But the art of “Borking” a judicial nominee is something for which our public square is much, much poorer. It is not a good thing that our Judiciary has become so divided and this Kennedy clip ought to live in infamy:

I had been meaning to dig deeper into the issue of Senatorial deference for the President’s Supreme Court nominations, but I simply do not have the time to do a research paper on such a mundane issue.  Long story short, though, I agree with Mike Rappaport , Randy Barnett, and Ramesh Ponnuru.

First Rappaport addresses the question, “Is the President entitled to deference on Supreme Court nominations?” (more…)

Patrick Ruffini’s take on how to approach the Sotomayor nomination is one which most closely resembles my own.  Like me, Ruffini is not advocating an all-out blitz, but rather a vocal if restrained “get it on the record” approach.  I think his first point is most salient. (more…)

Prepare yourselves for a shock, but Grima Wormtongue Doug Kmiec has come out in support of Sonia Sotomayor.  I’ll give you a moment to recover from the surprise. (more…)

According to the AP and other sources, President Obama has chosen Sonia Sotomayor to replace David Souter.

It’s great to see a fellow native New Yorker make the big time.  That, I am sure, will be the last positive thing I say about this nomination.

What do Republicans do after losing Specter to defection? They name Alabama Senator Jeff Sessions as ranking member of the Senate Judiciary Committee.

I heartily approve.

Update: But, “[u]nder an arrangement worked out to prevent a turf battle, Sessions is expected to keep the Judiciary post only through the end of next year.” Then, it will go to Senator Chuck Grassley. Yes, that Chuck Grassley.

This video of Judge Bork being interviewed by the Federalist Society’s Eugene Meyer is 55 minutes long.

Yes, the same Doug Kmiec who has endorsed Barack Obama for President went on the talk-show, op-ed circuit in October 2005 to support President Bush’s nominee to the U.S. Supreme Court, Harriet Miers. This is what Professor Kmiec wrote in a 2005 Washington Post piece:

(more…)

To those of you who were/are frustrated with Senator McCain because of his involvement with the Gang of 14, I offer you the following quote from Judge Charles Pickering:

There is no way you can look at that agreement as a Democratic victory. Two days after the Deal was announced, Owen was confirmed by the Senate. Two weeks later, Brown was confirmed, and the next day the Senate confirmed Pryor. These confirmations were exactly what President Bush and the Republicans had tried to accomplish for five long years and the Democrats had blocked.

The confirmation of Chief Justice Roberts and Associate Justice Sam Alito –two exceptionally capable and conservative jurists– were made relatively easy because of the “Gang of Fourteen Agreement.”

(h/t to RNLA – Judicial Blog)

I was going to link to Orrin Hatch’s excellent piece, but Feddie beat me to it. But the comment by “Dolly Madison” below Feddie’s post is worth promoting to its own blog post. My info is that Puryear is being horribly abused (in other words, a typical smear job from the left), and I hope to write extensively on the case soon. Meanwhile, though, Dolly’s post, and the link therein, are important reading.  This is where the judge wars spread to the District Court level — which is a sad and terrible development.

Yep, I’ve been writing about this danger on SA and the South Carolina Appellate Law Blog for some time.  Now, the Washington Times is picking up on the theme. 

Wow.  This means big changes on the Fourth Circuit.  Here is the scoop.

 Rumor is that he will run for governor in SC in 2010. 

Ed Whelan argues that the sky has not fallen on NRO today.  What say you all?

Judges are the main reason I will be upset if the Dems take the Senate. Bill Kristol has a fantastic article.

As just a reminder of how critical the pending nominations to the Fourth Circuit are, take a look at US v. Kahn and Rux v. Republic of Sudan, both of which deal with war on terror issues.  The former deals with a terrorist cell in the United States and the latter deals with a suit for damages arising out of the attack on the USS Cole. 

According to a story on last night’s Special Report with Brit Hume, the chairman of the Judiciary Committee realizes that there’s something fishy about the ABA’s vehement opposition to the Michael Wallace nomination.  If you go to the show’s website right now and scroll down to the section ”As Seen On ‘Special Report,’” you can watch a video of the story.  Here’s the money quote:

Fox News correspondent MEGYN KENDALL: On Tuesday, Specter circulated a letter to the Judiciary Committee, which was meeting on other nominations, urging it to reject the report, an unprecedented move. Specter will also urge the committee to request a new ABA report from a panel of unbiased lawyers. Specter also wants the ABA to identify all of its sources, to name the people attacking Wallace, something the chairman says he’ll now push for in every ABA report.

SPECTER: I do not think that they ought to be anonymous if we are to base a Senate judgment on them. It does not give the nominee a chance to defend himself.

Ed Whelan is all over this, in a multi-part posting on Bench Memos today.  Start here and scroll up.

The letter to the President can be found here. 

Today, I have a column on the Haynes nomination appearing in the Greenville News, a South Carolina paper covering the upcountry.  Here is how I conclude the piece:

With the recent retirement of Judge Michael Luttig from the Fourth Circuit, the conservatives on the court have only six votes out of 12. The Fourth Circuit currently has several open seats, and unless the Senate votes on qualified nominees such as Jim Haynes prior to the mid-term elections we could see a Fourth Circuit much less in agreement with the average South Carolinian.

Jim Haynes is a qualified nominee with South Carolina roots. Too much is at stake to permit the Haynes nomination to die at the hand of obstructionists in the Senate. Sen. Graham and his colleagues in the Senate owe it to South Carolinians to make one final push to bring the Haynes nomination to the Senate floor for an up-or-down vote.

With Mike Luttig headed for the private sector, there is a debate in the blogosphere on whether we are properly compensating our judges.  Currently, judges of the court of appeals make about $171,800 per year.  Luttig left, citing the need for additional dollars to put his kids through college.  From those close to him, I understand that his children are extremely bright, and thus we are talking Harvard and Yale type dollars–probably at least $50,000 for tuition and board is my guess.  

Some have speculated that the money was not the real reason Luttig left, but anyone close to the Fourth Circuit will tell you that he often expressed frustration his law clerks made more than him the day they took a private sector job.  And, yes, the D.C. area ain’t cheap.  Between the money and Dubya passing him up for SCOTUS, I believe Judge Luttig felt he had to make a move.

The dollars debate brings to mind why the public views lawyers as greedy.  Median household income in the United States is about $44,000.00, and only 4.2 percent of year-round workers earn over $100,000. It is difficult for most Americans to understand a why there is a debate about whether $171,800 is enough money for a judge. 

In Luttig’s world, with friends like Ted Olson making, I dunno, a cool $1 million per year in private practice, I can see why $171,800 seems like chicken feed.  But this debate will only increase the public perception that lawyers make too much money and live in a world separate from ordinary Americans. 

Is there a good reason why we have ceded the role of evaluating judicial nominees to a left-leaning organization?  As such, the only judicial evaluations and ratings for the media to report come from the ABA.

I don’t doubt the general good faith of the ABA in evaluating judicial nominees, but it seems to me that few would argue that the ABA has at least a slight lean to the left. 

 Perhaps the Federalist Society should begin evaluating all federal judicial nominees, just like the ABA.  It seems to me that the Federalist Society could even attempt to create balanced panels for those evaluations. 

 There would certainly be a furor for awhile, but at least the media would have another rating to report.

The Fourth Circuit is regarded as the most conservative in the nation. This could quickly change with the departure of Judge Luttig coupled with the troubled nominations of Boyle and Haynes.  If the White House does not act quickly, in the next three or four years, the Fourth Circuit could have a liberal majority. 
 
Right now, the judges of the Fourth are loosely grouped as follows:
 
Conservative
Chief Judge William W. Wilkins
Judge H. Emory Widener, Jr.
Judge J. Harvie Wilkinson III
Judge Paul V. Niemeyer
Judge Karen J. Williams
Judge Dennis W. Shedd
 
Moderate
Judge William B. Traxler, Jr.  (leans right)
Judge Allyson K. Duncan   (leans left)
 
Liberal
Judge M. Blane Michael
Judge Diana Gribbon Motz
Judge Robert B. King
Judge Roger L. Gregory
 
Labels are difficult, depending on the issue. For example, with “tough on crime” issues, one could easily put Judges King and Traxler (both former prosecutors) with the conservative judges. And Nixon appointee Judge Emory Widener is known to march to the beat of his own drummer, especially in the last few years as he has aged. But, the above is about the best we can do as a general matter.
 
With Luttig gone, the conservatives have six votes out of 12. Judge Widener has indicated that his senior status will be effective as soon as his replacement is confirmed. William Haynes has been nominated as Widener’s replacement, but it looks like that nomination is dead because of the torture memos. 
 
Regarding the Boyle nomination, Democratic members of the Gang of 14 are about to request that Judge Boyle be recommitted to the Judiciary Committee. This would likely mean the death of his nomination as well.
 
With mid-term elections likely to go poorly for the GOP, it will be very difficult for a conservative nominee to sail through–especially with the Luttig seat now open. If Judge Widener decided to simply take senior status regardless of whether his replacement is confirmed, then that would leave the core conservatives with 5 votes out of 11 (maybe six in a pinch because Judge Traxler does lean toward the conservatives). If the three open seats are filled by moderates, or after the next presidential election by liberals, the conservatives could easily find themselves in the minority on many issues.

 
The White House needs to act immediately on the Luttig seat.  We need a solid judicial conservative to replace him.  Even with a GOP majority it has not been easy getting judges through (e.g., Haynes and Boyle), but before the Dems make gains in November, the White House needs to get moving.  We need a conservative nominee to replace Luttig and perhaps it is time to withdraw Haynes (maybe Boyle too) and push forward with fresh conservative candidates.  If something is not done, the Fourth Circuit could look much different in the next few years.

“The ABA Goes Wild” declares Power Line.  “With this nakedly political move, the American Bar Association has once again forfeited any claim to credibility.”

More to come . . .

According to Kate O’Beirne just now on The Corner, the ABA has rated him “not qualified.”

If you thought conservatives were through with Harriet Miers then think again. This from Human Events.

Kathryn Jean Lopez’s take from Bench Memos.

Me: What happened to Judicial Nominations as a rallying point???

Byron York from the National Review on the Republican’s record on judicial confirmations.

David Limbaugh slams Senate Republicans hard on the judicial nominations issue:

This cannot go on. The Republicans’ acquiescence to the Democrats’ demand for a delay on the hearings on these nominations is just another straw. When will the elephant’s back be broken? How long will Republicans continue to allow themselves to be walked on?

Whether it’s their shameless joinder with Democrats in demanding investigations of oil companies, their acute tone deafness on the growing immigration crisis, their refusal to bring discipline to spending, or their willingness to let the tail wag the dog on judicial appointments, the Republicans are begging for a drubbing in November.

As you’ve probably heard by now, Chairman Specter this morning agreed to Democratic demands for another day of hearings on the Kavanaugh nomination.  According to Ed Whelan, this concession was in return for assurances that the Democrats among the Gang of 14 would not support any eventual filibuster.  (More on Bench Memos, of course.)

What a farce.

More:  The Wall Street Journal editorial page recommends that Republican Senators go to the mattresses.

Ed Whelan at NRO on the Kavanaugh nomination:

Nominated to the D.C. Circuit nearly three years ago, Kavanaugh, now 41, has a remarkable breadth of experience that few judicial nominees could match. Among other things, he has been a Supreme Court clerk (to Justice Kennedy), has devoted more than ten years to federal-government service, has served in a senior position in the executive branch, has been a partner in a major national law firm, and has argued cases in the Supreme Court and court of appeals. In his various jobs, he has earned the admiration of people across the political spectrum who have worked with him (as the numerous quotations of endorsements in these White House talking points establish). That’s part of the reason that all 42 members of three different incarnations of the American Bar Association Committee on the Federal Judiciary have rated him “well qualified” or “qualified” for the D.C. Circuit seat.
. . .
Kavanaugh’s allegedly “partisan” employment . . . has all been for the United States government. Senate Democrats intensely dislike the fact that Kavanaugh worked for Ken Starr’s independent-counsel investigation of the Clintons. But by all accounts (including Bob Woodward’s), Kavanaugh performed responsibly. Indeed, Democrats should applaud the fact that Kavanaugh urged that the Starr report focus solely on possible legal grounds for impeachment and later sought to prevent public release by the House of graphic details of President Clinton’s sexual misconduct.

On AmSpec today:

Politically speaking, the Kavanaugh nomination is the perfect rallying point for Republican senators who in the past have failed to understand why fights over judges are political winners for the right. It bears repeating that when the issue is judges, conservatives win. We win because Americans instinctively believe that the meaning of laws shouldn’t change with the whims of judges. We win because conservative (textualist, deferential) judges tend to reach results, by the very nature of their jurisprudential reasoning process, that the majority of Americans support: Against public confiscation of private property for other private interests. Against partial birth abortion. Against a crazed antagonism toward all references to faith in the public square. For the Pledge of Allegiance. Against judicially imposed taxation, and against judicially imposed legal recognition of homosexual unions. And certainly against the use of foreign law to trump traditional interpretations of the Constitution of, after all, the United States of America.

Brett Kavanaugh is the perfect vehicle with which Republicans can argue these points and defeat the left in the battle of public opinion. A little backbone from other GOP senators, in support of the Frist-McConnell-Specter selection of Kavanaugh as the test case, can pull the GOP Congress out of the doldrums and set the stage for a successful summer and fall.