Political rhetoric over federal judges heats up

"Specter pointed to statistics that said that during the last two years of President Clinton's term, the Republican-controlled Senate confirmed 15 circuit nominees and 57 district court nominees, while since the Democrats took over the Senate in 2005, Bush has been successful in confirming only 6...."

Well that just proves they were better nominees. Thanks for the heads up, Arlen.

I say wait. Why confirm some crazy Reich WInger just cause Arlen complains. If the Dems win the WH and a super-majority in the Senate it won't matter.

To blame this problem on either political party would be an error. This post does a good job splitting the blame.
I think the issue is that the judiciary has gone political in some ways and its nearly impossible to not judge a nominee based not only the temperament and case load, but also the outcome of their cases. A conservative would naturally not want a liberal interpretation in the courts and vice versa. I'm not sure how we could get around this ideological difference without being soft on our own convictions.

"ARLENE SPEAKS"

"BREATHTAKING ABUSE OF THE CONSTITUTION"

THAT IS WHY WE NEED TO ALLOW GEORGE BUSH TO GET EVERY "REGENTS UNIVERSITY" LAW STUDENT AS "STRICT CONSTRUCTIONIST" ON THE BENCH.

REMEMBER A CAGED VOTE IS A REPUBLICAN VOTE.

REMEMBER A CAGED BLACK VOTE IS A REPUBLICAN VOTE.

REMEMBER A CAGED, DISINFRANCHISED, MILITARY MEMBER VOTE IS A REPUBLICAN VOTE.

IT DOESN'T MATTER WHO COUNTS THE VOTES, IT ONLY MATTERS IF IT IS A CAGED VOTE!

HUH ARI FLEISCHER!
HUH MATT MCCLELLAN!

"IT IS IMPORTANT TO HAVE PEOPLE IN THE SENATE WHO ARE CLEAR-EYED REALISTS"
(PRESIDENT BUSH SAID IN HIS "THANGSGIVING" NOV 3, 2002 SPEECH TO AMERICA.

POPPY IS UP AMERICA!
POPPY IS UP!

C. Morris, a supermajority is a pipedream. Every nominee will need to have at least some bipartisan support no matter who wins the Whitehouse. Stonewalling Bush's nominees may come back to bite the Dems if they win the Whitehouse. I thought similarly when the GOP had the majority and threatened to abolish the filibuster. Huge mistake, as anyone who has followed politics for more than a few years knows how the pendulum can swing back and forth.

Steve S., I agree with you that the courts are becoming much too politicized. Look at state judges, who actually run under party tickets. I don't think the framers intended judges to be this political, but it is a reality. Look at the last two SC appointments. There was lip service to qualifications, but all anyone really wanted to know was how they would vote on abortion.

Hey Arlen, don't you have a cheating football team you're supposed to be investigating? And an antitrust exemption you should be lifting?

The situation is exactly as The Framers intended: Federal Judges would get their jobs through a political process, but once seated would be unaffected by politics because they'd get lifetime appointments.

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I do find it ironic that Herbie, a righty, would have such trouble with this situation. Don't we usually hear Dear Leader and the Righties complaining about "unelected judges" in the Federal judiciary who are always "legislatin' from the binch" ? Don't go soft on us Herbie, or you'll be accused of being a liberal.

The liberal Democrat Judiciary Committee with goofball Pat Depends Leahy running the show won't give us up or down votes and the Stalinist attitude of the ohter Dems on this committee is just unfair. C. Morris the Dems didn't have more qualified Justices they were just pro-abortion and pro gay rights, pro environmental wackos the list goes on.
Chuckie Schemer and Dickie Durbin are partisan hacks and they won't give in. Come November these Stalinists should get the boot. Jerry White, Springfield, IL

Jerry White,

Well, you list the reasons they were better choices.

As usual the Demoncrats are playing games. And these games are not just against the Bush administration, but the American people. Why don't the Demoncrats like Americans?

Mr. Oliphant, the Dems took over control of the Senate in January of 2007, not 2005.

No big deal. Obama will get those slots filled.

. Come November these Stalinists should get the boot. Jerry White, Springfield, IL

Posted by: Jerry White | March 4, 2008 3:40 PM

Good luck with getting Durbin defeated Jerry. Who are the Republicans even bothering to run this time?

The Republican party has become completely irrelevant at the statewide level in Illinois.

The records of President Georege W. Bush's pending appellate nominees and the way in which others were chosen demostrates that they were selected BECAUSE they would not be confirmed, creating artificial vacancies to inflame his narrow right-wing base. These include 9 nominees from seven states where Bush has needlessly antagonized Republican and Democratic home-state Senators who have suggested appeallate nominees including Bush distrcit judges. See my Feb. 7th op-ed length letter in The Hill for details.

For a review of Bush nominees including how major new developments regarding Bush's torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts, see my Feb. 29 Guest Blog in ACSBlog

Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

See Earthjustice's Judging the Environment website for comprehensive links.

-Glenn Sugameli
Senior Legislative Counsel
Earthjustice
Washington, D.C.

Okay. That's it. the Junior Senator needs to GET BACK TO WORK learning how the fed'l gov't works outstide of a textbook. He can speechify or filibusterify against these nasty Federal judges.

Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.
Posted by: Glenn Sugameli | March 4, 2008 5:37 PM

Glenn: That would make them strict constructionist...something liberal judges don't seem to understand.
Save it for people who would swallow that crap.

That would make them strict constructionist...something liberal judges don't seem to understand.
Save it for people who would swallow that crap.

Posted by: Don B. | March 4, 2008 8:12 PM

It's likewise something you don't understand. Unless I'm way off base, you're the type who thinks this is a Judeo-Christian nation. If so, please identify the textual basis for your position.

Dear “Don B”

You claim that my insisting on nominees who demonstrate that they will uphold and enforce our Constitution and laws.
“would make them strict constructionist...something liberal judges don't seem to understand.
Save it for people who would swallow that crap.”

Posted by: Don B. | March 4, 2008 8:12 PM

BUT, Environmental groups only want judges to require that companies and government agencies comply with the Constitution and laws.

In contrast, right-wing Supreme Court Justices have repeatedly legislated from the bench, rewriting the Constitution to favor their own policy preferences.

For example, they rewrote the Eleventh Amendment to allow states to violate federal laws with impunity. The amendment states that “The judicial power of the United States shall not be construed to extend to any suit ‘. . . against one of the United States by Citizens of another state …”

Activist right-wing Justices have removed the word “another” and ruled the Eleventh Amendment applies to suits brought by a state’s own citizens; and have ignored in two respects the limitation to “Judicial Power of the United States” by ruling that it applies to congressional actions to require State courts to hear suits seeking compliance with federal laws.

Too many of President Bush’s nominees have supported judicially rewriting the Constitution to deny citizen access to courts; to deprive Congress the ability to protect civil rights, workers, health, safety, consumers, and the environment; and to require unlimited payments from taxpayers to companies and developers that comply with the law, under a view that even Justice Scalia admits was never intended by the Founders.

Senators must Just Say No and insist that the President respect their constitutional advise-and-consent role in selecting they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

-Glenn Sugameli
Senior Legislative Counsel
Earthjustice
Washington, D.C

Dear “Don B”

You claim that my insisting on nominees who demonstrate that they will uphold and enforce our Constitution and laws.
“would make them strict constructionist...something liberal judges don't seem to understand.
Save it for people who would swallow that crap.”

Posted by: Don B. | March 4, 2008 8:12 PM

BUT, Environmental groups only want judges to require that companies and government agencies comply with the Constitution and laws.

In contrast, right-wing Supreme Court Justices have repeatedly legislated from the bench, rewriting the Constitution to favor their own policy preferences.

For example, they rewrote the Eleventh Amendment to allow states to violate federal laws with impunity. The amendment states that “The judicial power of the United States shall not be construed to extend to any suit ‘. . . against one of the United States by Citizens of another state …”

Activist right-wing Justices have removed the word “another” and ruled the Eleventh Amendment applies to suits brought by a state’s own citizens; and have ignored in two respects the limitation to “Judicial Power of the United States” by ruling that it applies to congressional actions to require State courts to hear suits seeking compliance with federal laws.

Too many of President Bush’s nominees have supported judicially rewriting the Constitution to deny citizen access to courts; to deprive Congress the ability to protect civil rights, workers, health, safety, consumers, and the environment; and to require unlimited payments from taxpayers to companies and developers that comply with the law, under a view that even Justice Scalia admits was never intended by the Founders.

Senators must Just Say No and insist that the President respect their constitutional advise-and-consent role in selecting they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

-Glenn Sugameli
Senior Legislative Counsel
Earthjustice
Washington, D.C

Regardless of how you feel about the individual nominees, it is only right that they get hearings. Curt Levey from the Committee for Justice writes that to bring more visibility to this important issue, we should look to the presidential candidates to get on board with Specter. Read the press release at committeeforjustice.org/blog

If so, please identify the textual basis for your position.

Posted by: a blinkin | March 5, 2008 9:50 AM

The 10 commandments, and signatories of the Declaration of Independence were mostly Christians or Jews.

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Posted by: GlennSugameli | March 5, 2008 11:34 AM

Mr. Sugameli:

With all due respect, your one concrete example places you squarely within Ronald Reagan’s famous dictum, “The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so.”

At the time the Constitution was adopted, all the States were endowed with sovereign immunity. Sovereign immunity, as you know, gives each State the power to decide whether, and under what circumstances, it shall be amenable to suit by an individual. When it chooses not to be amenable at all, no suit can be maintained against it. I refer you to The Federalist, No. 81, by Alexander Hamilton as proof of this understanding. Thus, the general, well understood rule, was that a State could not be sued even by one of its own citizens without it consented to the suit.

There was, however, an objection to the Constitution by its many detractors, on the ground that Article III, Section 2, would allow an out of state party to make an end-run around sovereign immunity through the artifice of suing a State in federal court, thereby destroying State sovereignty. The text upon which this objection was based provides, in relevant part, “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, . . . [etc.]; - to controversies between a state and citizens of another state, . . . and between a state and foreign states, citizens, or subjects.” Alexander Hamilton dismissed this objection, asserting that, without a surrender of sovereign immunity in the Constitution, nothing in the constitutional plan would permit a suit against a State. (See Federalist, No. 81, infra.) Against the same objection, Madison asserted that federal courts could take cognizance of such cases only when the State was the plaintiff against citizens of other states, and in those instances when the State should waive sovereign immunity and “condescend” to be a party. (See 3 Elliot, J. The Debates In the Several State Conventions, On the Adoption of the federal Constitution [etc.]”, 533 (2d ed. 1863).) John Marshall, who later served as Chief Justice, agreed: the disputed clause was necessary to allow States to go into federal court to sue residents of other States, but not to allow States to be sued against their will. (See Id., at 555-56.) In other words, the original understanding of Article III, Section 2 was that federal jurisdiction over States was limited to cases in which the State instituted the suit or consented to it.

Incredibly, despite the foregoing understanding, the U.S. Supreme Court decided in the case of Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), that Article III, Section 2 of the Constitution abrogated the States' sovereign immunity against suit in federal court instituted by a citizen of another state or of a foreign country. The States responded with outrage. The Georgia legislature even passed a law to inflict the death penalty on anyone attempting to enforce the judgment in Chisholm. To no one’s surprise, the Eleventh Amendment was submitted to Congress the day after the decision in Chisholm was announced, for the specific purpose of overruling it and restoring the original understanding of the States’ sovereign immunity. Two months later, and with almost unanimous support, Congress submitted it to the States for ratification.

In other words, contrary to your understanding of the Eleventh Amendment, the provision was never intended to confer federal jurisdiction on a suit instituted by a citizen of a State against that State. It was added to the Constitution solely for the purpose of closing the sovereign immunity loophole created by Chisholm. The general principle of sovereign immunity barred suits against a State by one of its citizens both before and after Chisholm. That was the understanding of the Supreme Court when it decided Hans v. State of Louisiana, 134 U.S. 1 (1890), in which the Court explicitly held the 11th Amendment did not confer jurisdiction on federal courts to hear suits between a State and one of its citizens. According to the lead opinion by Justice Baldwin, it is the States’ inherent power of sovereign immunity, and not the 11th Amendment, that bars a suit by an individual against a State in federal court. (Id., at 12, 14-15, 18-19; and see, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 267-268 (1997) [In accord].) Hence, what you have called a re-write of the 11th Amendment by “right-wing Supreme Court Justices,” to remove the word “another” from it, never took place.

You are likewise in error in claiming that judicial activists have denied access to the courts. States can be sued in federal court or their own courts when they consent. There are lots of such actions. Also, pursuant to the Fourteenth Amendment, an action can be maintained a State where it is clear that Congress, through its enforcement power under Section 5 of that Amendment, has deprived a State to assert sovereign immunity as a defense. Moreover, individual state officers can be sued for declaratory and injunctive relief. Even a suit for money damages may be prosecuted against government entities that are not an arm of the state, and against state officers in their individual capacity for their own wrongful, unconstitutional conduct as long as the relief is sought from the officer personally and not from the State treasury.

This constitutes the original understanding of the principles of sovereign immunity, and their exceptions. in this country. Furthermore, even Justice Scalia agrees with the foregoing limitations and exceptions. (See Alden v. Maine, 527 U.S. 706, 711-760 (1998), Opn. of Kennedy, with Rehnquist, C. J., and O'Connor, Scalia, and Thomas, joined.)

Your claims of judicial activism, then, are plain false. It seems to me that you are just crying out loud that you can’t get money from the deepest pocket available, even though access to that pocket has never been available under the Constitution and laws of the United States. Pardon me if I feel no sympathy.

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“It's likewise something you don't understand. Unless I'm way off base, you're the type who thinks this is a Judeo-Christian nation. If so, please identify the textual basis for your position.”

Posted by: a blinkin | March 5, 2008 9:50 AM

Sorry, a blinkin, you are wrong to suggest that one needs to be a “textual basis” to assert that this is a Judeo-Christian nation. Saying that the U.S. is a Judeo-Christian nation does not mean we have a Judeo-Christian government. The word “nation” doesn’t even refer to a country or its government. It refers to the people or peoples living within a country who share a common language, culture, historical experience, and/or religion.

The people who founded the colonies from whence our country emerged were, by and large, Jews or members of Christian sects. Even today 85 percent of the people in this country claim to be Christians of some stripe, and 64 percent indicate they are members of a church. The people, and progeny, who make up our nation were living on this continent for 150 years before the Constitution was ever written, and Judeo-Christian traditions and beliefs ordered their lives, societies and governments long before the U.S. government ever existed. In my opinion, at least, this more than justifies the epithet “Judeo-Christian” as applied to the “nation” that occupies our country (as opposed to its “government”).

a blinkin:

Correction:

I meant to say, ". . . to have a textual basis" rather than ". . . to be a textual basis.”