August 29, 2008

SCOTUS Documentary Screening

First off, congratulations to Sarah Palin / John McCain and Barack Obama for making history this week. Regardless of political ideology or who wins the election, we should all be proud that the presidency and vice presidency are open to all Americans. Of course, that’s where the agreement ends. And nowhere is the disagreement sharper than over what sort of men and women the next President should appoint to fill the Supreme Court vacancies that will almost surely occur during the new administration.

With that issue front and center in this election, it’s a good time to look back at the Supreme Court confirmations battles of 2005-06. Now there’s a feature documentary that does just that. If you’ll be in Minneapolis next Tuesday, please join us for a screening of this soon-to-be-released film, “Advise & Dissent” by director David Van Taylor (“With God on Our Side” and “A Perfect Candidate”). The screening will be followed by a panel discussion of legal experts, including CFJ’s Curt Levey. See below for details.


Tuesday, September 2, 1:00 pm - 3:30 pm (lunch at 12:30 pm)
Schulze Hall Auditorium, University of St. Thomas - Minneapolis Campus
1000 LaSalle Avenue
Minneapolis, MN 55403

You are invited you to a screening of “Advise & Dissent,” a feature documentary about the recent Supreme Court confirmation battles, followed by a panel discussion of legal experts. Space is limited so please RSVP to or call Mark at 817-658-1085 to guarantee access.

Lunch will be served in the Schulze Hall Atrium at 12:30 pm.

Guest Panel Includes:
Melanie Kirkpatrick, Editor, Wall Street Journal
Curt Levey, Executive Director, Committee for Justice
Chuck Donovan, Executive VP, Family Research Council
Maggie Gallagher, Syndicated Columnist
Teresa Stanton Collett, Professor of Law, University of St. Thomas Law School

Sponsored by the Catholic Working Group and the University of St. Thomas School of Law College Republicans.

Advise & Dissent is a feature documentary about the recent Supreme Court confirmation battles. The film pulls back the curtain on the Roberts, Miers, and Alito nominations. Director David Van Taylor (“With God on Our Side,” “A Perfect Candidate”) sheds new light on the ongoing collision of justice and politics. Preview audiences have called it “riveting” and “gripping.” Viewers have recognized the crucial relevance of this recent history to the present moment. As Jeffrey Toobin wrote in a recent New Yorker: “The stakes in [this] election, for the Supreme Court and all who live by its rulings, are very, very high.”

August 28, 2008

VP Lieberman & DNC Silence on Judges

Amid press reports of John McCain notifying his running mate and Joe Lieberman rebuffing a request by Karl Rove to withdraw his name from VP consideration, RealClearPolitics concludes that “a lot of Republicans are nervous” that Lieberman is McCain’s pick. Republicans are concerned about Lieberman’s pro-choice stance and his weak record on judges. Since the abortion issue is almost entirely in the hands of the courts, Sen. Lieberman, if selected, could likely deflect much of the inevitable conservative criticism by making the following three pledges regarding judicial appointments:

1) he will play no role in picking judicial nominees in a McCain Administration,

2) he will not run for president in the future (and thus will never nominate judges himself),

and most interestingly,

3) he will caucus with Senate Republicans for the remainder of the year, allowing Republicans to demand a Senate reorganization like the one that followed Sen. Jeffords’ 2001 defection from the GOP. That would make Arlen Specter chairman of the Judiciary Committee and Mitch McConnell Majority Leader, likely resulting in the confirmation of four pending appeals court nominees to the all-important Fourth and D.C. Circuits. Senate Democrats would be unwilling to risk the fate of Tom Daschle by filibustering nominees so close to an election.

We’re not betting any money on Lieberman being selected and making pledges, but the possibility of a Senate reorganization is too enticing to ignore.

Meanwhile, we’ve been watching the Democratic Convention closely for indications of whether the Obama campaign will use the prospect of several Supreme Court vacancies, and the judges issue in general, to scare Hillary Clinton’s pro-choice supporters into the Obama camp. Based on the convention’s four major speeches so far – those of Biden, Warner, and Bill and Hillary Clinton – it looks like the campaign will try to avoid the issue, at least in front of mainstream audiences. Out of more than 8300 words in the four speeches, only seven words were devoted to the judges issue:
“Jobs lost, houses gone, falling wages, rising prices. The Supreme Court in a right-wing headlock and our government in partisan gridlock. … ” — Hillary Clinton, Aug. 26, 2008
The logical conclusion is that the Obama campaign, keenly aware that the judges issue has been a losing one for Democrats in recent presidential and Senate elections, has concluded that the issue’s risks outweigh its appeal to some Hillary supporters. Especially in light of Obama’s past pronouncements about the type of judges he would appoint, he’s got good reason to be concerned about alienating swing voters who – regardless of what they think about Roe v. Wade – worry about courts mandating gay marriage, nullifying the death penalty, treating religion as a communicable disease, and striking down protection against online pornography.

The silence on the judges issue was particularly notable in Sen. Biden’s speech last night, given that he is a member and former chairman of the Senate Judiciary Committee. If anyone has the credibility to promise he’ll fight tooth and nail for a pro-choice Supreme Court, it’s Biden, who led the fight to defeat Robert Bork and Clarence Thomas as Judiciary chairman. But last night, Biden may well have been loathe to remind the mainstream audience watching at home of his track record on judges. After all, Biden has done more than any other senator to transform the judicial confirmation process into the political circus it is today. Bloggers Paul Mirengoff and Donald Kochan aptly describe Biden’s leading role:
“As Chairman and member of the Senate Judiciary Committee, Senator Joseph Biden set the precedent for intensely political, antagonistic, and activistic opposition to judicial nominations regarding originalist, strict interpretivist, or conservative judges. This was accomplished not only in hearings – most notably for Robert Bork and Clarence Thomas – but also in ensuring many lower court nominations never received a floor vote.” — Donald Kochan
“Biden’s legacy, then, is a fully politicized system of confirming federal judges – one that will continue to produce ugly spectacles like the Bork and Thomas hearings [and] undermine respect for the judiciary.” — Paul Mirengoff
Finally, let’s examine Hillary Clinton’s assertion Tuesday night that the Supreme Court is “in a right-wing headlock.” As we said back in June,
“If a Court that grants habeas corpus rights to enemy combatants for the first time in history, and places more importance on elite opinion [about the death penalty] than the considered judgment of Louisianans about how to best protect their children, is too conservative, then what precisely do you hope a more liberal Supreme Court … would do?”
Kathryn Lopez made a similar point yesterday over at National Review Online . And as Stuart Taylor noted last month, after analyzing poll results,
“[C]onsider six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”

August 14, 2008

ABA: Let Us Pick the Judges

Today’s Wall Street Journal criticizes an American Bar Association resolution, adopted earlier this week, which calls for the use of "bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community" to recommend nominees to the federal courts. The resolution’s objective is "a less contentious judicial selection process," a goal we wholeheartedly support. However, even if one puts aside the quota-like "diversity" requirement, there is good reason to doubt that the recommendations of these commissions would be "bipartisan." As the Journal points out,
“[M]erit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan [commission] system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left. ... [I]t's no accident that outfits like the George Soros-bankrolled Justice at Stake have lobbied for precisely this kind of ‘merit’ selection.”
Exhibit number one is Missouri, which pioneered the commission system in 1940. As CFJ Executive Director Curt Levey described in a Human Events op-ed last year,
“Missouri governors must appoint a judge chosen from a panel of three candidates submitted by the state’s Appellate Judicial Commission. ... [O]ver the years, the Commission’s secretive selection process has become increasingly controlled by the Missouri Bar Association, an organization with close ties to liberal special interest groups. As a result, the three finalists chosen by the Commission to replace retiring Justice White have [activist] records. ... Faced with choosing from among three unacceptable candidates, Republican Governor Matt Blunt criticized the Commission’s highly politicized, backroom selection process."
“All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether,” the Journal notes. It also explains why the ABA's House of Delegates overwhelmingly voted for the resolution recommending that the system be used at the federal level. Just as the state system gives disproportionate influence to state bars, the ABA’s federal proposal would give disproportionate influence to the ABA. That’s reason enough to question the ABA’s proposal. But the Journal points out that, in addition,
“The ABA's own judicial review panel, which rates Presidential nominees, has already proven it can't be trusted. Loaded with liberals who [hide] behind the bar's professional sheen ... [y]ou can be certain that the next Antonin Scalia would be deemed too controversial, while David Souter would qualify as the ultimate ‘consensus’ choice.”
Ed Whelan and John Lott have done a superb job of documenting and quantifying the ideological bias of the ABA's judicial review panel.

The Journal concludes that
“A better option is to keep the judicial nominating process democratically accountable and transparent. Those who don't like the judges a President appoints can take their preferences out at the ballot box.”
We agree. Like many aspects of democracy, the current, constitutionally-envisioned method of selecting federal judges has its flaws – including the growing contentiousness of the process – but is better than the alternatives.

Instead of changing the current system, some have suggested reducing its contentiousness by adopting bipartisan standards of timeliness and fairness that would prevent the indefinite obstruction of judicial nominees. The President suggested such standards in 2002, but Senate Democrats balked. Sen. Arlen Specter introduced a similar proposal in 2004 (see S. Res. 327) and again in this Congress. We’re inclined to support such standards as long as they’re flexible enough to be waived by a super-majority of the Senate or Judiciary Committee, and as long as enforcement could be ensured regardless of which party controls the White House and Senate.

Finally, Lawrence Hurley reports on the Obama campaign’s response to the ABA resolution:
“Senior Barack Obama advisor and former Senate Majority Leader Tom Daschle said [Wednesday] the presumptive Democratic nominee would ‘consider a lot of options’ for addressing the partisan nature of judicial nominations in recent years if he is elected president. Daschle, who famously lost his South Dakota seat in 2004 in part due to his role in obstructing President Bush’s judicial nominees, stressed that the problems that have arisen during the current administration has been caused largely by the lack of ‘good communication and consultation’ on the part of the White House.”
Voters didn’t buy that explanation in 2004 and we doubt they’re buying it now.

August 06, 2008

8 Reasons to Fear Judicial Activism

Judicial activism is the subject of the cover story in this month’s Townhall Magazine. The article, by Committee for Justice Executive Director Curt Levey, attempts to cut through efforts to “blur and distort the definition of judicial activism” by clarifying, in layman’s terms, what judicial activism is and what it is not. Levey notes that
“[T]he purveyors of judicial activism – and its handmaiden, the ‘living Constitution’ – try hard to blur the distinction between activist and legitimate court decisions. So it’s important to clarify that true judicial activism is marked by the elevation of a judge’s policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the common sense meaning or original intent of the constitutional or statutory text at issue.”
The article lays out the common forms of judicial activism – construing black as white, twisting legal doctrines beyond recognition, inventing new rights, ignoring old rights, and playing policymaker – while providing examples of each. It then tackles popular but misguided definitions of judicial activism, explaining that a court’s decision is not necessarily activist because it 1) overturns actions by the other branches of government, 2) doesn’t follow precedent, 3) arguably should have gone the other way, or 4) angers conservatives. “Conservatives have every reason to be angry about judicial activism,” Levey notes, “but they handicap the battle against it when they overuse the term.”

Of course, conservative judges are sometimes guilty of activism themselves. But for the most part
“[C]onservative judges can’t compete when it comes to judicial activism, because they’re not even trying. Sure, their biases sometimes cloud the objective interpretation they shoot for. But many liberal jurists don’t even shoot for objectivity. Instead, they are proud of belonging to the school of judging exemplified by Barack Obama’s yearning for a judge who will ‘bring in his or her own perspectives, his ethics, his or her moral bearings.’”
Because judicial activism is such a jurisprudential disgrace, it’s easy to overlook the specific reasons why it is dangerous. Accordingly, the article reminds us of eight such reasons:

1) “Because judicial activism lacks any standards, it cedes unchecked power to judges.”

2) Judicial activism is intentionally anti-democratic. “The progressives who fuel judicial activism from inside and outside the judiciary are committed to using the courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means.”

3) Judicial activism “is part of a concerted effort to impose the values of the intellectual elite on the average American. “

4) Judicial activism compromises American sovereignty by encouraging reliance on international law. “After all, when you’re discovering new rights, you may not be able to find any support in the myriad of domestic sources of law.”

5) The Framers “provided us with a democratic method of constitutional evolution, namely the amendment process.” But the amendment process has withered “[b]ecause of the availability of an easy alternative – judicial activism.”

6) As Roe v. Wade exemplifies, judicial activism “[d]istorts the political process and prevents compromise.”

7) The circus that judicial confirmations have become is “the inevitable result of judicial activism, which sanctions the politicization of judging, while also raising the stakes in selecting judges who will wield nearly unlimited power.”

8) The living Constitution’s “greatest evil [is] the harm done to U.S. citizens when the Constitution and laws that protect us are pushed aside with the stroke of an activist judge’s pen.”

Given the danger posed by judicial activism, it is no wonder that
“The American people … are acutely aware of the problem. … [A] 2005 survey by the American Bar Association revealed that Americans, by an almost two-to-one margin, agree that judicial activism ‘seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.’”

August 02, 2008

Dems’ Biggest Embarrassment

With the Senate now gone for its August vacation and only a month-long session remaining before the election, it’s time to start assessing the Democratic majority’s performance on judicial nominations in this 110th Congress. The highest marks to go to Sen. Diane Feinstein, who incurred the wrath of liberal civil rights groups when her vote in the Judiciary Committee allowed 5th Circuit nominee Leslie Southwick to reach the Senate floor and be confirmed. It’s hard to pick a single low point, but the following events are certainly in the running:
** A complete shutdown of the judicial confirmation process unmatched since 1848
** Sen. Leahy’s invention of a rule requiring obstruction of nominees, all the while blaming it on a senator – Strom Thurmond – who is no longer alive to defend himself
** The attempted personal destruction of Iraq War veteran Leslie Southwick based on judicial opinions he didn’t write
** Broken promises made by Sens. Reid and Leahy to their GOP counterparts
In other words, there’s plenty for Sens. Reid and Leahy and other Democrats to be embarrassed about. But we suspect that when people look back on the issue of judicial nominations in the 110th Congress, the biggest embarrassment for Democrats – particularly Judiciary Chairman Leahy – will be the treatment of D.C. Circuit nominee Peter Keisler. Keisler has been praised for transcending politics while serving as an Assistant Attorney General and his confirmation is supported by the Washington Post, the Los Angeles Times, and leading legal scholars and practitioners. Even Senate Democrats and their staff privately express admiration for Keisler. Yet, by keeping him waiting two years and counting for a Judiciary Committee vote following a flawless August ’06 committee hearing, Senate Democrats have proved incapable of transcending politics and the demands of the Left.

Sen. Arlen Specter, Ranking Member of the Judiciary Committee, sums it up well in a Washington Times op-ed on Thursday, which focuses on Keisler’s role in combating the politicization of the Justice Department that Senate Democrats have spent the last two years denouncing:
“This week, the Senate Judiciary Committee held a hearing to examine reports by the Justice Department’s Inspector General (IG) on ‘politicization’ at the department. … [Peter Keisler] was repeatedly cited in the IG's June report as having spoken and acted in opposition to those who allowed political considerations to play a role in [DOJ] hiring decisions. … Ironically, Mr. Keisler … has been unable to get a Senate vote on his confirmation because the Judiciary Committee has elevated political considerations over the nominee’s qualifications.”
Specter goes on to note the IG’s observation that Keisler even made "a personal appeal … on behalf of [a DOJ] candidate who worked for Planned Parenthood,” and concludes that
“Those decrying ‘politicization’ in the Justice Department should, with equal fervor, support Senate consideration of highly qualified judicial nominees who have demonstrated a commitment, even when no one was looking, to political impartiality and the rule of law. … In a politically charged atmosphere, Mr. Keisler did the right thing. I hope the Senate Judiciary Committee will do the same.”
We know it’s tempting for Democrats to block a nominee like Keisler whose stellar credentials make him Supreme Court material. And we are certainly aware that groups on the Left, like People for the American Way, have threatened that there’ll be hell to pay if Keisler is confirmed. But Peter Keisler showed a lot of courage when he stood up against politicization of the Justice Department. So Democrats, how about showing a little courage yourselves? Besides, what will you say in the next Congress when people ask why this exceptional nominee, with support from across the ideological spectrum, was obstructed?

But if shame isn’t enough to motivate you, consider practical politics. As you look forward to the possibility of confirming Barack Obama’s judicial nominees next year, while realizing that a filibuster-proof Democratic majority in the Senate is highly unlikely, wouldn’t it make sense to end the 110th Congress with a touch of class and courage you can later point to?