Posts on Committee for Justice

Kristian Kanya, writing on the Committee for Justice blog, weighs in on the inevitably confusing issue of judicial confirmation numbers, which I am generally reluctant to tackle because they are notoriously hard to calculate accurately.  After all, how does one account for things like withdrawn nominees or, worse yet, nominees who were not confirmed in one Congress and then renominated, often more than once, in subsequent Congresses? Are they counted as just one nominee or are they counted as multiple nominations?  What about someone like William H. Steele, who was nominated by President Bush to the Eleventh Circuit in 2001, not confirmed, and then renominated by Bush to a District Court seat in 2003 and then confirmed?  And what about nominees to the International Court of Trade, are they counted? 

You see, it’s complicated. 

But what is not particularly complicated, provided that we can all agree on basic numbers, is drawing comparisons across presidencies, which is what CFJ tries to do by citing this section from a Washington Post article:

“Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush's nominees in the past two years than were approved under the previous six years of GOP control.

The White House says 324 of 376 federal court nominees have been confirmed during Bush's tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton's presidency.”

CFJ then compares the varying confirmation figures during recent Congresses and declares that the Democrats' claim is “simply misleading.”   Of course, I could just point out that, in the four years they have controlled the Senate under President Bush, Democrats have confirmed more of his judicial nominees than the Republicans did during their four years of control – 168 confirmed by the Democrats compared to 156 confirmed by the Republicans.  But that is exactly the problem with this game; it all depends on what dates and calculations you choose to use.

But there is one thing on which everyone ought to be able to agree – it is not so much the total number of nominees confirmed as it is the overall percentage of confirmed.  If a president, for some reason, only put forth 100 nominees and yet saw every one of them confirmed, nobody could complain that he only had 100 judges confirmed compared to some other president who had, say, 150 confirmed out of a pool of 300.  Which brings me to this point from CFJ:  

Some aggregate figures deserve attention also. During Reagan a total of 383 federal judges were confirmed. Under Clinton, that dropped slightly to 377. However, during the Bush administration, only 326 federal judges have been put on the bench. Judicial openings or not, the numbers do not lie.

Indeed, numbers do not lie. So, for the sake of simplicity, let’s just use the figures found on Table 4(b) of this Congressional Research Service report “Judicial Nomination Statistics: U.S. District and Circuit Courts, 1977-2003” [PDF].  

According to CRS, President Reagan put forth a total of 423 District and Circuit Court nominees and saw 375 of them confirmed, a confirmation rate of 88%. President Clinton, by contrast, put forth more nominees and had fewer confirmed:  372 of 488, for a confirmation rate of 76%.  

In comparison, according to the White House’s own figures cited in the Washington Post article above, “324 of 376 federal court nominees have been confirmed during Bush's tenure.”  That gives him a confirmation rate of 86%, well above President Clinton’s confirmation rate.  In fact, for Bush to lower his confirmation rate to match that of Clinton, he'd have to nominate another 50 or so judges before he leaves office in a few months, which is essentially impossible given that there are only 34 vacancies. 

The topic of judicial confirmation rates is complex enough as it is without organizations like CFJ throwing around figures totally devoid of context and confusing people even further. 

In short, despite all of the Right's complaining, President Bush has had a pretty good record of getting his judges confirmed.  Of course, you'd never know that by listening to them. 

The Right certainly has not been shy about voicing its opposition to the prospect of John McCain naming Joe Lieberman as his running mate.  But now some are taking a more conciliatory approach, announcing that Lieberman will be an acceptable VP pick ... provided that he agrees to be nothing but a figurehead and helps the Right get some judges confirmed:

Some conservative activists, who abhor the idea of a Lieberman choice, are being pro-active. One is Curt Levey, who advocates for conservative judicial nominations. In an preemptive email sent Thursday, Levey said that if Lieberman is the choice, his group, the Committee for Justice, asks he make several pledges:

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),

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.

It is no secret that, when it comes to the issue of judicial nominees, the Right just likes to fight.  And one of the way the GOP and the Right try to gin up their base in an election year is to make judges an issue, and make unfounded accusations of bigotry against any opponents. They’re at it once again: 

Senate Minority Leader Mitch McConnell (R-Ky.) said Thursday he has not ruled out the option of shutting down the chamber to put fresh pressure on Democrats to confirm President Bush’s stalled judicial nominees.

…

His statement came after Republicans brought a Judiciary Committee meeting to a near-standstill to vent their frustrations with what they said was Democratic foot-dragging to confirm 10 pending nominees to federal appeals courts. They complained that there have been no committee hearings on nominees since last September, and say that at least nine more nominees need to be confirmed by the end of Bush’s term in order to match the 15 judges the Republican-controlled Senate approved in the final two years of the Clinton administration.

Sen. Arlen Specter (Pa.), the ranking Republican on the Judiciary Committee, told reporters last month that one of the options to force Democratic action is “shutting down the Senate.” He reiterated that threat this week in an interview with the Wall Street Journal editorial board.

In an interview with The Hill on Thursday, Specter said it was “a possibility” that the GOP would object to motions that allow routine business to proceed on the floor, a move that would stifle Senate action and effectively bring the chamber to a halt.

And once again, the Right is deploying its complementary tactic of ignoring the concerns raised about a controversial nominees’ record or judicial philosophy in favor of simply accusing Democrats of opposing the nominee out of bigotry.  As we’ve noted before:

The Right sees some nefarious ulterior motive at work – and that is how they manage to convince themselves that opposition to [Leslie] Southwick stems not from concerns about his record but from some sort of deep-seeded hatred of Southern white males … the same way they said opposition to Miguel Estrada was really due to anti-Latino prejudice … and opposition to Priscilla Owen was the result of flagrant anti-woman bias … and opposition to William Pryor was actually due to anti-Catholic bigotry … and opposition to Janice Rogers Brown was in actuality rooted in racism. 

And guess what? Here they go again ... this time with a bit of a twist, as Fidelis circularly accuses Sen. Pat Leahy , who is himself Catholic, of accusing Robert Conrad, who is likewise Catholic, of making anti-Catholic statements:

In the latest attack on 4th Circuit nominee Judge Robert Conrad, Sen. Patrick Leahy (D-VT), accused Conrad of making anti-Catholic comments in a letter submitted to a Catholic periodical over nine years ago. Leahy’s accusation comes as Democrats on the Senate Judiciary Committee have come under increased pressure to act on President Bush’s judicial nominations … Anti-Catholic bigotry in America is real, and we welcome efforts to confront it where it truly exists. But in the case of Judge Conrad, there is nothing that even remotely resembles anti-Catholicism.

While that complaint is a bit confusing and probably unlikely to generate any sort of outrage, Curt Levey of the Committee for Justice decided to take a different track and simply accuse Senate Democrats of being anti-Semitic for opposing the nomination of Peter Keisler: 

Is the fact that Keisler is Jewish similarly contributing to his obstruction by Democrats? There is no way to know. But it’s worth noting that, of the nine appeals court nominees currently being obstructed, three are Jewish.

Of course, it is “worth noting” that three of the nominees are Jewish only if you are attempting to insinuate that opposition to their nominations is rooted in anti-Semitism - despite admitting that you have “no way to know” and absolutely no evidence that that is actually the case.

It has been nearly three years since fourteen senators - seven Democrats and seven Republicans – hammered out a deal that preserved the use of the filibuster on judicial nominees and, judging by an article in the New York Times, the Right still hasn’t gotten over it:

Back in 2005, Senator John McCain of Arizona and fellow members of the so-called Gang of 14 were hailed as heroes in some quarters when they fashioned an unusual pact that averted a Senate vote on banning filibusters against judicial nominees.

Now Mr. McCain’s central role in that effort, which cleared the way for confirmation of some conservative jurists, is cited as one reason for lingering distrust of him among many conservatives. The power to appoint federal judges is seen as one of the most crucial presidential roles by many on the right, and some continue to believe the agreement undermined the Republican leadership at the precise moment the party was about to eliminate the ability to use procedural tactics to block judges.

James C. Dobson, an influential conservative leader, noted Mr. McCain’s role in the bipartisan Gang of 14 in his announcement that he could not support the lawmaker as the Republican nominee under any circumstances. Other conservatives still resent it as well.

“When people hear he was part of the Gang of 14, it leaves a bad taste in their mouths,” said Phil Burress, president of the Citizens for Community Values, based in Ohio.

Considering that, thanks to the deal, President Bush managed to seat right-wing ideologues such as William Pryor, Janice Rogers Brown, and Priscilla Owen on the federal bench – not to mention John Roberts and Samuel Alito on the Supreme Court – a lot of people have been wondering just what the Right is so upset about and why they insist on holding McCain’s participation against him.  

In short, they were outraged, and seemingly continue to be outraged, that Senate Republicans failed to take advantage of an opportunity to jettison tradition in order to squash Democrats beneath their feet. 

The “nuclear option” -- as the proposed attempt to do away with the filibuster was known despite Republican attempts to rechristen it the “constitutional option” -- was first floated back in 2003 in response to filibusters against Miguel Estrada and Priscilla Owen.    Immediately, the Right rallied behind the idea, with groups like Committee for Justice, Family Research Council, Focus on the Family, the Center for Reclaiming America, Concerned Women for America, and the American Center for Law and Justice all serving as vocal advocates. 

When, two years later, their attempts to destroy the filibuster and squash the Democrats were seemingly thwarted by the "Gang of 14," the Right was apoplectic, as we chronicled in the days that followed the announcement:

As we have noted several times in the past, nothing can rally the Right quite like a battle over judicial nominations - and just because there aren't any high profile battles taking place right now doesn't mean the Right isn't still complaining about the issue:

In an interview with Cybercast News Service, Curt Levey, general counsel of the Committee for Justice, pointed out there is always a temptation for those who are in the opposite party from the president "to not fill vacancies in the hopes that the next president will be from their party."

"That temptation becomes very great when you're only a few months away from an election," Levey added.

However, Levey and others question whether the Thurmond Rule has ever actually existed.

There is no explicit deadline for the rule to take effect within the election year, and the term "consensus nominee" also has no definitive meaning.

Levey might not believe the Thurmond Rule exists, but it does and this article from 1980 explains where it origniated:

REPUBLICANS FIGHT CARTER NOMINEES
14 September 1980
The New York Times

Senate Republicans have begun an organized campaign to use various parliamentary strategems, from committee boycotts to filibusters, to ''slow down or completely stop'' Presidential appointments that could outlast the Carter Administration.

The action was taken last month by the 41-member Senate Republican Caucus, which appointed a three-member committee to sift 155 pending Presidential nominations and weed out those whose terms would overlap that of a new President.

The primary targets include 13 judicial nominees as well as nominees to vacancies on the Nuclear Regulatory Commission, the National Labor Relations Board, the Securities and Exchange Commission, the Equal Employment Opportunities Commission and the Legal Services Corporation, among other agencies. Not affected are nominations to advisory boards and those who serve at the pleasure of the President without any fixed term.

Republicans contend that they are merely upholding a Senate tradition in preventing President Carter from making election-year appointments to positions that a Republican President could be able to fill.

If Republicans are concerned about getting President Bush's judicial nominees confirmed before he leaves office, one way to overcome the Thurmond Rule would be to consult with senators and nominate consensus nominees - of course, that is exactly the opposite of what they are doing:

Colorado Sen. Ken Salazar, one of 14 senators who broke a logjam of judicial appointments in the 2005 ''Gang of 14'' compromise, said Thursday the White House has failed to consult with him on appointments to the federal district court in Denver.

''I have not been consulted with by the White House in any way, shape or form on these judicial nominations,'' said Salazar, a Democrat. ''In my view, it's a violation of our understanding with the president and the requirement of the Constitution.''

...

With pressure mounting to supply the president with names of potential judges, [Republican Senator Wayne] Allard said Thursday that he and Salazar could not agree on candidates after beginning discussion in September.

Allard said he had proposed a list of four candidates that included a Democrat, an undecided and two Republicans one of which was endorsed by Democratic Gov. Bill Ritter, a former Denver district attorney.

But Allard said Salazar, a Democrat, was unhappy with the list. Allard said he submitted the names anyway.

...

Allard said the president has already vetted the names he submitted and is ready to release them.

While most coverage of the 2008 presidential race is focused on political sparring between candidates within each party, there are already some hints of what shape the general election will take. The Committee for Justice, a group formed to support Bush’s right-wing judicial nominees, takes as a given that Sen. Hillary Clinton will win the Democratic nomination, and warns that the Supreme Court may be the “most important reason” to oppose her:

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.

Meanwhile, the Republican National Committee is already raising money around the courts:

President Bush has appointed jurists who faithfully and impartially interpret the law and do not legislate from the bench.  If a liberal Democrat like Hillary Clinton or Barack Obama is elected President, our entire judicial system could swing dangerously to the left, causing a flood of bad decisions by liberal activist judges.

Took "small turn to the right," but not "at where conservatives would like the court to be." More here.

The Committee for Justice, Family Research Council, Focus on the Family and others come together to write [PDF] to the Senate, telling them to start confirming Bush's judges and ensure "that each and every judicial nominee is given a hearing and is reported out of committee for consideration by the full Senate in a timely manner." Of course, this standard was nowhere to be seen during the Clinton administration.

Sen. Specter denies reports he complained to right-wing groups that Democrats had broken a pledge to move judges. FRC says they are "confused by Sen. Specter’s remarks" while the Committee for Justice says he is "trying finesse and soften" his complaints.

Ever since the election of President Bush, Republicans and their allies on the Right have frequently dealt with opposition to his controversial judicial nominations by ignoring the arguments raised by those with legitimate concerns about a nominee’s record in favor of knocking down strawmen of their own creation.  

For instance, when People For the American Way and others voiced opposition to the confirmation of Miguel Estrada, right-wing groups like The Committee for Justice responded by claiming that such opposition was rooted in the fact that Estrada was Latino and claiming that it was an affront to Hispanic-Americans, ignoring the fact that the opposition was actually due to Estrada’s own refusal to reveal anything about his own jurisprudential views and the administration’s refusal to make his full legal record available to the Senate to review.  

Then, when progressive groups opposed the nominations of Priscilla Owen and Janice Rogers Brown, the Right claimed that criticism of the nominees was both sexist and, in the case of Rogers Brown, racist – again, preferring to disregard the substantive concerns about their respective legal records.  

The Right did the exact same thing when it came to the nomination of William Pryor, ignoring serious concerns about his record that displayed a blatant hostility to reproductive choice [among other things, he called Roe vs. Wade the “worst abomination of constitutional law in our history”] and accusing those who opposed his nomination of being anti-Catholic – a tactic they trotted out again when John Roberts was nominated to the Supreme Court.   

In situations where the Right couldn’t accuse a nominee’s opponents of being specifically anti-Latino, anti-Catholic, anti-woman, or straight out racist, they attempted to conflate criticism of a nominee’s legal record with false accusations that the nominee was being accused of being racist – a tactic they deployed during the fight over the nomination of Charles Pickering.  As we explained [PDF] back in 2002:

Some Pickering supporters are arguing in effect that it is impossible to criticize Judge Pickering’s public record on the principles that govern civil rights law without accusing him of being a racist.

Thus, it should come as no surprise that with a battle brewing over the nomination of Leslie Southwick to a seat on the US Court of Appeals for the Fifth Circuit – not incidentally, the very same seat for which Charles Pickering and Michael Wallace were nominated, both of whom faced significant opposition due to their disturbing records on civil rights - the Right has reverted to form and begun using both of these tactics: claiming either that opponents of Southwick’s confirmation are racist or are accusing him of being a racist.   

Focus on the Family faults GOP commitment to the issue. Committee for Justice promises Bush’s extreme picks will continue.

Formerly of Committee for Justice and Citizens for Sound Economy, to EU ambassador.

The Committee for Justice was practically giddy at the announcement that the White House intended to tap Fred Fielding to replace failed Supreme Court hopeful Harriet Miers as White House Counsel.  

The administration’s decision to bring in Fielding, the CFJ claimed, signals to Senate Democrats that “there’s no point in obstructing constitutionalist nominees in hopes of getting ones that are less objectionable to the Left,” which is exactly what the Right wants to hear because they love nothing more than fighting over the issue.

Unfortunately for CFJ, just hours after they issued their press release came news that three of the Bush administration’s most recent and controversial nominees are asking that their nominations be withdrawn:

In a concession to the Senate's new Democratic majority, four of President Bush's appeals court appointees have asked to have their nominations withdrawn, Republican officials said Tuesday.

These officials said that William Haynes, William Myers and Terrence Boyle had all decided to abandon their quest for confirmation. Another nominee, Michael Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination.

According to press reports, despite these withdrawals President Bush “also intends to appoint 33 other judicial nominees" - and that is just what he has done. Of course, he can “intend to appoint” anyone he wants … but they aren’t going to get appointed until the Senate confirms them. 

Given the president’s record of needlessly provoking battles over this issue, perhaps the CFJ can take some solace in the hope that that he will continue his tradition of provoking confrontation, thus giving them the fight they so clearly desire.   

There is nothing the Right loves more than to complain about the issue of judicial nominations.  Back when President Clinton was making nominations, they complained that the Senate was confirming too many and ever since President Bush took office, they’ve been complaining that the Senate isn’t confirming enough.   

On Wednesday, Sen. Patrick Leahy delivered a speech setting out his agenda as incoming chair of the Senate Judiciary Committee in which he touched on the issue of judicial nominations:

For too long, this White House has used judicial nominations for partisan political purposes and refused to work with us on consensus nominees. The American people want the Senate to be more than a rubber stamp. They want the Senate to do its job by carefully evaluating nominees for lifetime judgeships -- judgeships that will continue long after this President leaves office and will affect the rights of today’s Americans and those of their children and grandchildren.

The process starts with the President. In the choices he makes, he can unite the Senate and the American people, or he can divide us. If he works with us to send consensus nominees instead of picking political fights, we can make good progress filling vacancies in these important lifetime appointments. One tangible step we should consider is wider use of bipartisan judicial nominating commissions in screening judicial candidates.

Not surprisingly, the Right jumped on the opportunity to complain about the issue once again, with Fidelis, Concerned Women for America, the Family Research Council, and the Committee for Justice all weighing in to blast Sen. Leahy and the Democrats for their supposed “damaging” of the confirmation process.  

The Judicial Confirmation Network also issued a statement, warning:

Voters in key battleground states in 2008 will be watching these liberal Democrats, to see if they really are fair and how they treat President Bush's nominees to the bench who respect democracy and leave political questions to the American people to decide.

It is funny that the JCN would warn that “voters will be watching” because, back in October, it and several of the other groups mentioned above were desperately trying to get voters to pay attention to this issue by unveiling a “Fair Judiciary Oath” that was circulated to candidates running for the Senate.  By signing, candidates pledged to “work to see that everyone duly nominated to serve on the federal judiciary gets a fair confirmation process.” 

The JCN and the others obviously thought that this oath would provide a way to highlight Democratic “obstruction” during the mid-term elections and mobilize right-wing voters in order to help the GOP retain control of the Senate.  

But it didn’t turn out that way, because only four candidates agreed to sign the oath:  George Allen (VA), Rich Santorum (PA), Jim Talent (MO), and Michael Bouchard (MI). 

And each one lost their race.

Of Committee for Justice, for an unspecified position.