Senate Hardliners Trashing Two Centuries Of Precedent [re: judiciary]

CNSNews.com ^ | April 30, 2003 | John Nowacki

[Stand Watch Listen]

"Priscilla Owen will not be approved ...people should understand that and not waste the time of the Senate." That was the gist of Senator Harry Reid's announcement that the Democrats are now filibustering the Texas Supreme Court Justice's nomination to the U.S. Court of Appeals for the Fifth Circuit.

It's the Democrats' second filibuster. They've been blocking a vote on Miguel Estrada's D.C. Circuit nomination since February. And it's another groundbreaking moment for the Democrats, who have already mounted the first filibuster of a circuit court nominee in the history of the Republic and are now simultaneously launching the second.

If you can believe the Senate Minority Whip, that's the most reasonable thing in the world. Observing that President Bush once owned a baseball team and that small percentages in that game make for a great record, Reid argued that Bush ought to be happy that only two of his nominees are being denied a vote.

Let's get this straight. The exceptionally well-qualified Miguel Estrada is supported by more than enough Senators for confirmation - including several Democrats - but is denied a vote because the hard-liners in the Democrat caucus know they haven't made their case. But that's only fair, right?

Then the exceptionally well-qualified Priscilla Owen, also supported by more than enough Senators for confirmation - including at least one Democrat - is denied a vote because, yet again, the hard-liners in the Democrat caucus cannot make their case. Why all the fuss?

Well, to begin with, this is nothing less than an attempt to rewrite the Constitution and toss out two centuries of precedent - a point Senator Kay Bailey Hutchison of Texas has been making since Day One of the Estrada filibuster.

Wherever the Constitution requires a supermajority, it says so. Clearly. Confirmations only need a simple majority, and it's been that way since the Washington Administration. But filibusters cannot be broken without 60 votes, and the Democrat leaders have effectively said that, minority party or not, no one will be confirmed by a simple majority vote unless they decide it's okay.

Second, the Democrat leadership is fighting to keep the people's elected representatives from doing the will of those who voted them into office. Remember how the President's party is supposed to lose mid-term elections? There was a reason the American people handed Senate control back to the Republicans at the first opportunity: Democrat obstruction. And in his final campaign swing where he highlighted that obstruction, one of the first examples George W. Bush would raise each time was the Democrats' systematic obstruction of his judicial nominees.

Which raises a third point - these are hardly a couple of isolated cases, not that filibustering nominees can be dismissed so cavalierly to begin with. There has been a systematic obstruction of Bush's nominees, circuit court nominees in particular.

Five of his 11 original nominees - sent up on May 9, 2001, nearly two years ago - still have not had been confirmed. All of the first nominees put forward by former Presidents Carter, Reagan, Bush, and Clinton were confirmed, quickly.

During his first two years, when the Senate is usually more accommodating, President Bush saw just 53 percent of his circuit court nominees confirmed. In the same periods of their administrations, all of the previous four Presidents had much higher confirmation rates for the same level nominees. For Jimmy Carter, it was 100 percent. Ronald Reagan, 95 percent. George H.W. Bush, with a Democrat-controlled Senate, saw 96 percent confirmed. For Bill Clinton, with a Senate of his own party, the number was 86 percent.

Shortly after Bush's inauguration, liberal Democrats in the Senate announced that the President's nominees would have to pass a political litmus test. A little later, they declared that it was up to otherwise qualified nominees to prove they deserve confirmation, meaning a refusal to play the political game would not meet the new burden of proof.

Many of the lucky circuit court nominees who received hearings found themselves subjected to campaigns of character assassination run by outside groups with lots of clout but no credibility, and with Judiciary Committee Democrats acting as willing accomplices in the attacks.

New York Senator Charles Schumer argues that this is all justified as part of a noble cause. "I would argue that we're checking an arrogance in the White House . . . [history] will look at this as fair," he recently declared on the Senate floor. That so-called arrogance is Bush's decision to nominate men and women who share his constitutionalist judicial philosophy instead of the "living, breathing Constitution" views endorsed by Al Gore.

A few weeks ago, columnist Robert Novak reported that some Republicans are tiring of the confirmation battles and that Democrat leaders like Ted Kennedy had counted on this all along. If those Republicans decide to fold, this is what they can look forward to for the remainder of Bush's presidency, regardless of whether that lasts one term or two. And these are just the battles over circuit court of appeals seats. Just imagine how the Democrats will handle a nominee to the Supreme Court.

Well. Harry Reid has told the Republicans what to do. The question is whether they're going to sit down and take it.

( John Nowacki is Director of Legal Policy at the Free Congress Foundation.)

Free Congress Foundation

[Stand Watch Listen]

Related Articles: and past Senate Democrats’ obstructionism

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[Stand Watch Listen]

FYI...

[votelife]

another good article. I have only paid attn to politics for about 8 years. But I have never seen more partisanship than now. Well, impeachment was up there. I was almost positive after the 02 elections that Estrada would get through. Owen too. Even Pickering I thought had a good chance if nominated (kudos to bush for doing it). But I guess I misunderestimated the Dems hatred of all things Bush.

[CPT Clay]

Is there anything that the dems would like to pass in the next 10 weeks?
Should Senators wives be allowed to lobby until the fine judges get confirmed?

[aristeides]

New York Senator Charles Schumer argues that this is all justified as part of a noble cause. "I would argue that we're checking an arrogance in the White House . . . [history] will look at this as fair," he recently declared on the Senate floor. That so-called arrogance is Bush's decision to nominate men and women who share his constitutionalist judicial philosophy instead of the "living, breathing Constitution" views endorsed by Al Gore. Preceding jurists would have regarded that philosophy as monstrous.

I wonder why Schumer doesn't think FDR was guilty of similar arrogance in appointing New Deal judges to the federal bench. After all, they proceeded to overturn a great deal of what had been considered settled law up to that point. They're the ones who imported that view of a "living, breathing Constitution" into federal court decisions in the first place.

[mrsmith]

Virginia Ratification Convention June 10 1788

"MR MONROE:
...Consider the connection of the Senate with the executive. Has it not an authority over all the acts of the executive? What are the acts which the President can do without them? What number is requisite to make treaties? A very small number. Two thirds of those who may happen to be present, may, with the President, make treaties that shall sacrifice the dearest interests of the Southern States — which may relinquish part of our territories — which may dismember the United States. There is no check to prevent this; there is no responsibility, or power to punish it.
He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.
The concurrence of a bare majority of those who may be present will enable him to do these important acts, It does not require the consent of two thirds even of those who may be present."

But who cares what the ratifiers of the Constitution thought.

[ez]

With Owen, we add another ingredient to this recipe. We will need to add a few more and let it simmer for 18 months.

Once it is finished, we will have a lovely Landslide Souffle.

[Egregious Philbin]

Owen would add to the mix an activist judge with damning ties to Enron. Sounds like she might screw up the recipe.

[ampat]

The republicans better be demanding a real (non-stop) filibuster. Not a part time job like with Estrada. Otherwise, I don't think the republicans really have their heart in the nominee,only a desire to make the dems look bad.

[deport]

Thanks for the info and ping.... Sen. Hatch needs to get the Judiciary Committee in overtime and get all the nominees past the hearing stage and get them available for floor debate. Currently he has some 40 nominees in Committee that need to be cleared [13 were submitted on 4/28/03]. I know it takes time and some of them were just submitted but still he could force the issue and make the Committee work some overtime if necessary [maybe committe rules govern the amount of time,etc].

The following are shown as being in the committee at this time..... A few aren't for judgeships but other positions....

---

Click

      In the Committee on the Judiciary

Apr. 28, 2003  PN545     The Judiciary
               Lonny R. Suko, of Washington, to be United States District
               Judge for the Eastern District of Washington.

Apr. 28, 2003  PN544     The Judiciary
               Gary L. Sharpe, of New York, to be United States District
               Judge for the Northern District of New York.

Apr. 28, 2003  PN543     The Judiciary
               Daniel P. Ryan, of Michigan, to be United States District
               Judge for the Eastern District of Michigan.

Apr. 28, 2003  PN542     The Judiciary
               H. Brent McKnight, of North Carolina, to be United States
               District Judge for the Western District of North Carolina.

Apr. 28, 2003  PN541     The Judiciary
               Dora L. Irizarry, of New York, to be United States District
               Judge for the Eastern District of New York.

Apr. 28, 2003  PN540     The Judiciary
               Kim R. Gibson, of Pennsylvania, to be United States District
               Judge for the Western District of Pennsylvania.

Apr. 28, 2003  PN539     The Judiciary
               Mark R. Filip, of Illinois, to be United States District Judge
               for the Northern District of Illinois.

Apr. 28, 2003  PN538     The Judiciary
               Robert J. Conrad, Jr., of North Carolina, to be United States
               District Judge for the Western District of North Carolina.

Apr. 28, 2003  PN537     The Judiciary
               Glen E. Conrad, of Virginia, to be United States District
               Judge for the Western District of Virginia.

Apr. 28, 2003  PN536     The Judiciary
               James O. Browning, of New Mexico, to be United States District
               Judge for the District of New Mexico.

Apr. 28, 2003  PN535     The Judiciary
               Robert C. Brack, of New Mexico, to be United States District
               Judge for the District of New Mexico.

Apr. 28, 2003  PN534     The Judiciary
               Claude A. Allen, of Virginia, to be United States Circuit
               Judge for the Fourth Circuit.

Apr. 28, 2003  PN533     The Judiciary
               Allyson K. Duncan, of North Carolina, to be United States
               Circuit Judge for the Fourth Circuit.

Apr. 11, 2003  PN523     The Judiciary
               Carlos T. Bea, of California, to be United States Circuit
               Judge for the Ninth Circuit.

Apr. 10, 2003  PN518     Department of Justice
               Peter D. Keisler, of Maryland, to be an Assistant Attorney
               General.

Apr. 09, 2003  PN514     The Judiciary
               J. Ronnie Greer, of Tennessee, to be United States District
               Judge for the Eastern District of Tennessee.

Apr. 09, 2003  PN513     The Judiciary
               Thomas M. Hardiman, of Pennsylvania, to be United States
               District Judge for the Western District of Pennsylvania.

Apr. 09, 2003  PN512     The Judiciary
               William H. Pryor, Jr., of Alabama, to be United States Circuit
               Judge for the Eleventh Circuit.

Apr. 07, 2003  PN492     Department of Justice
               Robert D. McCallum, Jr., of Georgia, to be Associate Attorney
               General.

Apr. 07, 2003  PN491     Department of Justice
               Richard James O'Connell, of Arkansas, to be United States
               Marshal for the Western District of Arkansas for the term of
               four years.

Apr. 02, 2003  PN476     Department of Justice
               William Emil Moschella, of Virginia, to be an Assistant
               Attorney General.

Mar. 27, 2003  PN471     The Judiciary
               L. Scott Coogler, of Alabama, to be United States District
               Judge for the Northern District of Alabama.

Mar. 27, 2003  PN470     The Judiciary
               Mark R. Kravitz, of Connecticut, to be United States District
               Judge for the District of Connecticut.

Mar. 27, 2003  PN469     The Judiciary
               John A. Woodcock, Jr., of Maine, to be United States District
               Judge for the District of Maine.

Mar. 26, 2003  PN450     Department of Justice
               Adam Noel Torres, of California, to be United States Marshal
               for the Central District of California for the term of four
               years.

Mar. 26, 2003  PN449     Department of Justice
               John Francis Bardelli, of Connecticut, to be United States
               Marshal for the District of Connecticut for the term of four
               years.

Mar. 13, 2003  PN426     The Judiciary
               David G. Campbell, of Arizona, to be United States District
               Judge for the District of Arizona.

Mar. 13, 2003  PN425     Department of Justice
               R. Hewitt Pate, of Virginia, to be an Assistant Attorney
               General.

Mar. 11, 2003  PN407     Department of Homeland Security
               Eduardo Aguirre, Jr., of Texas, to be Director of the Bureau
               of Citizenship and Immigration Services, Department of
               Homeland Security.

Mar. 05, 2003  PN398     The Judiciary
               Samuel Der-Yeghiayan, of Illinois, to be United States
               District Judge for the Northern District of Illinois.

Mar. 05, 2003  PN397     The Judiciary
               P. Kevin Castel, of New York, to be United States District
               Judge for the Southern District of New York.

Mar. 05, 2003  PN396     The Judiciary
               Stephen C. Robinson, of New York, to be United States District
               Judge for the Southern District of New York.

Mar. 05, 2003  PN395     The Judiciary
               Richard C. Wesley, of New York, to be United States Circuit
               Judge for the Second Circuit.

Mar. 05, 2003  PN394     The Judiciary
               Michael Chertoff, of New Jersey, to be United States Circuit
               Judge for the Third Circuit.

Mar. 05, 2003  PN393     Department of Justice
               Diane M. Stuart, of Utah, to be Director of the Violence
               Against Women Office, Department of Justice.

Feb. 12, 2003  PN343     The Judiciary
               Steven M. Colloton, of Iowa, to be United States Circuit Judge
               for the Eighth Circuit.

Feb. 12, 2003  PN342     The Judiciary
               Consuelo Maria Callahan, of California, to be United States
               Circuit Judge for the Ninth Circuit.

Jan. 29, 2003  PN279     The Judiciary
               J. Leon Holmes, of Arkansas, to be United States District
               Judge for the Eastern District of Arkansas.

Jan. 29, 2003  PN275     The Judiciary
               Louise W. Flanagan, of North Carolina, to be United States
               District Judge for the Eastern District of North Carolina.

Jan. 28, 2003  PN269     Department of Justice
               Leonardo M. Rapadas, of Guam, to be United States Attorney for
               the District of Guam and concurrently United States Attorney
               for the District of the Northern Mariana Islands for the term
               of four years.

Jan. 15, 2003  PN196     The Judiciary
               Patricia Head Minaldi, of Louisiana, to be United States
               District Judge for the Western District of Louisiana.

Jan. 14, 2003  PN185     Department of Justice
               Earl Cruz Aguigui, of Guam, to be United States Marshal for
               the District of Guam and concurrently  United States Marshal
               for the District of the Northern Mariana Islands for the term
               of four years.

Jan. 09, 2003  PN131     Department of Justice
               David B. Rivkin, Jr., of Virginia, to be a Member of the
               Foreign Claims Settlement Commission of the United States for
               the term expiring September 30, 2004.

Jan. 09, 2003  PN123     Department of Justice
               Mark Moki Hanohano, of Hawaii, to be United States Marshal for
               the District of Hawaii for the term of four years.

Jan. 09, 2003  PN122     Department of Justice
               Harlon Eugene Costner, of North Carolina, to be United States
               Marshal for the Middle District of North Carolina for the term
               of four years.

Jan. 07, 2003  PN30      The Judiciary
               Fredrick W. Rohlfing III, of Hawaii, to be United States
               District Judge for the District of Hawaii.

Jan. 07, 2003  PN27      The Judiciary
               Thomas L. Ludington, of Michigan, to be United States District
               Judge for the Eastern District of Michigan.

Jan. 07, 2003  PN25      The Judiciary
               Richard J. Holwell, of New York, to be United States District
               Judge for the Southern District of New York.

Jan. 07, 2003  PN24      The Judiciary
               S. Maurice Hicks, Jr., of Louisiana, to be United States
               District Judge for the Western District of Louisiana.

Jan. 07, 2003  PN22      The Judiciary
               Sandra J. Feuerstein, of New York, to be United States
               District Judge for the Eastern District of New York.

Jan. 07, 2003  PN20      The Judiciary
               James C. Dever III, of North Carolina, to be United States
               District Judge for the Eastern District of North Carolina.

Jan. 07, 2003  PN14      The Judiciary
               Henry W. Saad, of Michigan, to be United States Circuit Judge
               for the Sixth Circuit.

Jan. 07, 2003  PN12      The Judiciary
               Charles W. Pickering, Sr., of Mississippi, to be United States
               Circuit Judge for the Fifth Circuit.

Jan. 07, 2003  PN10      The Judiciary
               Susan Bieke Neilson, of Michigan, to be United States Circuit
               Judge for the Sixth Circuit.

Jan. 07, 2003  PN9       The Judiciary
               David W. McKeague, of Michigan, to be United States Circuit
               Judge for the Sixth Circuit.

Jan. 07, 2003  PN8       The Judiciary
               Carolyn B. Kuhl, of California, to be United States Circuit
               Judge for the Ninth Circuit.

Jan. 07, 2003  PN7       The Judiciary
               Richard A. Griffin, of Michigan, to be United States Circuit
               Judge for the Sixth Circuit.

Jan. 07, 2003  PN3       The Judiciary
               Terrence W. Boyle, of North Carolina, to be United States
               Circuit Judge for the Fourth Circuit.

---

Status of Article III Judicial Nominations

Tuesday, April 29, 2003

Total number of President George W. Bush judges confirmed:

119

STATUS OF JUDICIAL NOMINEES

Committee

Floor

Confirmed

Total Nominees

US Circuit Court Judge

15

5

3

23

US District Court Judge

29

1

15

45

USIT Judge

1

1

TOTAL Status:

44

6

19

69

TOTAL Pending (Committee + Floor):

50

IN COMMITTEE HEARING STATUS

Hearing Held

Without Hearing

US Circuit Court Judge

2

13

US District Court Judge

2

27

TOTAL:

4

40

VACANCIES

US Circuit Court Judge

23

US District Court Judge

25

TOTAL vacancies:

48

5.6%

JUDICIAL EMERGENCIES

Vacancies

Nominees to fill Vacancies

US Circuit Court Judge

17

17

US District Court Judge

9

8

TOTAL emergencies:

26

25

U.S. Senate Judiciary Committee, Senator Orrin G. Hatch

Tuesday, April 29, 2003

Click

[Howlin]

Bump!

[Republic If You Can Keep It]

The republicans better be demanding a real (non-stop) filibuster

Exactly.

The phony filibuster is not working & will eventually have grave consequences.

If the GOP wants any hope of controlling the Supreme Court, they'd better wake up quickly.

[Texas_Jarhead]

Since this article mentions Sen. Hutchinson I'd like to take this opportunity to post her response to my correspondence requesting her support for Sen. Santorum. I was a bit disappointed.

Thank you for contacting me regarding recent remarks made by U.S. Senator Rick Santorum regarding homosexuality. I welcome your thoughts and comments on this issue. As Vice Chairman of the Senate Republican Conference, which Senator Santorum chairs, I have had the opportunity to work closely with him on a number of issues, and I have never known him to discriminate against anyone for any reason. Senator Santorum commented during an interview with the Associated Press that he believes the 1986 U.S. Supreme Court decision in Bowers v. Hardwick should not be overturned. I believe he used poor judgment in his selection of words during the interview, and I accept his apology.

I appreciate hearing from you and hope you will not hesitate to keep in touch on any issue of concern to you.

[deport]

With Owen, we add another ingredient to this recipe.

---

Sen. Frist needs to schedule Pickering for floor debate at this time also and if he is held up then that will be three nominees awaiting an up/down vote by the full Senate and being denied by a minority consisting of democrats. There maybe another one or two among the nominees in Committee that will also be held up. With each one it makes a stronger case of obstruction by the democrats.

[AMNZ]

Push to get a vote on these two, beating up on Landreau and Graham(FL) till we get cloture and confirmation. If that fails, in four weeks we get recess and then make the appointments - good till our new less demonized Senate that will confirm.

[AMNZ]

Push to get a vote on these two, beating up on Landreau and Graham(FL) till we get cloture and confirmation. If that fails, in four weeks we get recess and then make the appointments - good till our new less demonized Senate that will confirm.

[votelife]

Jan. 29, 2003 PN279 The Judiciary
J. Leon Holmes, of Arkansas, to be United States District
Judge for the Eastern District of Arkansas.


I read that Holmes used to be head of Arkansas right to life, the Post commented that this will be an interesting move to see what Spectre does. I think Spectre will vote right, bc of Toomey, but we will see.

[votelife]

that is dissapointing...Santorum didn't apologize. Of course I think Hutchinson is more liberal than her voting record indicates. She is pro-choice too.

[deport]

http://www.freerepublic.com/focus/f-news/896064/posts?

An article from a while back about Leon Holmes.....