Gay Marriage Decision Should be Election Issue

Committee for Justice executive director Curt Levey commented on today’s decision by the California Supreme Court, which held that a popularly enacted state ban on gay marriage violates the California constitution.

“Today’s decision invalidating the gay marriage ban enacted by California voters is a quintessential example of judicial activism that should disturb all Americans, while reminding them of what’s at stake this November when they go to the polls to elect the politicians who appoint and confirm state and federal judges. The California decision also serves to remind Americans that the threat posed by judges who defy the constitutional limits on their authority is hardly limited to the federal courts. Indeed, as the U.S. Supreme Court has become less hospitable to the advocates of judicial activism, they have increasingly turned to state courts to enact the political agendas they have been unable to implement democratically.

“Today’s overreach by the California Supreme Court is classic judicial activism in that the court’s holding bears no resemblance to the constitutional text it purports to interpret. In the lofty but vacuous language typical of judicial activism, the court discovered a right to have one’s 'family relationship accorded dignity and respect equal to that accorded other officially recognized families.' Whatever one thinks of this new right – which would seemingly apply to polygamous families as well – it is nowhere to be found in the California Constitution.

“As is so often the case with judicial activism, today’s decision is a triumph for the ultra-liberal groups committed to using activist courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means such as legislation and ballot initiatives. In this case, not only were California’s liberal voters unwilling to enact the agenda of gay rights groups, but Californians explicitly voted to ban gay marriage by an overwhelming 61% margin in 2000. However, four Justices of the California Supreme Court think they know better. Talk about being elitist!

“This blatant act of judicial activism should disturb all Californians – indeed all Americans – regardless of whether they favor or oppose gay marriage as a matter of policy. After all, a court powerful enough to invent new constitutional rights is a court powerful enough to take away any constitutional right. Barack Obama ought to keep that in mind before he opines again that a judge should 'bring in his or her own perspectives, his ethics, his or her moral bearings.' At very least, he should explain to voters why his view is not a prescription for limitless judicial power.

“California voters might have an opportunity in November to re-enact the gay marriage ban as a constitutional amendment, effectively overriding today’s decision. But on the federal level and in many states, voters have but one recourse for fighting judicial activism and that’s electing presidents, governors, Congressmen, and state legislators – or in some states, judges themselves – who don’t believe that a judge’s 'moral bearings' should trump those of the people.

“Finally, keep in mind that my criticism of today’s decision is not based on policy arguments for or against gay marriage, nor on any notion that invalidating democratically enacted laws to protect legitimate constitutional rights is judicial activism. Instead, my criticism is based on the knowledge that the California constitution does not permit the state’s courts to invent new constitutional rights, no matter how wonderful the new rights might be.”

For a further discussion of how judicial activism is used to achieve unpopular political agendas, see here

McCain’s Speech on Judges

John McCain’s speech today on the judges issue was one of the best we’ve heard. It will reassure any conservatives who still have concerns about the type of judges McCain would nominate. McCain focused eloquently on the evils of judicial activism and the need for judicial restraint. But he covered many other important points as well, which we highlight below, along with our thoughts…

McCain clearly laid out the vast difference between his understanding of the proper role of the courts and the far more activist role favored by his potential Democratic opponents.

“My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power.”

“Senators Obama and Clinton … don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.”

“[A] justice of the court, as Senator Obama explained it – and I quote – should share ‘one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.’ These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them.”

McCain mentioned his involvement in the bipartisan Gang of 14 agreement and made it clear that, on the judges issue, he is the candidate with a proven record of bipartisanship.

“Senator Obama in particular likes to talk up his background … as someone who can work across the aisle to get things done. But when Judge Roberts was nominated,… [h]e went right along with the partisan crowd.”

With several Supreme Court vacancies looming, the judges issue is certain to be a big one in the upcoming presidential and Senate elections. If the 2002 and 2004 elections are any indication, it will be a winning issue for Republicans, because a solid majority of Americans oppose judicial activism generally and the specific activist Supreme Court decisions cited by McCain today.

“Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election.”

McCain explained the inherently anti-democratic nature of judicial activism, which explains its appeal to the liberal intellectual elite. The large numbers of “bitter” Americans who embrace religion, guns, and the like makes it impossible for the liberal elite to enact their policy agenda democratically. Instead, they depend on the courts to enact their agenda and that’s why they are so fierce in demanding that Democratic senators apply an ideological litmus test.

“Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige.”

“[B]y Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.”

Republicans, on the other hand, have never believed in applying an ideological litmus test to judicial nominees.

“[W]hen President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.”

McCain called out Senate Democrats on the real motive behind their personal attacks on the President Bush’s judicial nominees.

“We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered … We have seen disagreements redefined as disqualifications … Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution.”

McCain also called out Senate Democrats on their excuses for not holding hearings for judicial nominees.

“As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. … But when a judicial nominee arrives to the Senate … then he or she had better settle in, because the Senate majority has other business and other priorities.”

McCain pointed out that Senate Democrats are putting ideology above the needs of the people living in 4th Circuit states, who face diminished access to justice due to the vacancy crisis on that circuit.

“[A]t this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a 'judicial emergency' has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.”

The increasingly partisan and contentious nature of judicial confirmations is a direct result of the judicial activism that has turned the federal courts into ideological battlegrounds.

“The sum effect of these capricious rulings has been … to turn Senate confirmation hearings into a gauntlet of abuse.”

“The surest way to restore fairness to the confirmation process is to restore humility to the federal courts.”

McCain promised that, under his presidency, there will no more Souters or other disasters resulting from the temptation to pick stealth nominees.

“[I]n the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete – until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution. I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.”

Given that property rights have become unfashionable in recent decades, we’re happy to see that McCain has not lost sight of their importance.

“There is hardly a clearer principle in all the Constitution than the right of private property.”

Leahy Disregards People of VA, MD, NC, SC & WV

A battle over judicial nominees is raging in the Senate, but yesterday the focus was on the House. All 21 GOP House members from Fourth Circuit states sent a letter to Senate Judiciary Chairman Pat Leahy decrying his committee’s “inexcusable” obstruction of 4th Circuit nominees, which is “negatively affect[ing] the lives of the people of Virginia, Maryland, West Virginia, North Carolina, and South Carolina.” The obstruction, the Congressmen explain, “has permitted the vacancy rate in the Fourth Circuit to reach an unacceptable 33 percent,” which

“hurt[s] average people hoping for courts to resolve their disputes, small businesses trying to get by in our uncertain economy, and crime victims seeking justice. … [T]hey see their cases delayed because there are not enough judges to handle the caseload on the Fourth Circuit.”

The Washington Post made a similar point last December when it editorialized that

“the Senate should act in good faith to fill vacancies – not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers.”

The Congressmen’s letter notes that three of the five 4th Circuit vacancies have already been declared “judicial emergencies,” and two of the vacancies – North Carolina and Maryland seats that have been unfilled since the beginning of the Bush presidency – are the first and third longest running vacancies in the nation. Yet Sen. Leahy refuses to even hold hearings for the Maryland and North Carolina nominees, Rod Rosenstein and U.S District Court Judge Robert Conrad. Ditto for South Carolina nominee Steve Matthews.

The Congressmen add that the “Senate’s inaction on Fourth Circuit nominations is particularly egregious given the exceptional individuals President Bush has nominated.” They note that one of the nominees, Judge Conrad, was confirmed by a voice vote in the Senate just three years ago.

The 4th Circuit Congressmen conclude:

“At a time when excessive vacancies may be taking a serious toll on the administration of justice in the Fourth Circuit, … [t]he Senate should fulfill its constitutional role and promptly give all four nominees a hearing and a fair up-or-down vote.”

They note that the Washington Post has said the same, repeatedly calling on the Senate to “expeditiously process the nominees to the U.S. Court of Appeals for the 4th Circuit.”

It’s no secret why Senate Democrats are playing politics with the Fourth Circuit. They want to leave the vacancies unfilled in the hopes that a Democratic president can fill them. But history indicates that, even under the rosiest scenario, the first of the next president’s Fourth Circuit nominees would be confirmed no earlier than the last few months of 2009. In other words, if Senate Democrats continue to put politics above the administration of justice in the 4th Circuit, the residents of Maryland, Virginia, West Virginia, North Carolina and South Carolina will go at least another 18 months without an adequately staffed appeals court. As the Congressmen’s letter to Leahy says, “[t]he people served by the Fourth Circuit deserve better.”

A copy of the letter is available on request.

Judges Showdown Looms as May 6 Deadline Approaches

The battle in the Senate over stalled judicial nominees moved closer to a climactic showdown Tuesday as Sens. Mitch McConnell and Arlen Specter made it clear that Democrats must include long-obstructed nominees Peter Keisler, Bob Conrad and Steve Matthews in the deal to confirm three appeals court nominees by Memorial Day. It is particularly important that the demand came from Minority Leader McConnell and Judiciary Ranking Member Specter, because McConnell negotiated the deal and because he and Specter are precisely the two senators who can make Democrats pay a price in the Judiciary Committee or on the Senate floor if the Democratic leadership attempts to gut the deal.

In a letter to their Democratic counterparts -Majority Leader Reid and Judiciary Chairman Leahy - McConnell and Specter decried Leahy’s avowed intention to renege on the deal unless it can be fulfilled by confirming his “preferred queue of nominees,” namely 4th Circuit nominee Steven Agee and 6th Circuit nominees Helene White and Ray Kethledge. Leahy prefers those nominees because they are already part of other bipartisan deals and, thus, would allow Democrats to superficially fulfill their commitment without compromising on the seven appeals court nominees they are obstructing.

Noting that the FBI reports and ABA ratings for White and Kethledge will be not be ready in time for pre-Memorial Day confirmations, McConnell and Specter said they were troubled by

“Chairman Leahy’s statements insinuat[ing] that, if the Committee cannot process Judge White and Mr. Kethledge prior to the recess, then the straightforward commitment made by the Majority Leader and, by reference, Chairman Leahy will not be honored.”

It follows, Sens. McConnell and Specter said,

“that, in order to fulfill the commitment, Chairman Leahy [should] turn to other outstanding circuit court nominees pending in Committee who have been ready for hearings and waiting far longer than Judge White or Mr. Kethledge.”

Specifically, McConnell and Specter called on Leahy “to schedule hearings for Judge Conrad and Mr. Matthews, and hold a Committee vote for Mr. Keisler as soon as possible,“ calling it “simply a matter of fairness to include in the commitment, nominees who clearly can be processed and who have been ready for hearings and pending the longest.” Keisler has been pending in Committee for nearly two years, while Conrad and Matthews have been waiting for more than nine and seven months respectively.

Specter and McConnell emphasized that Democrats have less than a week to avoid a breach of the Memorial Day deal:

“The clock is ticking. … If the Committee does not hold a hearing for two circuit court nominees [in addition to Agee] prior to May 6, 2008, it is exceedingly unlikely that the Senate will be able to confirm at least three circuit court nominees prior to May 23, 2008 [the last day before recess], given the standard amount of time it takes to move a nomination through the steps in the confirmation process.” (emphasis added)

This sets up a dramatic showdown as soon as next week, as we’ll know by May 6 if Leahy and Reid intend to break the deal. If the May 6 deadline is missed, there’s no reason for the Republican leadership to wait until Memorial Day to make Democrats pay a price.

We thank Sens. McConnell and Specter – as well as the other GOP members of the Judiciary Committee – for insisting that Peter Keisler, Bob Conrad and Steve Matthews be included in the Memorial Day deal. And we encourage you to thank them as well.

Right to Privacy v. the War on Drugs

Canada's Supreme Court ruled that drug-sniffing dogs could not be used randomly in public places because it would violate the average citizen's right to privacy. Read more in an article from the Toronto Star.

ABA: Get Out of the Diversity Business

An interesting article in The Wall Street Journal discusses the politics of college admissions. The author, Gail Heriot, highlights George Mason University's law school experience with the ABA's accreditation policies. Apparently, the ABA was disappointed by GMU's admissions standards for minorities because they were not significantly decreased to match the standards of most law schools. As a result, ABA refused to renew GMU's accreditation which is a problem for GMU because their federal funding relies on accreditation. In the article, Ms. Heriot argues that the Education Department should get ABA out of the diversity business.

The Latest in International Law

International law was recently tested in the U.S. Supreme Court case Medellin v. Texas, and was again decided yesterday in the 2nd Circuit Court of Appeals. A foreign national sued the State of New York for violating his rights under the Geneva Convention, and the court ruled against him. The New York Sun has more.

Letters from Leahy

Chairman of the Senate Judiciary Committee, Senator Patrick Leahy, might spend more time defending his role in stalling of President Bush's "controversial" judicial nominees than actually holding (or not holding) hearings.

The most recent proof can be found in his eight page letter to Republican Senators and another long one to the National Center for State Courts.

Compromises But Not Compromising

The latest judges deals finally pushing for something to happen with judicial nominees should relieve every American. However, Republicans should not have to compromise much more about which three nominees will be confirmed before Memorial Day, per the latest deal.

The Wall Street Journal talks a bit more about how the Democrats could try to get their own preferred nominees through in an article titled "Springtime for Judges."

Judges Deals & Discharge Petition

Tuesday was a big news day for the judges issue – perhaps the biggest since the confirmation of Justice Alito. Senate Leaders Reid and McConnell made a deal to confirm three appeals court nominees by Memorial Day; Sen. Levin and the White House reached an agreement to fill two long-standing vacancies on the 6th Circuit; and Sen. Specter asked Sens. Obama, Clinton, and McCain to declare their position on a possible motion to discharge three circuit nominees – Peter Keisler (DC Cir.), Bob Conrad (4th Cir.), and Steve Matthews (4th Cir.) – bottled up in the Judiciary Committee by Sen. Leahy.

Here’s our take on the day’s news, followed by excerpts from news reports. We believe Sen. Specter got it right – Keisler, Conrad, and Matthews are the nominees to focus on for a number of reasons. They were nominated to particularly important vacancies, have been pending in committee for a very long time, face no opposition from home state senators (the Leahy litmus test), and are being blocked for purely ideological reasons.

It follows that the devil is in the details of which nominees the Reid-McConnell deal will involve. We commend Sen. McConnell for using the highway funding bill as leverage to get a concession on judges from Reid, but we don’t yet know what to make of the deal. If “3 circuit confirmations by Memorial Day” turns out to include at least two of Keisler, Conrad, and Matthews, it’s a good deal. In contrast, Reid should not be allowed to claim credit for circuit court nominees whose selection or likely confirmation are already the result of deals with Democrats. Steven Agee (4th Cir.), Helene White (6th Cir.), and Ray Kethledge fall in that category.

Which brings us to the Michigan deal, involving two long-vacant Michigan seats on the 6th Circuit. Sen. Carl Levin agreed to stop blocking outstanding 6th Circuit nominee Ray Kethledge in return for the nomination of Levin cousin-of-law Helene White to the same court. That displaced another outstanding 6th Circuit nominee, Steve Murphy, who has now been nominated to the federal district court instead. Sen. Levin should be embarrassed that he has blocked 6th Circuit nominees for the last 7 years as “payback” for the breakdown of a deal to put White on the circuit a decade ago. But since Levin wasn’t going to get over his grudge anytime soon, the President was right to make the deal.

This morning, Republicans are going to the Senate floor to address Democrats’ obstruction of judicial nominees and yesterday’s deals. So there may be more news today.

Finally, we hope for a speedy recovery by Sen. Arlen Specter, one of the GOP’s leading voices on the judges issue.

News Excerpts:

"Specter wrote Sens. Barack Obama (D-Ill.), Hillary Rodham Clinton (D-N.Y.) and John McCain (R-Ariz.), seeking a direct response as to how they would vote on a motion to discharge three pending nominations from the committee. But Specter, rarely one to mince words, said he also wanted to “focus the public’s attention” on the impasse.” – The Hill, 04/15/08

“Dangling the popular highway funding bill as his hostage, Senate Minority Leader Mitch McConnell (R-Ky.) struck a deal Tuesday night with Majority Leader Harry Reid (D-Nev.) to dislodge a handful of President Bush's stalled appellate court nominees. Under the agreement, Reid and McConnell decided to advance at least three outstanding circuit court appointments before the Senate's Memorial Day recess, which begins May 23. … Reid said he couldn't make guarantees nor could he specify which judges would move forward, but he would do his best to follow through on the leaders' deal.” - Roll Call, 4/16/08 (emphasis added)

“The [Michigan] deal was reached by the White House and Democratic Sens. Carl Levin and Debbie Stabenow. … Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, called the agreement ‘a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.’” – Associated Press, 4/15/08

"Petty Warfare" Not Over

One circuit judge confirmed, many to go. This L.A. Times article quotes Senator Arlen Specter as placing the blame on both parties. The delays are clearly unnecessary and the public outcry should not be quelled by the confirmation of this one circuit court judge. There are many judicial vacancies that need to be filled as soon as possible, and plenty of nominees awaiting their hearings, a problem that can and should be addressed.

Judges: Worst Record Since 1848

Seven GOP senators took to the Senate floor this morning to denounce the obstruction of judicial nominees by their Democratic colleagues and to put the Democrats on notice of the price they will pay if the obstruction continues. After “Republicans slammed Leahy at a committee meeting last week,” today’s “threat marked the next phase in the growing election-year battle over the judiciary, an issue that Republicans hope will energize conservatives eager to see more of Bush’s nominees confirmed to the bench,” reported The Hill today. Here are excerpts of the GOP senators’ remarks:

Sen. Arlen Specter:

“There is a growing movement in the Republican caucus to hold up legislation if we cannot move in any other way to get justice on the confirmation of these judges”

Sen. Sam Brownback:

“I think you're going to see people start to jam the body down and say that, unless we start approving some circuit court judges, business isn't going to happen around here. … It may come to a complete standstill if we don't start getting some judges. … The majority party can choose to go that route. … We are really going to have a big debate then across the country on that. Meanwhile, the whole nation just wants us to get the work done and we're not getting it done because judges aren't being approved.”

Sen. John Cornyn:

“This immediate need for judicial confirmations is especially true for the U.S. Court of Appeals for the Fourth Circuit. … The Fourth Circuit is currently operating without a third of its judges. The Washington Post observed that ‘the Senate should act in good faith to fill vacancies – not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers.’”

Sen. Orrin Hatch:

“The majority has stalled judicial confirmation votes longer this year than in any presidential election year since 1848. … The last time the Senate waited this long in a presidential election year to confirm federal judges, James Polk, the 11th President, was in the White House.”

“Since I was first elected, there have been seven Congresses like this one that included a presidential election year. During each of these presidential election Congresses, the Judiciary Committee held hearings for an average of 25 appeals court nominees. But today, more than fifteen months into the 110th Congress, the Judiciary Committee has held a hearing for only five appeals court nominees.”

“The current Judiciary Committee chairman in the past often insisted that 1992 provides the standard for judicial confirmation progress. Like today, his party controlled the Senate and a President Bush was in the White House. By this time that year, by April 10, 1992, the Senate had already confirmed 25 nominees to the federal bench. It does not look like the Senate will confirm 25 judicial nominees for the entire rest of the year.”

Sen. Mitch McConnell:

“The Judiciary Committee has held only one hearing on one circuit court nominee since last September. … It’s not as if the Committee has been otherwise occupied. This is another week in which the Committee could have held a hearing, for example, on the qualified nominees to the Fourth Circuit Court of Appeals, but it again chose not to do so. These nominees meet the Chairman’s own criteria for prompt consideration. Nevertheless, they have been inexplicably languishing in the Committee for hundreds of days without a hearing while the Fourth Circuit is one-third vacant.”

“We were told that having the support of home-state senators ‘means a great deal and points toward the kind of qualified consensus nominee that can be quickly confirmed.’ But it’s beginning to look like this criterion is being selectively applied: it’s readily used as a reason not to move a nominee – coincidentally, when the nominee is from a state with a Democratic Senator – but it’s ignored when the nominee has the support of two Republican Senators.”

Sen. Tom Coburn (including his written statement and remarks on the floor):

“The Chairman’s unwillingness to even hold hearings on numerous judicial nominees is a gross dereliction of duty. It is disappointing that the committee is putting election year partisan politics ahead of its constitutional duty to give ‘advice and consent’ to the president’s judicial nominees.”

“If Senators can find time to attend fundraisers, process thousands of earmark requests and be guests on talk shows they can find time to do the job they were elected to do, and are required to do under our Constitution.”

“I'm reminded of the fact that the majority had problems with four of President Bush's nominees starting in January [2007]. … In a gesture of good will, he withdrew four nominees that … although they were well-qualified, they weren't acceptable [to Democrats] … It's time for the Senate to make good on promises. It's time for it to reciprocate on what President Bush did in terms of withdrawing the four nominees.”

“Chairman Leahy’s treatment of Fourth Circuit nominee Robert Conrad, who has been pending for more than 250 days, is a case study in mindless partisanship and baseless obstruction. Last week, when I asked Chairman Leahy why this nominee has been delayed he accused Judge Conrad of making ‘anti-Catholic’ statements. Chairman Leahy’s stunning accusation against a nominee who happens to be Catholic underscores the urgency of giving Judge Conrad the courtesy of a prompt hearing and fair vote. … If Senator Leahy has concerns about Judge Conrad’s qualifications he should present those in the context of a confirmation hearing, where the nominee will have an opportunity to respond.”

Sen. Jon Kyl:

“The judicial conference says that many of these [vacancies] are judicial emergencies, meaning that we have vacancies in the circuit that need to be filled because there aren't enough judges to do the people's business. I mean, we should do it because we should do it; it's our responsibility. But even if you only look at it from a political standpoint, the reality is that if this tradition is broken of 15, 16, 17 judges in the last two years of an administration, then, clearly, we're going to devolve into a situation where, for political purposes, the party in power decides not to … even having votes on the nominees of the President. And that is a very, very bad thing."

“Peter Keisler, who has been pending the longest. He's been pending for almost two years. In fact he was nominated to the District of Columbia circuit court in June of 2006 and received a hearing in August of that year. He is widely regarded as well-qualified, fair-minded, and has received support from all over the political spectrum. … The American Bar Association has rated him unanimously well-qualified. You cannot get a higher rating than that. The Washington Post – no particular friend of this administration – editorialized in favor of Keisler describing him as a highly qualified nominee who certainly warrants confirmation.”

Another Good Article Speculating McCain's Judicial Picks

The Huffington Post printed an article yesterday afternoon again putting to rest the notion that McCain's so-called history of being a "maverick" will not translate to less conservative judicial appointments.

What is the hold-up for Keisler?

Ed Whelan, in his "Bench Memo" on the National Review Online wrote an article yesterday commenting on the numerous recommendations Keisler has received, including from Independents and Democrats. After quoting many of the complimentary letters, Whelan wonders, "Why are Pat Leahy and his fellow Democrats on the committee obstructing this nomination?"

Scalia Speaks to the Changes in the Confirmation Process

Supreme Court Justice Scalia says the process for confirming judicial nominees has changed and over at the Committee for Justice I'm sure everyone agrees. The Providence Journal has more on the Justice's speech to the students of Roger Williams University School of Law yesterday here.

Charlton Heston Democrats?

As you probably know, Academy Award-winning actor and Hollywood activist Charlton Heston passed away on Saturday. What you may not know is that for the majority of his life he probably considered himself something of a liberal, or at least a Democrat. Though his may be one of the first names one thinks of when trying to list known Hollywood conservatives, he spent the 1950's and '60's campaigning for and marching with the likes of Adlai Stevenson, John F. Kennedy and Martin Luther King. He was even asked to run for the U.S. Senate by the Democratic Party in 1969. In more recent years Heston was a defender of the National Endowment for the Arts.

So, when exactly was it then that Charlton Heston became a Republican? Was it during the Vietnam War? Or when his friend Ronald Reagan was elected? Perhaps after one too many Democrats voted for one too many gun control proposals? Nope. According to the New York Times:

“He became a Republican after Democrats in the Senate blocked the confirmation of Judge Robert Bork, a conservative, to the Supreme Court in 1987. Mr. Heston had supported the nomination and was critical of the Reagan White House for misreading the depth of the liberal opposition.”

There are still a lot of people on both sides of the aisle and in the press who don’t believe the judiciary is something that people care about, much less vote on. But the fact is that there are millions of people out there like the late Charlton Heston for whom this question is paramount. They vote on it because they are smart enough to realize that it is a subject that touches on at least one, if not many, of the issues they deeply care about from abortion to gun control; from property rights to how we fight terrorism. They realize that whatever may be accomplished through democratic action by conservatives and libertarians can be undermined or even reversed by an activist judiciary seeking to impose its own policy agenda on a people who have rejected their political views at the ballot box again and again.

The only way McCain and other Republicans can win this election cycle is to find those “Charlton Heston Democrats” out there and turn them into Republican voters in November.

Today’s Dramatic Showdown over Judges

This morning’s meeting of the Senate Judiciary Committee was dominated by a dramatic showdown over Chairman Patrick Leahy’s refusal to schedule hearings for most of the President’s U.S. Court of Appeals nominees. The showdown came on the heels of yesterday’s Wall Street Journal editorial describing Sen. Arlen Specter’s “plans ‘to close the Senate down’ … to prod Democrats to [move] President Bush's appeals-court nominees.”

This morning’s dust-up over judges raged for more than 30 minutes and clearly got under Sen. Leahy’s skin. The Chairman lurched from being defensive to trying to change the subject, but Specter, the ranking Republican, insisted that all 8 of the GOP senators present be allowed to address the obstruction of Bush’s judicial nominees.

One of the most memorable moments came when Sen. Tom Coburn pressed Leahy about when he would allow a hearing for Fourth Circuit nominee Judge Robert Conrad. Conrad meets Leahy’s requirement for home state senator support and is needed to fill a vacancy declared a judicial emergency. Leahy refused to answer Coburn, instead accusing Judge Conrad of making "anti-Catholic comments." Coburn responded that Leahy’s charges were all the more reason to schedule a hearing during which Conrad could be questioned.

The dramatic confrontation bore immediate fruit, as Fifth Circuit nominee Catharina Haynes was voted out of committee. Leahy had been expected to comply with People for the American Way’s demand, in a March 31 letter, that the Committee “not proceed” with her nomination.

Perhaps the most ominous words came from Sen. Sam Brownback when he said "I think we all know where this is headed" – an obvious reference to the bitter and prolonged Senate showdown and shutdown over judges that only Sen. Leahy can head off. Earlier in the week, Senate Republican Leader Mitch McConnell warned that “Republicans will be forced to consider other options” if the obstruction of judicial nominees continues.

Which brings us back to yesterday’s Wall Street Journal editorial, which described Sen. Specter’s plan for “a series of procedural stalls that would make it next to impossible for the Senate to get anything done.” The Journal noted the potential impact of the judges showdown on the presidential and Senate races:

“Mr. Specter's plan … has the advantage of getting the issue of judicial confirmations back in front of the public in an election year. It also offers Senator John McCain an opportunity to show some leadership on an issue popular both with conservatives and independents. … As for Barack Obama, this would be a chance to show his ‘post-partisan’ campaign riffs are more than rhetoric.”

The Journal also addressed the nomination of Peter Keisler, who has not been allowed a vote in the Judiciary Committee in the 20 months since his hearing:

“Among those waiting for a vote is Peter Keisler, Mr. Bush's highly regarded nominee for the D.C. Circuit Court of Appeals. … He is widely seen as Supreme Court material, presumably the reason Mr. Leahy hopes his nomination will go the way of Miguel Estrada, a legal star blocked by a Democratic filibuster in Mr. Bush's first term.”

The comparison to Miguel Estrada is an interesting one. Estrada was blocked not only because he is “Supreme Court material,” but also because he is Hispanic. Democrats fear the nomination of a conservative Hispanic to the Supreme Court, because blocking a Hispanic nominee would anger a core Democratic constituency. 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.

Senate Judiciary Committee Under Fire Again

The Senate Judiciary Committee comes under fire again this week, yesterday it was by Senator Orrin Hatch and today, in an article in the Wall Street Journal. The article describes the current situation with the Senate Judiciary Committee and chairman Patrick Leahy’s role in holding up judicial nominees. The WSJ interviewed ranking member Arlen Specter and describes him as “spitting mad” about what Leahy is doing and discusses his intentions of following through with his prior threat to “shut down the Senate” until President Bush’s nominees get hearings.

Leahy, Clinton & Obama Lead Obstruction of Nominees

In Monday’s National Review Online – as well as in a floor speech today – Sen. Orrin Hatch took Senate Judiciary Chairman Pat Leahy to task for his hypocrisy on the issue of judicial nominations. Instances cited in the NRO piece include

“[Leahy] claims that he is not responsible when Bush nominees lacking support from their home-state senators do not get hearings. When he follows this policy, he blames it on senatorial courtesy. When Republicans follow this policy, he calls it a pocket filibuster.”

“Democrats also cite the so-called Thurmond Rule, supposedly to justify grinding the confirmation process to an early halt in this presidential-election year. (The Thurmond Rule is neither a rule nor attributable to the late Sen. Strom Thurmond.) ... As [Leahy] put it in July 2000: ‘We cannot afford to follow the Thurmond Rule and stop acting on these nominees now in anticipation of the presidential election in November.’”

“When Democrats were in the minority during President Clinton’s last year in office, they repeatedly insisted that 1992 provided the proper yardstick for measuring confirmation progress. [Leahy] said so in at least six different speeches between March and November of 2000. … Today, all Democrats have to do is meet their own standard. They are failing to do so.”

Sen. Hatch also made a telling personal comparison:

“I have voted against only five of the more than 1,500 nominees to life-tenured judicial positions that the full Senate has considered since I was first elected [in 1976]. Some Democratic senators … have voted against more than three times as many nominees of the current president alone.” (emphasis added)

Among the senators who have voted against more than three times as many nominees in just the last seven years, the worst offenders are presidential contender Hillary Clinton and Sen. Tom Harkin of Iowa (yes, both are worse than Sen. Kennedy). Clinton and Harkin have vetoed President Bush’s judicial nominees 19 times. And that doesn’t include the numerous times they voted to sustain the unprecedented filibusters of Bush’s judicial nominees – that is, to prevent the nominees from even getting an up-or-down vote by the full Senate.

Barack Obama trails Sen. Clinton in the obstruction game only because he wasn’t elected until November 2004. But once elected, Obama gave Clinton a run for her money, racking up eight vetoes of judicial nominees, compared to Clinton’s nine during the same period. Again, votes to sustain a filibuster are not included. But it’s worth noting that both Clinton and Obama joined John Kerry in his failed attempt to filibuster Supreme Court Justice Samuel Alito.

As part of his remarks on judicial nominations today, Sen. Hatch put a February 13, 2008 letter from a coalition of about 60 organizations in the record. The letter can be found here.

Will Obama really be able to mobilize the Obamacans?

In an interesting article from the New York Sun today, Conservative activists and leaders reflect on why some anti-war Republicans are now supporting Barack Obama for president. Among those interviewed was Mark Levin, who points out that by the time the general election rolls around this November, conservative voters will pay more attention to how the courts would look under an Obama administration than they did in the primary.

Conflicts of Interest Don't Stop at The Bench

The New York Times Supreme Court reporter, Linda Greenhouse, has been reporting on cases in which her husband is a litigant. According to a blogger at the National Review Online, this has created her own conflict of interest.

Judge Pulled from The Bench

This article from the National Law Journal says why U.S. District Judge Manuel L. Real has been removed from this case and highlights past career mishaps in the 9th Circuit.

Update on California Homeschooling Case

An article in the San Francisco Chronicle yesterday begins:

"A state appeals court has agreed to reconsider its decision last month that barred homeschooling by parents who lack teaching credentials..."

International Law Evolves

The U.S. has come a long way since Belmont, as Jason Harrow noted yesterday on SCOTUSblog .

This is in addition to his more in depth discussion at the Opinio Juris blog about Medellin v. Texas.

Do voters want a judiciary to be favorable or fair?

A 2001-2002 survey cited in a recent Wall Street Journal article had some disappointing results: "Seventy-six percent of Americans believe that campaign contributions influence judicial decisions" and "46% of state court judges agree." And that survey was from around the same time as the U.S. Supreme Court ruling to allow candidates in a judicial election to be vocal about their ideals and morals. This may distract voters from the importance of an independent judiciary that does not legislate from the bench.

Former Supreme Court Justice Sandra Day O'Connor has expressed fear that judicial elections have become "political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution." Since 39 states elect at least some of their judges, it would appear that voters have more power than they think in determining the outcome of a court case. Those of us who acknowledge the importance of constitutional judges (including the judges themselves) need to educate people on the purpose of the judiciary and why it needs to be independent.

Clinton & Leahy in Pocket of Trial Lawyers?

Two pieces caught our attention during the long holiday weekend. One, by George Will, calls for a much-needed pay raise for federal judges. The other, an editorial in Friday’s San Francisco Examiner, posits that generous campaign contributions to Democrats are behind Congress’s lack of interest in the apparently widespread use of kickbacks by plaintiff’s attorneys looking to shake down American companies. These felonious kickback schemes have “a severely detrimental effect on the administration of justice across the nation,” noted the Justice Department on Thursday, as Mel Weiss of Milberg Weiss pled guilty to conspiracy charges involving about 150 securities class action lawsuits. Milberg Weiss partner William Lerach, who also pled guilty, explained that the firm paid kickbacks because “everybody was paying plaintiffs.”

The Examiner reasons that

“the silence on Capitol Hill may have something to do with the fact that Milberg Weiss and its four former partners were extremely active and generous donors to Democrats in Congress … [N]ine of the most reliable congressional opponents of proposals to curb class-action lawsuit abuse received substantial contributions from Milberg Weiss. … Most of the recipients — including the top recipient, Sen. Hillary Clinton — refuse to answer questions about what they plan to do with the dirty money. If the silence is to be broken, it should start with Senate Judiciary Committee Chairman Patrick Leahy and House Judiciary Committee Chairman John Conyers — after they rid themselves of the nearly $8,000 they got from Milberg Weiss, that is.” (emphasis added)

In his column yesterday, George Will makes an important point about judicial pay. The precipitous decline in the salaries of federal judges – in inflation-adjusted dollars – has contributed to a dramatic drop in the percentage of judges coming from the private sector and a concomitant near doubling of the number coming from government jobs. This trend, says Will, “tends to produce a judiciary that is … more of an extension of the bureaucracy than a check on it.”

A Gift to the Dems in '08 from the Anti-Alito Coalition: $150 million

It seems that some of our old friends from the Roberts and Alito confirmation battles will be contributing a great deal of cash to Democratic candidates for federal office this year. According to a recent article from the Associated Press, “A loose coalition of liberal and labor organizations expects to spend about $150 million this fall to push its causes and help Democrats win the White House and strengthen their grip on Congress.”

Several of these far-left groups are part of the coalition that took part in the distortions and outright smears against well-qualified nominees like Miguel Estrada, Charles Pickering, John Roberts and Sam Alito. Certainly, with this extraordinary expenditure of money and man-hours these groups will expect to increase their already incredible influence on Senate Democrats whether they can defeat John McCain or not.

For an in-depth look at who these groups are and what they stand for make sure to read (or re-read) this CFJ white paper from December 2005 by current CFJ Executive Director Curt Levey.

California Home Schooling Statute Holds in Court

The California Department of Education has responded to the recent California state court ruling that only certified teachers can home school their children. The Superintendent of Public Instruction Jack O'Connell reassures home schooling parents that state "policy will not change in any way as a result of this ruling" and that "parents still have the right to home school" in California. The decision by the court will likely not be enforced pending appeal to the California Supreme Court.

However, instead of encouraging uncertified parents to disregard the court's ruling, perhaps Governor Arnold Schwarzenegger, who opposes the ruling, should change the statute upon which this ruling was based. The court also cites a previous California decision holding that, while it would be unconstitutional to require children to attend public school, requiring home school parents to have teaching credentials is not.

Nonetheless, home schoolers want the ruling reversed because of its possible precedential value. The best thing these parents can do is to respect the rule of law and urge their legislators to change it.

New 4th Circuit Nominee & Judicial Pay

We’re pleased to see that there’s a new nominee to the U.S. Court of Appeals for the Fourth Circuit. Yesterday, President Bush named G. Steven Agee to a Virginia seat on the court. Elected in 2003 to the Virginia Supreme Court by a bipartisan voice vote in the state legislature, Agee has the support of both Virginia senators – including Democrat Jim Webb – behind his 4th Circuit nomination.

That support is expected to facilitate his confirmation. Skeptics will counter that Senate Judiciary Chairman Patrick Leahy has turned the slow walk (often no walk) of judicial nominees into a fine art since the Democrats regained control of the Senate. But given that the support of home state senators – in this case, bipartisan support – is the touchstone of Leahy’s confirmation test, it’s hard to fathom how he could justify doing anything other than expeditiously processing Agee’s nomination.

The seat to which Agee has been named was vacated when J. Michael Luttig, one of the federal bench’s brightest intellectual stars, resigned to become general counsel for Boeing. The relatively low pay of federal judges was one of the factors leading to the loss of this brilliant jurist, which brings us to our second topic. This week, two current and one former U.S. Supreme Court Justices made the case for a substantial increase in the pay of federal judges.

In an interview Tuesday, retired Justice Sandra Day O'Connor emphasized that new law firm associates just out of federal judicial clerkships typically make more money than the judges they worked for. And yesterday, Justices Anthony Kennedy and Clarence Thomas testified on Capitol Hill, with this account by Tony Mauro of the Legal Times:

"The table-pounding came when Kennedy was asked about judicial salary increases, which have made some progress through both houses but is still not a done deal. … ‘If we don't get relief, there will be an exodus of judges,’ lured by tripled salaries and challenging work in arbitration and private practice [said Kennedy]. Kennedy also decried proposals to tie salary increases to stricter limits on how much money judges can earn or be reimbursed when they teach or give speeches. ‘It doesn't make much sense,’ Thomas added, for federal judge salaries to be capped at a level that some first-year associates are able to earn. Thomas, too, said judges should be allowed to teach … and should not be limited even further than they are already in what they can earn in teaching positions.”

Reagan Democrats and the Judges Issue

Despite all of the predictions of gloom-and-doom you hear from the liberal MSM about the GOP’s chances in 2008, every once in a while you’ll find an article that hints things may not come out exactly the way Howard Dean and Keith Olbermann think they will.

Yesterday the LA Times reported that many bigwigs in big labor are very concerned with how their members will vote in the presidential race in November. It seems that no matter which Democratic candidate wins, but especially if it’s Barack Obama, John McCain has a chance to pick up a significant number of blue-collar Reagan Democrats.

“That vote is up for grabs,” former John Edwards campaign manager David Bonior is quoted as saying. According to the article “labor strategists were alarmed by polls and focus groups of undecided union members that showed McCain doing well in match-ups with either Democratic candidate.”

Former RNC national chairman Ken Mehlman apparently believes that McCain “would attract Reagan Democrats for the same reason the former president did: McCain is seen as frank, a good leader, strong on defense and opposed to tax increases.” I can think of another reason Reagan Democrats would vote for McCain: judges.

Reagan Democrats are not the biggest fans of an activist judiciary looking to advance a left-wing agenda in every area of public policy from the War on Terror to cultural issues. Generally, these kinds of voters are patriotic social conservatives who want the government to be tough on crime and terrorism and respect their Second Amendment rights. McCain and Republicans running for the Senate need to talk to the American people about this issue and explain the difference between the kind of judges a President McCain would put on the courts and the kind of judges a President Obama (or a President Hillary Clinton) would put on the court.

D.C. Gun Ban Case heard by the U.S. Supreme Court

Next week the U.S. Supreme Court will hear arguments over whether or not the D.C. Gun Ban is constitutional. Even the most liberal justices, after reviewing the trend in murder rates in D.C., may be sympathetic to striking down the gun ban.

According to Fox News, D.C.’s murder rates have increased and continually rank among the highest in the nation. Other cities, such as Chicago, experienced a similar increase in its murder rate after banning handguns.

Admittedly, the relationship between crime and gun possession is complex. However, this data reminds us of the importance of the Second Amendment and should remind the justices, too, since they have to come to work in D.C. every day.

Three Numbers to Remember

As Curt points out below the battle over judicial nominations in the 110th Congress has heated up to the boiling point and is a growing factor in the race for President.

One thing I’ve noticed about the articles on Curt’s list is the willingness of the media to repeat Senator Patrick Leahy’s spin on the number of judges that have received a fair up-or-down vote in this Congress. In reality, when it comes to the fight over the current Appeals Court nominees there are three numbers to remember: 17, 14 and 6.

Seventeen is the average number of Appeals Court nominees that have been confirmed in the final Congress of the last three presidential administrations. Why are the last three significant? Because each - Reagan, Bush I and Clinton - faced a Senate controlled by the opposing party in their final two years in office, as George W. Bush does today.

Fourteen is the number of nominees that should have been confirmed as of February 29th if the Democrats had a fair up-or-down vote on one Appeals Court nominee per month. Keeping to this more than reasonable pace would have meant that the 110th Congress would have reached the historical average by June, 2008 the month that the misunderstood and misconstrued “Thurmond Rule” is normally imposed. (For an excellent break down of the historical reality of the Thurmond Rule read this blog post by Ed Whelan on Bench Memos.)

Six is the actual number of nominees who have been confirmed so far by the 110th Congress in fourteen months. In other words, about one-third of the overall historic average and less than one-half of the number that should have been confirmed at this point.

So, in the end you can forget all of Leahy’s spin and remember three simple numbers: 17, 14, and 6.

Judges Battle & 2008 Election

This week, a flurry of articles on judicial nominees emphasized two themes:

1) The battle over judges is heating up now that GOP senators are ready to play hardball.

2) Judicial nominations will be a major issue in the 2008 election.

Here are some excerpts from Hill, Politico, Legal Times, and James Oliphant articles:

2008 Election

"Conservative activist leaders and Senate Republicans are reaching out to bring McCain back to the Senate and talk about the [judges] issue on the campaign trail, saying doing so would bring a national spotlight to the stalemate" – The Hill

"The issue [of judicial nominees] is almost certain to emerge in the presidential campaign, according to interest groups." – Legal Times

"The last time there was a major showdown on judges, the Senate moved to the brink of a shutdown, and conservative blogs and talk shows were ablaze with rhetoric over Democratic intransigence. ‘It’s something people care about,’ said Stewart, McConnell’s spokesman." – Politico

The Coming Battle

"Almost three years after the Senate confirmed two Supreme Court justices … tensions are again rising over judicial nominations. Sen. Arlen Specter (R-Pa.) Monday threw down the gauntlet on behalf of Republicans." – James Oliphant, Chicago Tribune

"'The fact is that we can play a political game—if they really want to play the political game on judges, Republicans will win,' said Sen. Tom Coburn (R-Okla.), a Judiciary Committee member, who said that the time for 'playing nice' had passed. … Specter and other Republicans said a range of parliamentary tactics are on the table, including objecting to unanimous consent requests to allow committees to meet, prohibiting routine business on the Senate floor and denying quorums at Judiciary Committee meetings." – The Hill

Would Bush Endorse McCain's Judicial Nominees?

President Bush has formally endorsed John McCain for president. McCain has said that he supports Bush's judicial nominees and, as president, would nominate strict constructionist judges as well.

If Senator McCain spoke out in support of providing more expeditious hearings for judicial nominees, this would help put an end to the obstruction of judicial nominees and provide reassurance to conservatives of his view on the judges issue.

Specter & Conservative Leaders Plan Judges Battle

The Committee for Justice issued the following press release today:

FOR IMMEDIATE RELEASE: March 4, 2008
CONTACT: Curt Levey, (202) 270-7748, clevey@committeeforjustice.org

SPECTER & CONSERVATIVE LEADERS PLAN JUDGES BATTLE
Implications for Presidential Race Discussed
McConnell Laments Dems’ “Judicial Confirmation Brinksmanship”

WASHINGTON, DC – Monday afternoon, Senate Judiciary Committee ranking member Arlen Specter (R - Pa.) convened a meeting of conservative leaders to gear up for a fight over confirmation of the President’s judicial nominees. Noting that the confirmation statistics cited by Judiciary Chairman Pat Leahy (D - Vt.) painted a misleading picture of progress on nominees, Specter fired up the leaders by warning that “if things don’t change . . . the President’s court appointments . . . will be an historic low for a two-term President in modern times.” The implications of the looming judges fight for the presidential race were discussed. Then Sen. Specter took to the Senate floor, where he denounced the obstruction of judicial nominees and announced plans to introduce a protocol for the nonpartisan processing of both parties’ judicial nominees. GOP Leader Mitch McConnell followed with similar remarks on the floor.

At the meeting, Specter disclosed his February 29 letter to Sen. Leahy, in which he made one last plea to the committee chairman to avert a showdown and “work out an accommodation . . . without our respective caucuses coming to an impasse.” Specter asked Leahy to “work with me to establish a schedule for prompt consideration of all currently pending judicial nominees.” (emphasis added). However, Specter told the assembled leaders that, after making repeated, failed efforts to work with Chairman Leahy, a high-profile fight over judges seemed all but inevitable.

Monday’s meeting appeared to mark a turning point in what the letter calls the Senate’s “most bitter” controversy. A fight over judges has been brewing for weeks now, as GOP senators have become increasingly frustrated with Leahy’s obstruction of nominees. Sen. Specter had urged his colleagues to postpone any hardball tactics while he tried again to work things out with Leahy. But yesterday, “Specter indicated to the conservative leaders that he too had run out of patience and was ready to lead his colleagues into battle,” said Committee for Justice executive director Curt Levey, one of the participants in the meeting.

On the Senate floor, Specter called for the immediate adoption of a long-term bipartisan protocol establishing timetables for the expeditious processing of all judicial nominees, including deadlines for hearings, Judiciary Committee votes, and up-or-down votes by the full Senate. Specter reiterated the argument in his letter that, “given the uncertainty of who the next President will be, now would be a good time to change the confirmation process to guarantee prompt action on nominees.”

“Senate Democrats balked when a nonpartisan timetable was proposed during President Bush’s first term,” noted Curt Levey. “But given Democrats’ confidence about recapturing the White House and their talk about reducing partisanship, it’s difficult to see how they could object to Sen. Specter’s current proposal.” Levey noted that “debate over the proposal could quickly become an issue in the presidential campaign, since it’s greatest impact would be on the next president’s judicial picks. Barack Obama, who promises to move the country beyond partisan politics, would be hard pressed to explain why he can’t support the Specter proposal. And John McCain, a key member of the ‘Gang of 14’ deal, would also be expected to weigh in.”

Minority Leader Mitch McConnell took to the floor after Specter to urge that his “Democratic colleagues resist the desire by some to drag us back into judicial confirmation brinksmanship.” McConnell noted that “many of these [judicial] nominees satisfy most or all of [Leahy’s] specific criteria for prompt consideration: they have strong-home state support, they fill judicial emergencies, and they have good or outstanding ABA ratings.” Nonetheless, McConnell said, “there have been no judicial confirmations so far this year, and there has been only one hearing on a circuit court nominee since September of last year.” In last year’s most contentious fight over a judicial nominee, both McConnell and Specter were instrumental in the successful confirmation of Fifth Circuit nominee Leslie Southwick.

Chairman Leahy has tried to counter the growing criticism of his stewardship of judicial nominations by pointing to the forty judges confirmed by the Senate in 2007. But as Sen. Specter explained, the numbers cited by Leahy are misleading because they count 13 confirmations of nominees who “were held over from the 109th Congress and required no significant work by the Committee.” The truth, Specter said, is that the pace of confirmations under Leahy is slower than under his predecessors.

“By comparing apples to oranges and conflating district court nominees with appeals court nominees, Sen. Leahy has attempted to camouflage the historic level of obstruction he is engaging in,” added Curt Levey. “But Leahy is playing a dangerous game in an election year, because the judges issue is always a winning one for the GOP. And, more than any other issue, it unites the various constituencies in the Republican party. Why do you think it’s only the GOP contenders for president who emphasized the issue?”

The Committee for Justice is a non-partisan, non-profit organization devoted to promoting constitutionalist judicial nominees and the rule of law.

Obama’s Judges Would Lead With Their Hearts

In his latest column, Terence Jeffrey worries that

“If Obama becomes president, he will try to stack the court not with umpires, but with players who put their heart in every game – consistently pitching and batting for Obama's favorite teams.”

Jeffrey’s concern stems from Obama’s remarks during the Roberts and Alito confirmation debates. As Jeffrey describes it, Obama argued that “the role of a justice is to favor the ‘weak’ over the ‘strong’ ” and that, in the most difficult cases,

“the determining factor is not what the law in question says, or what the Constitution says. … ‘In those difficult cases,’ Obama said, ‘the critical ingredient is supplied by what is in the judge's heart.’ Roberts and Alito were bad judges, he decided, because their hearts weren't in the right place.”

Jeffrey goes too far in asserting that Obama “wants a Supreme Court that wages class war under color of law.” But it is hard to deny that

“In contrast to his soaring campaign rhetoric about bringing America together, Obama's Senate speeches against Roberts and Alito revealed a polarizing vision of America. Minorities, women, employees and criminal defendants were among the weak; majorities, men, employers and prosecutors were among the strong.”

Nonetheless, if you are not a judicial conservative, you may be asking what’s wrong with judges protecting the weak from the strong? Well, for one thing, identification of