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April 27, 2005

Comments

Let us see what happens if the Democrats choose to shut down the government over a few judges.

So, if I may ask, Sebastian, do you support Bush's candidates? And if you do, on what grounds?

Shutting down the business of the Senate is not the same as shutting down the government. Apples and oranges, Sebastian.

Didn't they do this just last year -- a 3 or 4 day mini-marathon, old-style filibuster? IIRC, with each passing day, the base got more supportive of the President's position, but general public opinion went the other way. Or was it the fall of 03?

Dems weren't reading the phone book. They spent much of the time talking about how Reps were more interested in doing something for these 7 or 10 or whatever whackos than in doing many of the much needed things for the rest of the citizenry.

Does anyone have grounds for opposing these nominations? Just curious. I know that there were grounds for opposing the Paez nomination. Perhaps not grounds everyone would agree with, but that's the nature of these things.

"One of the more influential Supreme Court Justices in US history once said: "This is a court of law, young man, not a court of justice.""

Of course, in Holmes's day, there were such things as courts of justice, usually called Equity or Chancery.

Does anyone have grounds for opposing these nominations? Just curious.

Slarti, I admit it freely: I do not consider myself in any way qualified to determine what makes a good judge - though as in my limited experience of judges, they can go quite eccentric*, it's probably better than they don't start out that way.

But the US Senate has the job of deciding what makes a good judge. So I presume that they have, if nothing else, experience in making that judgement. And a rather large number of Senators appear to feel that these candidates are unfit for office. Nor can this be assumed to be a partisan rejection, since the vast majority of candidates nominated by Bush have been confirmed without fuss.

We've heard what appear to me to be good reasons from people who consider these candidates to be unfit. (Most recently, from Hilzoy, in the post immediately preceding this one.)That's why I asked Sebastian, assuming that he does consider these candidates to be fit for office, what his reasons are for supporting them.

If the confirmation process is merely a rubber stamp - let them through because the President nominated them - then your question would make sense. Or if no one had come up with any reason not to support them. But I assume confirmation by the US Senate is not merely intended to be a rubber stamp, and people have come up with reasons not to support them - so why not ask those who do support these candidates for their reasons for doing so?

*As Terry Pratchett says, if you're sufficiently rich and powerful, you don't go crazy: you're eccentric.

As to your Homes' quote:

http://en.thinkexist.com/quotation/this_is_a_
court_of_law-young_man-not_a_court_of/148879.html

Slarti,

"Does anyone have grounds for opposing these nominations?"

Hilzoy posted a lengthy description of grounds to oppose one of them as the subject of the immediately below post. Calling 1937's Supreme Court decisions starting with Jones & Laughlin Steel v. NLRB a socialist revolution means that the creation of the National Labor Relations Board and approving the concept of collective bargaining is both socialism and a revolution.

I don't think approving the concept of requiring collective bargaining with a union which has demonstrated the support of the majority of workers to be socialism, but I will (barely) concede that it is not insane to believe that. However, I have a hard time taking seriously someone who thinks that upholding laws duly passed by Congress and signed by the President to be a revolution, much less approving her to be an appellate judge.

Does anyone have grounds for opposing these nominations?

yes. Hilzoy's post has some nice quotes where Brown spouts both the ConservativesAreUnderSiege mantra, and the idea that this country needs to return to its Christian roots. she sounds like a dittohead.

The filibuster, as has been pointed out, is a tool to protect the minority that has a less-than-10-vote disadvantage. After all, in two years, it could flip around; and so issues that individual members decide are of great importance can be forced to carry a higher burden.

This point should be emphasized: That some issues call for a higher threshhold. For instance, the constitution explicity says that a 2/3 vote is needed for treaty ratification. This makes sense, as the effects of the treaty far outlast the current voting majority.

The longer-lasting the effects of an action, the more the opponents will try to use the filibuster. This year's majority must reach higher to pre-empt future (and opposing majorities).

A lifetime appointment to the bench is such an action. This appointment cannot be undone by next year's Senate, or the Senate of 10 years from now, which might be decidedly different in makeup. It should be perfectly acceptable to force a higher theshhold -- 60 votes -- on an action like this.

(Personally, I'd favor a Constitutional Amendment to have lifetime appointments require a 2/3 vote -- but I don't see that happening).

The higher vote threshold forces (or should force) a rational Executive to choose candidates who are more centrist and have more widespread appeal. A rational Executive will know that an extremist candidate -- on either end of the spectrum -- will have less chance of beating the vote spread.

It still remains power politics. The Democrats played the card by filibustering circuit court nominees. The obstructionists made their bed by changing historical precedent, and changing the Senate rules is the logical result of their actions.

The obstructionists made their bed by changing historical precedent, and changing the Senate rules is the logical result of their actions.

When you decide to actually engage in the discussion and stop lying about "historical precedent", Charles, let us know. You've been corrected on this enough times by your fellow front-page posters for it to have passed from misunderstanding into deliberate dishonesty.

Hilzoy would be glad to know that Holmes' pithiness probably springs from his skills as a poet.

Sebastian's argument reminds me of this Holmes' quote.

"A new untruth is better than an old truth."

The conservative mantra is that the federal courts are "activist" (even though they have been majority Republican for a few decades now), and therefore they need more conservative judges to "counter" that force. Except that Bush is deliberately picking the most extreme activist judges possible.

In other words, the Bush position is based on baloney and seeks to perpetrate the evil that it claims it is addressing.

But as Holmes observed, its easier to sell the new untruth -- that the courts are "attacking" American values with their "activism," and Bush appointees will allegedly bring an end to activism.

It would be nice to have a reality based debate on this question.

I do think the debate should be about the merits or demerits of the judges, not the filibuster. Filibusters are tools and whoever uses one gets accused of abusing it by the the other side. In the this situation the key issue, which I believe Republican
Congresspeople do not wish to discuss, is WHY a filibuster might be used. The answer is the inadequacy and inappropriatteness of some of the nominations.
Slati asked for specifics against the judges. Here's my objection to one. His niame is Miles or Myers or something like that--sorry, I'm aphasic about names. He has no qualification for being a judge. His background is lobbying for energy companies. He isn't even a lawyer. He is on record as stating that the Endangered Species Act is unconstitutional because it, in his opinion, unlawfully takes private property from people and corporations. The private property to which he refers is the profits made by businesses through the subsidized exploitation of public resources. He believes the government does not have the legal right to regulate the use of our public resources by private businesses.
This is revolutionary. It should be getting more public notice, but, for some reason, environmental issues don't seem to matter much. Next time you go to a camping in a national Forest, ask yourself if the government has a right to limit the amount of cattle grazing in order to protect wildlife habitat or restrict timber cutting so there will be some trees left or require a mining company to block toxic run-off from streams. I think the government not only has a right to regulate the use of our land, but a responisbility to do so. However, subsidized exploitive businesses have been trying for years to label their use of our resources as a protected right( remember the Sagebrush Revolution?) This is the latest attempt.
This guy should not have been nominated and, it it takes a filibuster to block him, then I believe responisble citizens who want to have our public resources managed in the public interests should support the filibuster.
My source for this is either nature Conservancy magazine or the Audubon Society.

But the arguments against the nominees (any nominees) and the arguments for/against the filibuster go hand and hand.

To get enough people to sustain a filibuster, the nominees have to be odious to keep "centrist" Senators determined to block them. If the nominees are not all that objectionable, you're not going to get all 45 Democrats to stand their ground. Passions need to run high about it.

Theoretically, the Democrats could filibuster every single thing Bush wanted to do. But they won't, and don't, because things need to get done. They want stuff, the Republicans want stuff, and there will be some dealing and horsetrading.

The majority will still get the bulk of the concessions, as they have more votes. But the minority will get consideration on things. If the majority runs roughshod over the minority all the time, and doesn't address any of their concerns and needs, the minority has a weapon/tool to use to protect them.

So after confirming 205 (or so?) judges, who probably got some "No" votes here and there, the Democrats are saying that these judges are so beyond the pale that they will exercise this not-often-exercised power.

This tool, I think, is legitimate, because it can be overridden by enough minority members deciding it's not worth it.

On the other hand, I do not think allowing one Senator, or two, to personally block a nomination, or a Committee Chair to personally block a nomination, is fair at all.......if anyone wants to talk about historical precedents.

Charles: "The obstructionists made their bed by changing historical precedent"

See here:

"Judiciary Committee Chairman Arlen Specter (R-Pa.) told his panel this month that the judicial battles have escalated, "with the filibuster being employed for the first time in the history of the Republic." Sen. Orrin G. Hatch (R-Utah) said in a Senate speech last week, "The crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved."

Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States. "Fortas Debate Opens with a Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It said, "A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice." "

But some more recent claims about the 'unprecendented' nature of this have been more narrowly tailored:

"Current GOP leaders sometimes amend their comments, saying the Fortas battle is not a precedent for today's filibusters because Fortas faced so much opposition that his confirmation would have failed on a simple yes-no vote. Democrats acknowledge that the nominees they are blocking -- on grounds they are too conservative -- would be confirmed by a simple-majority vote in the Senate, where Republicans hold 55 seats.

"Never before has a minority blocked a judicial nominee that has majority support for an up-or-down vote on the Senate floor," Majority Leader Bill Frist (R-Tenn.) said in a widely reported December speech.

But such assertions are unproven at best, and certainly subject to challenge based on the record. It is impossible to gauge the exact support for Fortas because 12 senators were absent for the "cloture" or "closure" vote, which failed to halt the filibuster. The 45 to 43 vote in favor of ending debate fell far short of the needed two-thirds majority. (...)

Anecdotal evidence suggests, but does not prove, that a majority of senators may have backed Fortas or been undecided when the debate began. An Associated Press head count found that 35 of the 100 senators "are now committed against voting for closure," the New York Times reported. That suggested that as many as 65 senators conceivably were open to voting on the nomination.

Then-Sen. Howard H. Baker Jr. (R-Tenn.), a Fortas opponent, also hinted that his side felt it lacked a majority. Defending the newly launched filibuster, Baker said: "On any issue the majority at any given moment is not always right."

Frist sometimes speaks of the current judicial impasse in terms that take the Fortas case's complexities into account. "Never before in the history of the Senate has a nominee with clear majority support been denied an up or down vote on the Senate floor because of a filibuster," Frist said Tuesday. Such language puts him on more solid historical footing. The New York Times wrote of the 45 to 43 cloture roll call: "Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote." "

Of course, it's easy to show that the current maneuvers are, indeed, without precedent: never before in its 200+ year history, for instance, has the Senate threatened to filibuster a justice whose name is Janice Rogers Brown.

Legal realism is not an argument that judges's legal interpretations SHOULD be affected by concerns about policy and justice and equity, so much as an argument that they INEVITABLY ARE affected by such concerns. It's descriptive, not proscriptive, and you can make what you want of it--it can lead you to judicial restraint in the face of uncertainty (see: Holmes), or a view that everyone else is doing it so I can too (the Critical Legal Studies folks seem to go in this direction, as do some, but not all, of the people talking about a living Constitution--I had a phase my 1L year but outgrew it), or not so much judicial restraint as more honesty with yourself about your decisions in a way that leads to better decisions (see: Louis Brandeis).

what could be more conservative than shutting down the Senate?

It should be perfectly acceptable to force a higher theshhold -- 60 votes -- on an action like this.

zmulls beat me to it. Basically, the filibuster creates a requirement for a 2/3rds majority vote. Given that the appointments are lifetime, a 2/3rds majority doesn't seem unreasonable. What does seem unreasonable (if not downright childish) is gaining that 1/3 minority by essentially clapping their hands over their ears and chanting 'lalalalalalala' instead of actually discussing the merits (or lack thereof) of the nominee in question.

Well, it's actually 3/5, but the point is the same *g*

While it may be unreasonable to chant "lalalalalala" it's not against the principle. If the 2/5 (plus 1) feels so strongly about This Issue that they will not let it go forward, it's their right to use their voting power to effect their ends, even if it's 'lalalalalala'.

There comes a point during any extended discussion like this, when the 59 people who want to invoke cloture have stated their arguments, and the 41 people who want to filibuster have stated their arguments, and nobody is about to change his/her mind. At that point, everyone starts repeating the same arguments over and over, to no effect. It's pretty much the same as 'lalalalalala' at that point.

I don't think the Democrats have not addressed these nominations 'on the merits,' if that was your point. Independentjudiciary.com, for instance, has several pages of examples (quotes from speeches and judicial opinions) about at least Janice Robert Brown, that state the case for opposition.

What we hear in the media is the plot-driven story of who's winning, who's losing, who's tough and who's not. And we've reached that point in the argument where most of the Republicans are not going to be swayed by the Democrats (reasonable) arguments made on the floor and in committee.

Achillea--

Are you saying that *any* employment of the filibuster amounts to
"clapping their hands over their ears and chanting 'lalalalalalala'"?

Or are you just saying that if they are going to filibuster, they ought to use the time to make a substantive case, rather than reading the phone-book?

Ok, Brown can go. Any others?

what could be more conservative than shutting down the Senate?

I'd agree, if I didn't suspect that the Senate would simply make up for lost time and damage later on.

hilzoy: the other thing conservatives are being very careful to do is to say that this is the first time any attempt has been made at filibustering appeals court nominees which is true insofar as I know. Why this makes a difference I have no idea, but apparently it's a significant enough distinction for people like Charles Bird et al. to get into a high dudgeon over it.

Uh, lily, Myers is, in fact, a lawyer.

Sebastian--

Reformers are a product of their cultures, they can rarely see the destructive capability of their ideas because they subject their ideas to informal limits which are often a result of the culture they wish to change.

That argument cuts against conservatives, too. They are also products of their culture and may not see the constructive capability of reforming ideas because they assume that the limits of their imaginations are the limit of reality.

All the while, the free market, which the conservatives are so fond of, continues with minimal oversight to produce more social revolution than all the reformers put together.

Current GOP leaders sometimes amend their comments, saying the Fortas battle is not a precedent for today's filibusters because Fortas faced so much opposition that his confirmation would have failed on a simple yes-no vote.

Nonsense. If Fortas was not going to be confirmed anyway, why filibuster? "Current GOP leaders" will say anything.

Slarti: How about William H. Pryor, Jr.? Some highlights (from that link):

"Condemning any constitutional right protecting "the choice of one's partner" as "logically extend[ing] to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia," Pryor submitted a virulently anti-gay amicus brief supporting Texas' one-of-a-kind law banning same-sex sodomy. In the brief, Pryor went on to suggest that states have a prerogative to recognize that "homosexual activity" is harmful and "expose[s] both the individual and the public to deleterious spiritual and physical consequences."
" In 1995, as a Deputy Attorney General, Pryor and then-Attorney General Jeff Sessions joined an amicus brief supporting Colorado's one-of-a-kind voter initiative prohibiting local governments from enacting laws protecting gays and lesbians from discrimination (Romer v. Evans). Explaining why Alabama felt compelled to weigh in on the case, Pryor said nothing about the state's stake, instead pointing to the Attorney General's personal beliefs: "The attorney general of Alabama felt strongly that we don't need to be finding new rights in our Constitution [because] we've done enough of that in recent years." (...)

In an article, Pryor asked "Will the court continue to modify the errors of case law that created the so-called separation of church and state?"

Pryor publicly declared that "the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective." (...)

In Hope v. Pelzer, Pryor vigorously defended Alabama's renewed practice of handcuffing prisoners to hitching posts for hours in the hot sun and denying them access to water and bathroom facilities. The Supreme Court rejected Pryor's arguments: "Hope was treated in a way antithetical to human dignity -- he was hitched to a post for an extended period of time in a position that was painful and under circumstances that were both degrading and dangerous. The obvious cruelty of the practice should have put the guards on notice that they were violating the inmate's constitutional rights." "

Also: William G. Myers III:

"Myers has very little litigation experience. He has never been a judge; he has never participated in a jury trial; and he has only rarely appeared in non-jury proceedings or appeals. In response to the Judiciary Committee’s standard question asking nominees to “describe the ten most significant litigated matters which you personally handled,” Myers came up with only a handful. He listed three cases where his name did not appear on the briefs and he did not appear in court, but as Interior Department Solicitor was merely “responsible for advice to the Secretary regarding the Department’s position.” In two of the other cases Myers listed, he co-wrote amicus curiae briefs, but had no courtroom role. (...)

In private practice, Myers was primarily a lobbyist and activist on behalf of the grazing and mining industries. He espoused extreme positions that have ramifications not just for the environment, but for the constitutionality of federal protections in a number of other areas.

Myers wrote that federal land regulations were similar to King George’s “tyrannical” rule over the colonies and could lead to a “modern-day revolution” in Western states. He called the California Desert Protection Act “an example of legislative hubris.” In Congressional testimony, he compared the federal government’s reintroduction of Yellowstone wolves to England’s requirements that American colonists shelter British troops. (...)

In a Supreme Court brief, Myers made far-reaching arguments in support of the claim that Congress did not have the power to regulate wetlands through the Clean Water Act. His cramped view of federal power, if adopted, would lead courts to strike down not only laws that protect the environment, but also laws protecting individual rights and worker and consumer health and safety. In a different case, Myers advanced another argument used by conservative activists to strike at critical protections, writing that “the Constitutional right of a rancher to put his property to beneficial use is as fundamental as his right to freedom of speech or freedom from unreasonable search and seizure.” Since almost all government regulation arguably burdens property rights, such a theory, if given effect, could lead courts to the near-wholesale dismantling of our government’s regulatory structure. (...)

In the only two opinions he issued as Solicitor, Myers overturned environment-friendly Clinton Administration policies to benefit mining and grazing interests. In one of the opinions, Myers turned the plain language of a mining law on its head. His opinion led the Interior Department to reverse a decision by former Interior Secretary Babbitt and permit the Glamis Company to operate a mine on land sacred to the Quechan Tribe. A federal court reviewing the decision found that Myers “misconstrued the clear mandate” of the law. Perhaps even more troubling, Myers and others at the Interior Department met on several occasions with the Glamis mine’s operators while considering the issue, but did not follow the executive branch policy calling for government-to-government consultation with the Quechan Tribe, despite the Tribe’s request for a meeting. (...)

Myers and his office also engaged in behavior raising ethical concerns. The Los Angeles Times reported on a deal where Myers, without consulting the government’s local land managers, supported a “private relief bill” in Congress that would have transferred federal land worth $1 million to a mining company Examining readily-available documents would have shown that the company had no right to the land, as the government’s land managers claimed. When the Los Angeles Times made inquiries, the department abruptly announced that it “was withdrawing its support for the bill.”"

I could go on, but alas, work calls.

Sorry, Slarti, I stand corrected. He has know previous experience as a judge.

And yes I know I used the wrong kind of "no".

"logically extend[ing] to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia,"

"I guess if I had a chance to question Pryor during confirmation hearings, I'd start with the part where he raises the specter of "...necrophilia...even incest".

Let me get this straight. You think necrophilia is pretty bad, and I'm with you on that one. But incest--that really gives you the shudders? Worse than necrophilia?

Is it just me, or does it seem like this guy's gag-o-meter has the scale backwards?

I should say that I have never met Judge Pryor's immediate relatives. Perhaps that would explain everything.

Myers looked suspect to me as well, but not because he wasn't a lawyer. Just to clean that up.

One would think that some experience on the bench would be prerequisite to elevation to Federal Court, but looks like maybe not.

Personally, I think the quote from Pryor, "the errors of case law that created the so-called separation of church and state", is one of the most horrifying.

There are two basic takes on this issue. (1) The Democrats are just being silly and obstructionist to score partisan points. (2) The nominees are in fact dreadful, and the Democrats have good reason not to want them to be confirmed. They may also want to score partisan points, but that's not primary. The fact that they have confirmed most of Bush's appointments casts some doubt on (1), but is not conclusive. If the nominees were good, (2) would be ruled out, but they aren't. The only way to make up your mind is to actually burrow through their records and see.

"One would think that some experience on the bench would be prerequisite to elevation to Federal Court, but looks like maybe not."

I don't think experience on the bench has been a pre-requisite, even at the Supreme Court level. Indeed, many icons on both sides of the aisle, from Douglas to Rehnquist, had never put on a robe before becoming a Supreme.

On the other hand, some experience being before a bench by serving as a litigator should be a pre-requisite (or so says this transactional lawyer).

How about Thomas Griffith, who has been General Counsel of BYU for the last five years, only without a valid UT law license (which he knew about and did not take proper steps to correct)?

http://www.washingtonpost.com/wp-dyn/articles/A56413-2004Jun20.html

One would think that some experience on the bench would be prerequisite to elevation to Federal Court, but looks like maybe not.

Clarence Thomas made the jump from Director of EEOC to Court of Appeals. A year and a half after that he leapt to the SCOTUS.

Just a quick note: Links to PDF reports and analyses of *all* the appeals court nominees are at:

http://www.independentjudiciary.com/nominees/

It's not accurate to say that arguments (persuasive or not) have not been made against the filibustered nominations.

hilzoy makes a nice point that, when discussing whether or not the Democrats are justified in employing the filibuster, part of the discussion must answer the question of why they would single out these particular 10 (or 7, now that three have withdrawn or retired) if they were just trying to make partisan points.

(One could also make the accusation that the President was only trying to score partisan points by renominating and insisting upon these nominees rather than searching for acceptable middle ground......)

Several sitting DC Circuit judges didn't have prior judicial experience, and it's just fine. I think it would be a good idea to have appellate judges with trial court experience -- not as the only judges, but maybe enough so that most panels would have at least one.

I would nominate law professors infrequently if ever. More private attorneys than government attorneys, but only by a narrow margin. State judges more than government attorneys, but less than private practice.

"In the this situation the key issue, which I believe Republican
Congresspeople do not wish to discuss, is WHY a filibuster might be used. The answer is the inadequacy and inappropriatteness of some of the nominations.
Slati asked for specifics against the judges."

This is really the whole issue for me. When the whole Senate was offered an opportunity to ask further questions of nominees who were being pseudo-filibustered (I say that because at this point I don't believe we have actually had a filibuster on the floor) no Democrat took it up. I wouldn't mind if Democrats would go on record in the Senate saying that they hate certain judges because of particular things. This isn't about that. That is why the charge of merely wanting to block the more conservative judges seems plausible. This isn't about debate, or qualifications, this is about saying no based on ideology. Which in my view is fine, but you shouldn't be able to do it through the back door, you should have to make votes, say things about the nominees in debate and be held accountable for it by the voters. Much unlike what happened to Pickering, for instance.

I wouldn't mind if Democrats would go on record in the Senate saying that they hate certain judges because of particular things.

Well, here's part of a lengthy floor speech by Patrick Leahy from October 10, 2002:

The first area of concern to me is Justice Owen's extremism even among a conservative Supreme Court of Texas. The conservative Republican majority of the Texas Supreme Court has gone out of its way to criticize Justice Owen and the dissents she joined in ways that are highly unusual and that highlight her ends-oriented activism. A number of Texas Supreme Court Justices have pointed out how far from the language of statute she has strayed in her attempts to push the law beyond what the legislature intended.
One example is the majority opinion in Weiner v. Wasson, 900 S.W.2d 316, Tex. 1995. In this case, Justice Owen wrote a dissent advocating a ruling against a medical malpractice plaintiff injured while he was still a minor. The issue was the constitutionality of a State law requiring minors to file medical malpractice actions before reaching the age of majority, or risk being outside the statute of limitations. Of interest is the majority's discussion of the importance of abiding by a prior Texas Supreme Court decision unanimously striking down a previous version of the statute. In what reads as a lecture to the dissent, then-Justice John Cornyn, the current Texas Attorney General and Republican nominee for the U.S. Senate, explains on behalf of the majority:
Generally, we adhere to our precedents for reasons of efficiency, fairness, and legitimacy. First, if we did not follow our own decisions, no issue could ever be considered resolved. The potential volume of speculative relitigation under such circumstances alone ought to persuade us that stare decisis is a sound policy. Secondly, we should give due consideration to the settled expectations of litigants like Emmanuel Wasson, who have justifiably relied on the principles articulated in [the previous case]........Finally, under our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government. Id. at 12-13. (Citations omitted.)
According to the conservative majority on the Texas Supreme Court, Justice Owen went out of her way to ignore precedent and would have ruled for the defendants. The conservative Republican majority followed precedent and the doctrine of stare decisis.
In Montgomery Independent School District v. Davis, 34 S.W. 3d 559 (Tex. 2000), Justice Owen wrote another dissent which drew fire from a conservative Republican majority, this time for her disregard for legislative language. In a challenge by a teacher who did not receive reappointment to her position, the majority found that the school board had exceeded its authority when it disregarded the Texas Education Code and tried to overrule a hearing examiner's decision on the matter. Justice Owen's dissent advocated for an interpretation contrary to the language of the applicable statute. The majority, which included Alberto Gonzales and two other appointees of then-Governor Bush, was quite explicit about its view that Justice Owen's position disregarded the law:
The dissenting opinion misconceives the hearing examiner's role in the.......process by stating that the hearing examiner `refused' to make findings on the evidence the Board relies on to support its additional findings. As we explained above, nothing in the statute requires the hearing examiner to make findings on matters of which he is unpersuaded........Id. at 25-26.
The majority also noted that:
The dissenting opinion's misconception of the hearing examiner's role stems from its disregard of the procedural elements the Legislature established in subchapter F to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards. The Legislature maintained
[Page: S8450] GPO's PDF
local control by giving school boards alone the option to choose the hearing-examiner process in nonrenewal proceedings........By resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result, the dissenting opinion not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the board.......'' Id. at 28.

.....and so on. I found this by querying the 107th Congress at http://thomas.loc.gov/home/r107query.html

(Priscilla Owen was rejected in that year by the Judiciary Committee.....after renomination there are no floor speeches with specifics, as the Democrats' point is that they've already explained why they don't approve of her, now they are just asserting their right to do so)

I dislike the notion that Democrats have not put forth any reasons for opposing these judges. There have been floor speeches, or statements in committee, as well as documentation by advocacy groups. If one wants to look, one can find "the arguments."

The debate we're having now is whether or not the filibuster is an appropriate tool for a minority to use to block a formal vote, in essence raising the "win" threshhold to 60, rather than 51. At this point we assume they are asserting their principles, whether one agrees with those principles or not.

I guess I'm having trouble with the word 'qualifications" which I may have misused. To me, one of the qualifications should be that the individual's thinking be within the general range of what our culture perceives as normal or mainstream in the broadest sense, meaning inclusive of both liberal and conservative interpetations. Not extremist. Not whimsical. Not based on the individual's experiences or personality. It also seems reasonable to me that a person who objects to activist judges would also be looking for judges who have beliefs which are recognizable as being within the framework of conventional debate. Otherwise, if the prospective judge is thinking outside the mainstream, his or her rulings are quite likely to be "activist" simply because the judge's beliefs are so different from the beliefs of other judges.
In the case of Myers, his ideology is a problem because it is so far outside any historical understanding of the relationship between public land use, private business, and government regulatory responisbilities that his decisions will be not just activist, but capricious. His bizarre ideology renders him unqualified, in my opinion.

There's no checklist. The idea of "qualification" is what the currently elected Senate thinks it is. They advise and consent. If they say, for instance, that Clarence Thomas is "qualified," even though he's had little (or no?) judicial experience, then he's "qualified."

I think prior experience on the bench has got to be a positive element in a dossier, and lack of prior experience has got to weigh against. It is clearly *one* relevant place to look for reasons to consider a candidate qualified or unqualified.

That said, as far as I can tell Earl Warren was put on the Supreme Court with absolutely no prior experience as a judge of any kind. Private practice, then a DA, then a governor, but never a judge.

Call me "results-oriented" if you like, but I would not want to invoke a criterion for qualification that would have disqualified Warren.

Let me get this straight. You think necrophilia is pretty bad, and I'm with you on that one. But incest--that really gives you the shudders? Worse than necrophilia?

Well, in terms of the potential for harm suffered, I can see the reasoning. A corpse cannot possibly be harmed by a person having sex with it (although the family of the deceased) could suffer mental harm should they ever find out. Incest -- and I have to guess that Pryor is talking about nonconsensual, parent-on-child incest -- causes enormous harm to the victim.

I sort of kind of agree w/some of what Myers says about property rights, insofar as the right to use and hold one's property was important enough to be enshrined in the Bill of Rights, and I believe that early drafts of the Constitution -- or maybe some state constitutions, or both -- referred to "life, liberty and property" rather than "the pursuit of happiness." It's not an unimportant question whether Federal or state regulations which deprive someone of the useful exploitation of land that they own constitutes a "taking" and thus whether the owner deserves compensation under the law. But obviously it can be taken to extremes, as Myers appears to be doing here.

They problem is that the property he refers to is ours. This attempt to define the profits from the use of public resources as a constitutionally protected private property started back under REagan, only he ws more honest. His administration attempted to sell our some of our public land to the private businesses that used the land. There was a proposal to sell the Crazy Mountains in Montana, for example. Local ranchers who lease grazing rights supported the sales idea until they realized that they would not be able to afford tto buy the land and that they also would not be able to get subsidized lease rates from what ever corporation made the purchase. So the idea died.
About ten years ago in Wyoming I was reading a local paper and discovered a story about a lawsuit filed by some local sheep ranchers. They were suing the BLM for discontinuing the poisoning of coyotes on public land. The basis of their lawsuit was that their profits would be cut, a wrongful taking. Excuse me, but what utter bullshit. If they don't want to abide by public interest regulation while enjoying the subsidized use of our land, they can get the hell off. Since when are the taxpayers obliged to create an artifical economy so an elite few can enjoy a specialized lifestyle?
On one things conservatives are right about is that if you give people a subsidy long enough, they will come to view it as a right. What Myers wants to do (former lobbyist that he is) is to redefine public as private.
Please excuse the rant. I spent my childhood roaming the mountians, plains, and canyons of the West and I am all to familiar with the abuses that govenment regulations have tolerated. It makes me sick with anger to think of our legacy of public lands being left with no protection at all.

Can I assume that since Charles Bird, Slartibartfast, and Sebastian Holsclaw have all responded to this thread, that none of them can come up with any good reason for supporting these nominees?

Can I assume that since Charles Bird, Slartibartfast, and Sebastian Holsclaw have all responded to this thread, that none of them can come up with any good reason for supporting these nominees?

Why has someone come up with any good non-ideological reasons for not supporting these nominees? If the reasons are all ideological than I'd like some sort of evidence that those opposed to these nominees were equally opposed to Ruth Bader Ginsburg. Otherwise, it would appear to be mere partisanship that can safely be ignored.

Why has someone come up with any good non-ideological reasons for not supporting these nominees?

If you'd actually read some of the other comments--the last one by zmulls, for instance--you'd know that they had. Specifically, citations of how the opinions of one nominee, for example, were deemed legally indefensible by other conservatives on the Texas Supreme Court.

But since you clearly didn't read that or any of the other examples of well-reasoned objections to these nominees, I'd recommend going back and doing so before spouting off dismissively again.

Mac,

They were nominated for ideological reasons. Why is it wrong to oppose them for ideological reasons? Political blather notwithstanding, judges' ideologies do affect their rulings. Is it really a bad thing to oppose giving a lifetime appointment to a powerful position to someone whose thinking about issues they will deal with I find odious?

Would you oppose the confirmation of a Marxist nominee?

But since you clearly didn't read that or any of the other examples of well-reasoned objections to these nominees, I'd recommend going back and doing so before spouting off dismissively again.

I'd suggest you read more carefully before spouting off. Not liking someone's opinion is an ideological reason to oppose them. Unless, you're seriously arguing that opinions deemed legally indefensible by conservatives on the Texas Supreme Court is a standard that should be followed. Any standard should work equally well regardless of the politics of the president appointing them, so be careful what you wish for...

Complaining about a lack of attention to precedent sounds odd from those who support the awful death penalty decision of this year and other precedent ignoring decisions.

They were nominated for ideological reasons.

Yep. Just like every appointment in history.

Why is it wrong to oppose them for ideological reasons?

I didn't say it was wrong per se, and Seb's point earlier is on the money. Just go on the record as opposing it on ideological reasons and suffer the political consequences.

Political blather notwithstanding, judges' ideologies do affect their rulings. Is it really a bad thing to oppose giving a lifetime appointment to a powerful position to someone whose thinking about issues they will deal with I find odious?

I find Ruth Bader Ginsburg's thinking quite odious, but then I also remember that the candidate I voted for in '92 and '96 lost. So them's the breaks.

Would you oppose the confirmation of a Marxist nominee?

Well, I sure wouldn't be afraid to go on record that was the basis for my opposition.

Would you oppose the confirmation of a Marxist nominee?

Oh and I want credit for not making any Justice Black or Douglas jokes...

Macallan: Why has someone come up with any good non-ideological reasons for not supporting these nominees?

Yes. As I pointed out in my initial comment, Hilzoy wrote a well-reasoned and well-informed post against one nominee in the immediately-preceding post. I didn't do a link, because I figured anyone interested could simply click the Why They Fight link at the top of the page.

I have read many arguments against these nominees. I have read no positive arguments for them. Is this because there are none?

I'd suggest you read more carefully before spouting off. Not liking someone's opinion is an ideological reason to oppose them.

...where do you dredge up logically absurd, linguistically tortured, counterfactual nonsense like this? You know full well that there's a /huge/ gulf of difference between "not liking someone's opinion" and thinking that their legal reasoning is nowhere near the standards we should require of lifetime appointments. This is like saying that we invaded Germany because of a territorial dispute. Technically accurate, in the most literal, stretched usage possible, but completely meaningless to someone who isn't trying to dishonestly twist the discussion.

Try again. This time with reading comprehension.

I find Ruth Bader Ginsburg's thinking quite odious, but then I also remember that the candidate I voted for in '92 and '96 lost. So them's the breaks.

Did the Senators you voted for in elections during those terms win?

Again Jes. NON-ideological. As in not based on ideology. Do they have criminal pasts? Did they fail to pass the bar? Were they at the bottom of their class at Southwestern Panhandle State Law and Taxidermy School? Did they fail to pay their Nanny Tax? Did they cheat at cribbage?

Catsy, I look forward to your future support of the Texas Conservative Litmus Test for judicial appointments.

Phil, I live in California.

Mac -

I'm not clear what sort of the thing you would consider a non-ideological, yet relevant, reason to object to a nominee. In the case of Justice Owen, the excerpt quoted above strikes me as an indictment of her capacity to do the job. Her peers have castigated her for, in essence, incompetence. In what way is this an ideological reason?

(Ah, I see in preview that you have offered up reasons that would fit the bill. I don't see how demonstrated incompetence at the job would fail to meet your criteria.)

Heh, I guess that's a definite no. Unless there's something about you I really don't know.

Don't feel bad. None of my senatorial candidates ever win either.

Her peers have castigated her for, in essence, incompetence.

Interesting paraphrase JerryN. Are you sure that those Texas Supreme Court conservatives would find legal justifications for the opinions of judges a President Gore or Kerry might like to appoint? Would those judges be incompetent?

Catsy, I look forward to your future support of the Texas Conservative Litmus Test for judicial appointments.

That's three times in a row you've deliberately misconstrued the point: that your allegation (Dems have no non-ideological reasons to oppose the nominees) is demonstrably false because (for example) even the fellow conservative judges of one found the nominee's legal reasoning flawed.

Legal reasoning. Not just their ideology, although that's pretty vile too. But their most basic qualifications. That doesn't mean I think conservative judges in Texas are a litmus test, and you know it--you're simply using lines like that to deflect the fact that your entire line of argument was demonstrated to be unsupportable horsecrap: a Timmy-calibre attempt at deflection.

I am through with you. You are not arguing in good faith--you are trolling. Have the decency to do it somewhere else.

I am through with you.

Promise? Works for me.

Well, I sure wouldn't be afraid to go on record that was the basis for my opposition.

I really don't understand this complaint. Go to vote-smart and you can find lots of statements. Here's Schumer on Myers:

"The bottom line is that Mr. Myers is extreme on environmental issues and on land issues. And these issues are important where the Ninth Circuit probably has much more to say than any other circuit in the land, given the vast territory out west that it covers.

Mr. Myers is one sided and extreme. There has been no balance. There has been no attempt to see the other side. There has been no attempt to be judicious in the true sense of the word. That is why so many of us feel constrained to rise against him."

In other words, Schumer thinks, and says, that among other things he opposes Myers because he finds his views extreme.

One other thing I might add. Ideology can be so extreme as to offer a non-ideological reason for opposing a nominee. Some of the things Brown has said are so far off the wall - "[The Enlightenment] led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth" - that she ought to be regarded as borderline irrational.

Mac, I don't understand your question. IANAL, but I have read a fair number of opinions and dissents. Generally, the barbs I've seen in them focus on the choices made about the relevance of prior decisions or the weight given to competing claims.

I haven't come across many where one side accuses the other of ignoring the text of a law, to wit: "The dissenting opinion's misconception of the hearing examiner's role stems from its disregard of the procedural elements the Legislature established in subchapter F to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards."

Speaking of Owen, who said this?

"…no doubt about the excellence in terms of quality of your legal knowledge and your intelligence, your articulateness, et cetera."

Charles Schumer (I can google, too). So what - she'd make good law professor? Doesn't mean she's a competent judge.

JerryN, I google "The dissenting opinion's misconception of the hearing examiner's role stems from its disregard of the procedural elements the Legislature established in subchapter F to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards."

And this is all that comes up.

So it looks like you might be reading a Leahy paraphrase, not a judicial opinion.

Not liking someone's opinion is an ideological reason to oppose them.

I've known outright Marxists who'd blanch at such a broad definition of "ideological". Unless, of course, one distinguishes between the various reasons whereby one may dislike someone else's "opinion" -- as if something said over a beer is equivalent to the rendition of a legal decision -- but that would be the kind of nuance you seem to be struggling so hard to avoid.

Mac -

I believe that it's a quote from the opinion, not a paraphrase. This subsequent statement by Leahy:

... the majority criticized her for her disregard for legislative language, saying that, “the dissenting opinion misconceives the hearing examiner's role in the . . . process,” which it said stemmed from, “its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards.”
would tend to confirm that. Since Google yields no result that actually contains the text of the opinion, it's not surprising that you found only references to the opinion.

"So it looks like you might be reading a Leahy paraphrase, not a judicial opinion."

Hmm--I'd say look again. To me it looks like Leahy is giving a straight quotation, complete with citations.

Trying to draw the distinction in the context of judgery is absurd.

If someone nominated a judge that robustly believed in a Living Constitution that incorporated new rights as society changed, the detractors would believe that their opposition is non-ideological. That they are opposing because that judge doesn't understand what being a judge entails. Proponents would call the opposition ideological, of course.

And in this case, the opponents of these judges believe that their opposition is functional. . . that these judges are simply incapable of honestly doing their duties as judges because of their philosophical conflicts. Those who disagree naturally believe it's ideological.

Or, in short. If you believe it, it's reality. If not, it's ideology.

Do they have criminal pasts? Did they fail to pass the bar? Were they at the bottom of their class at Southwestern Panhandle State Law and Taxidermy School? Did they fail to pay their Nanny Tax? Did they cheat at cribbage?

Are you seriously suggesting that the extent of the Senate's advise and consent function is to check the accuracy of the candidate's resume?

Are you seriously suggesting that the extent of the Senate's advise and consent function is to check the accuracy of the candidate's resume?

No I'm just curious if the opposition to the candidates goes beyond NARAL or PFTAW litmus tests.

Well, you're obviously not that curious. If you were, you'd look it up.

Heh, I guess that's a definite no. Unless there's something about you I really don't know.

Actually, Phil I might have voted for Feinstein once. I couldn't stand Michael Huffington, but I don't recall if I voted for Feinstein or simply neither. If it's the election I think it was the Libertarian was a total wackjob too so I couldn't even go there for refuge.

You're right sidereal, I'm not that curious. I'm pretty sure I already know. ;-)

" I'm not that curious. I'm pretty sure I already know."

No problem, it's a sadly common affliction.

Do they have criminal pasts? Did they fail to pass the bar? Were they at the bottom of their class at Southwestern Panhandle State Law and Taxidermy School? Did they fail to pay their Nanny Tax? Did they cheat at cribbage?

Did they practice law without a license?

Nice post @ 8:08pm, sidereal. Riffing off your post*, it's the ultimate victory of relativism: absent an abstract or external notion of legitimacy -- more pointedly, given that such notions have been deliberately eviscerated -- any and all opposition can be decried as "ideological" or "partisan" purely on the grounds that it is, in fact, opposition.** In the limit, everything is ideology; everything is partisan; hence everything that contradicts one's world-view may be safely ignored.

It makes for a powerfully consistent world-view. It's almost impossible to penetrate because anything that contradicts it is automatically dismissed as "partisan". And it's an incredibly destructive trend that needs to be stopped, and stopped with extreme prejudice, because it breeds shallow-mindedness and an aversion to dealing with the world as it really is.

* And possibly in directions you didn't intend...

** I'm always amused by the perpetual game of redefining "legitimate opposition" to mean, essentially, "what you're not doing right now."

Priceless.

* And possibly in directions you didn't intend...

...and a few you didn't either. Too funny.

Here's the full paragraph from the Montgomery ISD v. Davis opinion. To be charitable, Macallan may have been thrown by Sen. Leahy's use of Lexis pagination rather than more appropriate S.W.3d pagination.


The dissenting opinion's misconception of the hearing examiner's role stems from its disregard of the procedural elements the Legislature established in subchapter F to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards. The Legislature maintained local control by giving school boards alone the option to choose the hearing-examiner process in nonrenewal proceedings. Once a school board chooses that process, however, under the statute the board has delegated the factfinding role to the hearing examiner. Hearing examiners are not advocates for either side, but neutral and independent. By resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result, the dissenting opinion not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the Board. Even the Board admits that the hearing examiner's factfindings in this case are supported by substantial evidence. And the Legislature has made plain that when substantial evidence supports those findings, the Board is not free to reject or change those findings to reach a different result. As the Texas Commissioner of Education submits in his amicus curiae brief, "If these limitations [in section 21.259] are ignored, the statutes [in subchapter F] are rendered meaningless."

The quote is on 34 S.W.3d 568.

I don't find this disqualifying in itself, but it does seem to indicate to me that Justice Owen is exactly the kind of judge her proponents here do NOT want on the bench.

...and a few you didn't either.

Actually, I did.

To clarify: I intended the comment to cut a number of different ways. [I'd've thought that would have been obvious by the careful choice of phrasing, but apparently not.] I doubt those intentions encompass whatever it is that amuses Mac so, but since his interpretation is probably false this doesn't particularly worry me.

[To forestall the obvious: I'll cheerfully recant the latter if Mac makes explicit his insinuations and they turn out to be correct. I'm not especially worried about that, either.]

CharleyCarp - thanks for the cite. I'll agree that this one case is not disqualifying in itself. However, this was just one of at least five or six cases where the Texas Supreme Court majority felt the need to remark on what they saw as the errors and excesses of her dissents. Taken as a whole, I'd say that they amount to a strong indictment of her suitability for a lifetime appointment to the Court of Appeals. For anyone interested in a deeper (partisan, ideoligical, etc.) look at Owen's career, there's this.

It would be naive and hypocritical to insist ideology play no part in whether one supports a particular judicial candidate. But, if I'm reading some of these comments correctly, the folks supporting Myers, Owen et al. seem to base their support entirely on ideological grounds.

Myers and Owen's 'legal reasoning' scarcely merits the term. Owen has repeatedly ignored such fundamentals of legal reasoning as stare decisis, and even conservative judges criticize her unwillingness or inability to understand elementary legal and political concepts. Myer's contention that economic "takings" should apply to profiteering off public lands is another good example of someone who lacks a basic understanding of legal and political meanings.

I also have a lot of trouble with the idea that someone with those kinds of gaps in their understanding and no prior experience as a judge is somehow qualified to be, not just an appellate judge, but a Federal appellate judge.

For the RW to rail at SCOTUS decisions for "making stuff up" to turn around and support judicial candidates whose primary attraction is "making stuff up" reduces the rhetoric about 'activist judges' to empty blather.

Oh, and for another non-ideological reason to oppose Owen, there's this from the Alliance for Justice piece:

Ford Motor Company v. Miles. ... Moreover, despite requests from both sides for prompt action by the court – Ford because it wanted to reverse the judgment against it, and the Searcy family because it desperately needed the money to care for their incapacitated son – the Court took over two years to decide the case. Owen’s majority opinion was not issued until sixteen months after oral argument. Willie Searcy died while still awaiting his new trial.
In fact, from that same article, "She is a notoriously slow judge whose backlog routinely holds up the court. Former clerks allege that her backlog was so problematic that the Court enacted one or more administrative rules as remedies. Several clerks recall times when Owen was so far behind that other justices ordered opinions to be taken from her chambers." As we old Wales Tales player used to say, slow and wrong.

So, the kid died because his parents didn't have money for his medical care, and they didn't have money for his medical care because Owen took her goddamn sweet time getting around to deciding the case?

Oh, yeah, this is definitely someone worthy of the Federal bench.

From the article, Justice Owen hardly seems to have anything to recommend her at all. Outcome determination, I guess, which is important enough for the people who contributed to the President's re-election. Be interesting to see an actual merits argument from a proponent.

She doesn't seem to be particularly persuasive, though, and so might not do as much harm on the Fifth Circuit as she would as a district court judge. (People who don't work with the legal system often miss how much of a district judge's work escapes review. Much appellate review is deferential, many more issues evade review entirely because parties have settled, on values dictated by the tenor of the district judge's rulings up to that point.)

Macallan, again: do you have any positive reason to support any of these nominees? No?

Reformers are a product of their cultures, they can rarely see the destructive capability of their ideas because they subject their ideas to informal limits which are often a result of the culture they wish to change.

And yet you backed forcing democracy by military force on Iraq? Curious.

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