It’s never too early to join in the annual retirement watch at the Supreme Court. Several months ago, court watchers noticed that Justice John Paul Stevens had failed to hire his full complement of law clerks for the Oct 2010 term. If Stevens does retire in June at the end of the current term, the previous conventional wisdom was that the nod would go to one of the women previously on the White House short list for the Sotomayor nomination. Most of the discussion has centered around: Janet Napolitano(current head of Homeland Security, former governor of Arizona); Diane Wood (7th Circuit judge); and Elena Kagan (current U.S. Solicitor General and former dean of Harvard Law School).
On last Sunday’s “Face the Nation” with Bob Schieffer, CBS Chief Legal Correspondent Jan Crawford (author of “Supreme Conflict” – a 2007 book about the Supreme Court) predicted that Stevens would indeed retire this year and that President Obama would nominate Elena Kagan to replace him. In my opinion, Jan is the best of the beat reporters covering the Court, so I tend to give her predictions a lot of weight.
Unfortunately, a Kagan-for-Stevens replacement looks to be a disappointment for social conservatives, if her past statements/positions accurately reflect her judicial philosophy.
We’re going to hear a lot (from the President and the Dems in the Senate) about the need to keep the ideological “balance” of the Court intact (whatever that means), and that replacing a liberal judicial philosophy with another one is not only justified but wise (while at the same time denying that either Stevens or Kagan is actually a liberal, of course!). The argument for “balance” on the Court is just so much political blather. The polls consistently say that Americans want conservative judges on America’s courts.
If we get the liberal Kagan as a nominee, there should be plenty of fireworks that will last into, and potentially affect, the November Senate races.
And he just might get away with it too.
Louis Butler, a former Wisconsin Supreme Court justice, managed to get nominated by President Obama to a federal district court judgeship for the western district of Wisconsin after the voters of Wisconsin twice rejected him as a state judge. The left-leaning American Bar Association has given him a “well-qualified” rating. (Did I mention that he sits on an ABA committee?)The Senate judiciary committee sent his nomination along to the full Senate last week by a contentious 12-7 vote, with all Dems voting for the nominee and all Republicans voting against.
Some brief background. A municipal court judge during the 90’s, he ran for the Wisconsin Supreme Court in 2000 and lost. Didn’t carry a single county. Ok, that doesn’t prove anything. Maybe he’s a bad campaigner.
In 2004, however, Governor Jim Doyle, a Democrat, appointed Butler to the Wisconsin Supreme Court to fill an emergency vacancy. The term for that position ended in 2008. Since Wisconsin elects its judges (except for emergency appointments), Butler ran for re-election against fresh opponent Michael Gableman – and lost. That was the first time since 1967 that an incumbent justice lost a re-election bid. Not a great resume’ bullet point.
With new-found time on his hands, former Justice Butler appeared at a 2008 fundraiser for guess who? Yep, candidate Barack Obama. And Butler talked about the “importance” of federal judicial appointments, Roe v. Wade, gun control, affirmative action etc. Typical liberal judicial catechism. And no pretense of impartiality from Butler. After all, he wasn’t a judge anymore And here we are, a year later, and guess which supposedly impartial judicial nominee is waiting for his Senate confirmation vote to a lifetime appointment to the federal bench?
No wonder conservatives are outraged. Here’s a sampling: Wall Street Journal, Sen. John Cornyn, Wiconsin Family Action, and Rep. Jim Sensenbrenner.
Senator Jeff Sessions, writing in the Washington Post, surveys the history of filibusters against federal judicial nominees. He takes the reasonable, in my opinion, position that the process can be reformed so that nominees can look forward to an up-or-down Senate vote rather than a filibuster.
Since the Democrats have set the rules (with a little help from the Gang of 14 Republicans back in 2005) that filibusters are okay, I see no reason for Republicans to abandon the filibuster unilaterally. You don’t bring a knife to a gunfight if there’s a 9 mm handy.
Back in 2004 and 2005, Republicans (as the majority party) tried to introduce legislation that would have eliminated the filibuster for judicial nominees, but minority-party Democrats would have none of it. Why would they? They were enjoying numerous “victories” consisting of blocking top-notch nominees like Miguel Estrada (who might even be on the Supreme Court right now but for obstruction – but that story is for another day), Priscilla Owen and others.
But now the Democrats, as the majority party in the Senate, might just be a little more reasonable about considering a rules change, since it’s in their interest to do so. The near-miss of the Republicans’ attempted filibuster of David Hamilton just might provide the impetus for a much-needed procedural reform.
The adage “elections have consequences” can include the unfortunate result that some of those consequences can be totally unforeseen by the electorate focused on election slogans like “hope and change.”
Today, unfortunately, we will probably witness one of those consequences. The 7th Circuit U.S. Court of Appeals, to which Hamilton will be appointed upon his expected confirmation by the Senate, had this to say about Judge Hamilton’s 7 year personal vendetta to block Indiana’s “informed consent” law from taking effect:
“For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana) (Me – that’s Hamilton they’re talking about) has held any similar law invalid in the years since Casey.”
Hamilton was originally appointed to the federal bench by President Clinton in 1994. At the time, the ABA rated Hamilton as “not qualified.” The Democrat-controlled Senate confirmed him anyway.
While there are plenty of other reasons why Hamilton should never have been nominated this time around, his refusal to follow clear Supreme Court and 7th Circuit precedent on “informed consent” laws that reduce abortions is a sad indicator of what type of judge we’re getting, and a reminder to voters to pay attention to what type of “change” they are voting for.
I started dissecting the accusation of Republican obstruction of Obama’s judicial nominees in this post.
Even the statistics say that Reid is stretching for any kind of believable story line. Of the 25 nominations Obama’s made (way under the number at this same time for Bush – 64), only 14 have made it onto the Senate’s “Executive Calendar” for consideration. Democrats control the process all the way up to that point, so Republicans don’t share any blame there.
Of those 14, 6 have been confirmed through the highly contentious and obstructionist tactic known as the “unanimous consent agreement.” You know, the very procedure that Reid says the Republicans are avoiding.
Of the remaining 8 on the Senate calendar, 5 have been there for a month or less. That’s not a delay in anyone’s book. (Until you can at least match Sen. Leahy’s Judiciary chairmanship record during the 107th Congress of 19 months in which no hearings were held on 12 Bush nominees, and another 3 received a hearing but no committee vote, don’t even talk to me about obstruction. You’re still in the minor leagues.)
That leaves 3 nominees. Hamilton, a decidedly controversial nominee who I’ve mentioned before is deserving of a thorough floor debate and then a “no” vote. And Reid finally filed a “cloture” motion on Hamilton on Nov. 10, which means the Senate will vote on him this week. Reid may have been avoiding debate on the radioactive Hamilton by not filing his cloture motion, but that’s not the Republicans’ fault. The other two nominees – for the 3rd Circuit and 11th Circuit – have been “waiting” only since Oct. 1, and Sept. 10th, respectively.
Bottom line – the president has been horribly slow at nominating judges and his friends are trying to deflect any valid criticism away from him by blaming – who else – Republicans!
Dan Savage at the LA Times has been pressed into service by liberal apologists for the administration to “explain” why President Obama has such poor numbers for judicial confirmations at this point in his administration. Savage’s take:
“…liberal activists have voiced growing irritation that Republicans are quietly using their minority power to block Senate votes on Obama’s judicial nominees. They note that during the Bush administration, Republicans insisted the president’s nominees deserved up-or-down votes.”
The story mentions only two judicial nominees (Hamilton, Chen), but leaves the impression that all nominees have been obstructed.
I was dubious that Republicans could somehow have found a more effective way to obstruct nominees than the Democrats, so I looked at the story for hints. Apparently, according to Senate Majority Leader Harry Reid, those obstructing Republicans won’t agree to a unanimous consent agreement that would bring the nominee to the floor for an up-or-down vote without debate. If Republicans want a debate, this forces Reid to go through the onerous task of. . . . filing a motion to bring the nomination to the floor for a vote.
Such obstruction makes me shudder.
But it gets worse. More on the numbers in my next post.
As Obama’s first appellate court nominee, Judge Hamilton was supposed to be a simply-executed, slam-dunk example of the President’s supposedly new post-partisan politics: supported by both home-state senators, including Richard Lugar, a Republican; a glowing recommendation from the local head of the Federalist Society; a high rating from the ABA.
I’m sure Obama expected a near-unanimous vote for confirmation.
As it turned out, Obama’s carefully selected nominee raised alarms with everyone from pro-lifers to tough-on-crime types. Hamilton survived his Senate Judiciary committee vote only because Democrats there outnumber Republicans. Then his nomination promptly disappeared for several months.
Now, word is circulating through the blogosphere that perhaps Harry Reid is going to bring the nomination to the floor of the Senate for a vote in the next week. In response, Sen. Jeff Sessions has taken the extraordinary step of writing a letter to his Senate colleagues reminding them of Hamilton’s record.
Some excerpts:
“Judge Hamilton has also written that empathy should factor into the judicial making process.”
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“Unfortunately, Judge Hamilton’s activism has not been restricted to his speeches. In Hinrichs v. Bosma. . . Judge Hamilton prohibited prayers in the Indiana House of Representatives that expressly mentioned Jesus Christ as violative of the Establishment Clause, yet he allowed prayers which mentioned Allah. The Seventh Circuit reversed his ruling.”
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“Judge Hamilton’s most determidly activist decisions might be his series of rulings in A Woman’s Choice v. Newman,… Through his rulings in this case, Judge Hamilton succeeded in blocking the enforcement of an Indiana informed consent law for 7 years. In reversing, the Seventh Circuit noted that Judge Hamilton had abused his judicial discretion.”
Read the whole thing. Then call your senator and ask him or her to vote no on Hamilton.
