judicial confirmations

I've been wondering why the Right's public response to the news that David Souter will be retiring has been almost non-existent.  The news broke last night and yet very few right-wing groups have even bothered to so much as issue a statement - but, it turns out, that was probably because they have been busy plotting and coordinating their strategy:

Conservative groups worked into the night Thursday after news broke of Justice David Souter’s retirement to arrange a conference call early Friday morning to talk strategy with representatives of more than 60 groups.

Leaders on the call, such as Wendy Long of the Judicial Confirmation Network, told colleagues that one of their first challenges is convincing activists there is a fight to be had.

"One thing to keep in mind is that the left and media will say this doesn't really matter — Obama will just replace a liberal with a liberal,” Long said. “It's a conservative court. We need to push back against that immediately.”

Curt Levy, also of the Judicial Confirmation Network, argued to the nearly 200 activists on the conference call that this can "be a winning issue" for conservatives if they focus on what he called the "right issues" such as same sex marriage, death penalty and the Second Amendment — issues that can split Democrats.

"If [President Obama] was to nominate somebody who was anti-death penalty, pro-gay marriage, you know - took a very extreme view on the separation of church and state, etc, or against any restriction on partial birth abortion… I think this could really be a 70-30 type issue for the Republican Party." said Levy, meaning it would have 70 percent support from Republicans.

Conservative activists also made it clear that they're concerned about whether Republican senators have the stomach for this fight, since they know going in that Democrats have a nearly filibuster proof majority.

"We've really got to make it clear that we have certain expectations for Republican senators," Levy said, "Including the fact that they study the nominee and not run to the podium to endorse the nominee whoever it is.”

Another member of the Judicial Confirmation Network, Gary Marx, said he has the same concerns.

"We need to really be focused on putting wind in the sails of these Republican senators at this stage of the battle," said Marx.

The Hill has a similar article that quotes Kay Daly of the Coalition for a Fair Judicairy, of all people, and treats her organization as if it is actually legitimate: 

Groups like the American Center for Law & Justice, the Coalition for a Fair Judiciary and the Committee for Justice will all prepare background research on potential nominees, setting up the eventual, inevitable attacks on the nominee as a left-wing extremist.

...

Though the new nominee is still unnamed, several top Republican operatives are already sending background documents to reporters, questioning oft-mentioned candidates' fitness for the highest court in the nation.

"Part of our strategy was already done," said Curt Levey, executive director of the Committee for Justice. "We have all our research memos done on all the top people."

Early front-runners for the bogeyman nod have cropped up: Darling mentioned Yale University Law School Dean Harold Koh, whom he called "very extreme." Sekulow specifically called out 2nd Circuit Appeals Court Judge Sonia Sotomayor, an early favorite for the nod, as "to the left of David Souter."

"This is not my ideal situation," said Kay Daly, president of the Coalition for a Fair Judiciary. "Obama could conceivably put a justice onto the bench that literally would make Souter look like [Associate Justice Antonin] Scalia."

I just wrote a post about Daly and her Coalition for a Fair Judiciary a few weeks ago, noting that she and her "organization" had been utterly non-existent for more than two years until she suddenly popped up last month, after which she immediately went silent once again:

Daly’s tagline says that she is “president of the Coalition for a Fair Judiciary,” which, while true, is something of a truism considering that CFJ’s staff has always consisted solely of Daly.

And, of course, her exhortations and claims to represent grassroots activists might carry more weight if she hadn’t been completely AWOL for the last several years.

A quick look at her website reveals that the organization has not issued a press release since November 2006, nor has any of its data on judicial confirmations been updated since the 109th Congress, while it’s “Judicial Appointments Status Report” is current as of 10/18/2006. In fact, everything on its website is at least two years out of date. Even Daly’s blog goes dormant for months at a time, with her last post having gone up back in October until she returned today to let everyone know that she had a new piece in Human Events.

As I said then, "like cicadas, these right-wing groups emerge, make a loud racket for a short period of time and then all but disappear, only to re-emerge down the road and start the whole process over again."

I, for one, genuinely hope that the Right puts Daly and her "organization" in charge preparing background on potential Obama nominees because, given her track record, she'll probably get around to releasing it some time in 2011. 

For those unfamiliar with Daly, she also just so happens to be the one responsible for producing the infamous ads from Vernon Robinson back in 2006:

Both The Hill and Politico are reporting on a letter [PDF], signed by all forty-one Republicans in the Senate, sent to President Obama yesterday warning him that they will not hesitate to filibuster his judicial nominees if they are not consulted before he makes his picks:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they're not happy.

My, how times have changed.  I seem to remember a time, just a few years ago when President Bush was in office, when the Republican understanding of the Constitution's "advice and consent" clause was that it entitled the President to make nominations of his choosing while the Senate's role was merely to confirm or reject his nominees.

In fact, that is exactly what they said, repeatedly.  For example, here is Sen. Orrin Hatch saying it:

It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate's task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success – an independent judiciary.

But it wasn't just Republican Senators making that argument; it was the standard argument of all the conservatives who were active on the issue of judicial nominations. 

Here is John Eastman testifying [PDF] before the Senate Judiciary Committee making that point explicitly:

[R]ecent claims that the advice and consent clause gives to the Senate a co-equal role in the appointment of federal judges simply are not grounded either in the Constitution’s text or in the history and theory of the appointment’s process.

And here he is making it again:

Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish]." As the text of the provision makes explicitly clear, the power to choose nominees — to "nominate" — is vested solely in the President, and the President also has the primary role to "appoint," albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one than is currently being claimed.

Here is the same point being made by the Judicial Confirmation Network:

"It is apparent from the rhetoric included in the 'Memorandum of Understanding' that at least 14 Senators - the signers of this compromise - fail to understand the Constitution's 'advice and consent' clause. Article II, Section 2 of the Constitution reads: '[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court .' The Senate's advice and consent role is part of the 'appointment' process, not the 'nomination' process, which the Constitution commits solely to the President."

And here it is once again, this time being made by Steven Calabresi, who just so happens to have been a co-founder of the Federalist Society:

The President was supposed to play a leading role in the selection of judges and that role is defeated by giving a minority of senators a veto over presidential nominees.

Second, giving a minority of Senators a veto over judicial nominees will violate the separation of powers by giving a Senate minority the power to impose a crude litmus test on judicial nominees, thus undermining judicial independence.

I could go on, but I think you get the point.

Isn't it amazing how, just a few years removed from arguing that the Senate's sole role in the confirmation process was to either confirm or reject nominees and trying to blow up the Senate with the "nuclear option" in order to get rid of the filibuster, the Republicans in the Senate are now demanding a veto over the President's nominees and threatening to filibuster if they don't get their way?

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. 

As we noted yesterday, Sen. Sam Brownback finally got his opportunity to grill District Court nominee Janet Neff about her attendance at a commitment ceremony of a family friend who is a lesbian back in 2002, something he has been demanding, on and off, for several months.

As Senate Judiciary Chairman Patrick Leahy noted in his statement on the hearing:

I wondered at the end of the last Congress whether it could really be that Judge Neff’s attendance at a commitment ceremony of a family friend failed some Republican litmus test of ideological purity, that her lifetime of achievement and qualifications were to be ignored, and that her nomination was to be pocket filibustered by Republicans.

…

[Judge Neff and two other nominees] were not re-nominated until March 19th of this year. I then hoped to move forward without a hearing, since they had a hearing late last year. As I had with the other re-nominations I wrote each Member of the Committee asking whether they were prepared to move forward or would request a hearing. No Member requested a hearing on any of the other district court nominees re-nominated who had previously had a hearing and who had been considered and favorably reported by the Committee. With respect to Judge Neff, Senator Brownback requested another hearing. That is his right. That is why she is appearing, again, today.

Brownback requested, and received, a second-hearing just so that he could demonstrate his anti-gay bona fides - which is exactly what he did:

Brownback said he was concerned that Neff's participation in the ceremony meant she would prejudge cases involving marriage rights for gays and lesbians on the court, and asked her a series of questions about the details of the ceremony and whether it would affect her judgment.

"I was pleased to hear her responses and get them on the record," Brownback said after the hearing. He repeated an earlier pledge to demand a roll-call vote on her nomination; routine judicial confirmations regularly are handled by voice vote, without each senator having to record a yes or no.

Neff described the ceremony as a private commitment ceremony for the daughter of a family that lived next door to the Neffs for 26 years. "It was a foregone conclusion that we would be invited and that we would attend," she said. She said she read a homily during the 20-minute service.

Neff’s answers have apparently finally satisfied Brownback:

Brownback said he was satisfied the commitment ceremony did not qualify as a same-sex union and was glad for the opportunity to question Neff.

“This is just something that has bounced around for some time,” he said.

Brownback’s were the only questions for Neff. Only one other member of the committee was in attendance.

Neff’s attendance at the 2002 commitment ceremony has indeed been an issue “that has bounced around for some time” – primarily because Brownback himself has single-handedly insisted on making it an issue.