judicial confirmations

Conservative Pundit: Impeach Kennedy Over Marriage Equality Ruling

On Tuesday, Sandy Rios of the American Family Association denounced the nomination of Wilhelmina Wright for a seat on the federal district court in Minnesota, urging Senate Republicans to not only oppose Wright but also to block every single one of President Obama’s remaining judicial nominees.

The Senate confirmed Wright’s nomination yesterday, angering Rios, who invited right-wing activist Phillip Jauregui of the Judicial Action Group on to her radio show this morning to talk about the importance of judicial nominations.

Rios told Jauregui that the Senate must stop even holding a vote for President Obama’s judicial nominees because “when you put judges on the court who do not respect the Constitution or are not really loyal to American values as expressed in the Constitution, there is no justice.”

The two moved on to discuss the Supreme Court’s decision to take up a case on the legality of Obama’s executive actions on immigration, which Rios found “tremendously concerning because that court is out of control itself and is not delivering justice, they’re delivering their own personal opinions.”

She cited the Obergefell decision, which struck down state bans on same-sex marriage, as one such ruling, saying she was “just devastated” upon hearing about the “absolutely irrational” decision. “It made no sense whatsoever and I don’t trust them anymore,” she said.

Jauregui, criticizing Justice Kennedy’s “horrendous” opinion in Obergefell, said that the justice is “horrible and he’s honestly a judge that ought to be impeached”

Later, Jauregui claimed that members of Congress would never block the president’s executive actions, giving him a reason to issue further ones of questionable legality. “This is not far from an imperial dictator we’re talking about,” he said.

Rios urged congressional Republicans to “find their spine” and stop spending time hating on Ted Cruz.

Sandy Rios: 'White People Everywhere' Terrified Of Criticizing People Of Color

Earlier today, Hans von Spakovsky of the Heritage Foundation spoke with Sandy Rios, a radio host and governmental affairs director with the American Family Association, about the nomination of Wilhelmina Wright to a federal district court seat in Minnesota.

Von Spakovsky alleged that Senate Republicans have refused to put up a fight against Wright, who is scheduled for a confirmation vote later today, even though, according to von Spakovsky, she is an extremist who hates the U.S. Constitution and thinks America is a racist country.

Rios claimed that Republicans aren’t blocking Wright’s nomination because they are “afraid” to oppose a black nominee. In fact, Rios said that “white people everywhere” are simply terrified of passing judgment on any person of color, which of course explains why no one on the Right has ever criticized President Obama.

“I am saying that a lot of this is coming from this fear now of white politicians, white spokesmen, white senators, white people everywhere, afraid to make any kind of a decision or judgment on someone who has a pigment in their skin, no matter what, because they will be accused of racism no matter what,” Rios said.

She went on to argue that Senate Republicans should “put a halt to confirmations” of judicial nominees altogether “because that has nothing to do with color.” Von Spakovsky agreed, saying that Republicans should oppose any nominee for the federal bench because they will all share President Obama’s “radical left-wing views.”

Mefferd: Gays 'Overrepresented' On Federal Courts

Conservative talk show host Janet Mefferd is not happy that the Senate, in a unanimous vote, confirmed Todd M. Hughes to the US Court of Appeals for the Federal Circuit, making him the country’s first openly gay judge to serve on a federal appeals court. “Because he had to be gay?” Mefferd asked. “I mean, that was like a qualification, if you’re going to be on the appeals court you better be gay? That’s how it rolls now.”

“They mention that at least seven gay or lesbian judges now serve or have served on federal district courts; sounds like overrepresentation,” she continued. “I don’t know how many judges are on that system but we’re talking about what, 2-3% of the population? This is overrepresentation but they don’t care.”

Overrepresentation? Let’s see.

There are currently six openly gay judges (and a seventh serving on senior status).

Now, there are 874 federal judgeships. Meaning that openly gay judges occupy a massive… seven tenths of one percent of federal judgeships.

Without counting judicial vacancies, the figure comes to a whopping 0.77 percent.

Such overrepresentation!

Right Still Targeting Judicial Nominee Nina Pillard's Support For Women's Equality

Georgetown law professor Cornelia “Nina” Pillard, one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit Court of Appeals, is one of the country’s most renowned women’s rights attorneys. She crafted the argument that convinced a nearly unanimous Supreme Court to open the Virginia Military Institute to women. She worked alongside Bush administration attorneys to successfully defend the Family and Medical Leave Act in the courts. She has opposed government policies that treat men and women differently based on outmoded stereotypes that harm both sexes.

So, of course, conservative activists and their Republican allies in Congress are calling her a “radical feminist" and threatening to filibuster her nomination.

In an interview with the Family Research Council’s Tony Perkins Friday, National Review columnist Ed Whelan called Pillard a “radical feminist law professor” and insisted that she would be “the most left-wing judge in the history of the republic.”

Phyllis Schlafly – who, of course, also opposed the opening of VMI to women and the Family and Medical Leave Act  – calls Pillard a “scary feminist.”

The Family Research Council has also gone after Pillard, skewing the meaning of her words and even citing her use of a phrase that was actually written by the late Chief Justice William Rehnquist as evidence of her “militant feminism.”

And just this weekend, right-wing activist "Dr. Chaps" Gordon Klingenschmitt sent out an email to his backers attacking Pillard's support for women's rights, specifically charging that Pillard “attacked and questioned the Virginia Military Institute” when she argued that VMI should admit women. 

Senate Republicans have picked up this line of attack. In Pillard’s hearing before the Senate Judiciary Committee, the committee’s Republicans (all men) latched onto the nominee’s support of reproductive rights. When fellow nominee Robert Wilkins appeared before the committee last week, Sen. Chuck Grassley tried, unsuccessfully, to trick him into dissing Pillard’s writings.

So what exactly is it that makes Pillard such a “radical”/“militant”/“scary” feminist in the eyes of the Right?

In a series of columns last month, Whelan elaborated on what he meant. He takes particular issue with a 2007 law review article in which Pillard argues that many public school abstinence-only sex-ed curricula impose a double standard on girls – hardly a radical observation. She also specifically wrote that she took no position on the abstinence message itself. Nevertheless, Whelan and others have distorted this into the idea that she would strike down all abstinence programs as unconstitutional, which is not at all what she has said.  In Pillard’s own words,

[The article] brings into focus those curricula's  persistent, official promulgation of retrogressive, anti-egalitarian sexual  ideologies-of male pleasure and female shame, male recreation and female responsibility, male agency and female passivity, and male personhood and female parenthood. I argue for a counter-stereotyping sex education that  affirms women's and men's desire, sexual agency, and responsibility.

She explained her thoughts further in her hearing before the judiciary committee:

Let me say first, I'm a mother. I have two teenage children — one boy and one girl. If my children are being taught in sex education, I want both my children to be taught to say 'no,' not just my daughter. I want my son to be taught that, too. The article was very explicit in saying I don't see any constitutional objection … to abstinence-only education that does not rely upon and promulgate sex stereotypes.

This argument – that many government-funded sex-ed curricula promote harmful and regressive stereotypes that cheat girls – is what has made right-wing activists go ballistic.

Pillard has also made it exceedingly clear that she knows the difference between testing out legal theories in law review articles and applying them as a judge. As she said in her hearing, “Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit” – a sentiment that many Republican senators echoed when they were defending Bush nominees who had in the past expressed opinions not consistent with existing law.

To put it simply, what conservatives object to about Pillard is that she believes in women’s equality and that she’s really, really good at making the legal case for it. In 2013 in the Republican Party, that’s what it takes to qualify as a “scary,” “radical” and “militant” feminist.

Right Wing Watch In Focus: "Rogues' Gallery"

Today, People For the American Way released out latest Right Wing Watch In Focus report examining the slate of extremist GOP Senate candidates running for office this year.

Entitled "The Rogues' Gallery: Right-Wing Candidates Have A Dangerous Agenda for America and Could Turn the Senate," the report examines the radical agendas and views held by Joe Miller, Carly Fiorina, Ken Buck, Christine O'Donnell, Marco Rubio, Rand Paul, Roy Blunt, Sharron Angle, Kelly Ayotte, Richard Burr, Rob Portman, Pat Toomey, Mike Lee, Ron Johnson, and Dino Rossi, plus the role that Sen. Jim DeMint has played in dragging the GOP further and further to the right.

Here is the introduction:

Republicans in the U.S. Senate have already broken all records for unprincipled partisan obstructionism, preventing the administration from putting people into key positions in the executive branch, blocking judicial confirmations, and delaying and preventing Congress from dealing with important issues facing the nation, from financial reform to immigration. Now a bumper crop of far-right GOP candidates threatens to turn the "deliberative body"into a haven for extremists who view much of the federal government as unconstitutional and who are itching to shut it down.

Fueled by the unlimited deep pockets of billionaire anti-government ideologues, various Tea Party and corporate-interest groups have poured money into primary elections this year. They and conservative voters angry about the actions of the Obama administration have replaced even very conservative senators and candidates backed by the national Republican establishment with others who embrace a range of radically right-wing views on the Constitution, the role of government, the protection of individual freedoms, and the separation of church and state.

Recently, Religious Right leaders have been grousing that Republican candidates arent talking enough about abortion and same-sex marriage. But this report indicates that anti-gay and anti-choice activists have little to worry about, as the right-wing candidates profiled here share those anti-freedom positions even if theyre talking more about shutting down federal agencies, privatizing Social Security, and eliminating most of the taxes paid by the wealthiest Americans. A number of these candidates oppose legal abortion even in cases of rape or incest.

Sen. Jim DeMint of South Carolina is helping to lead the charge with his Senate Conservatives Fund. DeMint, an absolute favorite of both the Tea Party and Religious Right political movements for his uncompromising extremism on both economic and social issues, is at the far right fringe of the Republican Party and has committed himself to helping elect more like-minded colleagues. Sarah Palin, also popular among both Tea Party and Religious Right activists, has also injected her high-profile name, busy Twitter fingers, and PAC cash into numerous Senate races.

Among the right-wing insurgents who defeated candidates backed by national party leadership are Christine ODonnell of Delaware, Joe Miller of Alaska, Marco Rubio of Florida, Rand Paul of Kentucky, Sharron Angle of Nevada, Ken Buck of Colorado, and Mike Lee of Utah. Others, like Carly Fiorina of California, came through crowded primaries where right-wing leaders split their endorsements, but have now coalesced around her candidacy.

And thanks to the conservative Supreme Courts ruling in the Citizens United case, which said corporations have the same rights as citizens to make independent expenditures in elections, right-wing candidates across the board will be benefitting from a massive infusion of corporate money designed to elect candidates who will oppose governmental efforts to hold them accountable, for example environmental protections and government regulation of the financial industry practices that led the nation into a deep recession.

This In Focus provides an introduction to a select group of right-wing candidates who hope to ride a wave of toxic Tea Party anger into the U.S. Senate. The potential impact of a Senate with even half of these DeMint-Palin acolytes would be devastating to the Senates ability to function and the federal governments ability to protect the safety and well-being of American citizens.

Be sure to read the whole thing.

Obstruction for Obstruction's Sake

If you need any more proof that Senate Republicans' sole mission at the moment is to prevent anything from happening in their chamber of Congress, look no further than the fact that today the Senate had to seek cloture on the nomination Barbara Milano Keenan to fill a vacancy on the Fourth Circuit Court of Appeals, resulting in a vote of 99-0.

That's right - not one Republican senator spoke against her qualifications, record, or views or voted to prevent her nomination from receiving an up-or-down vote on the Senate floor ... and yet still they filibustered, forcing Democrats to seek a cloture vote in order to move ahead, simply because they are committed to obstructing the governing process in every way possible.

Earlier today, Senate Judiciary Committee Chairman Patrick Leahy took to the Senate floor to blast the Republicans' refusal to allow the Senate to move on even noncontroversial judicial nominations:

Last year’s total was the fewest judicial nominees confirmed in the first year of a Presidency in more than 50 years. Those 12 Federal circuit and district court confirmations were even below the 17 the Senate Republican majority allowed to be confirmed in the 1996 session. After that presidential election year, Chief Justice Rehnquist began criticizing the pace of judicial confirmations and the partisan Republican tactics.

Among the frustrations is that Senate Republicans have delayed and obstructed nominees chosen after consultation with Republican home state Senators. Despite President Obama’s efforts, Senate Republicans have treated his nominees much, much worse.

I noted when the Senate considered the nominations of Judge Christina Reiss of Vermont and Mr. Abdul Kallon of Alabama relatively promptly that they should serve as the model for Senate action. Sadly, they are the exception rather than the model. They show what the Senate could do, but does not. Time and again, noncontroversial nominees are delayed. When the Senate does finally consider them, they are confirmed overwhelmingly. Of the 15 Federal circuit and district court judges confirmed, twelve have been confirmed unanimously.

That is right. Republicans have only voted against three of President Obama's nominees to the Federal circuit and district courts. One of those, Judge Gerry Lynch of the Second Circuit, garnered only three negative votes and 94 votes in favor. Judge Andre Davis of Maryland was stalled for months and then confirmed with 72 votes in favor and only 16 against. Judge David Hamilton was filibustered in a failed effort to prevent an up-or-down vote.

The obstruction and delay is part of a partisan pattern. Even when they cannot say “no,” Republicans nonetheless demand that the Senate go slow. The practice is continuing. This is the 17th filibuster of President Obama's nominees. That does not count the many other nominees who were delayed or are being denied up-or-down votes by Senate Republicans refusing to agree to time agreements to consider even noncontroversial nominees.

Update: Keenan was confirmed by the same margin: 99-0. So why was the cloture vote even necessary when not one Republican voted against it or her confirmation?

SCOTUS: Daly Returns As The Right Plots Strategy

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:

The Coalition for a Fair Judiciary is Back From the Dead

One of the things that has constantly amazed me over my years of watching the Right is how often new “grassroots” organizations pop up to speak out on a particular issue and then, just as suddenly completely disappear only to reappear years later as if nothing has changed.

This tendency has been particularly noticeable on the issue of judicial nominations and I’ve written about it before regarding the Judicial Confirmation Network, which was launched back in 2005, ran a bunch of ads and issued a bunch of press releases about the Democrats’ unfair treatment of President Bush’s judicial nominees and garnered a bunch of press, only to go completely silent until they re-appeared on the scene to try and make it an issue in the 2008 election and position itself the lead the opposition to President Obama’s Department of Justice and judicial nominees.

The fact that, for months if not years at a time, groups like the JCN exist in name only never seems to dampen their claims to influence or their ability to get quoted in the press.

And now we can add Kay Daly and the Coalition for a Fair Judiciary to the list of those groups who go utterly dormant for years on end, only to re-emerge when the timing seems right. 

Despite the fact that Daly’s organization has been defunct for more than two years at this point, she has a new op-ed in Human Events blasting Sen. John Kyl for failing to stop Elena Kagan’s nomination to be Solicitor General:

Obama’s DOJ nominees, and Kagan in particular, put a spotlight on Kyl to exert the leadership required for the GOP whip, who is also a member of the Judiciary Committee. At the very least, we expected him to ask Kagan serious questions, and demand answers, that reflected knowledge of her prior statements and the fact that she is a rumored Obama favorite for the Supreme Court. Instead, Kyl barely lifted a finger to expose Kagan’s radicalism, and not only failed to rally the GOP as whip, but even voted to approve Kagan’s nomination in committee -- something that even Sen. Specter would not do.

There is still time for Kyl to show leadership and provide a “teaching moment” on the Constitution and America’s legal culture. When Elena Kagan and similarly troubling Obama nominees come to the floor of the full Senate, Kyl should vote NO, urge his fellow conservatives to do the same, and do everything in his power to give Americans a better view of Obama’s true agenda.

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.

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.

And yet, for some reason, they still manage to be taken seriously by right-wing media outlets who willingly give them platforms and by even mainstream media outlets which are apparently either unaware or unconcerned that these shell groups exist primarily to create the appearance of grassroots support for an issue.

The GOP's Evolving Definition of "Advice and Consent"

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?

Targeting the DOJ, Prepping for the Supreme Court

Last week I wrote a post about the Right’s opposition to a handful of President Obama nominees to serve in the Justice Department and speculated that this was partially an effort to test their strength under the new administration, but also an effort to start laying the groundwork for their full-blown opposition to his judicial nominees.

The more I see them write about this issue, the more convinced I become that this is actually the case ... and that what they are really preparing for is a Supreme Court battle.  For instance, here is Ken Blackwell writing today about these nominees and why they must be stopped:

Three people in particular are getting close scrutiny this week because their names are before the U.S. Senate. Mr. Obama has nominated David Ogden, Elena Kagan and Dawn Johnsen to be deputy attorney general, solicitor general, and the assistant attorney general in charge of the Office of Legal Counsel (OLC), respectively. These positions, in addition to being three of the highest-ranking posts at the Justice Department, are also common stepping stones to the U.S. Supreme Court.

The deputy attorney general is the number two at Justice. The solicitor general is the lawyer who argues for the government in the Supreme Court when the United States is a party to a suit. And OLC issues official legal positions for the federal government.

Each of them - Mr. Ogden, Ms. Kagan and Ms. Johnsen - are committed liberals whose views on a whole range of issues are on the far left. Each of them could argue anti-gun views in our federal courts, and if any of them end up on the bench, could enshrine those views in the law books.

Right-wing pundits and activists are piling on in their opposition to these nominees, primarily David Ogden, and frequently tying the issue to the future of the judiciary and the Supreme Court.

And now the Judicial Confirmation Network has taken out an ad in Roll Call, blasting Sen. Patrick Leahy for moving too quickly and demanding that he slow the confirmation process down. While the JCN's ad doesn't mention the judiciary specifically, considering that the organization's central focus in on the issue of judicial confirmations, it is not too difficult to piece together the obvious connection:

Senator Leahy is trying to ram through the Senate confirmation process the nominations of David Ogden for Deputy Attorney General, Elena Kagan for Solicitor General, and Thomas Perelli for Associate Attorney General. Leahy's abuse of the process makes a mockery of the Senate as the "world's greatest deliberative body." The American people have a right to know about the nominees who have been chosen for the most important legal positions in the executive branch. The Senate has been entrusted with this constitutional responsibility. So why is Senator Leahy forcing a rush to judgment on Department of Justice nominees especially when the vetting process for top jobs in the Obama administration has been so lacking? What is it the Senate needs to know about these nominees that Senator Leahy prefers to brush past? What do you have to say, Senator Leahy?

Below is a copy of a full page ad that we ran in today's copy of Roll Call, the Capitol Hill newspaper. We hope you will join us in asking Senator Leahy . . . why the rush to judgment on these crucial nominations?

What will you have to say, Senator Leahy?

Senator Leahy is trying to ram through the Senate con­firmation process the nominations of David Ogden for Deputy Attorney General, Elena Kagan for Solicitor General, and Thomas Perelli for Associate Attorney General. Leahy's abuse of the process makes a mockery of the Senate as the "world's greatest deliberative body." The American people have a right to know about the nominees who have been chosen for the most important legal positions in the executive branch. The Senate has been entrusted with this constitutional responsibility. So why is Senator Leahy forcing a rush to judgment on Department of Justice nominees – especially when the vetting process for top jobs in the Obama administration has been so lacking? What is it the Senate needs to know about these nominees that Senator Leahy prefers to brush past?

What do you have to say, Senator Leahy?

Until recently, the JCN’s mission was limited to supporting “the confirmation of highly qualified individuals to the Supreme Court of the United States [and working] to ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” 

But now that President Bush is no longer in office, that mission has apparently broadened and now includes weighing in on Executive Branch nominees as it seeks to position itself to lead the opposition once President Obama starts putting forth judicial nominees.

As we’ve noted before, perhaps the Judicial Confirmation Network should just go ahead and change its name, as the “confirmation” part no longer seems to apply.

Percentages Matter

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. 

One Press Release Per Year Enough for Fox News

Back when the issue of judicial confirmations was heating up in the Senate, at the center of the Republican efforts to confirm controversial nominees was Jay Sekulow of the American Center for Justice.   As a member of the “Four Horsemen” along with C. Boyden Gray, Edwin Meese III, and Leonard Leo, Sekulow was a inside player in the battle over the “nuclear option” and the confirmations of John Roberts and Samuel Alito. 

Along the way, Sekulow created a new group called The Judicial Confirmation Network that was designed to give the appearance of grassroots support for the efforts:

It was a subtle bit of targeting that dovetailed with another project under way in an office just above the radio studio. That's where Gary A. Marx, head of the grass-roots arm of Mr. Sekulow's campaign, was meeting with a Maine activist ginning up telephone calls, letters and editorials aimed at pushing Ms. Collins into the antifilibuster camp.

In the 2004 campaign, Mr. Marx, 29, was the Bush-Cheney national conservative coalition director who helped organize church-sponsored voter drives in Ohio. In January, Mr. Sekulow invited Mr. Marx to set up the Judicial Confirmation Network in his offices so they could combine forces.

Mr. Sekulow uses his Senate contacts to track the status of the debate and identify wavering lawmakers. While he targets them on the radio or through his regular emails, Mr. Marx follows up with state-based groups that can be important to a senator's political career.

The JCN quickly made a name for itself, spending hundreds of thousands of dollars on the efforts only to become little more than a shell once the battles were over.  Little was heard from its two employees, Gary Marx and Wendy Long, until both showed up on Mitt Romney’s National Faith and Values Steering Committee and, in the meantime, the JCN essentially went dark, having not even issued a press release since July of 2007.   Until today, that is, when Long resurfaced to attack Barack Obama for his answer during a question at Rick Warren’s faith forum about which Supreme Court judges he would not have nominated:

All this speaks volumes about the kind of judges Obama would appoint, and the way he would fill several potential vacancies at the Supreme Court that could arise during the next President's term in office. Obama wants Justices who will do his bidding, who will implement the preferred policies of the liberal establishment - not Justices like Thomas, Scalia, Roberts and Alito, who understand that the role of a judge is not to legislate from the bench.

But that was apparently enough to get her quoted at length in an article on FoxNews.com:

“Apparently, Obama can do no better than to recycle discredited statements of Harry Reid when it comes to Justice Thomas. Like other liberal elites, Obama cannot stand it when a black man strays from the ideological plantation and refuses to implement liberal policies through the courts. But Obama will never point out any intellectual deficiencies in Justice Thomas’s work, because he can’t. Justice Thomas’s opinions consistently reveal faithfulness to the Constitution, judicial modesty and deference to the will of the people in our representative democracy. That is opposed to everything that Obama and the liberals are trying to do in grabbing power from the people and giving it to the courts,” she said.

Brownback Finally Satisfied?

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.

The Right Just Likes to Fight

Robert Novak reports that the White House, Senate Republicans and their right-wing base are in disarray over the issue of judicial nominations.  

As Novak sums it up, “Despite recent nominations and confirmations, it seems too late for a Senate battle to impact the midterm campaign … No debate, no campaign issue.”

Driving home the point of just how important judges – or rather, fights over judges - are to the Right, Sean Rushton of the Committee for Justice took to the pages of the National Review to explicitly tell GOP leaders in the Senate that they has better start picking some fights over judges or face the consequences in November

This November will be the first election year since 2000 that no significant Senate debate over judicial confirmations will spark a voter response. If Senate leaders do not rethink their strategy, fewer voters will be considering judicial confirmations when they vote for Senate candidates on November 3rd. It is a huge mistake. It is an avoidable mistake.

There is nothing like a currently simmering controversy — in the nation’s great debating society, the U.S. Senate – to arouse voters anew. The judicial issue has shown its power not only to turn out conservative voters, but to swing moderates to the GOP, whether through appeal to unpopular rulings on private property rights, marriage, and “Under God” in the Pledge of Allegiance, or through simple disgust with Democratic obstruction and name calling. Judicial confirmation battles pay dividends.

Notice that Rushton doesn’t say “judicial confirmations pay dividends” – he says “judicial confirmation battles pay dividends.”

It is amazing really - getting controversial nominees confirmed is actually less of a priority for the Right than is merely starting a fight over the nominees.

Worse Than the Democrats?

Remember back when Democrats controlled the Senate at the beginning of Bush’s presidency and all the Right did was complain about the fact that they weren’t confirming judges fast enough?  

Well it looks like Democrats did a pretty good job, especially in comparison to the current Republican-controlled Senate – and Manuel Miranda is not happy

In the 109th Congress so far, the Senate has confirmed only 46 judges. By comparison, the 107th confirmed 100 under Democrat control, the 108th confirmed 104. In the 103rd Congress, when the Senate last confirmed two Supreme Court justices (Breyer and Ginsburg), Democratrs [sic] also confirmed 127 other Clinton judges.

"This is not apples to oranges," said Manuel Miranda, chaiman [sic] of the Third Branch Conference. "Effort is effort. This Congress has so far taken fewer votes on judicial confirmations than any time since the first two years of the Reagan administration. It is the least accomplished Senate in 25 years. It is no wonder that the White House has trouble filling seats, with a Senate like this."

Undoubtedly, the Right will try and find some way to blame this on the Democrats.