******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Saturday, January 1, 2011

Justices Bork and Estrada Seek More Judicial Confirmations, Judge Sessions Agrees

Chief Justice John Roberts has called for more judicial confirmations and an end of partisan bickering which has jammed the system.  As reported by The New York Times:
Chief Justice John G. Roberts Jr. called on President Obama and the Senate on Friday to solve what he called “the persistent problem of judicial vacancies.” ...
“We do not comment on the merits of individual nominees,” Chief Justice Roberts wrote on Friday. “That is as it should be. The judiciary must respect the constitutional prerogatives of the president and Congress in the same way that the judiciary expects respect for its constitutional role.”

But he identified what he called a systemic problem.

“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” he said.

The upshot, he said, was “acute difficulties for some judicial districts.”
Needless to say, Democrats finally have found something about Roberts which they can cheer.  Steve Benen writes that Republicans are the problem, even if Republicans were not singled out by Roberts:
It's worth emphasizing that Roberts, like [former Chief Justice] Rehnquist, was not specific in assigning blame to one party for the confirmation mess. But such identification was unnecessary -- it's obvious now, as it was in 1998, that it's the dangerous tactics of Senate Republicans that have undermined the process and created a vacancy crisis.
This is revisionist history, of course.  While certainly there is a long history of judicial fights, in the modern era the epitome of politicized nomination fights was the nomination of Robert Bork, when Ted Kennedy took to the floor of the senate immediately after the nomination with his "Robert Bork's America" speech:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy..."
There is a reason we now referred to highly personal attacks on judicial nominees as "borking" someone.

Miguel Estrada, who was blocked by Democrats from confirmation to an appellate court because he was viewed as being groomed for the first Hispanic appointment to the Supreme Court, and current Republican Judiciary Committee leader Jeff Sessions, whose judicial nomination was withdrawn under threat of filibuster, are other examples.

I don't know what the answer to the problem of politicized appointments is, but I do know that with Obama in office, now is not the time to try to unring the bell.

Update 1-2-2011:  In response to a commenter who is citing 6 month old statistics from the Center for American Progress (which runs Think Progress), here is a more balanced and in-context review reflecting that the record of confirmations for Obama is consistent with recent presidents and 24 of the nominations have been delayed by the failure of the Democratic-controlled Senate Judiciary Committee to hold hearings:
In the past week, though, the Senate has confirmed 19 less controversial judicial nominees. The final tally for Obama, over the past two years: 62 judicial nominees confirmed by the Senate, compared to 100 nominees during the first Congress of the George W. Bush presidency, WSJ reports.

Vermont Democratic senator Patrick Leahy, chairman of Judiciary Committee, called it a “travesty” that many nominees languished after winning bipartisan approval from his committee.

But Republicans say that Democratic complaints don’t account for an unusually busy Congress, including the two Supreme Court nominations which took up extra time. A GOP aide said a better comparison would be to the 109th Congress, from 2005 to 2007, during which 51 Bush nominees were approved.

An additional 24 Obama nominees who never got a Judiciary Committee vote will see their nominations die at the end of the Congress, though the president can renominate them.
Follow me on Twitter, Facebook, and YouTube
Visit the Legal Insurrection Shop on CafePress!
Bookmark and Share


  1. This comment has been removed by the author.

  2. It speaks volumes about how corrupt our "checks and balances" and fourth estate has become that the Chief Justice has to step out of his non-political role to speak out. Where are the patriots in DC? Step away from the trough already!

  3. The answer to politicized appointments is to repeal the 17th Amendment.

  4. JohnJ: Let's not forget the income tax as well! Then the 10th Amendment might actually mean something.

  5. @johnj: so what you are saying is that we need to weaken democracy so as to strengthen our republic? That might not be a bad idea except that we would be further entrenching the already entrenched and corrupt ruling class. This is the exact opposite of what we Tea Partiers are trying to accomplish. We don't need another side issue to distract us from addressing the main problem: corrupt and unaccountable big government.

    Once we American citizens retake control of our democracy, we can then discuss these other issues within the constitutional framework that was intended. Once we can again talk to each other as a country, this is one of those things we can discuss. Until then, we need to make it possible again for patriotic Americans to talk without being labeled "extremists", "racists", "xenophobes", and other vicious and untrue names.

    Let's see if we can focus on job one this year. Retake the GOP or abandon them once and for all. There should be no "next year" for the GOP if they insist in continuing their war against the Tea Party and America.

  6. Kennedy was right, though. He wasn't slandering the man, but correctly explaining his odious jurisprudence.

  7. @pasadenaphil: I don't think it would weaken our democracy; I think it would strengthen us. As Hilaire Belloc noted, votes and elections aren't democracy. Democracy is making the government work for the people, and I think the best way to do that is restore the Senate's incentive to enforce Constitutional limits on the federal government.

  8. 1. I don't know what the answer to the problem of politicized appointments is...

    Shrink government back to its essential functions and create a vehement electoral consensus against government overreaching.

    You didn't say the answer had to be realistic...

    2. pasadenaphil, the old chestnut that the USA has two parties, Stupid and Evil, needs updating because there are evildoers who pose as Stupid. They're called RINOs. If they were no longer tolerated in positions of authority, would the Stupid Party keep its name?

  9. @johnj: I really have to think on this.

    On the one hand, the American population certainly had a firmer and more personal grasp of individual liberty than today and yet, the founding fathers didn't trust the new democracy enough to allow the great unwashed to elect the cooling tea saucer directly.

    On the other hand, today we find an increasingly government-dependent but dis-enfranchised American population having socialism and post-national globalism jammed down its throat by the very corrupt and united establishment and you say that further empowering that corrupt establishment is the way to go.

    I see the problem lying closer to home. We need to retake the power at the grassroots and that means local and state elections and the House. What good would it do for CA to allow its governing elites, largely unelected special interests who have mastered confounding the public will, and other similar states to appoint their senators?

  10. @pasadenaphil The good it would do is that those Senators would be responsive to a boss that was more interested in retaining power for itself. The House represents the demands of the people for more government. The Senate is supposed to provide a check on that demand.

    It's kind of like how it's better to have judges appointed rather than elected. They can do their job better when given the right conditions. As Milton Friedman said, the trick with government is incentivizing the wrong people to do the right thing. This is what James Madison meant when he said, "You must first enable the government to control the governed; and in the next place, oblige it to control itself." The bicameral legislature brilliantly (in my opinion) provided a counterbalance to the House to avoid all the problems of majority rule that the Founders were aware of. The problem with government is centralized power. Electing Senators incentivizes them to centralize more power in Washington. That was not the original plan.

    Majority rule is not the goal; it never has been. The goal is freedom.

  11. Percentage of all nominees confirmed:

    Carter: 91.9%
    Reagan: 93.1%
    Bush I: 79.3%
    Clinton: 84%
    Bush II: 86.8%
    Obama: 42.8%


  12. Wow, unlike JohnJ's vicious reactionary ideas (take the vote away from the people to empower the grassroots!...which, of course, also ignores the rampant corruption and oligarchical nature of Senate elections prior the passing of the 17th. History is more than listening to Glenn Beck), the other John posts stats that actually mean something AND also refute William's point. Way to go, John.

    And, the good professor should be honest: he could give a crap if the Senate works and nominees get confirmed, he only cares if a future Republican Senate can confirm Republican nominees, which is why he doesn't want to "un-ring the bell."

    So, in a post deriding partisanship in obstructing judicial nominations by not allowing committee or floor votes, he actually endorses the status quo since changes might help Obama AND then he attempts a rather pathetic equivalence from a time when Kennedy argued against a nominee ON the floor during deliberations.

    Leaving aside the essential correctness of Kennedy's critique of a man who didn't like Girswold or the exclusionary rule or Miranda, Kennedy's critique is an apple to your orange (Senate debate for a floor vote versus championing reflexive obstructionist by partisan lunatics).

    Ironically, by mentioning Sessions, you could remind everyone how segregationist, neo-feudal politicians can win elections in Alabama, but it IS a dang good thing a man that dishonest, that dedicated to powerful versus the rest of us is not on the federal judiciary.

    William, you failed on every point you tried to make here. Back to LARC 1 for you

  13. @Tim Confirmation is not a sign that the Senate "works" if they're only confirming bad nominees. If the nominees are bad, a Senate that "works" shouldn't confirm them. That means it's doing its job. Who's being reactionary now? At least I didn't dismiss someone's ideas with juvenile name-calling.

  14. "There is a reason we now referred to highly personal attacks on judicial nominees as 'borking' someone."
    I re-read the Kennedy quote, and I see no personal attack. Maybe by "borking" you are referring to the vote on the nomination which the Senate took and which failed to confirm Bork to the Supreme Court. By that standard, the GOP won't even allow Obama's nominees the opportunity to be "borked."

  15. Bork: Saturday Night Massacre. Tainted forever. Choose somebody else.

    Adjust those "six month old statistics" and what do you get? nothing.

    Carter: 91.9%
    Reagan: 93.1%
    Bush I: 79.3%
    Clinton: 84%
    Bush II: 86.8%
    Obama: Do the math and let us know, OK? But until then: way, way less than the white people.