From Poltico:

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.

...

"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.

The letter talks about "bipartisanship" and, separate from the letter, several Republicans have been warning the president for some time against nominating "far left judges." But for all this talk about "bipartisanship" and throwing terms around like "far-left judges," what do they really mean?

Does bipartisanship mean nominating half right-wing judges who would overturn Roe v. Wade and don't believe in the Constitution's promise of equal rights under the law; half who agree that the Constitution makes certain guarantees in terms of people's rights and liberties and that it gives the government the authority and the responsibility to protect those rights, not undermine them?

Or does it mean that all of the president's judicial nominees must be "moderates," and if so, what is their definition of "moderate?" Is a moderate someone who is respectful of fundamental constitutional rights and principles like privacy, equality, the right to choose and checks and balances… as long as they are pro-corporate? We already have a Supreme Court that is overwhelmingly pro-business, much more so than many precious Courts, including the four supposedly "liberal" Justices.

Of course that's probably not the case (not that the president should feel compelled to nominate judges with a corporate-friendly bent anyway, especially now that we are in the middle of the havoc wreaked by corporate greed and excess, but I digress).

When it comes to this issue, what they really care about is pleasing their base. And when it comes to their base, the ONLY judges who are acceptable are extreme right-wing ideologues. So any actual "moderate," mainstream judges of course will be rejected -- and they will be cast as "far-left."

The Right sees the Judicial Branch in very black and white terms. They have accused the Democrats of having a litmus test on judges when it comes to Roe v. Wade. But that was obviously proven wrong by the fact that both Chief Justice Roberts and Justice Alito were confirmed even though they both, according to many experts, would vote to overturn Roe. No, it's the Right that has strict litmus tests on everything from Roe v. Wade and gay rights to free speech, the separation of church and state and, yes, how "business-friendly" a judge may be. Their base demands it! And Republican Senators -- even the so-called moderates like Snowe, Collins and Specter -- are unified on this one.

The judicial philosophies of the jurists respected by the Right are defined by extremism -- plain and simple. It's one thing for a judge to find legal exception with the way a certain case was decided (even if that decision protects a fundamental right, like Roe v. Wade), but quite another to subscribe to theories and views that fly in the face of mainstream judicial thought like:

• "Constitution in Exile," which takes an extreme and limited view of the Commerce Clause and basically states that the regulatory policies of the New Deal were unconstitutional... and a huge number of policies and Supreme Court decisions going back nearly a hundred years, including civil rights protections, are unconstitutional as well. (Opinions expressed by Clarence Thomas and Antonin Scalia support "restoring the lost constitution.")
   
• "Unitary Executive Theory," which has been used to justify insanely expansive views of executive power that defy the most commonsense understanding of our founding principles relating to checks and balances and a limited executive (remember, our founders were breaking from a monarchy - they obviously didn't want to create another one). The Bush administration exploited this theory over and over again its now infamous abuses of executive power.; and
   
• a blatant disregard for the bedrock judicial principle of stare decisis (which Justice Clarence Thomas is said, even by Justice Scalia, to show).  

This is par for the course for right-wing judges. While those of us on the progressive side are not devoid of ideology, and are proud to have our own ideology when it comes to the Constitution and the law, the Right is by far more ideological and Republicans need to be called out for doing the Far Right's bidding once again.
 
President Obama and the Senate Democrats should challenge these Republican Senators to define their terms more specifically -- to tell them and the country EXACTLY what they mean by "bipartisanship" in this case and what they would consider acceptable or "moderate" nominees.  And the president should reject the GOP's attempt to force bipartisanship at gunpoint, by making threats and trying to use coercion to get him to appease their base on judges.

Today in the Supreme Court, a case was argued that makes a pretty compelling case for a fair and independent judiciary. Robert Barnes at the Washington Post did a good overview yesterday.

Caperton and his little coal company sued a huge coal company on claims that it unlawfully drove him out of business, and a jury agreed, awarding him $50 million.

That company's chief executive vowed an appeal to the West Virginia Supreme Court -- but first, he spent an unprecedented $3 million to persuade voters to get rid of a justice he didn't like and elect one he did.

Today during arguments the Court was (no surprise) divided. But the real principle may be bigger than simply campaign donations.

The Constitution sets up the judiciary as the branch of government dedicated to ensuring that the rule of law applies equally to all people. When it's broken – or perceived to be broken, -- there's scant reason for citizens to put their full faith in the government. And yet over the last years, President Bush has systematically flooded the courts with jurists who put political ideology over our most basic constitutional principles.

No longer fearing the worst when it comes to judicial appointments is, well, a big sigh of relief, but this case makes very clear how crucial it is that we repair the damage eight years of George Bush has done.

Just last week I wrote about the Republicans as the Party of NO after their reflexive and not very wise decision to prevent two DOJ nominees, Elena Kagan and Tom Perrelli, from being voted on in Committee. This week they were at it again with a threat to filibuster President Obama's judicial nominees before a single nomination has even been submitted. You can read our Right Wing Watch post on their hypocrisy here. And you can read People For president Kathryn Kolbert's statement here. I particularly like her pointing out that Senate Republicans, who argued vigorously against filibusters in their previous incarnation apparently "have the collective memory of a goldfish."

There was good news today from the federal court of appeals in San Francisco today:

The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government's warrantless wiretapping program.

A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.

You may remember that we were more than a little disappointed when the Obama Administration decided to assert its state secrets privilege earlier this month.  Today's ruling was a good sign our third branch of government is standing up for the rule of law.

Today, at an event sponsored by the First Amendment Center and the Supreme Court Fellows Program Alumni Association, Justice John Paul Stevens, the Senior Associate on the Supreme Court, moderated a discussion with the authors of a new book, The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court, Clifford Sloan and David McKean. The Justice gave only a brief introduction before the authors spoke about the book and answered questions. Justice Stevens first spoke about his initial exposure to Marbury v. Madison in law school. He jokingly reminisced about the length of time spent on the case, stating that his teacher spent the first six weeks of a constitutional law class devoted solely to the intricacies of the case. He voiced his admiration for the case, calling it fascinating, and agreeing with the assertions by the panelists that the case is “the cornerstone of the Constitutional system.

He then moved on to an issue that, while he admitted was not directly on topic, was very important, the separation of powers. Marbury solidified the independence of the judiciary as a separate branch of government with its own powers. Stevens strongly believes in this and voiced concern that the wall between the executive and the judiciary is weakening. He recalled that when he was sworn in as a justice, his ceremony was performed in the Supreme Court which he viewed to be strongly symbolic of the separation between the political appointment process and his judicial post. Since that time, however, the practice changed and is now performed in the White House. He has boycotted the past four swearing in ceremonies, as he believes that the judiciary should be strongly separated from the political branches, beginning with the swearing in. Stressing the symbolism of the place and manner of the oath, he voiced hope for a change in this process with the next appointee.

Again focusing on the importance of separating the judicial branch from the political process, Stevens questioned the authors about the impeachment of Justice Chase from the Supreme Court shortly after Marbury was decided. Essentially, the opposition party in the House of Representatives sought to impeach Chase because they did not agree with his decisions politically, and used the impeachment as a retaliation against the Court. Chase was eventually acquitted, establishing the doctrine that judges may not be removed due to a dispute over their political preferences or political disagreement with their decisions.

Those looking to for a discussion focused on Stevens's thoughts on the issue might have been disappointed.  Through out the event Stevens was largely content to listen to the panelists. When he spoke he showed his vast knowledge on the subject area, but remained in the role of moderator and gave much of the spot light to the panelists.

I just came back from an executive meeting of the Senate Judiciary Committee where once again the Republicans are demonstrating a reflexive and not very wise strategy of just saying NO. Senator Leahy, chair of the Committee was trying to move the nominations of two key Justice Department nominees, Elena Kagan, who will be the first woman to be confirmed as the Solicitor General of the United States, and Tom Perrelli, who will be the third-most senior official at the Justice Department, but Republicans on the committee refused to permit a vote. 

It’s not that they’re not entitled to do this – they have the procedural right under the Committee’s rules to hold the votes over until the next meeting of the Committee. My concern is that the Republicans didn’t appear to have any good reasons for delaying the votes other than “because we can.” That shouldn’t be acceptable, particularly where, as here, the delay denies Attorney General Holder and President Obama the senior leadership team they need to address the enormous task of restoring public confidence in the Department’s commitment to the rule of law.

Senator Leahy has bent over backwards to accommodate the Committee Republicans, in much the same way that President Obama has tried to reach across the aisle on a range of issues. But the response is obstructionism and delay. Saying NO just because you can is not sound policy and is not good for the American people.

On Wednesday night, I was thrilled to represent People For the American Way members and activists at a small White House reception. When meeting the President and First Lady, as well as Vice President Biden and his wife Jill, it really sunk in that, finally, progressives are no longer locked out as we were during the Bush administration. People For's seat at the table is the Obama administration's recognition of you and all your efforts, your passion and your activism, and our collective strength.

We will still need to organize and fight to achieve our goals, but so much more is possible now and it's good to know that we have a receptive audience. Our vigilance is needed to help make sure the administration does the right thing, but it's also needed because with this shift that I've just described, the Far Right has amplified its efforts to divide Americans and obstruct a progressive agenda.

Yesterday, People For the American Way released a Right Wing Watch In Focus report exposing the Radical Right's real intentions in their efforts to obstruct confirmation of President Obama's Department of Justice nominees:

"The rhetoric used in the attacks, documented extensively on RightWingWatch.org, suggests that the campaign may be less about actually stopping any of these nominees and more about getting right-wing activists, pundits, and lawmakers warmed up for similar attacks on eventual Obama nominees to the federal judiciary, and in particular to the U.S. Supreme Court."

This is more than just "playing politics." The DOJ is a vital branch of the government and these positions are critical to fill. Americans need to be able to put the past eight years of politicization and cronyism at the Department behind us and once again rely on the DOJ as a protector of our rights and values.

As I write this, the Justice Department is at the center of some serious legal matters pertaining to fundamental checks and balances. The Bush administration pushed most people's understanding of executive power to the limit and went significantly beyond. Some members of Congress did not take it lying down, asserting their constitutional authority and acting on their duty to check the president's power and cut through the extreme secrecy. But the process will be a long and intense one and we need a full team in place at Justice to help do the job.

The Senate must not delay in confirming all of the president's nominees, and first up, due to be voted on in committee next week, is Deputy Attorney General nominee David Ogden.

Ogden is incredibly well qualified, but the Right has attacked him because of his representation of American Library Association, the American Booksellers Association, and, yes, Playboy and Penthouse in First Amendment cases. They also went after him for arguing vigorously on behalf of a woman's right to choose and advocating that the U.S. follow the U.N. Convention on the Rights of the Child -- something that only the most fringe elements on the Right oppose.

But most of all, the Far Right is flexing its muscle in advance of judicial confirmation battles to come.

The Family Research Council has generated thousands of calls to the Senate in opposition to Ogden as a show of strength. It is absolutely necessary that senators not only hear from their side. Every senator needs to see that progressive activists are willing to stand up for constitutional values and weigh in on these fights. And they need to see it well in advance of Obama's first judicial nominations.

Please take a moment now to send an e-mail to your senators urging the swift confirmation of David Ogden as Deputy Attorney General.

Whether you live in a red state or a blue state, your senators need to hear from you. Even the most right-wing senators need to know that people in their states are spreading a counter message and are ready to hold them accountable.

Help Ogden achieve speedy confirmation for the sake of the DOJ AND to show senators that it's not only the Right that's strong.

This week, right-wing polling firm Rasmussen Reports heralded a new poll which supposedly revealed that 64% of Americans think that "Supreme Court decisions should be based on what is written in the Constitution," whereas only 27% think the decisions "should be guided by fairness and justice." Yes, you heard that right, Rasmussen conducted a poll which pitted "fairness and justice" against "what is written in the Constitution" and then blasted out a press release about their amazing findings.

The media all too often treats pollsters like they're interchangeable, and that's a shame. Rasmussen is infamous among pollsters for its automated polling method – computers, not people, ask the questions – which is frowned upon by mainstream practitioners. And sometimes I have to wonder whether the computers are doing more than just asking the questions. It's almost as if they're writing the poll questions and sending out the press releases too.

But back to this week's poll. Focus on the Family quickly chimed in to say it "reveals that the American people are much more conservative regarding judges than our president is or any of the liberals in Congress." This is laughable, but we can't just laugh it off.

The Right has convinced millions of Americans that the Constitution is inherently conservative and that woolly-headed liberal judges disregard the Constitution and our laws in order to reach their desired outcomes. But these are just myths they've created to help prevent what we, and the overwhelming majority of Americans, really want: a Supreme Court that interprets the Constitution in a fair and just way. There is no need to choose between "fairness and justice" and "what is written in the Constitution." We want both.

And as for Rasmussen, it's clear enough to see the game they're playing. If you ask people ridiculous questions they're going to give you ridiculous responses. You don't need a poll and a press release to tell us that.

Kathryn Kolbert is president of People For the American Way Foundation