ed Whelan has already done an amazingly thorough and convincing job of dismantling Aron's arguments in a series of three posts:

(1) re-capping the truth of the two most oft-cited cases in the leftists' attempts to paint Southwick as a racist and a homophobe;
(2) revealing the facts of the two new cases Aron has trotted out in her new attempt to paint Southwick as a heartless and "unjust judge"; and
(3) asking some serious questions about Aron's methodology in this latest attack, which relies on scare tactics and unrevealing 'statistics'.

There seems very little left to add to Whelan's withering critique, but it's worth pointing again to the fact that the best arguments Aron can come up with in her opposition to Southwick are based on emotion rather than reason. Her accusations amount to an indictment of Southwick for somehow showing a "lack of compassion" toward "the powerless, the poor, minorities or the dispossessed". But while she is certainly entitled personally to take issue with the outcomes of the cases she has cited, it is frankly dishonest of her to use these cases - lifted out of the context of their legal precedent - as 'evidence' that Southwick is unfit to be a Circuit Court judge. Andrew Hyman gets it right when he reminds Aron that
"Judges follow laws, and they follow higher courts. Judges aren't free agents, nor should they be. If the statute of limitations is unfair to people like Annie Cannon, then Aron ought to take it up with the legislature rather than with the judges."

August 20, 2007

Southwick: "Qualified to Serve"

The Washington Post came out with an editorial this weekend that supports (if only reluctantly) the confirmation of Judge Leslie Southwick to the U.S. Court of Appeals for the 5th Circuit.

Andrew Hyman agrees with the conclusion of the editorial, but points out some of its "wacky" reasoning - particularly with regard to the Richmond/racial slur case.

August 17, 2007

The Most Important Reason to Defeat Hillary?

Yes, yes, I know that it’s early folks, but it’s becoming pretty clear that from coast to coast Senator Hillary Rodham Clinton is not only holding on to her lead in the Democratic presidential primary, she’s expanding that lead.

This might be a good time to remind people of one of the main reasons why conservatives and libertarians need to come together and defeat Senator Clinton next fall: The future of the Supreme Court. Clinton, who voted against Roberts and voted to filibuster Alito, will, at best (from a constitutionalist’s point of view), have the opportunity to replace one or more of the activists on the Court with a younger activist, and at worst will have a chance to replace someone who adheres to the Constitution with someone who would impose left-wing policies via judicial fiat.

John Hawkins mentions this in his column today on entitled, 8 Reasons Why Conservatives Must Defeat Hillary. Here’s the key quote:

Currently, the Supreme Court is balanced on a knife's edge. There are 4 originalist judges who believe in sticking to the Constitution, 4 liberal judges who view the Court as nothing more than a Super Legislature than can be used to push a left-wing agenda, and one moderate judge.

That means the Supreme Court nominees of the next President of the United States will likely tip the balance of the court dramatically to the left or right and with Hillary, of course, you can be sure that the judges would be extremely liberal.

"Reading the Roberts Court" has posted a transcript of a panel discussion held last month that brought together four attorneys who had argued before the Supreme Court during the past term. Tony Mauro, of Legal Times, moderated. To some extent the panel covered what has by now become familiar territory for Court-watchers: the big 'landmark' decisions (Seattle/Louisville; Gonzales v. Carhart; Microsoft v. AT&T; etc.), and the Court's alleged shift toward the right (pro-business, anti-abortion, etc.).

More interesting and unique in this discussion is an opportunity to hear about these four attorneys' experiences arguing before the Justices of the Supreme Court. They talked about the character of each Justice - which ones ask questions, and the nature of the questioning. They talked about their personal experiences in oral arguments - their strategy and their approach.

And perhaps most notably, several of them mentioned the importance of Justice Kennedy as the critical vote on the new Supreme Court.

Thomas Goldstein put it in the strongest terms:
"In terms of who is in charge, Justice Kennedy is in charge. Don't have any doubts about this...Justice Kennedy's vote is more centrally important than any other justice in the history, the modern history, of the Supreme Court."

August 16, 2007

Don't forget Southwick!

The Senate may be out on its August recess, but this is no time to forget that the fight for Judge Leslie Southwick, nominated to the 5th Circuit Court of Appeals, is not yet over. Thanks to a principled favorable vote on the part of Senator Dianne Feinstein, Southwick finally made it out of the Senate Judiciary Committee with their approval of his nomination (by a vote of 10-9). If all goes well, he will receive a full up-or-down vote on the Senate floor sometime this fall.

Some recent press coverage reminds us to keep Southwick - and the broader fight for those many capable judicial nominees still waiting for hearings or votes - in mind.

Leora Falk wrote in the Chicago Tribune this week about how Southwick "has become the latest flash point in the national political battle over the appointment of federal judges". Falk outlines the scope of the battle over the federal judiciary in general, speculating about the possible longer-term shape of the increasingly acrimonious partisan fight.

The (Jackson, Mississippi) Clarion-Ledger, for its part, covers in detail the 1994 '[racial] slur case' that has been so oft-cited by Southwick's opponents as evidence of his racism or racial insensitivity. This article breaks down the facts of the case and details the sequence of decisions that were handed down by Courts of various levels - a useful counter to the common claim that this piece of Southwick's judicial record is somehow evidence of his 'intolerant racial views'.

August 06, 2007

Simon Lazarus polemic

As the punditry dust continues to settle in the aftermath of the lastest Supreme Court term, it is helpful to rebut some of the false accusations launched against the Roberts Court.

Simon Lazarus of the National Senior Citizens Law Center, in his American Prospect article, "More Polarizing Than Rehnquist" (May 2007), unfortunately dishes out a plateful of misinformation.

I will put to one side for now Lazarus's dubious political opinions (e.g., his apparent equation of following the Constitution with being "transparently driven by political ideology, constantly pushing doctrinal envelopes to overturn or undermine liberal laws and policies, mirroring the 'liberal activism' ritually decried by conservatives"). Rather, I will content myself with pointing out some factual errors, omissions, and inconsistencies in his article. The reader can then decide whether Lazarus's opinions can stand up.

1. Gonzales v. Oregon -- Lazarus says this case involved "former Attorney General John Ashcroft's attempt to nullify, by regulation, Oregon's physician-assisted suicide statute." Not quite. What the so-called Ashcroft directive did was explain that using federally controlled substances (e.g., narcotics) to kill people was not a valid use of those substances under federal drug laws. If Oregon physicians wanted to prescribe poisons to kill their patients, they had to prescribe something other than drugs covered by the Controlled Substances Act (CSA). The case ultimately turned on the fairly technical statutory question whether the Ashcroft directive was properly authorized by the CSA. A majority said "no"; the dissenters, including Chief Justice Roberts, said "yes". The dissenters did not "vot[e] to invalidate the Oregon legislature's handiwork" or to "impose [a] value judgment on the peopler of Oregon," as Lazarus distorts the matter. Rather, they read the CSA, as adopted by Congress, as including the commonsense and historically longstanding proposition that killing patients is not legitimate medical practice.

2. Rapanos v. United States -- In this case, the Justices split 4-1-4 over the proper test for deciding whether certain "wetlands" fell within the scope of federal jurisdiction under the Clean Water Act. Justice Kennedy, who cast the deciding vote, was alone in proposing a "significant nexus" test for assessing wetlands. Lazarus faults Chief Justice Roberts for not joining Kennedy's solo concurrence. But presumably the Chief Justice sees his obligation as adhering to the law, not joining opinions just for the sake of coalition-building. The Chief Justice -- like every other Justice on the Court -- presumably disagreed with the proposed Kennedy "significant nexus" test. That's a fault? If so, it is one of which all of the other eight Justices, including the four liberals, are guilty. Lazarus also faults the Chief Justice for assigning the pluraltiy opinion to Justice Scalia. But that Justice successfully drafted an opinion that held all four members of the Court's plurality. There is no rule that Justices with strong opinions or forceful writing styles should not get opinion-writing duty.

3. Parents Involved in Community Schools v. Seattle School District No. 1 -- Lazarus, writing before this case was decided, contended that the "conservative" thing to do would be to defer to local school boards and thus uphold the schools' race-based pupil assignment policies. This assumes, mistakenly, that a "conservative judicial philosophy" means letting government authorities disregard constitutional norms. While that may be a liberal critic's caricature of judicial conservatism, in fact a "conservative judicial philosophy" entails following the Constitution, like it or not, instead of a subjective, evolving, "gloss" on the Constitution. Lazarus makes the astounding claim that "Clinton appointees Ginsburg and Breyer . . . consistently emphasize deference to democratic institutions," adding that Justice Ginsburg once criticized Roe v. Wade. Of course, neither Ginsburg nor Breyer were willing to defer to democratic institutions on the issues of homosexual sodomy or partial birth abortion. And while Ginsburg may have critiqued the methodology of Roe, she most certainly adheres to its anti-democratic, pro-abortion result. Yet that, according to Lazarus, is "moderation".

* * *

Two other Lazarus contentions deserve a response.

First, Lazarus says that "[r]estoring a 'truly' liberal (i.e., activist) Court is simply not an option." This ignores the fact that there are already four dependable liberals on the Court, and that in 2008 a Democrat may emerge as the next President. Such a president could easily appoint a liberal fifth vote upon the retirement (say, for health reasons) of one of the other five Justices. That would leave the Court with five votes committed to the ideas that abortion should be without legal limits, that any opposition to the homosexual agenda represents intolerable bigotry, and that the power of Congress to encroach on local affairs by regulations is essentially unlimited, to mention just three topics. Four Justices are already on record in support of these positions. We are a hair -- and perhaps an election -- away from an unstoppable liberal bloc.

Second, Lazarus waxes into full hypocrisy on the question of reining in runaway judges. He labels as "dangerous threats to judicial independence" such accountability measures as impeachment or jurisdiction-stripping statutes. But his gripe is not so much over the goal of holding judges accountable for disagreeable decisions as over the means. Lazarus suggests that a better way to punish judges for having the "wrong" (i.e., non-liberal) positions is to obstruct their nominations in the first place, and, where judges are already confirmed, by denying them pay raises. Incredibly, Lazarus believes this approach will prevent the public from viewing the judiciary as "simply an arena for the pursuit of political ends by other means." It seems more likely, however, that Lazarus's proposals are precisely the pursuit of (liberal) political ends by means of political intimidation. But then, that may be the purpose of his article.

"Southwick Win is Huge Setback for Dems, But Fight is Not Over"

Here's a link to the CFJ press release regarding last week's Senate Judiciary Committee approval of Judge Leslie Southwick's nomination to the 5th Circuit Court of Appeals.

The release highlights the impact of Senator Feinstein's Judiciary Committee vote in favor of Southwick, and also the importance of all four major GOP Presidential contenders' willingness to make public statements in support of Judge Southwick last week. But the release also points out that "With 29 nominees waiting, Reid & Leahy must keep pace with their promise" to confirm at least one appeals court judges per month.

August 03, 2007

Halfway there: Southwick to get a floor vote

Senator Dianne Feinstein provided the crucial tenth vote in the Senate Judiciary Committee yesterday to allow Judge Leslie Southwick's nomination finally to be reported out of committee, by a vote of 10-9. Southwick will now benefit from a full vote on the Senate floor regarding his confirmation.

August 02, 2007

All 4 major GOP presidential candidates support Southwick