Recommendation: Move Owen in July.11
Justice Owen, who currently serves on the Texas Supreme Court, was nominated by President Bush for a seat on the U.S. Fifth Circuit Court of Appeals on May 9, 2001.12 Despite serving with distinction since 1994, and even having received a “well qualified” rating from the American Bar Association, Owen’s nomination to the federal bench has been blocked for years. She was voted out of the Senate Judiciary Committee on March 23, 2003, yet enough Senate Democrats joined in a filibuster to prevent an “up or down” vote on her nomination by the full Senate. Four attempts to invoke cloture (to get the sixty votes necessary to break the filibuster) have all failed. The Owen nomination remains in limbo.
In November 2001, Kennedy met with representatives from self-described civil rights groups. A resulting memorandum, directed to Senator Dick Durbin of Illinois, stated, in part:
Due to the floor activity last night, you missed a meeting with Senator Kennedy and representatives of various civil rights groups. This was intended to follow-up a meeting in Senator Kennedy’s office in mid-October, when the groups expressed serious concern with the quick hearing for Charles Pickering and the pace of judicial nominations generally.
Yesterday’s meeting accomplished two objectives. First the groups advocated for some procedural ground rules. These include: (1) only one hearing per month; (2) no more than three judges per hearing; (3) giving Committee Democrats and the public more advance notice of scheduled nominees; (4) no recess hearings; and (5) a commitment that nominees voted down in Committee will not get a floor vote. Earlier yesterday, Senator Leahy’s staff committed to the third item in principle.
Second, yesterday’s meeting focused on identifying the most controversial and/or vulnerable judicial nominees and a strategy for targeting them. The groups singled out three—Jeffery Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline Kuhl (9th Circuit)—as a potential nominee for a contentious hearing early next year, with an eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.13
This shocking memorandum establishes that these outside radical groups are setting the nation’s agenda for the confirmation of judges nominated by the president. Seven memoranda also classified nineteen nominees for the federal appellate bench into three categories: “Good,” “Bad,” and “Ugly.” Charles Pickering was assigned to the “Bad” category. Priscilla Owen, Michael McConnell, Miguel Estrada, and Caroline Kuhl were all rated “Ugly.” (Estrada has since withdrawn his nomination, Kuhl remains in limbo, and McConnell won a rare confirmation.)
But the Alliance for Justice even opposed McConnell’s nomination, despite widespread support for him:
President Bush has nominated Michael W. McConnell to a seat on the United States Court of Appeals for the Tenth Circuit in an attempt to continue to pack the circuit courts with judges prepared to carry out his administration’s anti-choice, anti-consumer, anti-civil rights, anti-labor and anti-environment agenda. Through his numerous academic articles, Professor McConnell promotes a jurisprudence of “originalism,” a method of interpreting the Constitution that calls for analyzing how its framers would have decided an issue at the time that the relevant part of the Constitution was adopted. If confirmed to a lifetime seat on the federal appellate bench, Professor McConnell would be in a position to apply his academic theories, as well as the extremist ideas he propounds in non-academic publications, to further roll back protections for well-established Constitutional rights, including civil rights and reproductive freedoms.14
The Alliance for Justice didn’t oppose McConnell’s nomination because of his qualifications or character, but because of his fidelity to the Constitution!
It is also becoming increasingly clear that if you are a traditional Catholic you will have a very difficult time becoming a federal judge. Columnist Byron York has reported that Republican Senate staffers circulated a series of quotations from Senate Judiciary Committee Democrats that suggest an anti-Catholic bias. The quotes included, from New York Democrat Charles Schumer: “In Attorney General Pryor’s case his beliefs are so well known, so deeply held, that it is very hard to believe, very hard to believe, that they are not going to deeply influence the way he comes about saying, ‘I will follow the law….’” and “Based on the comments Attorney General Pryor has made on this subject [abortion], I have got some real concerns that he cannot [judge fairly on abortion-related issues] because he feels these views so deeply and so passionately.”
From California Democrat Dianne Feinstein: “Virtually in every area you have extraordinarily strong views which continue and come out in a number of different ways. Your comments about Roe make one believe, could he really, suddenly, move away from those comments and be a judge?”15
Besides being extraordinarily offensive and discriminatory (plus, these comments have received barely any attention), the notion that individuals who hold traditional religious beliefs are now prevented from serving in the judiciary because of these beliefs is a major perversion of the Senate’s “advise and consent” role.
As these memoranda prove, the Alliance for Justice and other liberal groups now have enormous influence over the confirmation process and regularly strategize with Democratic senators. Consider a memorandum to Senator Durbin, written by a Kennedy staffer:
Senator Kennedy has invited you and Senator Schumer to attend a meeting with civil rights leaders to discuss their priorities as the Judiciary Committee considers judicial nominees in the coming months…
This meeting is intended to follow-up your meetings in Senators [sic] Kennedy’s office last fall. The guest list will be the same: Kate Michelman (NARAL), Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference on Civil Rights), Ralph Neas (People for the American Way), Nancy Zirkin (American Association of University Women), Marcia Greenberger (National Women’s Law Center), and Judy Lichtman (National Partnership).16
Another memorandum, dated November 6, 2001, was addressed to Durbin and stated, in part:
Today’s meeting [with these groups] is likely to touch on a number of related issues. The primary focus will be on identifying the most controversial and/or vulnerable judicial nominees. The groups would like to postpone action on these nominees until next year, when (presumably) the public will be more tolerant of partisan dissent. They would also like to develop a strategy for moving these nominees. Among their priorities: (1) they want to ensure that they receive adequate notice before controversial nominees are scheduled for hearings; (2) they think Senator Leahy should use controversial nominees as bargaining chips, just as the Republicans did; and (3) they are opposed to holding hearings during [Congressional] recess.17
This remarkable memorandum, detailing the bill of particulars these extreme groups presented to their Senate Democrat backers, was written in late 2001, when the Democrats still retained a slim majority in the Senate and controlled the Senate Judiciary Committee.
After the 2002 midterm elections, the Republicans won the Senate majority, including most of the seats on the Senate Judiciary Committee. They could now schedule hearings and votes on the president’s judicial nominees. But the Senate Democrats still had an arrow left in their quiver—the unconstitutional and unprecedented filibuster of judicial nominees. A filibuster is a procedural tactic in which a single senator, or a small number of senators, can extend debate on the Senate floor in order to delay or prevent consideration or a vote on a particular piece of legislation.
For a judicial nominee to be confirmed by the full Senate, there must be a vote on his nomination with a majority of senators present voting to confirm. For example, if all the senators are present, a nominee will be confirmed if fifty-one or more senators vote for the nominee (the vice president can always cast the tie-breaking vote). By using
a filibuster, or even threatening to invoke the filibuster procedure against a judicial nominee, a small group of senators can prevent a vote for confirmation from ever taking place. The only way to defeat a filibuster and end the delay tactic is by a super-majority of sixty senators voting to cut off debate (this is called a cloture vote). Consequently, only forty-one senators are needed to block a Senate vote on the confirmation of a judicial nominee.
Additional memoranda from Democrats on the Senate Judiciary Committee described the plan for using the filibuster this way:
This afternoon, Democratic members of the Judiciary Committee met with Leader Daschle and Assistant Leader [Harry] Reid to discuss [judicial nominee] Miguel Estrada. In addition to Daschle and Reid, Senators Leahy, Durbin, Edwards, Kennedy, Feinstein, and Schumer attended.
All in attendance agreed to attempt to filibuster the nomination of Miguel Estrada, if they have the votes to defeat cloture. They also agreed that, if they do not have the votes to defeat cloture, a contested loss would be worse than no contest.
All in attendance, including Senators Daschle and Reid, voiced the view that the Estrada nomination should be stopped because: 1) Not to do so would set a precedent, permitting the Republicans to force through all future controversial nominees without answering Senators’ questions or providing important information; 2) Estrada is likely to be a Supreme Court nominee, and it will be much harder to defeat him in a Supreme Court setting if he is confirmed easily now; 3) The process must be slowed down and the Republicans’ attempt to set up an automatic “assembly line” of controversial nominees thwarted; and 4) The Democratic base is particularly energized over this issue.18
A copy of talking points on the nomination of Miguel Estrada prepared for the Democratic Caucus stated, in part:
We must filibuster Miguel Estrada’s nomination. He is clearly an intelligent lawyer, but being a judge requires more. He must demonstrate his commitment to core constitutional values, and he has to prove that he has the ability to be fair and impartial.
The D.C. Circuit is far too important to appoint someone about whom we have so many questions. Key labor, civil rights, environmental, and administrative law cases are decided there, and we know it is a “feeder” circuit for the Supreme Court. The White House is almost telling us that they plan to nominate him to the Supreme Court. We can’t repeat the mistake we made with Clarence Thomas.19
Estrada was a primary target of these radical groups and Democrat senators because he was such an outstanding candidate. He immigrated to the United States from Honduras as a teenager. He attended Columbia University and went on to attend Harvard Law School. After law school, Estrada served in the Department of Justice as an assistant U.S. attorney and then as deputy chief of the appellate section of the U.S. Attorney’s Office in New York. Later, he served in the Department of Justice’s Solicitor General’s Office. At the time of his nomination, Estrada was a partner at a distinguished Washington, D.C., law firm, where he specialized in constitutional law.20 Estrada had also argued several cases before the Supreme Court and was endorsed by top lawyers of both parties. But Estrada’s main offense in the eyes of his opponents was that he would not be an activist judge. He believed in following the Constitution. And neither these groups nor their Democrat supporters in the Senate could tolerate even the possibility that an originalist like Estrada might one day become the first Hispanic American to ever serve on the U.S. Supreme Court.
I have reiterated that filibustering judicial nominees is unconstitutional because the framers assigned specific duties and powers to the president and the Senate regarding judicial nominations:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.21
As Alexander Hamilton wrote in Federalist 66:
It will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice he may have made.22
And the framers intended that the Senate exercise its “advise and consent” power with great deference to the president. As Professor John O. McGinnis of Northwestern University explains:
The Framers thought the Senate should only reject nominees for weighty and publicly compelling reasons. They well understood that, by concentrating the power of nomination in a single person who has a mandate of national scope and including within that power the ability to make successive nominations, the Appointments Clause generally gives a substantial political advantage to the President over a diffuse legislative body like the Senate in a disagreement over appointments. Because of this institutional balance of power, the Senate, regardless of which party controls it, will generally be forced to find compelling reasons for rejection.23
The Framers did not, however, expect the Senate to exercise an independent choice that it would rival the President in determining the nature of appointments…. [T]he Framers contrasted the role of the President, who was given a role of plenary choice in the appointments process, with that of the Senate, which was given only the power of rejection. Given that the Senate was not to exercise choice itself, it appeared to Alexander Hamilton that a nominee should be rejected only for “special and strong reasons.” Moreover, according to the Federalist, the Senate must persuade the public that its reasons compelled rejection, for otherwise the “censure of rejecting a good [nomination] would lie entirely at the Senate.” Thus, the original understanding of the Appointments Clause does not contemplate rejections for reasons of partisanship, disagreement over the nominee’s likely vote in a single case, because these reasons would be neither special or strong.24
Democratic legal scholar Michael Gerhardt wrote, “By requiring only a simple majority of the Senate to approve a nominee, the Constitution sets a low threshold for confirmation relative to virtually all other significant legislative action, which must satisfy much stiffer procedural requirements….” He added, “As a practical matter, the requirement of a bare majority of the Senate for confirmation means that smaller factions cannot thwart a presidential nomination in the absence of special Senate procedures empowering individual senators, or some special subset, with the necessary authority.”25
Clearly the framers did not intend for a small cadre of senators, at the command of a handful of radical groups, to hold sway over the nation’s judicial confirmation process. And they certainly didn’t intend for a filibuster to be used to block a president’s judicial appointments. Indeed, the Constitution provides only a few specific instances in which a super-majority vote is required:
“The Concurrence of two thirds” of either the House or the Senate is required to expel a member of Congress under Article I, Section 5.
“No Person shall be convicted” by the Senate in an impeachment trial “without the Concurrence of two thirds of the Members present,” according to Article I, Section 3.
Legislation can be enacted over presidential veto if “two thirds” of each House approves, pursuant to Article I, Section 7.
The president is authorized to ratify treaties only if “two thirds of the Senators present concur,” under Article II, Section 2.
Congress may propose amendments to the Constitution “whenever two thirds of both Houses shall deem it necessary,” according to Article V.
Under the Fourteenth Amendment, Congress is authorized, “by a vote of two-thirds of each House,” to restore the right of federal service to rebels who, having previously sworn allegiance to the United States as a federal or state officer, subsequently supported the Conf
ederacy during the Civil War.
Under the Twenty-fifth Amendment, Congress may determine “by two-thirds vote of both Houses” that “the President is unable to discharge the powers and duties of his office.”26
Past Senates, regardless of which party was in the majority, have understood the framers’ intent. The Senate occasionally rejected nominees, but senators held enough respect for the Constitution that to resort to a filibuster—especially as a repeated tactic, as Democrats use it today—would have been unimaginable.
The president can counter Democrats’ efforts by appointing judges when the Senate is not in session. By doing so, he would be exercising his power under Article II of the Constitution to make recess appointments. Article II provides, in part, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The purpose of the recess appointments clause is to ensure that the government can function smoothly even when Congress is not in session. The terms of recess-appointed judges are only temporary—they serve for one year—but the president is free to make subsequent recess appointments. Recess appointments to the federal judiciary are not unprecedented. According to a recent federal court, there have been more than 300 recess appointments to the federal judiciary.27
Men in Black Page 20
