March 31, 2008

Will Obama really be able to mobilize the Obamacans?

In an interesting article from the New York Sun today, Conservative activists and leaders reflect on why some anti-war Republicans are now supporting Barack Obama for president. Among those interviewed was Mark Levin, who points out that by the time the general election rolls around this November, conservative voters will pay more attention to how the courts would look under an Obama administration than they did in the primary.

March 28, 2008

Conflicts of Interest Don't Stop at The Bench

The New York Times Supreme Court reporter, Linda Greenhouse, has been reporting on cases in which her husband is a litigant. According to a blogger at the National Review Online, this has created her own conflict of interest.

March 27, 2008

Judge Pulled from The Bench

This article from the National Law Journal says why U.S. District Judge Manuel L. Real has been removed from this case and highlights past career mishaps in the 9th Circuit.

Update on California Homeschooling Case

An article in the San Francisco Chronicle yesterday begins:
"A state appeals court has agreed to reconsider its decision last month that barred homeschooling by parents who lack teaching credentials..."

March 26, 2008

International Law Evolves

The U.S. has come a long way since Belmont, as Jason Harrow noted yesterday on SCOTUSblog .

This is in addition to his more in depth discussion at the Opinio Juris blog about Medellin v. Texas.

March 25, 2008

Do voters want a judiciary to be favorable or fair?

A 2001-2002 survey cited in a recent Wall Street Journal article had some disappointing results: "Seventy-six percent of Americans believe that campaign contributions influence judicial decisions" and "46% of state court judges agree." And that survey was from around the same time as the U.S. Supreme Court ruling to allow candidates in a judicial election to be vocal about their ideals and morals. This may distract voters from the importance of an independent judiciary that does not legislate from the bench.

Former Supreme Court Justice Sandra Day O'Connor has expressed fear that judicial elections have become "political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution." Since 39 states elect at least some of their judges, it would appear that voters have more power than they think in determining the outcome of a court case. Those of us who acknowledge the importance of constitutional judges (including the judges themselves) need to educate people on the purpose of the judiciary and why it needs to be independent.

March 24, 2008

Clinton & Leahy in Pocket of Trial Lawyers?

Two pieces caught our attention during the long holiday weekend. One, by George Will, calls for a much-needed pay raise for federal judges. The other, an editorial in Friday’s San Francisco Examiner, posits that generous campaign contributions to Democrats are behind Congress’s lack of interest in the apparently widespread use of kickbacks by plaintiff’s attorneys looking to shake down American companies. These felonious kickback schemes have “a severely detrimental effect on the administration of justice across the nation,” noted the Justice Department on Thursday, as Mel Weiss of Milberg Weiss pled guilty to conspiracy charges involving about 150 securities class action lawsuits. Milberg Weiss partner William Lerach, who also pled guilty, explained that the firm paid kickbacks because “everybody was paying plaintiffs.”

The Examiner reasons that
“the silence on Capitol Hill may have something to do with the fact that Milberg Weiss and its four former partners were extremely active and generous donors to Democrats in Congress … [N]ine of the most reliable congressional opponents of proposals to curb class-action lawsuit abuse received substantial contributions from Milberg Weiss. … Most of the recipients — including the top recipient, Sen. Hillary Clinton — refuse to answer questions about what they plan to do with the dirty money. If the silence is to be broken, it should start with Senate Judiciary Committee Chairman Patrick Leahy and House Judiciary Committee Chairman John Conyers — after they rid themselves of the nearly $8,000 they got from Milberg Weiss, that is.” (emphasis added)

In his column yesterday, George Will makes an important point about judicial pay. The precipitous decline in the salaries of federal judges – in inflation-adjusted dollars – has contributed to a dramatic drop in the percentage of judges coming from the private sector and a concomitant near doubling of the number coming from government jobs. This trend, says Will, “tends to produce a judiciary that is … more of an extension of the bureaucracy than a check on it.”

March 20, 2008

A Gift to the Dems in '08 from the Anti-Alito Coalition: $150 million

It seems that some of our old friends from the Roberts and Alito confirmation battles will be contributing a great deal of cash to Democratic candidates for federal office this year. According to a recent article from the Associated Press, “A loose coalition of liberal and labor organizations expects to spend about $150 million this fall to push its causes and help Democrats win the White House and strengthen their grip on Congress.”

Several of these far-left groups are part of the coalition that took part in the distortions and outright smears against well-qualified nominees like Miguel Estrada, Charles Pickering, John Roberts and Sam Alito. Certainly, with this extraordinary expenditure of money and man-hours these groups will expect to increase their already incredible influence on Senate Democrats whether they can defeat John McCain or not.

For an in-depth look at who these groups are and what they stand for make sure to read (or re-read) this CFJ white paper from December 2005 by current CFJ Executive Director Curt Levey.

March 17, 2008

California Home Schooling Statute Holds in Court

The California Department of Education has responded to the recent California state court ruling that only certified teachers can home school their children. The Superintendent of Public Instruction Jack O'Connell reassures home schooling parents that state "policy will not change in any way as a result of this ruling" and that "parents still have the right to home school" in California. The decision by the court will likely not be enforced pending appeal to the California Supreme Court.

However, instead of encouraging uncertified parents to disregard the court's ruling, perhaps Governor Arnold Schwarzenegger, who opposes the ruling, should change the statute upon which this ruling was based. The court also cites a previous California decision holding that, while it would be unconstitutional to require children to attend public school, requiring home school parents to have teaching credentials is not.

Nonetheless, home schoolers want the ruling reversed because of its possible precedential value. The best thing these parents can do is to respect the rule of law and urge their legislators to change it.

March 14, 2008

New 4th Circuit Nominee & Judicial Pay

We’re pleased to see that there’s a new nominee to the U.S. Court of Appeals for the Fourth Circuit. Yesterday, President Bush named G. Steven Agee to a Virginia seat on the court. Elected in 2003 to the Virginia Supreme Court by a bipartisan voice vote in the state legislature, Agee has the support of both Virginia senators – including Democrat Jim Webb – behind his 4th Circuit nomination.

That support is expected to facilitate his confirmation. Skeptics will counter that Senate Judiciary Chairman Patrick Leahy has turned the slow walk (often no walk) of judicial nominees into a fine art since the Democrats regained control of the Senate. But given that the support of home state senators – in this case, bipartisan support – is the touchstone of Leahy’s confirmation test, it’s hard to fathom how he could justify doing anything other than expeditiously processing Agee’s nomination.

The seat to which Agee has been named was vacated when J. Michael Luttig, one of the federal bench’s brightest intellectual stars, resigned to become general counsel for Boeing. The relatively low pay of federal judges was one of the factors leading to the loss of this brilliant jurist, which brings us to our second topic. This week, two current and one former U.S. Supreme Court Justices made the case for a substantial increase in the pay of federal judges.

In an interview Tuesday, retired Justice Sandra Day O'Connor emphasized that new law firm associates just out of federal judicial clerkships typically make more money than the judges they worked for. And yesterday, Justices Anthony Kennedy and Clarence Thomas testified on Capitol Hill, with this account by Tony Mauro of the Legal Times:
"The table-pounding came when Kennedy was asked about judicial salary increases, which have made some progress through both houses but is still not a done deal. … ‘If we don't get relief, there will be an exodus of judges,’ lured by tripled salaries and challenging work in arbitration and private practice [said Kennedy]. Kennedy also decried proposals to tie salary increases to stricter limits on how much money judges can earn or be reimbursed when they teach or give speeches. ‘It doesn't make much sense,’ Thomas added, for federal judge salaries to be capped at a level that some first-year associates are able to earn. Thomas, too, said judges should be allowed to teach … and should not be limited even further than they are already in what they can earn in teaching positions.”

March 13, 2008

Reagan Democrats and the Judges Issue

Despite all of the predictions of gloom-and-doom you hear from the liberal MSM about the GOP’s chances in 2008, every once in a while you’ll find an article that hints things may not come out exactly the way Howard Dean and Keith Olbermann think they will.

Yesterday the LA Times reported that many bigwigs in big labor are very concerned with how their members will vote in the presidential race in November. It seems that no matter which Democratic candidate wins, but especially if it’s Barack Obama, John McCain has a chance to pick up a significant number of blue-collar Reagan Democrats.

“That vote is up for grabs,” former John Edwards campaign manager David Bonior is quoted as saying. According to the article “labor strategists were alarmed by polls and focus groups of undecided union members that showed McCain doing well in match-ups with either Democratic candidate.”

Former RNC national chairman Ken Mehlman apparently believes that McCain “would attract Reagan Democrats for the same reason the former president did: McCain is seen as frank, a good leader, strong on defense and opposed to tax increases.” I can think of another reason Reagan Democrats would vote for McCain: judges.

Reagan Democrats are not the biggest fans of an activist judiciary looking to advance a left-wing agenda in every area of public policy from the War on Terror to cultural issues. Generally, these kinds of voters are patriotic social conservatives who want the government to be tough on crime and terrorism and respect their Second Amendment rights. McCain and Republicans running for the Senate need to talk to the American people about this issue and explain the difference between the kind of judges a President McCain would put on the courts and the kind of judges a President Obama (or a President Hillary Clinton) would put on the court.

March 11, 2008

D.C. Gun Ban Case heard by the U.S. Supreme Court

Next week the U.S. Supreme Court will hear arguments over whether or not the D.C. Gun Ban is constitutional. Even the most liberal justices, after reviewing the trend in murder rates in D.C., may be sympathetic to striking down the gun ban.

According to Fox News, D.C.’s murder rates have increased and continually rank among the highest in the nation. Other cities, such as Chicago, experienced a similar increase in its murder rate after banning handguns.

Admittedly, the relationship between crime and gun possession is complex. However, this data reminds us of the importance of the Second Amendment and should remind the justices, too, since they have to come to work in D.C. every day.

March 07, 2008

Three Numbers to Remember

As Curt points out below the battle over judicial nominations in the 110th Congress has heated up to the boiling point and is a growing factor in the race for President.

One thing I’ve noticed about the articles on Curt’s list is the willingness of the media to repeat Senator Patrick Leahy’s spin on the number of judges that have received a fair up-or-down vote in this Congress. In reality, when it comes to the fight over the current Appeals Court nominees there are three numbers to remember: 17, 14 and 6.

Seventeen is the average number of Appeals Court nominees that have been confirmed in the final Congress of the last three presidential administrations. Why are the last three significant? Because each - Reagan, Bush I and Clinton - faced a Senate controlled by the opposing party in their final two years in office, as George W. Bush does today.

Fourteen is the number of nominees that should have been confirmed as of February 29th if the Democrats had a fair up-or-down vote on one Appeals Court nominee per month. Keeping to this more than reasonable pace would have meant that the 110th Congress would have reached the historical average by June, 2008 the month that the misunderstood and misconstrued “Thurmond Rule” is normally imposed. (For an excellent break down of the historical reality of the Thurmond Rule read this blog post by Ed Whelan on Bench Memos.)

Six is the actual number of nominees who have been confirmed so far by the 110th Congress in fourteen months. In other words, about one-third of the overall historic average and less than one-half of the number that should have been confirmed at this point.

So, in the end you can forget all of Leahy’s spin and remember three simple numbers: 17, 14, and 6.

March 06, 2008

Judges Battle & 2008 Election

This week, a flurry of articles on judicial nominees emphasized two themes:

1) The battle over judges is heating up now that GOP senators are ready to play hardball.

2) Judicial nominations will be a major issue in the 2008 election.

Here are some excerpts from Hill, Politico, Legal Times, and James Oliphant articles:

2008 Election

"Conservative activist leaders and Senate Republicans are reaching out to bring McCain back to the Senate and talk about the [judges] issue on the campaign trail, saying doing so would bring a national spotlight to the stalemate" – The Hill
"The issue [of judicial nominees] is almost certain to emerge in the presidential campaign, according to interest groups." – Legal Times
"The last time there was a major showdown on judges, the Senate moved to the brink of a shutdown, and conservative blogs and talk shows were ablaze with rhetoric over Democratic intransigence. ‘It’s something people care about,’ said Stewart, McConnell’s spokesman." – Politico
The Coming Battle

"Almost three years after the Senate confirmed two Supreme Court justices … tensions are again rising over judicial nominations. Sen. Arlen Specter (R-Pa.) Monday threw down the gauntlet on behalf of Republicans." James Oliphant, Chicago Tribune
"'The fact is that we can play a political game—if they really want to play the political game on judges, Republicans will win,' said Sen. Tom Coburn (R-Okla.), a Judiciary Committee member, who said that the time for 'playing nice' had passed. … Specter and other Republicans said a range of parliamentary tactics are on the table, including objecting to unanimous consent requests to allow committees to meet, prohibiting routine business on the Senate floor and denying quorums at Judiciary Committee meetings." – The Hill

March 05, 2008

Would Bush Endorse McCain's Judicial Nominees?

President Bush has formally endorsed John McCain for president. McCain has said that he supports Bush's judicial nominees and, as president, would nominate strict constructionist judges as well.

If Senator McCain spoke out in support of providing more expeditious hearings for judicial nominees, this would help put an end to the obstruction of judicial nominees and provide reassurance to conservatives of his view on the judges issue.

March 04, 2008

Specter & Conservative Leaders Plan Judges Battle

The Committee for Justice issued the following press release today:

CONTACT: Curt Levey, (202) 270-7748,

Implications for Presidential Race Discussed
McConnell Laments Dems’ “Judicial Confirmation Brinksmanship”

WASHINGTON, DC – Monday afternoon, Senate Judiciary Committee ranking member Arlen Specter (R - Pa.) convened a meeting of conservative leaders to gear up for a fight over confirmation of the President’s judicial nominees. Noting that the confirmation statistics cited by Judiciary Chairman Pat Leahy (D - Vt.) painted a misleading picture of progress on nominees, Specter fired up the leaders by warning that “if things don’t change . . . the President’s court appointments . . . will be an historic low for a two-term President in modern times.” The implications of the looming judges fight for the presidential race were discussed. Then Sen. Specter took to the Senate floor, where he denounced the obstruction of judicial nominees and announced plans to introduce a protocol for the nonpartisan processing of both parties’ judicial nominees. GOP Leader Mitch McConnell followed with similar remarks on the floor.

At the meeting, Specter disclosed his February 29 letter to Sen. Leahy, in which he made one last plea to the committee chairman to avert a showdown and “work out an accommodation . . . without our respective caucuses coming to an impasse.” Specter asked Leahy to “work with me to establish a schedule for prompt consideration of all currently pending judicial nominees.” (emphasis added). However, Specter told the assembled leaders that, after making repeated, failed efforts to work with Chairman Leahy, a high-profile fight over judges seemed all but inevitable.

Monday’s meeting appeared to mark a turning point in what the letter calls the Senate’s “most bitter” controversy. A fight over judges has been brewing for weeks now, as GOP senators have become increasingly frustrated with Leahy’s obstruction of nominees. Sen. Specter had urged his colleagues to postpone any hardball tactics while he tried again to work things out with Leahy. But yesterday, “Specter indicated to the conservative leaders that he too had run out of patience and was ready to lead his colleagues into battle,” said Committee for Justice executive director Curt Levey, one of the participants in the meeting.

On the Senate floor, Specter called for the immediate adoption of a long-term bipartisan protocol establishing timetables for the expeditious processing of all judicial nominees, including deadlines for hearings, Judiciary Committee votes, and up-or-down votes by the full Senate. Specter reiterated the argument in his letter that, “given the uncertainty of who the next President will be, now would be a good time to change the confirmation process to guarantee prompt action on nominees.”

“Senate Democrats balked when a nonpartisan timetable was proposed during President Bush’s first term,” noted Curt Levey. “But given Democrats’ confidence about recapturing the White House and their talk about reducing partisanship, it’s difficult to see how they could object to Sen. Specter’s current proposal.” Levey noted that “debate over the proposal could quickly become an issue in the presidential campaign, since it’s greatest impact would be on the next president’s judicial picks. Barack Obama, who promises to move the country beyond partisan politics, would be hard pressed to explain why he can’t support the Specter proposal. And John McCain, a key member of the ‘Gang of 14’ deal, would also be expected to weigh in.”

Minority Leader Mitch McConnell took to the floor after Specter to urge that his “Democratic colleagues resist the desire by some to drag us back into judicial confirmation brinksmanship.” McConnell noted that “many of these [judicial] nominees satisfy most or all of [Leahy’s] specific criteria for prompt consideration: they have strong-home state support, they fill judicial emergencies, and they have good or outstanding ABA ratings.” Nonetheless, McConnell said, “there have been no judicial confirmations so far this year, and there has been only one hearing on a circuit court nominee since September of last year.” In last year’s most contentious fight over a judicial nominee, both McConnell and Specter were instrumental in the successful confirmation of Fifth Circuit nominee Leslie Southwick.

Chairman Leahy has tried to counter the growing criticism of his stewardship of judicial nominations by pointing to the forty judges confirmed by the Senate in 2007. But as Sen. Specter explained, the numbers cited by Leahy are misleading because they count 13 confirmations of nominees who “were held over from the 109th Congress and required no significant work by the Committee.” The truth, Specter said, is that the pace of confirmations under Leahy is slower than under his predecessors.

“By comparing apples to oranges and conflating district court nominees with appeals court nominees, Sen. Leahy has attempted to camouflage the historic level of obstruction he is engaging in,” added Curt Levey. “But Leahy is playing a dangerous game in an election year, because the judges issue is always a winning one for the GOP. And, more than any other issue, it unites the various constituencies in the Republican party. Why do you think it’s only the GOP contenders for president who emphasized the issue?”

The Committee for Justice is a non-partisan, non-profit organization devoted to promoting constitutionalist judicial nominees and the rule of law.