Posted at 10:01pm on May 16, 2007 "Would Rudy Be Good for the Courts?"
By AndrewHyman
UPDATE: Father Jonathan Morris has an interesting column at Fox News. He discusses Mayor Giuliani's view that some “strict constructionists” believe in overturning clearly erroneous Supreme Court decisions, while other “strict constructionists” are more willing to let clearly erroneous decisions stand if they have become entrenched. Who knows which type of "strict constructionist" a President Giuliani would pick?
Posted in GOP Presidential Candidates — Comments (36) / Email this page » / Read More »
Posted at 8:27pm on May 16, 2007 Should the Senate Reject Qualified Judicial Nominees for Politicized Ideological Reasons?
By AndrewHyman
Over at the Volokh Conspiracy, George Mason Law Professor Ilya Somin is urging that the Senate follow the lead of Chuck Schumer, and reject qualified nominees for ideological reasons. I very much disagree with Professor Somin's post, and will explain the two main reasons why (Marshall Manson previously addressed this subject here at confirmthem).
Professor Somin says that he agrees with Senator Schumer's reliance on the precedent set by the Senate's rejection of John Rutledge in 1795. But the Rutledge incident is no precedent for what Schumer and Somin propose.
The history of the Rutledge matter is summarized in a report of the Congressional Research Service.
Rutledge became Chief Justice on July 1 of 1795, by recess appointment. Then, on July 16 of 1795, Chief Justice Rutledge gave an extremely controversial speech denouncing the Jay Treaty with England. He said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it." Inevitably, this caused the Senate to reject his nomination on December 15 of 1795, and there were also rumors of mental imbalance. Days after the Senate rejection, Chief Justice Rutledge attempted suicide, and finally resigned as Chief Justice on December 28 of 1795.
Vice President John Adams wrote to Abigail Adams that the Senate's rejection of Rutledge "gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not ... inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people." To use the Rutledge incident as some sort of precedent for the Senate to take ideology into account is a huge mistake. A sitting Chief Justice simply has no business saying in a public oration "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it," regardless of the content of a treaty. And, Chief Justice Rutledge added that supporters of the Jay treaty were guilty of "prostitution of the dearest rights of freemen." His speech referred to provisions of that treaty as the "grossest absurdities" which he blasted as "ridiculous and inadmissible."
Professor Somin also argues that the framers would not have placed the nomination and confirmation of judges in the hands of the political branches, unless the framers intended that judges be screened for political ideology. On the contrary, the framers placed this job in the hands of the political branches because the political branches were expected to jealously guard their prerogatives, and would not tolerate judges who usurp the legislative function. The power of impeachment was placed in the hands of the political branches for the same reason, as Hamilton explained in Federalist 81:
There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.
I hope that Professor Somin will rethink this matter, and at least come up with better arguments.
P.S. And just for good measure, here's Hamilton in Federalist 66:
It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
Therefore, it seems to me that Jonathan Adler is correct: "the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology."
Posted in Analysis and Predictions — Comments (0) / Email this page » / Read More »
Posted at 12:56pm on May 16, 2007 Hewitt Rightly Slams Gang of 14
By Quin
Hugh Hewitt has an excellent blog post blasting John McCain on the issue of the Gang of 14. Read it.
Posted in Analysis and Predictions — Comments (2) / Email this page » / Read More »
Posted at 9:25pm on May 14, 2007 Fred Thompson and Nan Aron; Compare, and Side With Fred
By AndrewHyman
On Saturday, former Tennessee Senator and potential POTUS candidate Fred Thompson gave a speech at the Council for National Policy. Here's a bit of it:
It is a sad irony that a nation that is so dedicated to the rule of law is doing so much to undermine the respect for it. Our founders established an independent federal judiciary to decide cases, not social policy. Yet more and more that is exactly what it is doing.
And, at the opposite side of the same issue, we have this statement today from Nan Aron, as reported by The Hill:
Nan Aron, the president of Alliance for Justice, a group regarded by many liberals as a leader on judicial issues, acknowledged that Keisler has excellent legal qualifications. She said that is not sufficient, however.
Of course not.
Posted in Analysis and Predictions — Comments (43) / Email this page » / Read More »
Posted at 8:09pm on May 14, 2007 Olson Goes to Bat for Rudy
By AndrewHyman
"Two for the Price of One: The presidency and the judiciary."
Hat Tip: Esquire.
P.S. Over at Bench Memos, Ed Whelan has what may be the first honest public opinion poll about Roe v. Wade in 34 years.
P.P.S. Here's Rudy on April 4:
Posted in GOP Presidential Candidates — Comments (6) / Email this page » / Read More »
Posted at 2:25pm on May 14, 2007 Ultimately
By AndrewHyman
Just for the record, it appears that Rudy Giuliani does believe that abortion is a legitimate constitutional right: "ultimately it is a constitutional right, and therefore if it is a constitutional right ultimately, even if you do it on a state-by-state basis, you have to make sure that people are protected." I don't think I could ever vote for someone in the primaries who views the Constitution like that. No way. I can put up with his personal views, and maybe even his public policy views, but not his constitutional views. His legal reasoning about the Constitution is all messed up.
UPDATE: Some sincere commenters assert that I've distorted what Giuliani said. So, check out the comments.
Posted in GOP Presidential Candidates — Comments (27) / Email this page » / Read More »
Posted at 11:31am on May 14, 2007 The Slow Political Establishment
By AndrewHyman
Here's an article about the Selya seat on the 1st Circuit:
Selya, 72, of Providence, said that 14 months ago, when he announced that he’d be assuming senior status on Dec. 31, he “hoped it would give the political establishment time to fill the seat.”
With no successor in sight, Selya has maintained a full caseload. “I enjoy it,” he said. “I’m not complaining, but talk to my wife and you might get a different story.”
Kudos to Judge Bruce Selya.
Posted in News — Comments (5) / Email this page » / Read More »
Posted at 4:40pm on May 13, 2007 Rudy Needs to Go Back to Law School
By AndrewHyman
On May 8, GOP presidential candidate Rudy Giuliani did an interview with Laura Ingraham. Here's a snippet:
Laura Ingraham: "Mayor, with all due respect, you can’t believe that the framers intended to write an implicit right to abort in our Constitution, you can’t believe that."
Rudy Giuliani: "Nor do I think the framers wrote an exclusionary rule into our Constitution, nor did the framers write into the Constitution that you should get Miranda warnings."
I hope this is not the kind of flawed reasoning that Mayor Giuliani plans to seek out in his Supreme Court nominees. Both the exclusionary rule and Miranda warnings are widely understood to be “prophylactic rules,” meaning that they overprotect a specific enumerated constitutional right. Miranda warnings are designed to protect the Fifth Amendment right against self-incrimination. The exclusionary rule is designed to protect the Fourth Amendment right of freedom from unreasonable searches and seizures. No one in his right mind has ever contended that ''Roe v. Wade'' is a prophylactic rule protecting some specific enumerated right.
Hat Tip: Agrippa.
Posted in GOP Presidential Candidates — Comments (36) / Email this page » / Read More »
Posted at 1:36am on May 13, 2007 "Justices can't distinguish Constitution from Catholic catechism"
By Curt Levey
Geoffrey Stone move over. Your anti-Catholic rant about the Supreme Court’s recent partial-birth abortion decision can’t compare to that of Frances Kissling, the recently retired president of Catholics for a Free Choice. The lengthy subtitle of her May 11 op-ed on Salon.com says it all: “By upholding the ban on ‘partial-birth’ abortion, the Supreme Court has injected rigid Catholic teaching into law. That's a crime against the Constitution and women.”
The rest of the op-ed is enough to make a less strident bigot blush. For example . . .
[I]t seems unreasonable to maintain the facade of a court free of a religious test. For some time now, such a test has existed—and it is an orthodox Catholic test. We were ill-served by senators who, fearing that talking about what orthodox Catholicism requires of its adherents would subject them to charges of anti-Catholicism, confirmed justices who cannot distinguish the Constitution from the catechism of the Catholic church.
Kennedy's opinion . . . could easily have been written by the late Pope John Paul II or the current Benedict XVI. Women are invisible in this decision as they are invisible in the writings of recent—and not so recent—popes. Now it's impossible for me to remain silent.
Posted in SCOTUS — Comments (4) / Email this page » / Read More »
Posted at 8:29pm on May 11, 2007 Thompson in National Review, Giuliani in Houston
By AndrewHyman
Fred Thompson had a column yesterday at National Review, discussing and praising the D.C. Circuit's recent Parker decision on the Second Amendment: "it is so important to appoint judges who understand that their job is to interpret the law, as enacted by will of the people, rather than make it up as they go along."
Meanwhile, Rudy Giuliani gave a speech today in Houston covering a lot of subjects. You can watch the full video, or you can watch only the parts about abortion, or you can just believe what I say here. :-) Giuliani was strong on national security, warning against "retreating and running away" in Iraq. He urged low taxes. He also praised Judge Silberman's decision in the Parker case. However, he pointedly had no praise for the efforts of Supreme Court justices over the past 34 years to reverse Roe v. Wade. Guiliani said, "I would not be open to removing the right" (it's unclear if he was referring to a constitutional right or a statutory right). Giuliani said he has "profound respect" for the differing views of other citizens, but he did not support enfranchisement of those other citizens on the abortion issue.
Hat Tip: Alexham and Howard Bashman.
Posted in GOP Presidential Candidates — Comments (22) / Email this page » / Read More »
Posted at 6:36pm on May 10, 2007 The Southwick and Neff Nominations
By AndrewHyman
Here's a report about the grilling of Fifth Circuit nominee Leslie Southwick in the Judiciary Committee today.
Also, it appears that Sen. Brownback will not be blocking the Neff nomination.
And, Roll Call reports that Senator McConnell has been urging more action on judicial nominations.
UPDATE: One of our commenters (i.e. "Outsider") watched the Southwick hearing, and disputes the accuracy of the media report to which I've linked.
Posted in News — Comments (52) / Email this page » / Read More »
Posted at 10:59am on May 10, 2007 Cornyn Not Buying Dem Excuses
By Curt Levey
Yesterday, on the Senate floor, Sen. Cornyn spoke out against the slow pace of circuit court confirmations:
There is no satisfactory reason I have heard as to why no circuit court nominees were confirmed in April, or even reported out of committee. The reasons that have been offered—the vacancy rate is not that bad, the President needs to nominate more circuit court judges, and President Clinton was treated worse—are all irrelevant to the majority leader's representations on the Senate floor that this Senate will ‘at least’ hit the historical average.
Cornyn’s full remarks are below the fold.
Posted in Circuit Courts — Comments (22) / Email this page » / Read More »
Posted at 11:34am on May 9, 2007 Livingston to be Confirmed Today
By Curt Levey
The Senate has scheduled three hours of debate this afternoon on the confirmation of Debra Livingston to the Second Circuit. It will be followed by a vote at about 3:30 pm, with the result not in doubt.
Because Senate Democrats failed to deliver an April circuit court confirmation, they owe the American people one more in May. A second confirmation this month would involve either 5th Circuit nominee Leslie Southwick, who is scheduled for a hearing this Thursday, or DC Circuit nominee Peter Keisler, who has already been grilled by the Judiciary Committee.
UPDATE (May 9): Debra Livingston was confirmed 91-0 this afternoon.
Posted in Circuit Courts — Comments (78) / Email this page » / Read More »
Posted at 7:03pm on May 8, 2007 Get Ready for a Senator from Washington D.C.
By AndrewHyman
There will be a hearing on May 15 in the Senate to consider legislation that would give Washington D.C. a vote in the House of Representatives. This unconstitutional legislation has already passed in the House. If it becomes law, it won't be long before D.C. also gets one or two Senators as well. Wikipedia has background info here. I wrote a letter to the Senate committee for their 15 May hearing, and it's below the fold.
Posted in Analysis and Predictions — Comments (27) / Email this page » / Read More »
Posted at 4:54pm on May 8, 2007 Illinois Confirmation
By Curt Levey
Illinois Appellate Judge Frederick Kapala was confirmed 91-0 today to be a federal judge in the state’s Northern District.
Posted in District Courts — Comments (5) / Email this page » / Read More »
Posted at 9:30am on May 8, 2007 The latest Fourth Circuit buzz
By Alexham
Posted in Circuit Courts — Comments (52) / Email this page » / Read More »
Posted at 12:44pm on May 7, 2007 Open Thread
By AndrewHyman
Any thoughts?
Posted in Open Threads — Comments (30) / Email this page » / Read More »
Posted at 7:10pm on May 6, 2007 A Few More Sunday Notes
By AndrewHyman
Happy fifth birthday to the blog "How Appealing." It's a great resource if you're trying to keep track of legal stuff on the internet. However, I found the following two items all by myself.
First, Norma McCorvey has an op/ed today in the New York Daily News, discussing partial birth abortion ("Banning the procedure - an act of infanticide where a scissors is jammed into the base of the infant's skull, a tube inserted and its brain sucked out - is a sign the court has finally come to its senses").
Second, I don't think we previously linked to some SCOTUS-retirement-tea-leaf-reading from Steve Trask. UPDATE: And Tony Mauro says, Stevens Ain't Leavin' (hat tip: How Appealing, of course).
Posted in Analysis and Predictions — Comments (33) / Email this page » / Read More »
Posted at 2:34pm on May 6, 2007 GOP Presidential Prediction
By AndrewHyman
Just for the record, my guess is: it will either be Thompson-Lieberman or it will instead be Romney-Thompson. Fred Thompson is an ex-sherpa, so he's a confirmthem favorite.
Here are some words of wisdom from Tom Korologos, ex-sherpa for Antonin Scalia (and the most recent person confirmed to be U.S. Ambassador to Belgium): "Washington is like Salem; if we ain't hanging somebody, we ain't happy." Which goes double for the Senate Judiciary Committee.
Posted in GOP Presidential Candidates — Comments (25) / Email this page » / Read More »
Posted at 9:29pm on May 4, 2007 Memo to Chris Matthews: Courts Do Not "Repeal" Stuff
By AndrewHyman
I didn't get a chance to watch the GOP debate yesterday, but read about it. Chris Matthews asked the candidates if it would be okay to "repeal" Roe v. Wade. Lots of people have been using this term ("repeal") lately, in connection with court cases. Sometimes people even refer to Roe v. Wade as having been "passed" by the Supreme Court in 1973. Maybe purists like me shouldn't be ticked off by this language, but talking about the Supreme Court as if it were a legislature is just plain dumb. And, being a lawyer, I'll cite some authority to prove the point:
There is no pretense that the courts ever were infallible; it is sometimes held that a previous decision does not declare the law....And in such case, if anything has been said in an earlier decision - which cannot be resolved into mere dictum, or as applicable to the particular facts - that apparently conflicts with the [later decision], it is considered to be an erroneous exposition of the law. Courts do not repeal former decisions; when they reverse them they hold they never were law.
Lux v. Haggin, 69 Cal. 255, 385 (1886).
Posted in Analysis and Predictions — Comments (6) / Email this page » / Read More »
Posted at 11:44am on May 4, 2007 Rudy's Bad Answer
By Quin
In a longer post about last night's debate I made at The American Spectator blog (here), I made the following observation of interest to Confirm Them readers:
Rudy Giuliani had the worst answer of the night. It was part of his answer on abortion. Conservative blogs are blasting him for his overall answer, but I haven't seen anybody blast him for the most egregious specific aspect of his answer, which has less to do with his exact position on abortion than it does on his position on the overall role of the judiciary. Here's the transcript:
MR. MATTHEWS: [On Roe v Wade] Okay to repeal? MR. GIULIANI: It would be okay to repeal. Or it would be okay also if a strict constructionist judge viewed it as precedent, and I think a judge has to make that decision.
MR. MATTHEWS: Would it be okay if they didn’t repeal it?
MR. GIULIANI: I think that -- I think the court has to make that decision, and then the country can deal with it. We’re a federalist system of government, and states could make their own decisions.
Posted in Analysis and Predictions — Comments (31) / Email this page » / Read More »
Posted at 11:09am on May 4, 2007 Hit McCain
By Quin
It occurs to me (cross posted at The American Spectator blog, here) that the other candidates are missing a real opportunity by not challenging John McCain's repeated attempts to claim the mantle of being the hero of the conservative judicial wars. He keeps claiming pride in having helped secure confirmation of Roberts and Alito. Another candidate should say his claim is nonsense, and challenge the whole Gang of Fourteen deal. I know a few people here disagree, but the vast majority of conservatives to whom I talk think the Gang of Fourteen was a disaster. It is a simple fact that if the Constitutional Option had been implemented, Roberts and Alito would have been confirmed anyway...and so would a whole host of other judges. Regardless of one's view of the tactical situation, it would be an easy thing for a GOP presidential opponent to ask McCain why, if the Gang of 14 was such a good deal, the numbers of confirmed appellate judges in 2005 and 2006 -- in a GOP Senate for a GOP president -- were so substantially below the numbers of nominees the GOP Senate confirmed in the 5th and 6th years of Bill Clinton's Democratic presidency.
Posted in Analysis and Predictions — Comments (8) / Email this page » / Read More »
Posted at 7:16am on May 4, 2007 Livingston reported out, Southwick on deck
By Curt Levey
In somewhat of a surprise, Second Circuit nominee Debra Livingston was approved by the Judiciary Committee on Thursday. Most observers assumed she would be held over. She will likely be confirmed quickly.
Meanwhile, Chairman Leahy has scheduled a hearing on "judicial nominations" for May 10. No names have been officially announced, but expect to see 5th Circuit nominee Leslie Southwick of Mississippi among those grilled. After all, at last week’s markup, Leahy said “We have a circuit judge up for a hearing in the next couple of weeks from Mississippi.” That would give us a shot at two circuit court confirmations in May. Two in May would demonstrate good faith on the part of Democrats after they failed to deliver an April circuit confirmation.
Posted in Circuit Courts — Comments (6) / Email this page » / Read More »
Posted at 5:29pm on May 3, 2007 Fat Suit is Empty
By Quin
This is great news: A judge in DC threw out a ridiculous suit against KFC for its use of trans-fat, see here. I wrote about this case 293 days ago for the Washington Examiner, here. It's good to see the courts slap down outlandish suits every once in a while.
Posted in Analysis and Predictions — Comments (12) / Email this page » / Read More »
Posted at 5:04pm on May 3, 2007 Gonzo's Department of Bonzos and Bozos
By Quin
My former newspaper, the Press-Register of Mobile, AL, has an excellent editorial today (here) highlighting yet another example of how the Justice Department under Alberto "I-Don't-Know" Gonzales has been turned into a confederacy of dunces. Here, DoJ is helping overturn a state law that lets a governor make the appointment to a vacant county commission seat. By what logic does DoJ overrule this rather standard procedure? Because the county commission district is majority black, and the governor is elected from a state that is majority white. Somehow, that supposedly means there is unfair racial bias at work, even if the governor appoints a black person to fill the seat. This is identity politics taken to such a crazy extreme that it sounds like something out of the Jesse Jackson/Ted Kennedy playbook, not something from a Republican-run Justice Department. The sooner Bush cle
Posted in Analysis and Predictions — Comments (4) / Email this page » / Read More »
Posted at 10:33pm on May 2, 2007 Supreme Court Web Site Endorses the "Living Constitution"
By AndrewHyman
The SCOTUS web site declares (without dissent) the following:
This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
This is an unwise move. These words may (or may not) have been approved at one time by a unanimous Court, but nowadays (at least) the term "Living Constitution" is considered a theory of constitutional interpretation that is at odds with originalism. It's time for the Court to rewrite that essay at their web site, IMHO.
While they're at it, they might clarify that upholding equal justice under law is not the Court's "ultimate responsibility"; their ultimate responsibility is to uphold the Constitution and laws, regardless of whether they think they're just. The Court does not have carte blanche to completely substitute their view of justice for the American people's view of justice, as expressed through our elected representatives.
Posted in Analysis and Predictions — Comments (19) / Email this page » / Read More »
Posted at 10:23pm on May 2, 2007 More Names Floated for Fourth Circuit
By AndrewHyman
Previously, we listed a big bunch of names that had been floated by various people to fill vacancies on the Fourth Circuit. According to recent news reports, here are two more: Alan J. Meese and Robert Conrad.
UPDATE: More names are listed in this April 21 article.
Hat Tip: Bobo.
Posted in Analysis and Predictions — Comments (24) / Email this page » / Read More »
Posted at 11:51pm on May 1, 2007 Zero in April, Two in May
By Curt Levey
The Committee for Justice issued a press release Tuesday in which I noted that “April has come and gone without the confirmation of any appeals court judges.” This despite the fact that “Sens. Leahy and Reid are well aware that at least one appeals court nominee must be confirmed each month if they are to deliver on their commitment to Republicans to confirm 17 appeals court judges in 2007-08.” CFJ is calling on Senate Republicans to “turn up the pressure” and on Senate Democrats to “demonstrate good faith on their commitment by allowing two appeals court judges to be confirmed in May.”
Below the fold is the full press release.
Posted in Circuit Courts — Comments (33) / Email this page » / Read More »
Posted at 11:20pm on May 1, 2007 Open Thread
By AndrewHyman
It's already May!
Posted in Open Threads — Comments (8) / Email this page » / Read More »
Posted at 9:56am on May 1, 2007 Thomas once again shows his disdain for stare decisis
By Alexham
From Justice Thomas's concurrence yesterday in United Haulers:
The Court does not contest this point, and simply begins its analysis by appealing to stare decisis.
Translation: Stare decisis is fo' suckas!