Senate Confirms J. Tinder to Seventh Circuit
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.
As I noted in that letter, I have been concerned that several recent nominations seem to be part of an effort to pick political fights rather than judges to fill vacancies. For example, President Bush nominated Duncan Getchell to one of Virginia’s Fourth Circuit Vacancies over the objections of Senators Warner and Webb . . . . They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination that is opposed by . . . home-state Senators is one that cannot move. . . .
While I support Judge Tinder’s confirmation, I am concerned about his answer to a question I sent him on the legal significance of Presidential signing statements. I asked Judge Tinder if an alleged violation of the law prohibiting cruel, inhuman, and degrading conduct by American personnel were to come before a court, would it be appropriate for that court to consider the President’s signing statement as legislative history, in addition to the text of law itself. I am troubled by Judge Tinder’s answer that he is open to looking at signing statements as a tool for determining the meaning of a statute.
Throughout the country’s history, Presidents used signing statements for limited purposes, such as explaining to the public the likely effects of legislation or providing direction to administrative agencies within the Executive Branch. It has long been considered out of bounds for any President to use signing statements – which are at most post-passage remarks – for the more expansive and controversial purpose of creating legislative history that our courts would be expected to follow. Legislative history is created within the Congress, which is charged by the Constitution with considering and passing laws. The President may veto legislation, but the constitutional system of checks and balances does not allow the President to speak for Congress.
The Nation stands at a pivotal moment in history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. This President has used signing statements to challenge laws banning torture, laws on affirmative action, and laws that prohibit the censorship of scientific data. When the President uses signing statements to unilaterally rewrite laws enacted by Congress, he undermines the rule of law and our constitutional checks and balances. It is incumbent upon the federal judiciary, to safeguard and protect the constitutional balance when necessary.
I hope that Judge Tinder will fulfill his oath and be an independent buffer against constitutional overreaching. I congratulate the nominee and his family on his confirmation today.