Posts on Judiciary

It seems like it was just a few days ago that I was pointing out that the Federalist Society's claims that it was just some non-political debating society was entirely bogus. 

Now comes an article in the Washington Post saying that, after eight years of driving the Bush Administration's "efforts to change the federal judiciary," the Federalist Society must now be prepared to find itself out in the wilderness, which Federalist Society head Leonard Leo laughed off, saying that nothing would really change because the organization was really just a debating society all along:

Federalist Society executive vice president Leonard A. Leo laughed when asked about the wilderness remark, saying, "I know the media likes to talk about us in terms of power and influence." But he said the group's primary goal has always been discussion of legal interpretation and limited constitutional government, and that that "remains as important as it was on November 3rd."

Leo can laugh all he wants, but his days of working hand-in-glove with the Bush Administration to get its nominees confirmed are over and while he can try and pretend that they never really had that much influence, anyone who has paid any attention to the judicial confirmation battles over the last several years knows the truth about just how deeply he and his organization were involved and fully expects them to be just as involved, albeit in trying to prevent confirmations, during the Obama administration.

Several years ago, we wrote a report debunking the Federalist Society’s protestations that it is little more than a “debating society” and didn’t try to shape legislation, support or oppose nominees, or take political positions. As we noted at the time, and which has become increasingly clear in the interceding years, Federalist Society members have all but overrun various government agencies during George Bush’s tenure in office and the administration has worked hand-in-glove with its members both inside and outside of government to press their common agenda.  

But still the Federalist Society insists that it is just a quaint little group of like-minded people who are only interested in debating ideas:

Q. Does the Federalist Society take positions on legal or policy issues or engage in other forms of political advocacy?

A. No. The Society is about ideas. We do not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. While overall the Society believes in limited government, its members are diverse and often hold conflicting views on a broad range of issues such as tort reform, privacy rights, and criminal justice.

That claim makes this article from the AP all the more interesting because, as the AP reports, back in 2007 right-wing judicial activists were not happy with Missouri Gov. Matt Blunt’s pick for the state Supreme Court and were trying to derail it.  That that end, Blunt’s own chief of staff sought to enlist the help of the Federalist Society’s Leonard Leo, who was more than happy to oblige:   

In a July 2007 e-mail, Martin asked Leonard Leo, executive vice president of the conservative legal group Federalist Society, to send an "unsolicited" e-mail saying: "go get ’em governor - and we’ve got your back."

A day later, Leo sent Martin an e-mail addressed to Blunt. It pledged help and urged the rejection of the Missouri Supreme Court nominees if they are "anything less than outstanding." Leo, in later e-mails, said Breckenridge should be framed as "out of the mainstream."

…

Tipped off early that Breckenridge was picked, Leo told Martin that Blunt’s decision "leaves a big problem for many future generations of Missourians."

"Your boss is a coward, and conservatives have neither time nor patience for the likes of him," Leo wrote.

Apparently, just because the Federalist Society is “nonpartisan” and doesn’t weigh in on “nominees and candidates for public service” doesn’t mean that Leo can’t use his position as executive vice president of the organization to do just that – something, it should be noted, he also did as part of the “Four Horsemen” on behalf of the Bush administration’s judicial nominees.

After the election, we issued a press release noting that Barack Obama had been handed a clear mandate to fill the federal bench with nominees who share his committment to justice and equality:

Looking at yesterday’s results, it’s incontrovertible that the election delivered a sweeping mandate for President-elect Obama to appoint federal judges who are committed to core constitutional values: justice, equality, and opportunity for all. In the election the public rejected the efforts of the right wing to stack the federal courts with ideological jurists like Justices Scalia and Alito often called “strict constructionists.” Rather the public selected now President-elect Obama after his repeated commitment to support compassionate judges who are faithful to the Constitution, its values, its principles and its history ... Exit polling made clear that the Supreme Court was also a winning issue for Obama among voters themselves. Voters who said the Supreme Court was a factor in their votes broke for Obama 53 to 45. Voters who said that the Supreme Court was the most important factor provided Obama an even more lopsided victory — 57 to 41.

Not surprisingly, the Judicial Confirmation Network has a slightly different interpretation based entirely on a handful of cherry-picked state court races:

Americans strongly prefer judges who practice judicial restraint and resist the temptation to rule based on "empathy" or other passions -- that is, to legislate from the bench. Last night's election results must not be misinterpreted as a mandate for judicial activism in our courts. The principles of constitutionally limited government have been a hallmark of our system since our Founding. These results prove that those principles, far from being abandoned, enjoy broad support among the American people.

Seemingly knowing that that lame argument wasn't going to convince anybody, JCN then trotted out a tiny poll conducted by right-wing pundit and pollster Kellyanne Conway as further proof that the public supports their view and, more importantly, declared that the burden of proof is now on Obama and his nominees to show they are qualified to sit on the federal bench and that they will be holding Senators accountable for their votes on his nominees: 

But because candidate Obama announced a dramatic and unprecedented departure from the historic, commonly understood criteria for judicial nominees, he has shifted the burden of proof somewhat: it is now incumbent upon him and his administration, and the nominees themselves, to demonstrate to the American people that they will interpret the Constitution as it is written and not make it up as they go along, based on their own personal views.

Careful scrutiny by the Senate is certainly called for, and all of us can help in that task. We must ourselves scrutinize Obama nominees very carefully, and let the American people know what they are getting. We should view the votes on Obama judges as great opportunities. Far from preventing such votes, we should welcome them. Senators will be accountable for those votes in their home states.

This is especially interesting considering the fact that the JCN's mission is to "support the confirmation of highly qualified individuals to the Supreme Court of the United States [and] ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote."

Apparently, the "confirmation" part of the Judicial Confirmation Network's name is reserved for Republican-nominated judges only.  So now it looks like the primary focus of the Judicial Confirmation Network will be, paradoxically, to ensure that judicial nominees do not, in fact, get confirmed.

I had been on vacation for the last several days, so I missed this little nugget when it first surfaced last week:

Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal.

Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

“He believes in justices that have empathy,” said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

That would be the same Jon Kyl who, as Steve Benen pointed out, supported the "nuclear option” back in 2005 to do away with the filibuster regarding judicial nominees.  It would also be the same Jon Kyl who explicitly argued that junking the filibuster would in no way ever hamstring Republicans because they would be too principled [PDF] to ever even try to use it down the road:

My friends argue that Republicans may want to filibuster a future Democratic President’s nominees. To that I say, I don’t think so, and even if true, I’m willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned. So I say to my friends: what you say we Republicans are losing is, in fact, no loss at all.

And while we are on the subject of right-wingers suddenly changing their tune regarding judicial nominations, I found this rather amusing:

But Manuel Miranda, chairman of the Third Branch Conference, a coalition of conservative activists who have weighed in on Supreme Court appointments, warned that judicial nominees similar to Marshall and Brennan would face strong opposition.

“Outside groups will always push to the extremes to get people who would be turning back the clock to Brennan or Marshall,” said Miranda.

That would be the same Manuel Miranda who has been a one-man right-wing judicial confirmation army ever since he lost his job on the Hill after accessing internal Democratic memos.  Miranda was the primary force behind just about every right-wing “grassroots” effort to force the confirmation of President Bush’s judicial nominees, as well as their effort to compel Harriet Miers to withdraw her Supreme Court nomination.  So it’s pretty interesting that he’s suddenly concerned about “outside groups” pushing “extreme” nominees … and even more interesting that he’s now quite concerned that Obama’s nominees will “turn back the clock.”

That is how OneNewsNow describes the Judicial Confirmation Network’s last minute messaging regarding the need to elect John McCain in order to save the Supreme Court:

Wendy Long, legal counsel to the JCN, warns that if elected, Senator Barack Obama would appoint ultra-liberal activist judges to the Supreme Court, who would set the pro-family movement back by at least a generation.

"We'd see things like a constitutional right to same-sex 'marriage,' a constitutional right to federal taxpayer funding of abortion. We'd likely see a so-called constitutional right to physician-assisted suicide and to human cloning. [References to God] would come out of the Pledge of Allegiance and perhaps off our currency and every other public place," she explains. "So we may wake up, but it would be too late -- because once Barack Obama has a chance to appoint a majority of a Supreme Court, then decisions like those would be out of the hands of voters for certainly a generation and perhaps longer."

Long does not believe that Obama will nominate anyone to the bench who would be acceptable to the vast majority of mainstream Americans of both major political parties.

You know, I suspect that the “mainstream Americans” in at least one political party would find Obama’s Supreme Court nominees perfectly acceptable.  In fact, the only people who would find them unacceptable would be the phony right-wing “grassroots” organizations that have spent the last eight years working to pack the court with more justices like Antonin Scalia and Clarence Thomas.

Ed Whelan takes to the pages of the National Review to discuss the importance of the Supreme Court as it relates to the election and warn that “the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president.”

Whelan helpfully explains that everything you think you know about what might happen to the Court under either an Obama or McCain administration is mistaken:

If you’ve been paying attention to the media’s scant coverage of the impact of the presidential election on the Supreme Court, you’ve been hearing that we currently have either a “conservative” Court or a Court delicately balanced between its “liberal” and “conservative” wings. Electing Obama as president is unlikely to change anything, you’re told, because he’d probably just be replacing liberal justices. The real threat, Obama himself tells us, is that John McCain would appoint justices who would vote to overturn Roe v. Wade and thereby (supposedly) make abortion illegal.

Wrong on all counts.

So McCain wouldn’t appoint justices who would overturn Roe v. Wade?  Well, that is a relief.  Oh, wait:

I hope very much that a President McCain appoints justices who will help to overturn Roe v. Wade, and although it won’t be easy to get good nominees confirmed by a heavily Democratic Senate, I think that it’s definitely possible. Overturning Roe, of course, wouldn’t make abortion illegal. Rather, it would restore to the citizens of each state the power to establish abortion policy through their elected representatives — and to revisit that policy over time. That’s the system our Constitution established, and it’s the system that all citizens faithful to our Constitution should welcome. The democratic processes may at times be messy and contentious, but they offer the only real hope of working out a consensus on abortion policy.

Roe v. Wade has corrupted and distorted American politics and Supreme Court decisionmaking for 35 years. All Americans, irrespective of their positions on abortion policy, should welcome its long-overdue demise.

I see.  McCain will appoint justices who will overturn Roe but that is okay because it is a bad decision that has “corrupted and distorted American politics” and “all Americans” will rejoice when Constitutional protections for reproductive choice get eliminated.

And Obama’s claim that McCain would appoint justices who would vote to overturn Roe v. Wade is wrong, how?

It was not too long ago that I wrote a post about how complicated it is to try and make accurate statements about judicial confirmation rates and how Republicans and right-wing judicial activists exploit that fact to make it seem as if President Bush has somehow gotten a raw deal when it comes to seeing his judges confirmed. 

Today comes an op-ed by Federalist Society founder Steven Calabresi in the Wall Street Journal making the same point and issuing a dire warning that if Barack Obama is elected, we're going to see a complete take over of the federal judiciary by liberal activist judges:

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.

Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.

The interesting thing about Calabresi's handwringing that "majorities are ... at stake ... for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts" is his willingness to overlook the basic fact that the Republican majorities on a lot of circuit courts are at stake mainly because Republicans have majorities on nearly every circuit court in the country.

Take a look at this breakdown from the Alliance for Justice of current circuit court justices by appointing president and you'll see that, with the exception of the 9th Circiut and ties on the 2nd and 3rd Circuits,  Republican judges outnumber Democratic judges across the board:

DC Circuit: 7 Republican - 4 Democratic

1st Circuit: 3 Republican - 2 Democratic

2nd Circuit: 6 Republican - 6 Democratic

3rd Circuit: 6 Republican - 6 Democratic

4th Circuit: 7 Republican - 4 Democratic

5th Circuit: 13 Republican - 4 Democratic

6th Circuit: 10 Republican - 6 Democratic

7th Circuit: 8 Republican - 3 Democratic

8th Circuit: 9 Republican - 2 Democratic

9th Circuit: 11 Republican - 16 Democratic

10th Circuit: 8 Republican - 4 Democratic

11th Circuit: 7 Republican - 5 Democratic

Federal Circuit: 8 Republican - 4 Democratic

Overall, Republican circuit court judges outnumber Democratic judges 103-66.  And the reason for that is because for 20 of the last 28 years, Republicans have occupied the White House and have filled the federal bench with judges who share their ideology.  As the AFJ points out:

Judges appointed by Republican presidents dominate the Supreme Court, the courts of appeals, and the district courts. Over 58% of all federal judges were appointed by Republican presidents. George W. Bush has appointed nearly 37% of all sitting federal judges.

After two decades of Republican presidents stacking the federal bench with judges who share Calabresi's right-wing Federalist Society ideology, creating an situation in which that ideology dominates nearly every court in the land, Calabresi is suddenly worried about balance and fairness and breathlessly warning that the "federal courts hang in the balance" because "nothing less than the very idea of liberty and the rule of law are at stake in this election?" 

Give me a break.

It's that time of the year again; that time when right-wing televangelists turn over their television programs to right-wing operatives in an effort to mobilize "values voters" for the benefit of the Republican Party.

Just yesterday we posted footage from Rod Parsley's "Breakthrough" featuring Wendy Wright and Janet Parshall and now we come to find out that Kenneth Copeland, one of the televangelists whose finances are being investigated by Sen. Chuck Grassley, has had right-wing pseudo-historian David Barton on his program all week for the same purpose:

During their discussion, Barton urged Copeland's viewers to take a look at the voter guides and report cards that various public policy organizations issue as they seek to make their choices, saying that often voter guides of "secular" organizations are extremly useful because if a group like the ACLU rates a candidate highly, then they know that that is not a candidate they want to support.

So in that vein, here is a clip of David Barton talking about the importance of the Supreme Court and how much of a difference the confirmations of Justices John Roberts and Samuel Alito have made to the Religious Right's agenda.  Because Roberts and Alito have a "fear of God," it has led to decisions starting to come out "right on Biblical values," whereas the four "liberal" Justices, Barton declares, have "no fear of God, there's nothing in their behavior that tells me that they fear God."  And, Barton insists, the next president will shape the course of the nation for the next fifty years with their Supreme Court picks because "that is where reighteousness is determined":

It is now well-known that Sarah Palin won her first bid for mayor of Wasilla, Alaska due in large part to her willingness to turn a non-partisan election into a battle over abortion, gun, and religion:

But in the first major race of her career — the 1996 campaign for mayor of her hometown, Wasilla — Palin was a far more conventional politician. In fact, according to some who were involved in that fight, Palin was a highly polarizing political figure who brought partisan politics and hot-button social issues like abortion and gun control into a mayoral race that had traditionally been contested like a friendly intramural contest among neighbors.

Now, via Ed Brayton we see that the practice is spreading and has been adopted Tim Tinglestad, who is running for the Minnesota Supreme Court:

I am committed to preserving the people's constitutional right to choose their judges through meaningful, contested, non-partisan judicial elections.

Sounds good ... until you read on:

I believe that justice is served when judges fear God and love the people, and as a Minnesota Supreme Court Justice, I will be impartial to the parties, while partial to the original intent of the Constitution.

And it only gets worse from there: 

“Truth is the only solid foundation upon which to build a life, or a nation. God’s Word is the Foundational Truth upon which our constitutional form of government was built. The Truth of God’s Word is the foundation which holds families together. Yet in our pursuit of personal freedoms, we have lost the Foundational Truth upon which those freedoms were built. Where there is Truth, there is hope.”

“God’s Word is the Light of Truth. As God’s Word has been removed from our public lives, the resulting darkness has led to our present social disorder and political divisions. The correction of these problems will only begin when the Light of Truth is returned to our land’s highest hills, the Supreme Courts. Until our highest courts return to an acknowledgment of the existence of God and His Truth, the people will continue to walk in the confusion of darkness.”

“Our State and Nation are in need of the next Great Awakening! Just as we awaken to the light of each new morning, it will be the Light of Truth, from God’s Word, which will again awaken us to a new day in our communities, our State, and our Nation. In the Light of this new day we will return to the path, which God has destined us to travel. The alarm has sounded, and it is time to wake up!

And then it gets even worse than that:

Justice is served when Judges fear God, and love the people. This is the reason that I have chosen to seek to become a Supreme Court Justice, serving the people of Minnesota. To serve the court with impartial justice, judges must possess great knowledge and wisdom. Judges must be God fearing men and women, because God’s Word tells us, “The fear of the Lord is the beginning of all knowledge.” (Proverbs 1:7) and “The fear of the Lord is the beginning of all wisdom…” (Psalm 111:10)

To fear God means to love Him with all of your heart, with all of your soul, and with all of your strength. This is the greatest commandment given to man. This fear requires an awesome, reverential acknowledgement of the sovereignty of God over the affairs of man. The second greatest commandment is to love our neighbor as our selves. When we fear God, the necessary result is that we love the people. (Matthew 22:37-39)

If justice is to be served in our courts, then we must use the correct standard in choosing our judges. God’s Word gives us this standard in II Chronicles 19:5-7, which tells us, “Jehoshaphat appointed judges throughout all the fortified cities of Judah, city by city, and said to the judges, Be careful what you do, for you judge not for man but for the Lord, and He is with you in the matter of judgment. So now let the reverence and fear of the Lord be upon you; take heed what you do, for there is no injustice with the Lord our God, or partiality or taking of bribes.”

The hearts of our judges are critical because, “A good man brings forth good out of the good stored in his heart. An evil man brings forth evil out of the evil stored in his heart. For it is out of the overflow of the heart that the tongue speaks.” (Luke 6:45) If we want the decisions of our judges to be good, then we must pray that the hearts of our judges are turned toward God.

Tingelstad is challenging incumbent Supreme Court Justice Paul Anderson and, judging by the primary returns, doesn't seem to stand much of a chance considering that he only pulled in 22 percent of the statewide vote back in September.  So provided that John McCain doesn't suddenly pick him as his next running mate, this will hopefully be the last time we ever write about him. 

It looks like the Right finally got what it wanted when the issue of abortion worked its way into last night's debate and was tied to the issue of the future of the Supreme Court, to boot. 

Of course, John McCain stepped all over what should have been his golden opportunity to appease the Religious Right by immediately bringing up his role in the "Gang of 14," which is something for which they still have not forgiven him. 

But when he finally got back on track, he reverted to the standard Republican line that he would never have a "litmus test" for his Supreme Court nominees regarding Roe v. Wade but would instead find nominees with a "history of strict adherence to the Constitution and not legislating from the bench."

Since McCain refused to apply a "litmus test" to potential nominees, moderator Bob Schieffer logically took that to mean that he might be willing to consider someone who "had a history of being for abortion rights," to which McCain replied that he would do no such thing:

MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

So McCain could not appoint an abortion rights supporter because that would conflict with his commitment to naming judges with a "history of strict adherence to the Constitution."  Of course, the whole question of reproductive rights is whether or not such rights are protected by the Constitution.  McCain clearly doesn't believe that they are ... but by hiding behind the phrase "strict adherence to the Constitution" he gets to absurdly pretend that he's not applying a dreaded "litmus test" when, in fact, that is exactly what he is doing.  

McCain should at least be honest about it and tell the nation what he told Gary Bauer back in 2000 that led Bauer to endorse him over George Bush:

Somewhat surprisingly, McCain had the support of Gary Bauer, the social conservative, who had dropped out of the race by that time. “I wanted a commitment from either George Bush or John McCain that if elected he would appoint pro-life judges to the Supreme Court,” Bauer told me. “Bush said he had no litmus test, and his judges would be strict constructionists. But McCain, in private, assured me he would appoint pro-life judges.”

Of course, Bauer denies this now, saying that McCain merely promised him judges who would not be activist; a claim which is just as bogus as McCain's "no litmus test" dodge.

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. 

At the Federalist Society's "The Presidency and the Courts" forum yesterday in Cincinnati, President Bush took time to rally the troops and bask in their loving glow as he recounted his battles over the issue of judicial nominees and reminded his audience that, just as he had promised, he put two new justices on the Supreme Court who shared their right-wing ideology:

When asked if I had any idea in mind of the kind of judges I would appoint, I clearly remember saying, I do. That would be Judges Scalia and Thomas ... And I made a promise to the American people during the campaign that if I was fortunate enough to be elected my administration would seek out judicial nominees who follow that philosophy ... I have appointed more than one-third of all the judges now sitting on the federal bench, and these men and women are jurists of the highest caliber, with an abiding belief in the sanctity of our Constitution ... America is well served by the 110th justice of the United States Supreme Court -- Samuel A. Alito ... I was very proud to nominate for the Supreme Court a really decent man, and a man of good judgment, and that would be Chief Justice of the Supreme Court, John Roberts.

Bush then went on to lament the politicization of the confirmation process, pointing to the treatment of Miguel Estrada as a prime example, and blasting those who engaged in "harmful tactics and maneuvers to thwart nominees": 

Unfortunately, Miguel Estrada's experience is not an isolated one. Many other well-qualified nominees have endured uncertainty and withering attacks on their character simply because they've accepted the call to public service. Those waiting in limbo include: Peter Keisler for the D.C. Circuit, Rod Rosenstein for the Fourth Circuit, and dozens of other nominees to district and circuit courts across this country.

...

The broken confirmation process has other consequences that Americans never see. Lawyers approached about being nominated will often politely decline because of the uncertainty and delay and ruthlessness that now characterizes the confirmation process. Some worry about the impact a nomination might have on their children, who would hear their dad or mom's name dragged through the political mud. This situation is unacceptable, and it's bad for our country. A judicial nomination should be a moment of pride for nominees and their families -- not the beginning of an ugly battle.

...

The American people expect the nomination process to be as free of partisanship as possible, and for senators to rise above tricks and gimmicks designed to thwart nominees ... In Washington, it can be easy to get caught up in the politics of the moment. Yet if we do not act to improve the confirmation process, those who are today deploying harmful tactics and maneuvers to thwart nominees will sooner or later find the tables turned.

Oddly, he didn't mention the most high profile vicitim of this problem - Harriet Miers:

According to “WithdrawMiers.org,” a coalition formed by the Eagle Forum’s Phyllis Schlafly, Fidelis, and others for the sole purpose of opposing the nomination: “Miers’ … few published writings offer no real insight or assurance of a judicial philosophy that reflects a commitment to the Constitution.” And on issues where Miers had something of a record, WithdrawMiers.org was not impressed: “Ms. Miers fought to remove the pro-abortion plank in the American Bar Association platform, yet fought this Bush Administration in ending the ABA’s role in vetting judges which is known to be biased against judges whose judicial philosophies reflect a clear commitment to the Constitution. She donated money to a Texas pro-life group, yet helped establish an endowed lecture series at Southern Methodist University that brought pro-abortion icons Gloria Steinem and Susan Faludi to campus.”

Like WithdrawMiers.org, Americans for Better Justice sprang up simply to oppose the Miers nomination. Founded by ultra-conservatives like David Frum, Linda Chavez, and Roger Clegg, ABJ was unconvinced that Miers shared its founders’ right-wing views and began gathering signatures on a petition demanding Miers’ withdrawal: “The next justice of the Supreme Court should be a person of clear, consistent, and unashamed conservative judicial philosophy … The next justice should be someone who has demonstrated a deep engagement in the constitutional issues that regularly come before the Supreme Court — and an appreciation of the originalist perspective on those issues … For all Harriet Miers’ many fine qualities and genuine achievements, we the undersigned believe that she is not that person.”

The right-wing magazine National Review had, in many ways, led the charge against the Miers nomination from the very beginning. Its writers called Miers “a very, very bad pick,” declared her nomination “the most catastrophic political miscalculation of the Bush presidency” and complained that the Right had been forced to endure “an embarrassingly lame campaign from the White House, the Republican National Committee, and their surrogates.”

What caused this gnashing of teeth was the fact that, according to the National Review’s editorial board, “There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not … neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues.”

Others on the Right were just as dismayed by the nomination. American Values’ Gary Bauer explained: “[Harriet Miers] has not written one word, said one word, given a speech, written a letter to the editor on any of the key constitutional issues that conservatives care about and are worried about and want to make sure the court does not go down the road on."

The Wall Street Journal called the nomination a “political blunder of the first order,” lamenting that “After three weeks of spin and reporting, we still don't know much more about what Ms. Miers thinks of the Constitution.”

Stephen Crampton of the American Family Association said Miers is a “stealth candidate for a seat on the Supreme Court [and] is an unknown with no paper trail,” while the Christian Defense Coalition blasted the president, saying his supporters “did not stand out in the rain for 20 hours passing out literature or putting up signs for the President to have him turn around and nominate Harriet Miers to the Supreme Court. A nominee in which there is no record of their judicial philosophy or view of the Constitution.”

Back when John Roberts was preparing for his confirmation hearing, Concerned Women for America was praising him as a “highly qualified nominee with extraordinary personal integrity who has proven himself worthy to sit on our nation's highest court.” CWA said “Senators should ignore the ridiculously inappropriate litmus tests and document demands of the radical left” and that Roberts “should receive overwhelming bi-partisan support and confirmation.”

This is in stark contrast to the stand CWA took on Miers: “We believe that far better qualified candidates were overlooked and that Miss Miers’ record fails to answer our questions about her qualifications and constitutional philosophy … We do not believe that our concerns will be satisfied during her hearing." In calling for her withdrawal, CWA revealed their real objection: “Miers is not even close to being in the mold of Scalia or Thomas, as the President promised the American people.” They demanded that the president give them a “nomination that we can whole-heartedly endorse.”

With the opening of the new Supreme Court term today, the newspapers are full of articles explaining that the future of the Court will depend on the outcome of the election, especially on the issue such as reproductive choice:

Every four years, defenders of abortion rights proclaim that the fate of Roe vs. Wade hangs on the outcome of the presidential election.

This year, they may be right.

Through most of the 1990s and until recently, the Supreme Court had a solid 6-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O'Connor is retired and has been replaced by Justice Samuel A. Alito Jr.

And Justice John Paul Stevens, a leader of the narrow majority for abortion rights, is 88.

"Clearly, Roe is on the line this time," said Indiana University law professor Dawn Johnsen, a former lawyer for NARAL Pro-Choice America. "It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled."

But for Religious Right activists who just can’t wait to see how it all turns out, there is a new movie opening through which they can live out their fantasies as they watch students at Patrick Henry College (and co-starring its founder, Michael Farris) convince the Supreme Court to finally overturn Roe … or at least win a moot court competition or something:

It is the first Monday in October and a future U.S. Supreme Court tackles the reversal of Roe vs. Wade in a dramatic new pro-life movie, COME WHAT MAY (CWM). The controversial film has received rave reviews from preview audiences nationwide, drawing large crowds in Oregon where 800 moviegoers filled the Grants Pass Performing Arts Center to capacity. Six distributors are vying for CWM, including the company currently distributing the new Christian blockbuster, FIREPROOF.

"What's remarkable is that COME WHAT MAY, a 2008 Redemptive Storyteller Award winner, was largely produced by over 40 homeschooled students mentored by only a handful of professionals," according to Mac Nichols, a tax attorney who plays one of the movie's U.S. Supreme Court Justices.

Advent Film Group (AFG) produced the micro-budget movie in association with Patrick Henry College (PHC), a true-to-life powerhouse in collegiate debate and moot court competition. The movie's legal argument is solid, claims George Escobar, founder of AFG. Dr. Michael Farris, PHC founder and chancellor, wrote the film's legal framework. Farris, a constitutional attorney, has successfully argued before the U.S. Supreme Court.

Just last month I wrote about the Judicial Confirmation Network, a bogus grassroots organization set up by Jay Sekulow to help press for confirmation of President Bush’s judges back in 2005.

As I noted then, the JCN dedicated itself to fighting for the confirmation of the likes of Priscilla Owen and Janice Rogers Brown in preparation for confirmation fights over Supreme Court nominees.  True to form, JCN was active in defending both John Roberts and Samuel Alito and ginning up right-wing support for their confirmations.  But then an interesting thing happened:  Samuel Alito was confirmed and the JCN all but ceased to operate.  

From January 21, 2006 when they issued this press release, they issued just a handful of releases over the next two years (8, by our count) until they swung back into action in August.  

And now, with the election gearing up, the JCN is back on the scene announcing a new million dollar ad campaign targeting Barack Obama on the issue of the courts by linking him to Tony Rezko, Jeremiah Wright, and William Ayers:

The Judicial Confirmation Network (JCN) today launched a $1 million first phase of a nationwide grassroots campaign, which includes television ads in national and targeted markets, to raise awareness and recruit activists on the critical issue of the U.S. Supreme Court.

…

The text of the ad:

Wendy: With the help of hundreds of thousands of Americans, the Judicial Confirmation Network fought for the nominations of Supreme Court Justices John Roberts and Sam Alito. The next President may nominate 4 new Justices. So we'd like you to see this....

VO: Choosing the right Justices is critical for America. We don't know who Barack Obama would choose, but we know this: He chose as one of his first financial backers a slumlord now convicted on 16 counts of corruption. Obama chose as an associate a man who helped to bomb the Pentagon and said he "didn't do enough." And Obama chose as his pastor a man who has blamed America for the 9/11 attacks. Obama chose to associate with these men, while voting against these men.

Wendy: Please join the Judicial Confirmation Network. We need a Supreme Court that respects the Constitution and Justices who won't legislate from the bench. Judicial Confirmation Network paid for this message and is responsible for it.

Considering that the JCN had been all but defunct for more than two years while its two employees were busy working on Mitt Romney’s presidential campaign, it raises the question of just how they managed to raise a million dollars for ads despite seemingly doing no fund raising and only having re-opened their bogus front-group a little over one month ago.

Over at their iVoteValues website, the Family Research Council has posted a series of videos on the hot-button social and election issues that drive their agenda like gay marriage, abortion, and the courts.

For instance,