Saturday, June 18, 2005

Pay Street

What is it about judicial nominees that matter so much? Put simply, the judiciary was intended by the framers of the Constitution to be the most independent branch of our government. Independence is integral to fair and equitable interpretation of law and, indeed, the Constitution itself. Equal justice under law means that partisanship, conflict of interest, or unusual ideologies must be kept out of the judiciary.

Unfortunately, we live in a land and time where the reverse is happening, not just on the courts but in every aspect of government, even the unofficial parts. Elizabeth Drew has recently published a piece in the New York Review of Books detailing the ruthless partisanization of K Street, where the lobbyists in Washington live, work and feed. It is not balanced, it does not seek common ground; but neither do those she is reporting on. She offers a valuable perspective on an under-reported but fundamental shift in political power towards one faction of America and the distasteful methods used to effect it. The culture of "work with us or die" is typically found on the extreme margins of political life. But these days it is burrowed into the heart of that life. Read to the end for Drew's thoughts on how political corruption has effected the ability of Congress even to think, in the ways they need to, to govern effectively.

Likely nominees for the Supreme

The Washington Post has two articles from the AP on candidates President Bush is said to be interested in filling an opening on the Supreme Court. Ex post considers it possible that Rehnquist will announce his retirement as early as Monday; with eight of the nine justices over 65, there may well be multiple openings.

I'd like to look at two candidates. One appears to me not a good choice, the other seems eminently reasonable.

If the President nominated James Harvie Wilkinson III, it would be a shame. He has a reputation for judicial activism, for one thing. For another, the Post reports that
he was part of a panel that ruled in 2003 that the government could indefinitely detain without legal rights American citizens captured overseas in the war on terror.
The present High Court has already repudiated this policy firmly and with near-anger at the President's eagerness to place his policy inclinations over the Constitution. Another potential nominee is, of course, Alberto Gonzáles, the author of the legal opinion sanctioning torture.

Micheal McConnell, on the other hand, appears a solid nominee, likely to win approval from Senators of both parties. He has bi-partisan support in the academic community. He opposed the Clinton impeachment and the Supreme Court decision for Bush v. Gore. This suggests that, unlike other recent nominees to the Appelate Court, he is likely to put his understanding of the law ahead of whatever political sympathies he might have. The likeliest objections to McConnell from Democrat Senators would stem from abortion.
He has criticized the legal reasoning in Roe v. Wade and as a law professor, used Life magazine photos of fetuses to spark student discussion of whether abortion amounts to a taking of human life.
He has said, however, that he would follow precedent and not seek to overturn Roe. In any case, a lot of people find the reasoning in Roe dubious; critiquing it is not a radical legal position. And, as a teacher myself, I find it admirable that he would bring controversial material into a classroom in order to push his students to confront the moral limits of legal decisions. There has been some talk recently in Democratic circles (a) that the party needs to try harder to understand the legitimate moral anxiety that many citizens feel in response to abortion and (b) that the Roe v. Wade decision, while protecting reproductive rights, has damaged the progressive agenda in other, potentially more serious ways. I hope this balanced perspective prevails among the Democratic Senators if the President does indeed nominate McConnell. Making speculation about how someone would vote on reproductive rights the sole test of suitability for the Supreme Court would, at this point, offend people from several ideological communities.

If you are interested in reading a conversation about abortion, please visit my old and very defunct blog for a pro-life colleague's take on the question and my pro-choice response. Civility matters, often more than the substantive positions people take in oppostion to one another.

UPDATE: Re: the Rehnquist retirement. On the other hand, there's a real possibility that he'll stick around for another full term, according to this (hat tip: SCOTUS blog). Basically, Rehnquist is the only one who knows.

Judges for Corporate Interests

I’m sorry to keep linking to Balkinization, but they’re just so darn good. Brian Tamanaha tells, briefly but effectively, the story of how the US Chamber of Commerce is implementing its exclusively corporation-friendly agenda by helping a certain stripe of judge get on the bench. They spent $53 million last year to assist this interest group. His post is excellent background on why judges like William Meyers are being nominated to the federal court.

Friday, June 17, 2005

Webstreaming the Democratic hearings on the Downing Street Memo

See it on

House Judiciary Cmte. Democrats Meeting on Downing Street Memo and Iraq War (06/16/2005)
Rep. John Conyers (D-MI), Judiciary Cmte. Ranking Member, on Washington Journal (06/16/2005)

Reflecting on the Conyers hearing

I am watching CSPAN's rerun of the Conyers hearing on the Downing Street Memo. Cindy Sheehan understands the issue exactly. She is the mother of a soldier, who was killed in Iraq. She says that the war in Iraq is not a partisan issue; she's right. She says that her son, Casey, wasn't marched off to Iraq as either a Democrat or a Republican; he left, and died, as an American. She says that her concern is not for party, but for her son, first, who is now gone, and then the Constitution. She's way beyond caring about who wins the next election.

Privilege and the Downing Street Memo

As Peter points out in his post below, the Downing Street Memo is finally receiving its due notice in Congress and in the media. And quite frankly, it's in the best interests of the country as a whole and the president himself that this matter be investigated in the way that only a true democracy can: with transparency, fairness, and accountability if/when merited. Only then will the country either root out and begin to make amends for an illegal act, or the president will be vindicated. This requires a 9-11 style bipartisan commission, with reasonably broad investigative powers--including access to documents and government personnel.

And that's where things will start to get sticky. As I noted in a previous post ("Partisans and Privilege"), a number of Bush's nominees to the federal judiciary have troublesome backgrounds--because either they are deeply indebted to the Republican Party for their careers, or they support very broad presidential privilege--or both. Trying to pry necessary documentation out of the White House is already not easy while the president it sitting--but since the president, his heirs, AND the vice-president have now secured uncontrolled discretion over the disposition of their papers even after they leave office, investigating just about anything may be very, very difficult--in a most undemocratic way.

Thursday, June 16, 2005

House Party

John Conyers (D-MI) just finished holding a forum on the Downing Street memo and associated evidence of presidential malfeasance. As you all know, we face the increasingly real possibility that the Bush administration decided -- on its own -- to go to war long in advance of any public discussion or decision. It may even be that his administration manipulated intelligence in order to bolster the case for war. If that is the case, then the President lied, and he lied about the most serious of matters.

I am not saying that the President did lie. We don't know what happened. But, precisely for that reason we know what needs to happen now. The White House must address these questions publicly and fully; the President must satisfy the doubts and justify his action. A healthy democracy is a transparent democracy, and its leaders are accountable for their decisions. Unfortunately, the President's Press Secretary indicated that the President has no intentions of entering into dialogue with his fellow citizens: "This is simply rehashing old debates that have already been discussed,"
he said. That's simply stonewalling; there has been no discussion, no debate. Congressman Conyers held the forum and wrote an open letter to President Bush in order to start this conversation. He wants to make public this shadowy affair. All I'm asking for is that I can confidently trust my leader. But trust requires communication, and we need to begin that openess.

What can you do? House party. CSPAN 2 is airing the forum again tomorrow night -- Friday -- at 8 pm EST. Why don't you gather with your friends and families to watch it? Let's learn about the questions and about what we need to do to get answers. Bring a date, order some pizza; sit around, watch, and talk. Let's be a democracy. Nothing wrong with having a party while doing it.

Finding the balance

Between civil liberties and security, that is. I was happy to learn that the House of Representatives, an infamously fickle body, has been able to think more clearly recently about the whole problem of protecting a democracy -- from internal as well as external threats. Yesterday members blocked that controversial provision of the Patriot Act that would allow the FBI free and unjustified access to information about what people read in libraries. Reading, of course, and the pursuit and transmission of knowledge generally, is foundational for an empowered citizenry. In other words, democracy depends on it. That's one side of the question. The other side concerns the need to identify terrorists before they launch an attack. That is pretty darn important too. But the FBI can get the information they need on suspects; nothing is stopping them -- all they have to do is show cause, as the US Constitution normally has law enforcement work. This particular provision of the Patriot Act would unreasonably increase the power of government at the expense of American democracy and Americans themselves. It is a shame that President Bush is using the false spectre of terrorists run amok to suggest that, without this provision, libraries will become "a haven for terrorists." Really? Libraries? Iraq is certainly a haven for terrorists, thanks to the administration's failure to plan an occupation strategy sooner than a couple of weeks before the invasion; but I don't think we have to worry about the Nancy Drew section. Praise to the 38 Republican Representatives who voted for common sense and country.

Wednesday, June 15, 2005

It's arrived!

Where does this here communicative medium meet up with the U.S. Constitution and healthy democracy? If you said, "Students for the Judiciary," well, thank you -- but what are you thinking?! It's the Legal Guide for Bloggers from the Electronic Frontier Foundation, of course. They really are wonderful people.

The Bolton nomination and the Senate's place in the government

I posted this before, on the old filibuster for democracy blog, but with Bolton being in today's news, it seems reasonable to put it up here too.


We over here at Filibuster for Democracy have, from the beginning, been concerned primarily with process. We have argued that the rules and modes of governance are more important than any particular substantive issue. Given this, it has been interesting to follow the fortunes of the Bolton nomination for ambassador to the UN.

The substantive questions are, to my mind, insignificant. Likely, John Bolton will not make an effective representative of US interests to the United Nations. His defenders say that his confrontational style will help him stand up to critics of the United States. That is a strange thing to say. Are we to imagine that another ambassador will be inclined not to stand up to critics? Would this alternative ambassador end up not acting in American interests? Of course not. The person who takes this job will need to persuade those critics to see things from the American perspective, will need to get them on the same page as the United States. Confrontation is clearly not the way to effect this goal; the chances are that it will rather further alienate critics of the US, making them even more intractable, harder to work with, and liable to obstruct American interests all the more.

So, no, John Bolton is not a good choice for UN Ambassador. But that hardly seems important. Who imagines that the position of ambassador to the UN will play a major part in the present Administration? Who imagines that critics of that administration would reevaluate their animosity toward it if the right person were chosen to work with them?

As a substantive issue, then, it seems to me that the Bolton nomination is not worth much bother.

So why are the Democrats effectively filibustering the Bolton vote? Process. The filibuster is designed to extend debate -- often, less floor debate than the behind-the-scenes negotiations that allow both parties to find common ground -- and to give that debate access to more information. The Senate has a constitutional obligation independently to evaluate the President's nominees and several other kinds of presidential decisions. To do that job at all, the Senate must have access to information -- both information that the President uses to make his decisions and information that will help them understand why the President made certain decisions. This is what the Senate is asking the White House for now.

Anyone concerned with process, with the way the government works, will have found herself uncomfortable with the secrecy of the White House. Some of the consequences of this secrecy have been profound. Whatever you think about the war in Iraq -- and I am sympathetic to some of the post-facto justifications -- it is certain that it was begun under false premises. It is certain that the Congress, to which the US Constitution explicitly gives the power to declare war, did not have the information it needed to play its constitutional role. The declaration of the war against Iraq collapsed the separation of powers, giving the executive branch a primacy that the framers of the Constitution would have shuddered to know of.

The Senate is seeking to set that balance right. They are asking the White House to provide information on Mr. Bolton's role in an intelligence dispute over Syria and the handling of intelligence reports from the National Security Agency. The way the White House used intelligence and hid its decision-making process behind assertions about classified data is precisely the trouble with how we began to send troops to Iraq. According to the New York Times, the White House spokesman says that the Senate has the information they need. This is patently untrue and, sadly, a predictable response from the White House. Senator McCain, in contrast, who is asking the White House to make available to Senators some of this information, says that the Senators "have some substance to their argument." The two Senators leading the call for more executive transparency, Sens. Dodd and Biden, convinced enough Senators to make a filibuster possible by arguing that this was about "standing up for the Senate and its prerogatives against incursions by the executive branch." This is the simple truth, and a much more important question than how bad an ambassador to the UN John Bolton will be.

The political effects of the filibuster compromise?

Too soon to tell, of course, and in any case, if it becomes important, it will be the spin that determines the meaning of the compromise for the political fortunes of independent Senators. But, while insignificant for the issue at hand, this is still interesting perhaps in suggesting what sort of things what sort of Senators benefit from.

The interpretation of facts

Mark Graber of Balkinization explains how high-level judges not only interpret the law but also interpret and evaluate facts. His example concerns questions of racial discrimination. Unfortunately, it appears that the judges, whom President Bush and Senator Frist find most amenable, refuse to recognize racial discrimination in nearly any set of facts.


We know the numbers by now -- before the filibuster controversy, President Bush had the vast majority of his judicial nominees approved by the Senate without fuss or mention. Why such a controversy over a small number of judges? First, it is important to understand that it was a controversy the Republican leadership created. There is nothing unusual about a few nominees not meeting approval, especially when they are nominees such as this. Let's rephrase the question, then: why did the Republican leadership -- executive and legislative branches both -- care so much about such a small part of the judical branch?

It's a long history, but it can be told in short order. The judicial branch, in the past 30 or 40 years, has expanded individual rights and group protections in some fundamental ways. This appeals to citizens on the political left. However, many citizens on the political right feel that the expansion of these rights infringes inevitably on the rights of others. Abortion and affirmative action are two good examples -- the rights of the unborn, in the language of social conservatives, and the rights of non-minority applicants to places at jobs and colleges. (Categorizing either of these as rights is controversial, and that's the essence of the disagreement.) As such, the court has become a concern for social conservatives, who feel as if the life they wish the country to lead is being corrupted by unelected judges. The reasons, for which the framers of the Constitution decided that federal judges should not be elected but appointed, are germane here. They were aware of the power the interpretation of law has over a society, and they deliberately placed that power out of the direct reach of an often fickle or unreasonable public sentiment. Indeed, they understood well that elections can have the effect of totalizing what is in reality only partial: a judge elected (as President Bush was also) with little over half of the votes would nevertheless by making law for the whole land. This is, in fact, the reason we ought to be especially careful with judges, and especially cautious about the desire of ideological camps to place judges on the bench, whom they expect to implement an agenda that speaks only to their hopes and fears.

So the real clash is not over judges, but over visions of the country, and the real question is: are the visions compatible? This debate is often characterized as religious vs. secular, or even evangelical vs. non-evangelical. This is inaccurate. The vision of social conservatives, as it would be enacted by a controversial nominee like Janice Brown, does not reflect even the evangelical constituency. For example, Janice Brown envisions a radically weakened federal government and a world in which the most wealthy have free reign to pursue their material ambitions. The latter contradicts the basic value many evangelicals put on fairness and social justice; the former would play havoc with programs essential to a vision of realizing equality of opportunity. Evangelicals and other religious communities who endorse such programs as social justice and stewardship of the earth, as God’s creation, have begun to make their voices heard.

Much of the fuel that feeds this fire is the sense among social conservatives that their values are under attack and that their community is being dismissed. This, however, assumes that the two competing political sides are also competing on an ethical plane that divides communities. Politically savvy social conservatives, who wish to ride this feeling of resentment to a position of great power in, say, the Senate, encourage the belief that the political divide on which they base their careers corresponds to a fundamental moral divide. I am glad to see, then, that the religious communities of the right and the religious community of the left are taking it upon themselves to find shared values and, on that basis, to work to help each other realize a compatible vision of America. Once we realize that a compatible vision, based on shared values is possible for people who now find themselves political opponents, I suspect we can find some judges everyone is confident will represent those common interests.

Tuesday, June 14, 2005

Partisans and privilege

You know, I never used to wonder about the federal judiciary and how the justices got into those positions. Maybe ignorance is bliss. Because the more I learn, the more uncomfortable I become, both about the professionally incestuous nature of the relationship between the Bush administration and a number of these nominees, and because the question of privilege keeps coming up.

Take the case of Brett Kavanaugh, a nominee to the DC Circuit, one of the two most powerful in the country. As Dana Milbank of the Washington Post puts it, "As a lawyer working for Kenneth Starr during the Whitewater investigation, he was devoted to restricting the powers of the president [by demanding access to documents]. Now, as a lawyer in the Bush White House, he is devoted to expanding the chief executive's powers." The battle over executive (presidential) privilege is already an issue for the Bush (43) presidency (see my earlier post, "The effect of these investigations) ; almost immediately upon entering office in his first term, Bush had Kavanaugh (now working for the administration) draft an executive order further restricting access to such presidential records, but deferring to former presidents and their families. The President Records Act, which he sought to modify, was a product of--you guessed it--the Nixon debacle.

The trigger for Bush's directive? According to the National Security Archives, "[Bush] was notified of a scheduled release of Reagan presidential records (68,000 pages of records). His legal counsel requested two successive 90-day extensions of time to review the records prior to their release followed by a third request for an indefinite extension of time so that the White House could evaluate the legal framework and process that would govern release of the records. This was followed on November 1, 2001 with the issuance of Executive Order (E.O. 13,233) that gives the White House and former presidents uncontrolled discretion [my emphasis] in deciding whether to deny the release of documents requested by journalists and scholars." For the first time, Vice Presidents are also included. Among the documents ultimately withheld:
--a six-page 8 December 1986 memo to the President and Director of Public Affairs entitled, "Talking Points on Iran/Contra Affairs"
--a series of memos dated 22 November and 1 December 1988 for the President entitled, "Pardon for Oliver North, John Poindexter, and Joseph Fernandez"
--a two-page memo for the President from the Attorney General, "Appeal of the Decision Denying the Enforcement of the Anti-Terrorism Act of 1987"

Ironically, it was not politicians but primarily historians (including the Natl Security Archives) who got up in arms, filing suit in November 2001. The case was ultimately dismissed in March 2004--mistakenly, according again to the same NSA doc I link to above: "A federal judge's dismissal last month of a landmark open government case was based on two factual misconceptions and deserves re-opening". I have not seen any docs online noting any new action.

Eeeenteresting. Back to Kavanaugh: how does one defend arguing against presidential privilege in the one case, and not only buttressing but significantly expanding it in another? Two possiblilities, in Milbank's article: either it's the difference between a criminal inquiry in Whitewater (which trumps privilege) and a civil one (which doesn't), or it's because he's just a really good lawyer, acting in the interests of his client (see also: William Haynes, nominated to the Fourth Circuit).

Let's leave aside the first possibility under "benefit of the doubt"; that sounds like a valid distinction. Moving onto the second, I begin to feel a bit uncomfortable. Because while Kavanaugh has clerked for judges, he has never been a judge. His experience has always been advocating for a client. And for the past several years, his client has been George W. Bush. Coming back to our "benefit of the doubt", on the question of whether Kavanaugh would challenge Bush's presidential privilege in a criminal case, Milbank quotes one of the nominee's former colleagues from Starr's office: "You might have to reassess based on what Brett does at that point."

You know, I just don't understand why we as a nation should have to live with that doubt. I mean, is it me, or does it just seem like a guy who
a) has never been a judge, only an advocate
b) has deep ties to not only the Republican Party in general, but has served in the administration of the sitting president
c) may have to hear cases regarding privilege in re Cheney's Enron/energy policy meetings, and--well, Lord only knows what's coming down the pike with the Downing Street Memo or other inquiries into how our intelligence could have been so wrong about Iraq's WMDs...

Is there really no other candidate in the entire United States that is better qualified to fill a spot on the bench? Seriously. This is not the kind of doubt that should be banished by faith in the president. Have we as a nation come to installing inexperienced partisans with direct patronage ties to an administration that is already noted as one of the most secretive in American history and which has already invoked executive privilege (in the Enron/energy inquiry) and may do so in the future? Well, maybe some Republicans in the Senate will feel that's a risk they don't want to take with the integrity of our Constitutional separation of powers. Why not drop your senators a line?

Monday, June 13, 2005

Stunned Sense(nbrenner)less

For folks like myself who didn't understand how this relates to the blog's regular content, Rep. Sensenbrenner is chairman of the House Judiciary Committee. You want to talk about senseless behavior? Follow the link in Matt's post to read more about how "live on C-SPAN... Sensenbrenner abruptly gaveled the minority-called hearing on the USA PATRIOT Act to a close and stormed out, ordering the witnesses dismissed, the microphones turned off, the record closed, and even had the official stenographer threatened for continuing to take notes on what the stunned Democrats he left behind were saying."

Whoa. I emailed my rep to the House. I hope you do the same. Find his or her contact info at

Committees Should be Seen and Not Have Hearings

The always-good (often-great) Kagro X rips James Sensenbrenner a new one for his unconscionable actions in the committee hearing last week when Sensenbrenner shut down the hearing when Democrats started...asking questions.

It really must be frustrating. Your party takes over Congress and that pesky opposition still has the temerity to ask questions.

Deliver us from rhetorical smokescreens

When I was researching Janice Rogers Brown, of course I came up with a hundred clearly partisan sources for analyses and opinions. It's hard to say who is trustworthy when people are incredibly upset over complex issues. So I went to the Department of Justice hit, figuring that's where the Republican leadership would put its best foot forward, with the most optimistic and thorough defense possible. Silly me.

Maybe I simply don't understand how a nomination is convincingly shepherded through the Senate by a White House that earnestly believes in its nominee on merit. Even though she has been confirmed, I'm posting what I found--because it is clear that in order for the democratic process to work properly, we've got to demand a higher standard of accountability and quality from our public servants and the media. That starts with calling out the underperformers and the hacks. So, here's the only posted support letter the Department of Justice saw fit to give a nominee to their own department, with my own commentary bracketed in between paragraphs:

Gerald F. Uelmen, Professor, Santa Clara University School of Law
[originally printed as "Janice Rogers Brown has demonstrated all these qualities in abundance." Op-Ed The Record, August 9, 2003, page 5.]

"Too often, the best advice for those who want to rise in today's judiciary is 'keep your head down.' Unfortunately, the surest path to confirmation in this climate is anonymity. Judges who have compiled a track record of strong positions on controversial issues will be passed over. They shouldn't be, because a willingness to stick your neck out and accept criticism is often the hallmark of a great judge. A president or a governor should be willing to occasionally risk a
bruising confirmation battle to elevate a jurist with great potential to make a difference."

[I read: There are two kinds of judges, ones who prudently but spinelessly "keep their heads down", and ones who "stick their necks out and accept criticism" --often, the "great" ones. Furthermore, the right kind of leader (the great one?) is willing to go to the mat for this bold and ehem, presumably intellectually and ethically worthwhile nominee, bloody noses and all. To your corners!]

"That's precisely what President George W. Bush has done in nominating California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit U.S. Court of Appeals. He should be applauded for this appointment, and she should be promptly confirmed. But that's unlikely to happen. The judicial confirmation process has become mired in 'payback' and special interest politics. Justice Brown will be targeted by liberal [sic] because of the opinions she authored in controversial abortion and affirmative action cases. On both of these issues, she voted the same way as Stanley Mosk, a great 'liberal' jurist with whom Justice Brown had a lot in common."

[I read: In this corner, the fearless W, fighting to "elevate a jurist with great potential to make a difference". Now, without my saying it, you know what kind of difference I'm talking about--because in the other corner, we have the "special interests", the same who force lesser anonymous judges to uphold laws that you and I find distasteful--but so far, have been broadly upheld by the Supreme Court as Constitutional. Ehem, I won't say if she and the great "liberal" jurist I refer to used the same reasoning on the cases, which I likewise strip of all potentially relevant details, just that they voted the same, which chances are about 50/50, assuming a choice of voting either for, or against.]

"Although I frequently find myself in disagreement with Justice Brown's opinions, I have come to greatly admire her independence, her tenacity, her intellect and her wit. It's time to refocus the judicial confirmation process on the personal qualities of the candidates, rather than the 'hot button' issues of the past. We have no way of predicting where the hot buttons will be in years to come, and our goal should be to have judges in place with a reverence for our
Constitution, who will approach these issues with independence, an open mind, a lot of common sense, a willingness to work hard and an ability to communicate clearly and effectively."

[I read: Now, regardless of the elaborately sympathetic set-up I have just built, I have to interject at this point that, speaking as a professor of law, in which capacity I write this column, "I frequently find myself in disagreement with Justice Brown's opinions". But who wants to talk about the LAW when we have a classic American success story on our hands! Let's go back to putting people into positions of great responsibility not because of their proven facility in a specialized field, through which that person will wield immense power, but because of their "personal qualities"--like in high school! Besides, who cares about looking into nominees' records to find out their opinions (and record of reversal) when there is significant doubt that any future Americans will continue to argue about those hot-button issues of "the past"--you know, like
* under what circumstances Constitutional rights supported by judicial precedent are suddenly to be considered alienable;
* who gets to make that decision;
* what is an inalienable right and what is not;
* once such decisions are enacted as laws, the interpretations of those statutes in their application to a given individual at a given time.]
Maybe this is one of those cases when a professor is asked to write a recommendation that s/he really doesn't want to , but can't think of a plausible way to get out of it, and so does a hack job. I certainly hope so. Because the idea of anyone engaged in the field of law, and
a faculty member to boot, using these kinds of practically content-less arguments to advance a nominee for the second highest court in the entire country is pretty disturbing.

To begin with, the opposition between anonymous judges and those that speak out is overly simplistic. At no point does Professor Uelmen include actual legal knowledge as an important factor to consider when distinguishing between judges who dissent, and those who come to consensus on a ruling because of their knowledge of the Constitution, the laws on the books, precedent, and professional ethics that prevent personal opinions from bleeding over into legal ones. Would he have us believe that mere bold contrariness carries the same weight as speaking truth to power? Is independence praiseworthy per se, or only when conjoined with deep learning and prudence? There is no mention of how to distinguish one of these dashing and correct judges from a bold yet incorrect one. If a jurist if going to make "a difference" (an empty, hack phrase), please explain how, don't force people to read between the lines.

Moreover, employing a flattering image of the president and throwing out some divisive partisan issues--abortion and affirmative action--to shield the almost complete lack of commentary on the nominee herself is not an honorable way of making a case in favor of someone you truly believe in.

When Uelmen finally does get around to talking about Rogers Brown herself, he doesn't have much really to say at all. Maybe if we were nominating someone to host a cocktail party, wit would be a prime requirement. In the interpretation of the law, I think not. Maybe I'm
missing something, but shouldn't a candidate for just about any job have these qualities: can work independently, not stubbornly closed off to new ideas, has common sense, puts in top effort, can communicate well with others? Yet again, I am struck by the total lack of any testimony to her LEGAL capabilities--or rather, the one clear admission that this "supporting" law professor often disagrees with her LEGAL opinions!

The main theme is really a metaphorical combat wherein this brave nominee is being wrongfully attacked by factions who would defy Bush's praiseworthy efforts to bring Rogers Brown rightful recognition on account of "her independence, her tenacity, her intellect and her
wit." How about being able to recommend her for--or even mentioning--unimpeachable ethics, depth of learning, respect of her peers, and record of consistent and dispassionate opinion-writing? Whatever legitimate qualifications Justice Rogers Brown may have to offer, Uelmen does service neither to her nor to his readership. I certainly hope his students fare better.

Sunday, June 12, 2005

States' Rights Trampled--by Republicans?!

Something that is not much talked about is how the Republican leadership in the Senate is trampling on a long-held tradition of that chamber--and I'm not talking about the filibuster battle (which is likely only on hiatus until a Supreme Court vacancy occurs).

Federal circuit courts are districted geographically, and so each comprises a number of states. Further, federal law directs that each state in a given circuit be represented by at least one judge on that circuit's court. Interpretation of 28 U.S.C. section 44(c) has established that seats are reserved for each state to ensure fair representation of states' laws. Because the confirmation process happens in the Senate, these elected representatives speak for their own states, and have been accorded the privilege of unilaterally blocking a nominee from getting an up-or-down vote. For example: If one senator from North Carolina disapproves of a presidential nominee who will fill a North Carolina-allocated seat on his/her circuit, s/he does not return the "blue slip", and that nominee doesn't come out of committee for a floor vote.

At least, that's how it worked when Clinton was the nominating president. But no more:
  • The Fourth Circuit: Under Clinton, despite a large number of unfilled vacancies, Senators Jesse Helms (R-NC) and Strom Thurmond (R-SC) refused to allow hearings or votes on several Clinton nominees, supported by then-Chief Judge J. Harvie Wilkinson. The only two nominees the Republican-controlled Senate confirmed to that court included one originally appointed by President George H.W. Bush (41). But George W. Bush (43) heard a different tune from Senators Helms and Thurmond; the new president nominated former Helms aides Terrence Boyle and former Thurmond aide Dennis Shedd (confirmed), and re-nominated Roger Gregory (VA, confirmed), plus Allyson Duncan (NC, confirmed), Claude Allen (VA) and William Haynes (VA).
  • The Sixth Circuit: Then-Senator Spencer Abraham (R-MI) refused to allow two of President Clinton's nominees to the Sixth Circuit to advance from committee. Despite repeated entreaties from not only fellow Senator Carl Levin (D-MI) but also the Chief Justice of the Sixth Circuit, Abraham stood on his traditional privilege, and it was accorded him by Sen. Orrin Hatch (R-UT), then-chair of the Judiciary Committee. Senator Hatch, and now current Judiciary Committee Chair Arlen Specter (R-PA), have negated the respect so recently accorded to this Senate tradition by advancing all of President Bush's nominees to the Sixth Circuit over the "blue slip" objections of not one, but both of the Michigan senators. Senators Carl Levin (D-MI) and Debbie Stabenow's (D-MI) offers to set up a bipartisan commission to negotiate a compromise have been rejected. According to the Alliance for Justice, McKeague and fellow Michiganders Richard Allen Griffin and Henry Saad are "the first three nominees ever to be granted a hearing over the objections of both home-state senators."

  • True, this breach of Senate tradition in and of itself has no bearing on the credentials or qualifications of the individual nominees. However, it is as important that nominations be brought forward in the proper manner, showing due and equal respect to all members of the Senate regardless of party affiliation, as it is crucial that each of the nominees be of sterling quality with respect to their legal knowledge and judicial experience and ethics.