ACSBlog: The Blog of the American Constitution Society

In an opinion piece in the Legal Times ($), attorney Al Meyerhoff suggests that the Senate should not confirm any judicial nominees until the next president takes office. He argues the Bush administration has had a large effect on the judiciary.

During the first year of the Bush presidency, the Democrats confirmed 59 appointments, twice the number confirmed in Clinton’s first year. Overall . . . 86 percent of Bush judicial nominations have been confirmed. . . . [At the same time,] the Bush administration and its allies have made a politicized judiciary into an art form.

He cites “real-world” consequences of this ideological shift.

It is [the circuit] courts that typically make final decisions about what is in the water we drink, the food we eat, the air we breathe; about the rights of the accused, the right to privacy, and the rest of our most basic liberties. And it is those courts that have shifted to the right, that are more likely to defer to executive power, favor big business, and protect the individual less.

A recent study on confirmation hearings concluded that "statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior. Inquiries into specific issue areas - such as the rights of criminal defendants - may be slightly more informative."

After reviewing the findings, a New York Times editorial concluded that "Senators should examine a nominee’s entire legal career and look for clear evidence that he or she is committed to fairness, equal justice and an unstinting view of constitutional rights."

Negotiations between Chairman of the Senate Judiciary Committee Patrick Leahy and President George Bush resulted in a reshuffling of judicial appointments, according to the Legal Times.

President Bush withdrew the nomination of Stephen Murphy to the U.S. Court of Appeals for the Sixth Circuit and instead nominated him to the Eastern District of Michigan. In Murphy's place, the President nominated Helene White, a Michigan Court of Appeals judge whose nomination by President Bill Clinton in 1997 to the Sixth Circuit was blocked by the Senate for four years. According to the Alliance for Justice's blog, as part of the agreement, Senator Leahy agreed to consider the nomination of Raymond Kethledge to the other vacancy on U.S. Court of Appeals for the Sixth Circuit. AFJ has more about the nominees here.

Follow the links for information from the White House about nominees Stephen Murphy, Helene White, and Raymond Kethledge. Senator Leahy released this statement on the Senate's consideration of judicial nominees, which discusses what he deemed "a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends." He noted that there are now 12 circuit court vacancies, the lowest number in at least a decade, and a reduction from the 32 vacancies in the summer of 2001.

In an article just published in the Columbia Law Review, Yale Law School Heyman Fellow David Pozen writes about what he calls "the irony of judicial elections." The central irony, according to Pozen, is that as judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes.

He reaches this conclusion after first synthesizing arguments for and against elective judiciaries and exploring how recent developments have increased both their costs and their benefits. Ultimately, Pozen concludes:

I am not suggesting that there are universal answers when it comes to state judicial selection—just that the debate is being conducted on the wrong terms. Those who would support elective state judiciaries ought to be openly celebrating the new era. Those who would have the judiciary be more than just another majoritarian branch might do well to abandon the accommodationist posture, at least for a moment, and to remind the public and each other that there is no adequate remedy for this threat save to dismantle judicial elections.

by Glenn Sugameli, Senior Legislative Counsel at Earthjustice

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. 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.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

"Confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior," according to a recently published analysis.

In "An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court," Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand examined statements made by Supreme Court nominees regarding three different methods of constitutional interpretation and their subsequent behavior.

Confirmation hearings are . . . a strategic environment where Senators ask certain questions to please constituents and nominees answer questions to land a job. The nominees’ incentives, therefore, are almost certainly to provide as little information as possible. Moreover, even genuinely held interpretive preferences may make very little difference in directing results in actual cases. Our point, then, is not to generate astonishment at the lack of correlation between nomination statements and judicial performance, but to stimulate thinking on how the confirmation hearings could be better structured to provide more reliable predictors of judicial performance if, indeed, such predictors are a desirable or feasible way of increasing judicial accountability.

Seth Rosenthal argued for litigator-led questioning of Supreme Court nominees in this issue brief released by ACS last September.

(H/T Legal Theory Blog)

By a voice vote, the Senate yesterday confirmed the nomination of U.S. District Court Judge John Tinder to the U.S. Court of Appeals for the Seventh Circuit, the AP reports.

In a press release summing up the year's confirmations, Chairman of the Senate Judiciary Committee Patrick Leahy (D-VT) said:

When we confirm the nomination we consider today, the Senate will have confirmed 40 nominations for lifetime appointments to the Federal bench this session alone. That is more than the total number of judicial nominations . . . confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005 or 2006. It is 23 more confirmations than were achieved during the entire 1996 session, more than double that session’s total of 17 . . . . It is seven more than the confirmations in the second to last year of President Clinton’s final term. . . .

After this confirmation today, the Senate will have confirmed six circuit court nominees, matching the total circuit court confirmations for all of 2001.  We will also have exceeded the circuit court totals achieved in all of 2004 when [the] Senate was considering this President’s circuit nominees; all of 1989; all of 1983, when [the] Senate was considering President Reagan’s nominees; all of 1993 when [the] Senate was considering President Clinton’s nominees; and, of course, the entire 1996 session during which [the] Senate did not confirm a single one of President Clinton’s circuit nominees the entire session.

Last month, I sent the President a letter urging him to work with me, Senator Specter, and home-state Senators to send us more well-qualified, consensus nominations.  Now is the time for him to send us more nominations that could be considered and confirmed as his Presidency approaches its last year, before the Thurmond Rule kicks in.

Yesterday, President Bush announced seven judicial nominations and five nominations for top positions at the Department of Justice. In a statement, Senator Leahy noted today that the Senate Judiciary Committee reported out 40 judicial nominations this year, which is in excess of total confirmed in 2004 and 2005 combined. Senator Leahy said that when the Judiciary Committee receives the Department of Justice nominations, "they will go to the top of our priority list."

The judicial nominations are:

• Gene E. K. Pratter to the U.S. Court of Appeals for the Third Circuit
• Rod Rosenstein to the U.S. Court of Appeals for the Fourth Circuit
• Mark Davis to the Eastern District of Virginia
• David Gregory Kays to the Western District of Missouri
• David Novak to the Eastern District of Virginia
• Carolyn Short to the Eastern District of Pennsylvania
• Richard Morrison to the United States Tax Court

Roll Call reports on nominations to the federal bench:

The Senate is unlikely to take on any new court battles this year, and it doesn’t appear that there is any particular nominee outstanding who would spark an immediate showdown.

The first year of the 110th Congress has moved relatively smoothly for Bush’s court nominees. Bush started out the year by withdrawing a series of his most controversial picks, and the bulk of this year’s selections have advanced uneventfully through the Senate.

Sen. John Thune (R-S.D.) said that he believes the “window is closing” for Bush to move controversial nominations through the Senate, and with that in mind, it’s likely that both parties will be looking to coalesce around mutually agreeable court picks — unless an opening arises on the Supreme Court, an unlikely scenario that would assuredly shut down the Senate, he said.

“The desire for a fight may not be as strong right now,” said Sen. Mark Pryor (D-Ark.). “First, they’ve been through this before and they are tired of it. Also, with a year left, is it really worth a big brouhaha over a federal judge?”

Late yesterday, the Senate confirmed Judge Jennifer Elrod to the U.S. Court of Appeals for the Fifth Circuit, the Houston Chronicle reported. Background information on Judge Elrod is available here and here.

Before she was approved by a voice vote, Senator Cardin (D-MD) raised objections to her confirmation.

 No one is entitled to a circuit court judgeship. In the vast majority of cases, these courts are the final law of the land for the States in their circuit when it comes to interpreting complex Federal statutes and our Constitution. These judges have lifetime appointments and are second only to the Supreme Court Justices in terms of their power and authority. . . .

 You would think, for an appellate court judge, you would want a nominee to have appellate court experience. She does not have it. You would think, for a Federal appellate court judge, you would want someone who has experience in our Federal courts. She doesn't have that. You would think, for a Federal appellate court judge, you would want someone who has experience in criminal law. She doesn't have that.

You would expect, for someone who is going to be a nominee confirmed for the appellate court, that we would be able to evaluate her ability to express herself through opinions. We don't have that. You would expect, for an appellate court judge, we would have her speeches or articles that would explain some of her philosophy on life. We don't have that. You would expect, for an appellate court judge, you would have some other way of being able to evaluate her approach to interpreting the Constitution of the United States.

She will be confirmed to sit on the court that will do more interpretation of our Constitution than any other court; that is, the appellate court because so few cases get to the Supreme Court of the United States. And she doesn't have that either.

Senator Specter (R-PA) spoke in support of her nomination.

Today the Senate Judiciary Committee held a hearing on the nomination of Judge John Daniel Tinder to the United States Court of Appeals for the Seventh Circuit.

In his prepared remarks, Senator Leahy pointed out that:

This session of Congress, the Committee has reported out 34 lifetime appointments to the federal courts and the Senate has already confirmed 29 of them. That is eight more confirmed by the middle of September this year than were confirmed in all of 2005 when the Senate . . . was considering the nominees of this . . . President. It is 12 more confirmations than were achieved during the entire 1996 session . . . .

 

The Washington Post reports Senate Judiciary Committee Chairman Patrick Leahy has publicly called on the White House to turn over documents related to actions taken during the tenure of former attorney general Alberto Gonzales.

"Replacing an attorney general is part but not all of what needs to be done to restore trust in the Justice Department," Leahy said after his half-hour meeting with Mukasey. "The confirmation process can be a catalyst for resolving outstanding issues between the Senate and the administration. I hope that will happen now."

In Brief

• Dworkin on SCOTUS
• No Taxation of Illegal Drugs
• Death Sentence OK Despite Biblical Intervention
• AA Can't Be Required as 'Get Out of Jail Free'
• DoJ Says "No" to Net Neutrality
• Gov't Spying Extended to "Community of Interest"
  
• Can Foreigners on US Soil Be Spied on Without Warrants?
• Terrorism Screening Center Data Inaccurate Says OIG
  
• White House Did Not Inform Congress About Surveillance
• No Continuity for Congress if Catastrophe Occurs
• TSA Screeners Can Still File Claims
• Patent Bill Passes House

The Courts
The New York Review of Books has a lengthy essay by Ronald Dworkin that beings "The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent." He reviews the changes wrought by decisions from the Supreme Court's last term. He concludes "I suspect that [Robert's] Senate testimony was actually a coded script for the continuing subversion of the American constitution. The worst is yet to come."

Criminal Law
Jeralyn at TalkLeft reports that an appeals court in Tennessee has found the state's tax on illegal drugs to be unconstitutional because it derives revenue from illegal activities. (AP News Article).

Church and State
Religion Clause examines a Ninth Circuit en banc decision that upheld a death sentence despite the jury foreman's notes setting out Biblical arguments for and against the death penalty because, the court concluded, the arguments had no substantial effect on the jury's decision. (The Court's Opinion)

How Appealing reports on a U.S. Court of Appeals for the Ninth Circuit opinion that held Alcoholics Anonymous has enough religious overtones that a parolee can't be ordered to attend its meetings as a condition of staying out of prison. (S.F. Chronicle)

Telecommunications Law
The Washington Post also reports that the DoJ has come out in opposition to "net neutrality," thereby granting phone and cable companies "the option to charge some users more money for loading certain content or Web sites faster than other content."

National Security and Civil Liberties
Wired's blog "Threat Level"  expands on a New York Times article that detailed how the FBI's use of data mining extended beyond "individuals it saw as targets" to "their 'community of interest' — the network of people that the target was in contact with." The FBI stopped the practice, reports the Times, because "of broader questions raised about its aggressive use of the records demands, which are known as national security letters "

Yesterday, President Bush announced two new nominations to the U.S. Court of Appeals for the Fourth Circuit: E. Duncan Getchell, Jr. of Virginia and Steve A. Matthews of South Carolina.  Meanwhile, independent reports were released about two pending nominees to the U.S. Court of Appeals for the Fifth Circuit: former Mississippi state judge Leslie Southwick and Texas state trial judge Jennifer Walker Elrod.

This afternoon, the Senate Judiciary Committee approved the nomination of Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit.  The nomination -- which has proven controversial on account of Judge Southwick's record in civil rights cases and others pitting individuals against corporations -- will now face the full Senate.

According to Wade Henderson, President and CEO of the Leadership Conference on Civil Rights, the Committee's decision is "a slap in the face to African Americans and all people of good will.  It belies the committee’s commitment to equal justice under the law and makes a mockery of the judicial confirmation process."  Ralph Neas of People for the American Way said "It is incomprehensible that someone with such a disturbing legal record is being pushed toward confirmation. That’s not what Americans voted for . . . ."

Writing in Slate, Doug Kendall and Jim Ryan question Justice Thomas' interpretive methodology:

This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled. Consider just two cases from the end of this past term, both involving public schools. One was Morse v. Frederick, the so-called "Bong Hits 4 Jesus" case, and the other was Parents Involved v. Seattle Schools, the voluntary integration case. Thomas wrote a concurring opinion in both cases. In the first, he made the bold claim that students simply do not have any right to free speech in school. Why? Because those who framed the relevant constitutional language would not have expected students to have First Amendment rights while in school.

This is an extraordinary claim for many reasons, not the least of which is the fact that public schools did not exist when the First Amendment was drafted. Even by the time the 14^th Amendment was adopted, making the First Amendment applicable to the states, public schools were just getting started. Few students attended school for more than five years; public high schools were virtually nonexistent; and compulsory education was still decades away. Despite the vast differences between public education then and public education today, Justice Thomas evidently believes the question of whether students have free-speech rights should be answered by conducting an imaginary séance with 18^th- and 19^th-century Framers and ratifiers, who should be asked: Do you think public-school students have a constitutional right to free speech while in school? This line of inquiry is about as productive as asking an only child: Imagine you have a sister. Now, does she like cheese?

The Senate Judiciary Committee has scheduled a hearing tomorrow on the nomination of Judge Leslie Southwick to the Fifth Circuit.  ACSBlog summarized the debate over Judge Southwick's nomination in a recent post:

Opposing Judge Southwick are number of civil and consumer rights groups, such as the Alliance for Justice.  According to one of their reports, Judge Southwick “has an 89 percent record of voting against workers, consumers and other victims in divided decisions.”  When questioned by Senators on this record, AFJ adds, “he could not find a single non-unanimous case, of the more than 7000 opinions that he wrote or joined, in which he voted in favor of a civil rights plaintiff or wrote a dissent on behalf of a plaintiff.”  The AFJ report also argues that Judge Southwick demonstrated a bias against claims of discrimination towards African-Americans, while simultaneously favoring allegations of discrimination against whites.  According to the report, "Judge Southwick . . . routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants."

 

In one case in particular, Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents. In another controversial decision, he joined a narrow majority in concluding a social worker was wrongfully terminated when she was fired for referring to an African-American co-worker by a racially charged term beginning with the letter "n."

 

Some advocates for Judge Southwick, such as the Committee for Justice, argue that Southwick’s troubles are the result of “Southern White Male Nominees Fac[ing] Bias in Senate.”  They argue that opposition to Southwick is nothing more than "playing the race card.”

I want to speak to you today about our most recent Supreme Court appointees, Chief Justice John Roberts and Associate Justice Samuel Alito.  I had the privilege to take part in their confirmation hearings, and I did my best to perform my solemn constitutional duty to assess their fitness to take their seats on the high court.

I did my best to ascertain their legal philosophies and judicial ideologies with careful questioning, as did my colleagues.  Neither of them was particularly forthright in answering my questions, and I therefore could not in good conscience vote to confirm either of them.

This afternoon, I want to address three questions that arise from the experience of the Roberts and Alito confirmations:

Question One: Were we duped?

Question Two: What lessons should we draw from the process that led to the confirmation of Roberts and Alito?

Question Three: How should we apply those lessons to the next nomination to the High Court?

During his ACS National Convention address, Senator Schumer attacked the press for focusing more on Justice Alito's wife's reaction to his confirmation hearings than on the substance of Alito's positions:

The full video is available here.

Speaking at the Fifth Annual ACS National Convention, Senator Schumer said that "Given the track record of this president and the experience of obfuscation at the hearings . . . . we should not confirm a Supreme Court nominee except in extraordinary circumstances."  

Doug Kendall & James Ryan argue in a recent article that conservatives beat progressives in public debates on the Constitution by simplifying reality:

For more than a decade, conservatives, led by Scalia, have offered a simple and compelling recipe: Follow the text of the Constitution. Where the words of the document are unclear, consult history to determine the original understanding of those words. Apply that original understanding to the facts of the case, and presto: The right result will pop out. As Scalia likes to say, constitutional interpretation should be "easy as pie." The benefits, moreover, carry far beyond individual cases. According to Scalia, this approach ensures that politics never enters constitutional law.

Liberals have long known that Scalia does not always practice what he preaches. In Scalia's hands, the Founding Fathers strangely presaged the present-day Republican Party platform with remarkable precision. But, while liberals have grumbled in classrooms and academic journals about Scalia's flamboyant mix of sanctimony and hypocrisy, he has faced only one real combatant with the intellect and megaphone to give him a fair fight: Justice Stephen Breyer. In his book, Active Liberty, Breyer spells out his own approach to judging. He has also engaged in public debates with Justice Scalia about constitutional interpretation.

Breyer is an extremely intelligent, lively, and thoroughly decent man. He is also an excellent and largely nondoctrinaire justice. But even those rooting for Breyer, like us, would have to concede that Scalia has won their public matches.

These triumphs can be attributed, in no small measure, to style. Scalia talks in hard-hitting sound bites, Breyer in erudite paragraphs. While Scalia launches blistering criticisms of Supreme Court liberals, Breyer is calm, restrained, and unwilling to challenge Scalia on his rulings in particular cases.

But, more than anything, Breyer has lost these debates because of the terms upon which they were fought. As Scalia describes his "easy as pie" originalist recipe, you can hear the exasperation pour out of Breyer. Judging is a lot more complicated than that, he sighs. Texts are frequently ambiguous. (When he once began to ruminate on the many possible meanings of the word "other," Scalia interjected that he thought the meaning of "other" was pretty clear.) History is equally malleable. Thus, Breyer explained, he looks to other factors, including the real-world consequences of particular rulings. It is intellectually persuasive, but it also leans into Scalia's counterpunch. Scalia retorts that consequences are in the eye of the judicial beholder and liberal justices tend to bend their evaluations of the "real world" to fit their political preferences.

Kendall & Ryan add, however, that progressives can take a page out of Scalia's playbook:

Senator Arlen Specter (R-PA), who chaired the committee hearings on Chief Justice Roberts and Justice Alito, said yesterday that he intends to investigate whether the Court's newest Justices "lived up" to their promises during those hearings to respect stare decisis. 

The Chief Justice told Senators during his hearings that "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."  His remarks were echoed by Justice Alito, who said that "there needs to be a special justification for overruling a prior precedent."

Senator Specter said that he was moved to examine the new Justices' records after a recent conversation he had with Justice Breyer.  In that conversation, Breyer told Specter that there were eight closely divided cases last Term in which the new Justices voted to overturn or substantially limit existing precedent.

Yesterday, President Bush nominated Judge Robert Conrad to the Fourth Circuit.  Conrad was the subject of controversy when he was nominated to be a district judge earlier in the Bush Presidency.  According to a 2005 statement by Senator Patrick Leahy, who now chairs the Judiciary Committee:

I am concerned about what some of the things he has written say about his ability to be a fair judge, and to give all who come before him a fair hearing. Listen to what he wrote about Sister Helen Prejean, one of the bravest and most caring people I have ever met. He calls her book, “Dead Man Walking,” “liberal drivel,” and shows nothing but contempt for her compassionate work with condemned prisoners. The rhetoric he uses is heated, and his bias for the death penalty is clear. Will any defendant in a capital case who comes before a Judge Conrad feel that they will get a fair hearing from him? Will he feel that a Judge Conrad can put aside personal prejudices and preconceptions? I hope so.

Another example is the not-too-subtly titled article, “Planned Parenthood, A Radical, Pro-Abortion Fringe Group.” Mr. Conrad’s view of the well-respected family planning organization is that it is a “most radical legal advocate of unfettered abortion on demand,” and argues they do nothing to reduce teen pregnancy. The Planned Parenthood organization that I know, both in Vermont and nationally, works hard to reduce crisis pregnancies and to preserve families’ rights to plan their own futures. His statements make me wonder whether any person going before a Judge Conrad in a case involving reproductive rights, or indeed any issue related to personal privacy, will feel their arguments have been fairly heard. Will he be able to follow the law as written? Again, for the sake of future litigants and the independence of our judiciary, I hope so.

From a White House press release:

Robert J. Conrad, Jr., of North Carolina, to be United States Circuit Judge for the Fourth Circuit, vice James Dickson Phillips, Jr., retired.

Catharina Haynes, of Texas, to be United States Circuit Judge for the Fifth Circuit, vice Harold R. DeMoss, Jr., retired.

Shalom D. Stone, of New Jersey, to be United States Circuit Judge for the Third Circuit, vice Samuel A. Alito, Jr., elevated.

John Daniel Tinder, of Indiana, to be United States Circuit Judge for the Seventh Circuit, vice Daniel A. Manion, retiring.

Today’s issue of Roll Call reports that conservative senators are threatening political retribution--including a potential "shutdown" of the Senate--if the Senate Judiciary Committee votes down Judge Leslie Southwick’s nomination to the Fifth Circuit.

[Minority] Senators have been in discussions for weeks about how to get political mileage out of President Bush’s stalled judicial nominees, but sources say talks in recent days have honed in specifically on the possibility of shutting down Senate business if Southwick fails to make his way out of committee to the Senate floor for an up-or-down vote this month. 

Opposing Judge Southwick are number of civil and consumer rights groups, such as the Alliance for Justice.  According to one of their reports, Judge Southwick “has an 89 percent record of voting against workers, consumers and other victims in divided decisions.”  When questioned by Senators on this record, AFJ adds, “he could not find a single non-unanimous case, of the more than 7000 opinions that he wrote or joined, in which he voted in favor of a civil rights plaintiff or wrote a dissent on behalf of a plaintiff.”  The AFJ report also argues that Judge Southwick demonstrated a bias against claims of discrimination towards African-Americans, while simultaneously favoring allegations of discrimination against whites.  According to the report, "Judge Southwick . . . routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants."

In one case in particular, Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents. In another controversial decision, he joined a narrow majority in concluding a social worker was wrongfully terminated when she was fired for referring to an African-American co-worker by a racially charged term beginning with the letter "n."

Some advocates for Judge Southwick, such as the Committee for Justice, argue that Southwick’s troubles are the result of “Southern White Male Nominees Fac[ing] Bias in Senate.”  They argue that opposition to Southwick is nothing more than "playing the race card.”

Writing in Slate, Emily Bazelon rejects the Committee for Justice's view.  Bazelon argues that Judge Southwick “has a pattern of voting against workers and the injured and in favor of corporations," and adds that a "no" vote on his nomination would reflect the best interests of democracy.  Southwick, she says, "looks like evidence that Bush and Lott are reverting to trying to ram through extremely conservative nominees. . . . But when the opposing party gains control of Congress, that should signal the president—any president—to move closer to the middle. If Bush appears to forget that, then it's up to the [Majority Senators] to remind him.”

Speaking at ACS' Supreme Court Review, former U.S. Solicitor General Walter Dellinger criticizes Chief Justice Roberts and Justice Alito for contradicting precedents without overtly admitting to "overturning" a prior decision:

A South Carolina paper reports that President Bush will nominate Steve Matthews to the Fourth Circuit.  Matthews, a South Carolina intellectual property attorney, is a past-president of the South Carolina chapter of the Federalist Society.  He previously served as counsel to Attorney General Edwin Meese, both as a judicial nominations advisor and as legal counsel for the Reagan Administration on Iran Contra.

by Geoffrey R. Stone^*

For the Supreme Court of the United States, this will be remembered as the year of intellectual dishonesty. In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis.

John Roberts assured the Senate Judiciary Committee that judges must “be bound down by rules and precedents.” Invoking Alexander Hamilton and James Madison, he affirmed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability,” and “integrity in the judicial process.” Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly “unworkable” over time. But in general, “a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is “a fundamental part of our legal system.” This principle, he explained, “limits the power of the judiciary” and “reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.” Stare decisis, he added, it is “not an inexorable command,” but there must be a strong “presumption that courts are going to follow prior precedents.”

It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

Disturbingly, John Roberts’s and Samuel Alito’s actions on the Court now speak much louder than their words to Congress. During the past year, Roberts and Alito have repeatedly abandoned the principle of stare decisis, and they have done so in a particularly insidious manner. In a series of very important decisions, they have cynically pretended to honor precedent while actually jettisoning those precedents one after another.

Today, ACS hosted it's annual review of the Supreme Court Term.  In their closing remarks, several of the panel of six leading Supreme Court advocates and constitutional experts commented on this Term as the beginning of a new, conservative era in the Court's history.

Frequent Supreme Court litigator Tom Goldstein suggested that this Term began a rightward lurch as significant as the leftward shift of the Warren era:

So I would say that we’re probably going to look back on this term as if it were June 15, 1961 in reverse.  June 15, 1961 was the day that Mapp v. Ohio was decided. It was in effect the birth of the Warren court era, it was decided by a five vote majority.  They Court overruled Wolf vs. Colorado and applied the 4^th amendment to the states.  And it started a whole trend of a series of cases from Reynolds and Sims to Frontiero. . . . all of the major doctrines that law students today think of as if they were written into the Constitution had their birth at the end of the term in 1961. 

Former Solicitor General Walter Dellinger lamented two of the Term's most significant decisions:

I just think the term’ll be marked by two cases that are historically tragic decisions.  I think the court has turned the corner on a jurisprudence that saw government control of women’s reproductive lives as a totalitarian intervention and was at the core of what we think of as liberty. And I think the school decisions were historically misguided because they conflate two uses of race that are so fundamentally different in such a hyper-technical way that belies common sense.  Brown condemned the system of southern racial apartheid, of domination and subordination.  The people of Louisville have worked together to try to come up with a system to keep people in the public school system.  They have refused to give up on the public schools.  They have worked across racial lines.  They know that they’re building upon a system of residential segregation which was created by federal, state and local governments.  And they know that just to choose that would be to perpetuate segregation.  They tried to bring the races together in public schools.  And that’s not the same thing that the court condemned in Brown. 

and Stanford Law Professor Pam Karlan closed the event with these thoughts:

[T]his term we saw the Court announce the first amendment applies to corporations, in the Wisconsin Right to Life case, but not to students, in the Bong Hits 4 Jesus case.  We saw the court announce that we should be deferential to state trial judges in criminal cases but not to democratically-elected local school boards in the schools cases.  So if this is the birth of a new constitutional era, all I say is what an ugly baby.

Senator Dick Durbin (D-IL), a member of the Senate Judiciary Committee, sent a letter yesterday to Judge Brett Kavanaugh of the D.C. Circuit which accuses the recently confirmed appeals judge of misleading the Senate on his involvement in crafting Bush Administration detainee policy while he was a White House lawyer:

Dear Judge Kavanaugh:

Yesterday the Washington Post published a lengthy article about Vice President Cheney's role in the policymaking process of the Bush Administration. In this article, you are reported to have participated in a "heated" White House meeting in 2002 about whether U.S. citizens who had been declared enemy combatants should be given access to lawyers. The information in this article was confirmed today by a report on National Public Radio.

These reports appear to contradict sworn testimony you gave to the Senate Judiciary Committee on May 9, 2006 at your nomination hearing. At that hearing, I asked you about the role you played, as one of the President's top White House lawyers, in the selection of William Haynes, a controversial nominee to the U.S. Court of Appeals for the Fourth Circuit and proponent of permissive policies with regard to torture.

I asked: "What did you know about Mr. Haynes's role in crafting the Adminstration's detention and interrogation policies?"

You testified: "Senator, I did not – I was not involved and am not involved in the questions about the rules governing detention of combatants – and so I do not have the involvement with that."

In light of the Washington Post and National Public Radio reports, your sworn testimony appears inaccurate and misleading. You participated in a critical meeting in which the Administration made a decision on whether to extend access to counsel to detainees, an issue that is clearly a "rule governing detention of combatants." By testifying under oath that you were not involved in this issue, it appears that you misled me, the Senate Judiciary Committee, and the nation.

Therefore, I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction.

In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants. Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.

Durbin added that he feels "perilously close to being lied to" in Judge Kavanaugh's testimony.  Judge Kavanaugh's first case as a member of the D.C. Circuit was a case involving Guantanamo detainees.

The controversial nomination of Judge Leslie Southwick to the Fifth Circuit has been held over, for the third time, at the request of Ranking Member Arlen Specter (R-PA).

In other news, Senators John Warner (R-VA) and Jim Webb (D-VA) have suggested five possible nominees to the Fourth Circuit.  They are Virginia Supreme Court Justices Steven Agee and Donald Lemons; Charlottesville attorney Thomas Albro of Charlottesville; federal District Judge Glen Conrad; and University of Richmond law professor John Douglass.

The vote on controversial Fifth Circuit nominee Judge Leslie Southwick has been held over until next week.  For more on Judge Southwick, see ACSBlog's prior discussion of his record here, here and here.

On the chance that an unexpected Supreme Court vacancy should occur, the White House is preparing a list of potential nominees.  Included on the short list are controversial federal judges Priscilla Owen and Janice Rogers Brown, both of whom were recently appointed to the federal appellate bench in the face of intense opposition from Senators, civil rights, consumer rights and other progressive organizations.

Judge Owen

Several opponents to Judge Owen's nomination questioned whether she was ethically suited for the bench:

Ethically questionable actions Justice Owen has taken reinforce her reputation for ruling in favor of powerful interests against workers and consumers. Following an investigation by the Travis County Attorney and a ruling by the Texas Ethics Commission, the Texas Supreme Court revised its practice of allowing law clerks to accept extra money during their clerkships from their future law firm employers, including those litigating before the court. Justice Owen nevertheless condoned the discredited practice and dismissed the matter as a “political issue that is being dressed up as a good-government issue.” Justice Owen also sits on a court whose members have been criticized for refusing to recuse themselves from cases involving parties from whom they have accepted campaign contributions. Justice Owen herself has participated in cases involving – and then issued decisions in favor of – her campaign contributors, including Enron, Halliburton and several law firms. In addition, in 1994, then-judicial candidate Owen, together with Justices Nathan Hecht and Raul Gonzalez, took the highly unusual step of endorsing a pro-business political action committee financed by parties that later argued before them in court. One professor noted: “It’s the first time in all my years studying judicial politics that I’ve run across anything like this: judges endorsing PAC’s, not PAC’s endorsing judges.”

Judge Owen has also been criticized for a dissenting opinion which would have denied a woman access to an abortion which a majority of the Texas Supreme Court held she was entitled to under state law.  In a concurring opinion, then-Justice Alberto Gonzales called Owen's dissent "an unconscionable act of judicial activism."

Judge Brown

Judge Brown has been criticized as a proponent of the view of federal power articulated by the Supreme Court in Lochner v. New York--which held that a law limiting the number of hours which a baker could work violated the Constitution.  Lochner's view of the Constitution was rejected during the New Deal Era after President Roosevelt accused the Supreme Court of "mak[ing] our democracy impotent," and has been described by conservative former Supreme Court nominee as an "abomination"  In a speech to the Federalist Society, Judge Brown took a different view:

In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the “constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It’s because the framers did draft the Constitution with a surrounding sense of a particular polity in mind.

The Senate Judiciary Commitee has delayed a vote on controversial Fifth Circuit nominee Leslie Southwick to allow Senators to more closely review his record.  Judge Southwick is opposed by numerous civil rights organizations, as well as by the Congressional Black Caucus, who argue that he has a record of racial insensitivity and homophobia and that his record as a Mississippi state appeals judge reflects a bias towards business interests and against consumers.

According to an Alliance for Justice report, Judge Southwick "has an 89 percent record of voting against workers, consumers and other victims in divided decisions."  Judge Southwick has also been criticized for a decision--which was unanimously reversed by the Mississippi Supreme Court--which held that a state social worker could not be fired after she referred to an African-American co-worker by a racial slur begining with the letter "n."  In another decison, Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents:

I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted.

The AFJ report also argues that Judge Southwick demonstrated a bias against claims of discrimination towards African-Americans, while simultaneously favoring allegations of discrimination against whites.  According to the AFJ report:

Judge Southwick has participated in numerous cases involving challenges to the racial makeup of a jury under Batson v. Kentucky, in which the United States Supreme Court held that peremptory challenges to jurors cannot be used in a racially discriminatory manner.In 59 of the 70 Batson cases reviewed for this report, the defendants challenged their convictions on the ground that the prosecution had used peremptory challenges to strike African- American jurors. Judge Southwick, voting with a majority of the Court in every case, voted to uphold the convictions in all but five of these cases.

In 10 of these 70 Batson cases, the defendants challenged their convictions on the ground that the prosecution had unfairly prevented them from using their peremptory challenges to exclude white jurors (in one case the juror whom defendant sought to strike was Asian American). Defendants, with Judge Southwick again joining the majority of the Court in every case, lost all ten of these challenges. In the final case, the defendant challenged his conviction on both grounds and lost on both grounds, with Judge Southwick again in the majority.

In other words, Judge Southwick and a majority of the judges on the Court of Appeals routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants.

Judge Southwick is the third person President Bush has nominated to this seat on the Fifth Circuit.  The first, Judge Charles Pickering, was not confirmed by the Senate due to concerns about a record on racial issues stretching back to the Jim Crow era--including voting twice as a state legislator in the 1970s to use state money to fund the Mississippi Sovereignty Commission (MSC).  The MSC was a domestic spying organization which passed information on "agitators" to opponents of integration, including information identifying civil rights workers Andrew Goodman, Michael Schwerner and James Chaney shortly before their murders.

President Bush's second nominee to this seat was Michael Wallace.  Wallace, a former aide to Senator Trent Lott (R-MS), received a unanimous "not qualified" rating from the ABA amidst allegations of racial insensitivity.  His nomination was withdrawn, at Wallace's request, shortly after last November's election.

Three state bar associations in Virginia have endorsed Marshall-Wythe School of Law Professor Alan Meese as a potential nominee to the U.S. Court of Appeals for the Fourth Circuit.  Professor Meese writes about issues in antitrust law, and currently serves as a Senior Advisor to the Antitrust Modernization Commission created by Congress to make recommendations about reforms to the antitrust regime.  He formerly served as a law clerk to Judge Frank Easterbrook on the Seventh Circuit and Justice Antonin Scalia of the Supreme Court. 

Professor Meese has argued, among other things, that "courts should relax the intrusive scrutiny they currently apply to exclusionary agreements entered by monopolists," and that "[t]he majority decision in Bush v. Gore vindicated the rule of law."

On Thursday, the Senate will consider the controversial nomination of Judge Leslie H. Southwick to sit on the United States Court of Appeals for the Fifth Circuit.  Should Judge Southwick be confirmed, he would be one of sixteen active judges on that court, twelve of whom were nominated by President Reagan or the two Presidents Bush.

After graduating from the University of Texas law school in 1975 and completing two judicial clerkships, Judge Southwick entered private practice in 1977, where he focused largely on defending oil and gas companies.  Judge Southwick served as a Deputy Assistant Attorney General in the DOJ's civil division under President George H.W. Bush, and he served as a judge on the Mississippi Court of Appeals from 1994 until 2006. 

As a state court of appeals judge, Southwick often voted in favor of business interests defending themselves against alleged violations of state employment or tort law.  According to an Alliance for Justice report, Judge Southwick "has an 89 percent record of voting against workers, consumers and other victims in divided decisions."

Judge Southwick and Access to Justice

In Cannon v. Mid-South X-Ray Co., Judge Southwick joined only one other judge in a dissent which would have barred a victim of chemical exposure in the workplace from seeking redress.  In that case, Annie Cannon first experienced symptoms in 1983, but she did not learn that they were work related until a doctor's visit in 1993.  While eight judges held that the statute of limitations should begin to run when Cannon learned that her injuries were work related, Judge Southwick wrote that "the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease," regardless of whether they knew or could have known the cause of the injury.

Judge Southwick on Workers' Rights

Dissenting in Dubard v. Biloxi, H.M.A., Judge Southwick expressed his personal belief that employment-at-will, the doctrine which says a worker may be fired at any time for virtually any reason, provides the proper balance of power between employers and employees:

I find that employment at will, for whatever flaws a specific application may cause, is not only the law of Mississippi but it provides the best balance of the competing interests in the normal employment situation. It has often been said about democracy, that it does not provide a perfect system of government, but just a better one than everything else that has ever been suggested. An equivalent view might be seen as the justification for employment at will.

Nevertheless, in Richmond v. Mississippi Dep't of Human Services, Judge Southwick joined a narrow majority opinion holding that a social worker was wrongfully terminated when she was fired for refering to an African-American co-worker by a racially charged term begining with the letter "n."

Judge Southwick on Gay Rights

In S.B. v. L.W., Judge Southwick joined a concurrence arguing that persons who "choose . . . the homosexual lifestyle" are less fit to raise children than straight parents:

I do recognize that any adult may choose any activity in which to engage; however, I also am aware that such person is not thereby relieved of the consequences of his or her choice. It is a basic tenet that an individual's exercise of freedom will not also provide an escape of the consequences flowing from the free exercise of such a choice. As with the present situation, the mother may view her decision to participate in a homosexual relationship as an exertion of her perceived right to do so. However, her choice is of significant consequence, as described before in the discussion of our State's policies, in that her rights to custody of her child may be significantly impacted.

More on Judge Southwick is available through the Alliance for Justice.

Writing in the American Prospect, Simon Lazarus argues that, despite claims during his confirmation hearings that he would persue a "modest" approach, Chief Justice Roberts has used his time on the bench to push a hard-line conservative agenda--even if it means alienating his colleagues:

The most noteworthy signal from the Seattle and Louisville oral arguments is not the results they appear to portend in the cases themselves. Rather, it is the ease with which the conservative justices, in order to reach a result that fits their political and policy agendas, blew right past every jurisprudential credo to which they and their comrades in arms have long asserted fidelity. If they will do it in this case, they can—and likely will—do it in any socially or politically important case.

Were Chief Justice Roberts to avoid such adventurism and take seriously his protestations of judicial modesty, he could readily pick off some or all of the liberal justices to build majorities— and a predictable approach to deciding—emphasizing constitutional text, history, precedent, and deference to democratic decision makers. Clinton appointees Ginsburg and Breyer, in particular, consistently emphasize deference to democratic institutions (Ginsburg once famously criticized Roe v. Wade for preempting public debate on abortion policy). Roberts may choose this path. He has yet to write a major opinion of his own. But to date, he seems to be gauging whether deft public relations can provide a cover of moderation, while a bloc of four ideological conservatives undermine decades of liberal legislation and case law—and perhaps wait to see if Bush or a Republican successor gets a chance to add a decisive fifth vote to their ranks.

Today, President Bush nominated Texas state trial Judge Jennifer Walker Elrod to the United States Court of Appeals for the Fifth Circuit.  Elrod is a graduate of Baylor University and Harvard Law School, where she edited the Harvard Journal of Law & Public Policy, the official journal of the Federalist Society.
As a state trial judge, Elrod once issued a controversial prior restraint enjoining an exposé by local news station KTRK about conservative evangelical preacher Benny Hinn.  A third-party acquired documents embarassing to Hinn from Hinn's legal counsel, and passed these documents to KTRK.  Because Hinn enjoyed an attorney/client privilege with his counsel, Judge Elrod held that this was sufficient reason to issue a temporary restraining order forbidding KTRK from broadcasting any information contained in the document.

Judge Elrod's order was subsequently lifted by another judge.  The U.S. Supreme Court has held that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."

President Bush has nominated Richard Honaker, a former Wyoming legislator who authored a failed anti-choice bill in 1991, to a federal judgeship in that state.  Under Honaker's bill, abortion would be illegal in all cases except when the woman's health was in jeopardy or in the case of rape or incest.  In the later two cases, the exception could only be invoked if the woman reported the crime within five days.

President Bush has renominated Judge U.S. Attorney Stephen J. Murphy and former Spencer Abraham aide Raymond M. Kethledge to the United States Court of Appeals for the Sixth Circuit.

Sasha Volokh highlights an article by his Georgetown colleague Mike Seidman, who argues that conservatives have taken advantage of "indeterminate" law to push their own agenda:

[T]he indeterminacy of texts is a double-edged sword, which ultimately can be wielded by conservatives against cherished liberal principles. My friend and colleague Mike Seidman elaborates, in his excellent recent article Critical Constitutionalism Now (now published in the Fordham Law Review):

[The Critical Legal Studies movement's] indeterminacy claim was that standard legal materials -- statutes, constitutions, and precedent -- often failed to dictate a single outcome. Critical scholars demonstrated over and over again that legal rules and conventional methods of interpretation could, in the right hands, produce wildly different results. Some scholars went beyond this claim to assert that not just legal materials, but also underlying ideologies, were indeterminate . . . .

Events of the last six years provide a stunning confirmation of the claims critical constitutionalists made during the last century . . . . In a wide variety of contexts -- from the legal defense of an aggressive war, to the assertion of constitutional power to hold American citizens indefinitely without legal process, to the claim that the president has inherent constitutional power to utilize torture and warrantless wiretapping, to assertions that the filibuster is unconstitutional and that mid-decade gerrymandering of congressional districts is constitutionally permissible, to the unprecedented search of the office of an incumbent congressman -- the Bush administration and its allies have used legal rhetoric to hold and consolidate power. . . .

Although they can take small comfort from this fact, this complex interaction of legal consciousness with politics vindicates the key claims of critical constitutionalists. It turns out that constitutional principle is sufficiently elastic easily to accommodate the Bush revolution . . . .

ABC News Supreme Court Correspondent Jan Crawford Greenberg's much anticipated Supreme Conflict, has been released.  In it, Greenberg discusses the success of conservatives in substantially shifting the Court to the right:

in one area President Bush has succeeded where his father, as well as Ronald Reagan and Richard M. Nixon, did not, achieving a longtime conservative goal: he has moved the Supreme Court decisively to the right and shaped its direction for the next three to four decades.

In appointing Chief Justice John Roberts and Justice Samuel Alito to the court, Ms. Greenburg writes, the president gave Justices Antonin Scalia and Clarence Thomas solid conservative support, placing on the bench two “collegial and savvy” allies who “can help keep moderate” Justice Anthony Kennedy (now the key swing vote) “in check.”

“George W. Bush and his team of lawyers,” she concludes, “will be shaping the direction of American law and culture long after many of them are dead.”

Ms. Greenburg’s book draws on interviews with nine current and former Supreme Court justices, scores of their law clerks, high-ranking White House and Justice Department officials from four administrations, and contemporaneous documents, including the papers of Justices Thurgood Marshall and Harry A. Blackmun. The volume sets out to give the reader a portrait of the court as it has evolved over the last few decades, while tracing the conservative movement’s efforts to reverse what it saw as the excesses of the Warren Court, which in addressing various hot-button social issues (concerning race, religion, privacy and criminal procedure) had, in conservatives’ view, overstepped its constitutionally defined bounds.

Greenberg recently moderated a discussion between Justices Stephen Breyer and Antonin Scalia, which was co-sponsored by ACS.

In a recent speech, Senator Mitch McConnell (R-KY) called upon the Senate to confirm "the same number of judicial nominees that were confirmed in the final years of the last three administrations."

During the final two years of the Clinton Administration, the Senate confirmed 44.1% of President Clinton's Circuit Court nominees.

As ACSBlog reported yesterday, the White House will not renominate four controversial attorneys who had previously been tapped for the federal appellate bench.  Early reports suggested that all four nominees asked the President to withdraw their names from consideration.  The AP is now reporting, however, that one nominee, Federal District Judge and former Senator Jesse Helms (R-NC) aide Terrence Boyle, made no such request.  The decision not to renominate Judge Boyle came from the White House.

President Bush has also nominated former Mississippi Court of Appeals Judge Leslie Southwick, instead of controversial former nominee Michael Wallace, to sit on the Fifth Circuit.  Unlike Wallace, who received a unanimous unqualified rating from the ABA in light of accusations of racial insensitivity, Judge Southwick has not yet been fully vetted by independent organizations, so it is unclear whether his nomination will spark controversy similar to that surrounding Wallace.

President Bush also plans to nominate recently confirmed Federal District Judge Noel Hillman to the Third Circuit seat vacated by Justice Samuel Alito.  Judge Hillman is a former federal prosecutor who oversaw the case against disgraced lobbyist Jack Abramhoff.

On the Ninth Circuit, the President resubmitted the nomination of Idaho state judge N. Randy Smith.  Judge Smith's nomination has been blocked by Senator Diane Feinstein (D-CA), who notes that the seat has previously been held by nominees from California.  Curt Levey, executive director of the conservative Committee for Justice, which advises the President on judicial nominations, publicly speculated that the White House may eventually agree to nominate a Californian to one of the two vacant Ninth Circuit seats.

Following the lead of former nominee Michael Wallace, three of President Bush's most controversial judicial nominees have asked to have their nominations withdrawn.  They include Defense Department General Counsel William Haynes, an architect of the Administration's torture policy, former Senator Jesse Helms (R-NC) aide Judge Terrence Boyle, and lobbyist William Myers.

As ACSBlog reported, an editorial in the conservative Washington Times recently called upon President Bush to replace controversial nominees with more moderate attorneys who would be acceptable to both parties.

Michael Wallace, a former aide to Senator Trent Lott (R-MS) who received a unanimous "not qualified" rating from the ABA upon his nomination to the Fifth CIrcuit, will ask the President to remove his name from consideration on Tuesday.  Wallace's nomination was opposed by civil rights advocates and African-American attorneys who questioned his advocacy of a Mississippi redistricting plan which would diminish or eliminate black representation in that state's Congressional delegation, as well as his support of tax-exempt status for Bob Jones University and his efforts to diminish funding for legal aid attorneys.  Wallace blamed his decision to withdraw on "the various special interests and their supporters on the [Judiciary] committee . . . ."

While the Senate returned all pending judicial nominations to the President with the end of the 109th Congress' last session, President Bush has historically renominated the vast majority of nominees returned at the end of a legislative session.  Should the President continue this practice, the 110th Congress will reconsider several controversial nominees:

• Judge Terrence Boyle, a nominee to the Fourth Circuit and former aide to Senator Jesse Helms (R-NC), has been criticized for his high reversal rate as a District Court Judge and a record which many observers believe demonstrates hostility to civil rights.
• William J. Haynes, also a nominee for the Fourth CIrcuit, currently serves as General Counsel to the Department of Defense.  Several Senators have raised concerns about Haynes' role in developing the Bush Administration's policies regarding "cruel treatment" of detainees.
• William G. Myers III, a nominee for the Ninth Circuit is a former lobbyist for grazing and mining interests.  Myers has questioned the constitutionality of many environmental laws, and once argued that constitutional interpretation "is not synonymous with judicial restraint and may require judicial activism if mandated by the constitution."

As ACSBlog recently reported, last week an editorial in the conservative Washington Times called upon President Bush to replace controversial nominees with more moderate attorneys who would be acceptable to both parties.

(Thanks to Howard Bashman for the tip on Wallace)

Writing in Slate, ACS Member Seth Rosenthal criticizes numerous cases when conservative judges have overturned jury awards, or refused to send cases to the jury, despite what is he argues is a strong preference for juries in the Constitution and the rules of civil proceedure:

Do conservative judges' decisions to supplant jury determinations expose an effort, perhaps subconsciously, to rid the courts of litigation in the service of curing a culture they see as burdened with "too much law?" Maybe. But even if you don't think judges' personal views color these decisions, you might recognize some paradoxes in these rulings.

Disrespecting the historic responsibility of the jury doesn't match up with the prototype of the modest jurist who conservatives say they embrace. Nor does it jibe with their championing of "constitutionalist" judges who adhere to the original understanding of our founding document. James Madison, after all, called the jury-trial guarantee "one of the best securities of the rights of the people" and wrote that it "ought to remain inviolate." Few things embody the will of the people like a jury verdict. And few things usurp it like displacing the jury from its fact-finding role.

Consistent with procedural rules, judges may, of course, legitimately weed out unfounded claims and step in to correct egregious juror mistakes. But they shouldn't commandeer the jury's constitutional authority by closing the courthouse doors. The party who files suit may lose. But it's the jury that should ordinarily make the call.

Recently, ACSBlog reported on fears among conservatives that the Fourth Circuit, long one of the nation's most conservative courts, will begin to trend leftward in light of recent retirements.  An editorial in the conservative Washington Times weighs in to this discussion, and urges President Bush to abandon unsuccessful attempts to confirm controversial nominees, and instead nominate moderate judges who would be acceptable to the new Majority:

One obvious solution is to nominate as many moderate, confirmable conservatives as possible now to avoid disaster after 2008. That would mean an end to the days of nominations like Judges Boyle and Haynes, so loathed by liberals. This will no doubt be a bitter pill for Republicans to swallow. But the party should debate the question now, thoroughly, also giving due consideration to the alternative, which is to continue pressing jurists who raise the hackles of liberals in full knowledge that they will fail.

The Washington Post quotes several leading conservative legal activists who fear that recent vacancies on the Fourth Circuit, a court which has long been among the nation's most conservative, will move closer to the center.  The Fourth Circuit currently has three vacancies, two of which have been open since the Clinton Administration.  Chief Judge William W. Willkins, a conservative, has also annouced plans to take Senior status this July.

President Bush has nominated several controversial attorneys to fill the vacancies on the Fourth Circuit which have not been received favorably by the Senate.  Among these nominees is William Haynes, the present Defense Department General Counsel, who many Senators oppose due to his role in authorizing "cruel treatment" of terror suspects.  Another nominee, Judge Terrence Boyle, a former aide to Senator Jesse Helms (R-NC), has been criticized for his record as a United States District Judge:

Among the highlights of Boyle’s record:

• a North Carolina employment case in which he suggested that the federal government should respect discrimination that is explained by a state’s “culture”;
• attempts to exempt state agencies from federal anti-discrimination laws, including an Americans with Disabilities Act case in which he suggested that working is “not a major life activity” warranting protection under the ADA;
• a reversal rate that is significantly higher than other judges in the Fourth Circuit, one of the most conservative appeals courts in the country;
• repeated reversals for committing “plain error,” which are obvious and egregious mistakes that harm individual rights and undermine the fairness and integrity of judicial proceedings;
• numerous reversals for repeating the same mistakes for which he was reversed in earlier rulings.

A third Bush nominee to the Fourth Circuit, Claude Allen, was withdrawn.  Allen is currently serving 18 months probation after being convicted of numerous counts of shoplifting.

The fate of the Boyle, Haynes and Allen nominations contrast with that of another Bush nominee to the Fourth Circuit, Judge Allyson Duncan.  Judge Duncan, a Republican who is widely considered a political moderate, was nominated early in the President's term with the support of Democratic Senator John Edwards.  Duncan was unanimously confirmed by the Senate.

According to an observer at the Federalist Society's National Convention, Senator Mitch McConnell made this statement:

Forty-nine is not a bad number of Senators to have, in a chamber that requires sixty to control. And I can assure you that our Democratic friends will give President Bush's judicial nominees a floor vote - if they want to get anything done, in a chamber that requires 60 to control.

UPDATE: Senator McConnell also went on conservative radio talk show host Hugh Hewitt's radio show on Wednesday and made similar comments.

by Martin Magnusson, Editor-at-Large

Supreme Court Justices earn $203,000 a year. While this is a substantial amount of money, it pales in comparison to what these nine men and women could make if they were in private practice. Indeed, the signing bonuses that large firms award former Supreme Court clerks rival the annual salaries of the justices. Remarking on this fact, Justice Kennedy has said that the parity between the justice salaries and clerk bonuses "devalues the position of the judiciary."

The American Bar Association recently concluded that "judicial salaries are now so inadequate that they threaten the stability and diversity of the federal bench." An increase in judicial salaries was long championed by the late Chief Justice Rehnquist, who would frequently raise the issue in his annual state of the judiciary reports. Chief Justice Roberts has taken on the struggle for judicial pay increases and recently noted that at current salaries, "you no longer can draw the best trial lawyers, on a regular basis," to the federal bench. While no one becomes a judge to get rich, he has said, the government "ought to pay them enough so they can educate their children and have a reasonable lifestyle. We don't want to get to the point where we have the judiciary staffed solely by people of independent means, or by people for whom the judicial pay scale is a raise."

Last week, People for the American Way released a new study examining the jurisprudence of federal Circuit Court judges nominated by President Bush. The 102-page report, entitled "Confirmed Judges, Confirming Fears," covers selected cases decided between September 1, 2004 and May 31, 2006. According to PFAW President Ralph Neas, "Judges nominated by President Bush and confirmed by the U.S. Senate are undermining Americans' rights, liberties, and legal protections."

Tomorrow, the Senate Judici