DiFi versus Her Own Party

I've come to have a rather grudging respect for Dianne Feinstein in recent weeks and months; especially on judicial issues, California's senior senator has had the chutzpah to do whats right and stand up to the rabid among her party (who am I kidding? They're all rabid). This was especially evident on two votes - to get Leslie Southwick (confirmed by the Senate on 10/24) out of committee and to get AG Mukasey out committee - for which she was widely reviled.

Now she may get a slap on the wrist from the California Democratic Party for her...you know...doing what the Constitution says she's supposed to do; a bunch of Left Coast "progressive" organizations are seeking her censure at this weekend's party executive meeting. The story's here, though it's from Huff Po so be warned.

For the Barristers

Want to know everything there is to know about Michael Mukasey, Bush's AG nominee? Here's his questionnaire as returned to Leahy. No, I didn't read the whole thing.

A Laughable NYT Op-Ed

[Don't read this with breakfast: you may snort your coffee with laughter or vomit.]
The Times edit board gets their panties all in a bunch over the specter of the justices of the Roberts Court, you know, judging. According to them, the Court is composed of "four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between." That strikes me as an unfairly balanced composition - how about four conservatives, a moderate, and four liberals? I would hardly qualify Roberts as "very" conservative, and would only qualify Alito, Scalia, and Thomas as such on certain issues; and by very conservative I also mean in tune with the Constitution. Details, details.

Especially juicy are these paragraphs:

It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated.

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

I suspect by "conservative Republican" they mean anyone to the right of MoveOn.org. Oh and since when is the law supposed to be fair? It's supposed to be the law, which isn't crafted with an eye towards fairness.

And they ignore a category of people that have been mistreated in recent rulings: landowners. As in Kelo v. New London. But in that particular case, the majority was composed of Kennedy, Souter, Breyer, Stevens (opinion) and Ginsburg. They also accuse the court of being hyperpartisan (which calls to mind a Safire column from years ago about the overuse of the word hyper as a prefix)...but begs the question of why the decades of legislating from the bench wasn't hyperpartisan?

I know some people wring their hands over the influence of the Times, but I have to imagine to the majority of Americans this stuff comes across as it really is. Laughable.

4th Circuit Court Moving to the Middle

Some of the US circuit courts have distinct ideological flavors; the 9th has always been the ultra-liberal court, and until recently the 4th has been a more conservative one (and one that often hears cases involved with detainees and the War on Terror). Unfortunately, as the Washington Post chronicles, that may soon change. Of the fifteen seats, Republicans and Democrats both hold five - and the remaining five are vacant. It should go without saying that this isn't a reassuring development, that while Bush has been slow to provide nominations for those vacancies, it's unlikely that a Democratic president will be so lax. It should also go without saying that five nominees chosen by the same party have the potential to alter the ideological temperament of a court for years if not decades to come. This may be the endgame quietly sought by Senate Democrats as they have stonewalled so many Bush appointees over the last few years, and if so it appears to be working.

Many have called Bush's appointees to the Supreme Court his greatest legacy, but he will tarnish that legacy if he allows lower courts to drift away from conservative principles.
(h/t Bench Memos)

Feinstein's Vote for Justice?

As I'd previously noted, Democratic opposition to judicial nominee Leslie Southwick was appearing both absurd and insurmountable; it didn't look like the impeccably-credentialed Iraq veteran would ever make it to the Senate floor, that Democrats would keep him bottled in Judiciary.

Then Dianne Feinstein did something inexplicable: she voted honestly, refusing to kowtow to the loons in her party. And boy oh boy, the loons are angry - especially the members of the Congressional Black Caucus. The bloggers over at Bench Memos have sampled some of the venom, including one pundit who slanderously labeled Southwick both "archconservative" and "neoconfederate." BM also highlights an interesting article from the SF Chronicle, which reports the threats of retaliation from Feinstein's left (hard as it is to believe that such a place exists).

So let's review: a judge with impeccable credentials (including the highest marks from the left-leaning ABA) squeaks through the Judiciary Committee on a largely party-line vote, despite strident opposition from a coalition of left-wing interest groups. I think we call that obstructionism. Now my question is this: how many Democratic Senators will bow to that pressure and try and scuttle this nomination? Will they be dumb enough to filibuster? Do they understand that by no stretch of the imagination (and their reality is more fantastical than anything else) can Southwick be maligned as a judicial extremist? This'll be interesting to watch. It's also endlessly amusing that Democrats continue to fuel the flames of judiciary battles, one of the few topics which still excites the Republican base.

NYT: Court-Packing is Cool!

Brendan Nyhan rightfully slaps around NYT op-ed contributor Jean Edward Smith for suggesting that a Democratic president would need only a simple majority to increase the number of Supreme Court justices ("court-packing"), but he gives her a pass on the absurdity underlying her argument.

Now to begin with, prior to reading Smith's op-ed, I was unaware that the practice of court-packing has a long history (though I suppose I shouldn't be shocked). But let's just look at the opening and closing paragraphs:

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.
[snip]
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

I don't know whether to vomit or to laugh, though I suspect the two together would be highly unpleasant. Put more bluntly, Smith says "We the coastal liberals don't agree with the Supreme Court. We used to, but now that we don't, we should find ways around them." It also pays no attention to the fact that this court doesn't have a "manifestly ideological agenda" any more than any previous court did (and significantly less so than the Warren Court). Her claim that the "five-man majority" is "thumbing its nose at popular values" is also absurd. Let's consider one decision that has produced much wailing and gnashing of teeth on the Left, Gonzales v. Carhart, the decision that outlawed partial birth abortion. In doing so, was the Roberts Court "thumbing its nose at popular values?" Well if polls are to be believed, not exactly: a May Gallup poll found that 72% of respondents believed the partial-birth abortion procedure should be illegal. Popular values, perhaps, if you poll only Greenwich Village, Beacon Hill, Chapel Hill, and San Francisco.
It reminds me of Pauline Kael's infamous distress in 1976 - "No one I know voted for Nixon!" Times change, liberals don't.

But let's also look at this hare-brained scheme in the bigger picture. What other recent Democratic caper does this remind you of? If you guessed the "fairness" doctrine, you're right! In both cases, Democrats are throwing temper tantrums that they aren't getting their way - whether it's being blasted on talk radio or having their glorious social engineering projects judicially neutered - and they're determined to change the rules. And why does this happen? It may be tritely stated, but it's because liberal ideals aren't popular values, but rather the values of an insular elite - the academe, the media, etc. - which cannot be enacted through the usual channels. Thus they have to use other means, such as the courts. And when people call them on their BS, they'd rather muzzle the opposition rather than try and win an honest debate.

This thing ain't going anywhere, much to the dismay of the Upper East Side, but in his critique, Nyhan really missed the boat.

Supreme Court: Who Next?

As I alluded to in my previous post, regardless of the next President's political affiliation (save for the slim possibility of a Bloomberg victory), he or she will face a nasty fight to confirm any Supreme Court nominee. This is almost purely the product of abominable Democratic opposition to Supreme Court nominees in the past (Bork, anyone?); it's enlightening to compare the confirmation votes for, say Ginsburg, compared to say, Alito (the former passed almost without opposition, the latter was nearly party-line).

But who will the next nominee be? Tom Goldstein over at SCOTUSblog has given it some consideration; he's come up with two very worthwhile posts (original and follow-up) on potential Democratic picks, and one on those a Republican might tap. Especially noteworthy in the first of the three is his explanation of the logic underlying any nominee. Much of this isn't new, but making age a serious consideration is; no doubt this partially informed the relatively youthful nominations of Alito and Roberts (and serves to support Goldstein's suggestion that Republicans understand and take more seriously the importance of judicial nominees). As the time between vacancies increases, no doubt everyone will be looking to get more miles out of their picks. But take time to read the bios and the comments if you're interested in this stuff, Sb attracts a well-informed crowd of readers and so their reactions have some credibility.

For better or worse, Goldstein also notes that many of the brightest minds (often in the academe) haven't got a shot of nomination because of their superhighway-wide paper trails. In this category I'd add Erwin Chemerinsky who Clinton briefly considered for the 9th Circuit but who Republicans warned would be DOA (and to be DOA for that crazy court is saying something!), but whose views are too well-known and too controversial for appointment.

Oh, and if Democrats truly don't understand the importance of judicial nominees, they will if a Republican wins next year. Some scenarios posited by readers have the Republican president getting as many as three picks. Needless to say that might restore a measure of judicial sanity!

The Many Faces of Arlen Specter

If you haven't felt the urge to rip your hair out over some antic or another by Senator Arlen Specter (R-PA), I don't think you're really a Republican. Specter's always been a subject of some controversy within the party, alternately infuriating, and, well, infuriating, most often in his role as ranking member (formerly chair) of the Senate Judiciary Committee. Several of my truly conservative friends from Pennsylvania continue to rue Specter's narrow victory over challenger Pat Toomey in 2004's primary (even though a Toomey victory likely would have cost the GOP the seat).

All of the reasons for that widespread ambivalence (at best) have recently been on display. To begin with there was today's non-story story that he was planning on investigating any dissonance between statements Roberts and Alito made in their confirmation hearings and their opinions to date. That turned out to be overblown, as NRO noted with relief. That was the ugly which turned out to be not as ugly as was feared.

Then there was the good news a few days back that Specter had finally had enough of Democrats holding up Bush's nominees. The man is among the Senate's more irascible members
and thus him getting angry might actually accomplish something; more substantively, as is noted, he's got a long history of moderation and working across party lines. He's no steadfast friend of the White House nor a conservative ideologue, meaning there's merit to his complaints. At the center of the storm is the stalled nomination of Leslie Southwick of Mississippi, among other things a veteran of Iraq. In their attacks on a highly qualified nominee (especially Durbin, noted here, with more general stuff here and here), Democrats have succeeded in reaching new highs (lows?) of absurdity; I especially liked Dick Durbin's quote:

At Judge Southwick's nomination hearing, I wanted to be fair to him and I asked him maybe one of the easiest questions you could ask of a nominee. I asked him to name a single time in his career or in his life when he took an unpopular point of view on behalf of the voiceless or powerless. Mr. President, he couldn't name a single instance. And I thought perhaps that wasn't fair. The judge should be allowed to reflect on that question. I will send it to him in writing, ask him, was there a time in your life when you sided, for example, with a civil rights plaintiff when your court was split? He couldn't name a single case in his judicial career.

In the first of three parenthetical links above, Wendy Long demolishes this, so I won't bother to recap. Suffice to say, if this doesn't stick in your craw, you're probably on the wrong blog. Oh and it's worth pointing out that unlike at least one sitting Senator (Democrat Robert Byrd), no one's suggesting that Southwick has been riding around in a white hood burning crosses. No, just that he's never knee-jerk sided with a civil rights plaintiff.

The second article from Politico also notes the ridiculous claims from Democrats that more nominees have been approved under Leahy than under Specter. While I can't comment with any certainty on why that is, I have some guesses. Among other things, Democrats need to get something accomplished and to do so they've likely let some more "questionable" nominees (i.e. those that don't view Das Kapital as a serious economic text worthy of legal codification) through without serious "scrutiny," otherwise known as character assassination. On the off-chance that someone from their loony bin of presidential candidates actually wins next November, they should expect to sleep in the bed they've made when it comes to judicial nominations (something I'll touch on in a later post).

One final note in closing: I have been ambivalent about Specter in the past. But I wrote a nasty letter to the National Review when they wanted him stripped of his Judiciary Chairmanship in 2004. I think that opposition is vindicated: he's a maverick, but he knows who his team is and he has his limits. Reminding ourselves that we are a big tent and not alienating Specter seems to have been a wise move, as the moderate has become the focal point for activists while simultaneously being immune to Democratic slander (doesn't mean Durbin won't try).