Second in a series
The Left's Book on Judicial Warfare: Dismay-Demand-Distort-Defame-Delay     7/15/2005
By Jan M. LaRue, Chief Counsel

A guide to understanding the tactics of the Left.

Second in a series

Making demands is another recurring tactic from the Left's "book" on defeating Republican presidential nominees to the federal courts, especially the Supreme Court.

The left has a history of demanding that the President consult with senators in naming a "consensus" nominee; that he select a nominee who will "maintain the balance of the Court"; that the nominee answer questions about political philosophy and "litmus test" issues; and that the nominee provide confidential memos prepared while employed as a government attorney.

Democrats admit their game plan hasn't changed.

Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.¹

In order to convince Americans that they deserve to have what they demand, the left usually casts the demand as a "right," "reasonable," "traditional," "constitutional" or "necessary" in order to make a decision about the nominee. Most of the time, it's simply for the purpose of delaying the confirmation process.

1. Demanding a Role in Nominating a "Consensus" Nominee:

All Americans have the right to recommend to the President the person(s) they would prefer him to nominate. The President may consider such recommendations as a courtesy, but he alone has the constitutional authority and responsibility to choose the nominee.

The left's demands usually hinge on whether they think that the nominee is more likely to align with their liberal agenda. Sen. Joe Biden (D-Delaware) said to then-nominee Sandra Day O'Connor at her confirmation hearing:

I believe it is necessary at the outset of these hearings on your nomination to define the nature and scope of our responsibilities in the confirmation process, at least as I understand them. ... [A]s a Member of the U.S. Senate, I am not choosing a nominee for the Court. That is the prerogative of the President of the United States, and we members of the U.S. Senate are simply reviewing the choice that he has made.²

Even before Justice Sandra Day O'Connor announced her resignation from the Supreme Court, the left was demanding that President Bush "consult" with them about whom to nominate when a vacancy opened on the Court. They claim it's "reasonable," "traditional" and even "constitutional." Since O'Connor's announced resignation, the demands have increased.

Some who should know better are giving aid and cover to the left's demands to have a say in who is nominated. Sen. John McCain (R-Arizona) expressed a "me-too" for the constitutionally dysfunctional statement of Sen. Lindsey Graham (R-South Carolina): "The president should consult with the Senate on nominations to the courts."³

Seven Republicans, including McCain and Graham, and seven Democrats signed the infamous "Memorandum of Understanding on Judicial Nominations" on May 23, 2005. The deal prevented Sen. Bill Frist from ending filibusters of judicial nominees with a simple majority vote.

Also in the deal, the seven Republicans helped Democrats undercut the President's sole authority to make nominations by distorting the Constitution. The memo states in part:

We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.

Ralph Neas, President of People For the America Way (PFAW), issued a press release June 16, 2005, citing the "Gang of 14's" backroom bargain, to support his demands:

"We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration," says the written agreement. "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate."⁴

Sen. Hillary Rodham Clinton (D-New York) referred to Justice O'Connor as President Reagan's "consensus conservative nominee."

Sen. Clinton must have been referring to the living version of the Constitution when she "urged" President Bush to go and do likewise: "I urge the President to take seriously the Constitution's charge and to engage the U.S. Senate - both Republicans and Democrats - in a process of genuine consultation in order to identify and to ultimately confirm a consensus nominee."⁵

Contrast these statements with a recent one by Sen. Ted Kennedy (D-Massachusetts): "Whether the confirmation process goes smoothly will be determined by the president's selection. He can pick judges with us, as the founders wanted, or he can pick fights with us."⁶ [Emphasis added.]

The liberal Alliance for Justice claims: "The Senate's Advise and Consent Role Starts with Selection of Judges."⁷

A recent article, titled "Dems Demand Bush Consult on Court Pick," referred to a letter signed by 43 of 44 Democrats and Sen. Jim Jeffords (I-Vermont), which was sent to President Bush June 23, 2005, stating: "The way to avoid the divisiveness and discord that occurred over past judicial nominations is through consensus and cooperation in the selection of future candidates."⁸

Sen. John Cornyn (R-Texas) said in response: "Democrats were trying to politicize the Supreme Court nomination process before it begins. … Senior Democrats continue to demand a future role in selecting the president's judicial nominees, while preventing the confirmation of current nominees."⁹

Senators Chuck Schumer (D-New York), Patrick Leahy (D-Vermont), and Ted Kennedy (D-Massachusetts) called for Bush to consult with Democrats. "It doesn't take much to get our consent," Kennedy said. "All the president has to do is seek out his preferred non-ideological choices, ask us about them, and listen to our answers." ¹⁰

Since O'Connor's announcement, the left is using her as its "consensus" model:

As President Bush and the U.S. Senate consider a replacement on the bench, they should abandon partisanship and seek consensus on a nominee who will protect every American fairly. … President Bush should look to consult with the Senate on a justice who walks in Justice O'Connor's footsteps of fairness.¹¹

The Nomination Clause in Article II of the Constitution states: "[The president] shall nominate, and by and with the advice and consent of the Senate [AFTERWARD] shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States."

In Justice Anthony Kennedy's concurring opinion in Public Citizen v. United States Department of Justice (1989), which was joined by Chief Justice William Rehnquist and Justice Sandra Day O'Connor, Kennedy discussed the Nominations Clause. He wrote:

By its terms, the Clause divides the appointment power into two separate spheres: the President's power to "nominate," and the Senate's power to give or withhold its "Advice and Consent." No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment. As Hamilton emphasized:

In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment." The Federalist No. 76, 456-457.

It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose-they can only ratify or reject the choice he may have made." Id., No. 66, at 405. [Emphasis in original]

The Constitution is clear and three members of the Supreme Court have affirmed that its text means what it says. The President alone has the authority and duty to nominate.

2. Demanding that the President nominate someone who will "maintain the balance of the Court":

"Maintaining the balance of the Court," is a smoke screen by the left that has nothing to do with the Constitution. For them, it means never having less than a 6-3 majority on the Court in support of Roe v. Wade and other pet policies, for example:

In an "exclusive" dated July 6, 2005, the "Drudge Report" claims to have overheard Sen. Chuck Schumer (D-New York) plotting the war against the President's nominee to replace O'Connor:

Schumer promised a fight over whoever the President's nominee was: "It's not about an individual judge.… It's about how it affects the overall makeup of the court." … Schumer went on to say how hard it was to predict how a Supreme Court justice would turn out: "Even William Rehnquist is more moderate than they expected. The only ones that resulted how they predicted were [Antonin] Scalia and [Ruth Bader] Ginsburg. So most of the time they've gotten their picks wrong, and that's what we want to do to them again." … Schumer later went on to mock the "Gang of 14" judicial filibuster deal and said it wasn't relevant in the Supreme Court debate. "A Priscilla Owen or Janice Rogers Brown style appointment may not have been extraordinary to the appellate court but may be extraordinary to the Supreme Court."¹²

Sen. Biden "argued that this nomination called for additional scrutiny because the nominee could change the balance of power on a court where O'Connor had frequently functioned as the swing vote." Biden said the likelihood that the nominee would shift the court's balance "probably" made it more likely that Senate Democrats would filibuster a choice that drew broad opposition in the party.¹³

As Sen. Cornyn points out, President Bill Clinton wasn't concerned with maintaining the balance of the Court when he nominated Ruth Bader Ginsburg:

President Clinton followed no such command when he filled his first Supreme Court vacancy. When Justice Byron White - who authored judicially restrained decisions such as Bowers v. Hardwick and one of only two dissents in Roe v. Wade - retired in 1993, President Clinton nominated Ruth Bader Ginsburg to succeed him. Ginsburg, a brilliant jurist, had served as general counsel of the American Civil Liberties Union - a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. She had previously written that traditional marriage laws are unconstitutional; that the Constitution guarantees a right to prostitution; that the Boy Scouts, Girl Scouts, Mother's Day, and Father's Day are all discriminatory institutions; that courts should force taxpayers to pay for abortions, against their will; and that the age of consent for sexual activity should be lowered to age 12.

The Senate nevertheless confirmed her by a 96-3 vote. And just two years ago, she joined the Court's five-vote majority to overrule Bowers - setting off a nationwide campaign to abolish traditional marriage laws across the country.

If new justices are supposed to be selected to preserve the preexisting ideological balance of the courts, President Clinton didn't appear to get the memo.¹⁴

For the left, despite her very liberal beliefs, Justice Ginsburg isn't "extreme," rather she is "mainstream" balance.

Americans should be concerned that the nominee believes that the written Constitution should weigh in the balance in deciding cases and not the political and policy preferences of the nominee.

3. Demanding that the Nominee Explain His or Her Political Philosophy on "Litmus" issues:

Americans are expecting to see this play run again:

A huge majority of Americans - 86 percent - say it's likely that Democrats will use "inappropriate political reasons" to try to block President Bush's nominee to the Supreme Court, a new poll shows. In all, 58 percent say that's very likely and 28 percent say it's somewhat likely, while only 12 percent say it's not likely, according to the CNN poll conducted June 24-26.¹⁵

And Democrats will meet the public's expectations:

Sen. Dianne Feinstein (D-California) says she will question a nominee about abortion:

"I think the most fundamental issue is whether Roe will fall, and the American people in virtually every poll have indicated they are pro-choice," Feinstein said.

Asked whether abortion is a litmus test for a high-court nominee, Feinstein said, "Candidly, for me, this is very important. I have always run as a pro-choice Democrat, in'92, in '94, in 2000. I recognize of course there are limits and restrictions, but on the other hand I've had great respect for Roe in protecting the life and health of the mother in very precarious situations. So it would be very hard for me, knowing that this is a pivotal appointment, to vote for somebody that I believe would destroy a woman's right to choose."¹⁶

Likewise, Sen. Chuck Schumer (D-New York) will have his litmus tests:

Sen. Charles E. Schumer (N.Y.), the ranking Democrat on the Judiciary Committee's subcommittee on courts, said an effort to choke off inquiries about specific issues would fail because Democrats believe they have "an obligation to our country and the Constitution to thoroughly vet the nominee. "The number one thing we look for are the person's views," Schumer said. "The hard right wants to get it done with as few questions and as quickly as possible."¹⁷

Then there's Sen. Kennedy past:

[I]t is our responsibility as members of the [Judiciary] Committee … in advising and consenting, that we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee, and that it is not our responsibility to test out the nominee's particular philosophy, whether we agree or disagree.¹⁸

And present:

"There are many issues of well-established constitutional law on which millions of Americans rely every day, such as the right to fair treatment by the justice system, the right to equality in education and the workplace, and the right to privacy in our family and medical decisions," Mr. Kennedy said in a statement. "As part of the confirmation process, the American people will reasonably expect those questions to be asked and the nominees to answer them."¹⁹

Sen. Barbara Boxer (D-California) called a threat to legalized abortion an "extraordinary circumstance. It means a minimum of 5,000 women a year will die. So all options are on the table. Boxer called O'Connor a crucial moderate voice, saying the first female appointed to the high court was a strong backer of environmentalism and reproductive rights. "She has been a powerful voice for moderation," Boxer said. "This is a philosophy her successor should embrace. ... We cannot go back to the dark days. Roe must remain the law of the land."²⁰

But Sen. Biden, chairman of the committee when his party last controlled the Senate, seems to disagree. Biden says, "We should not be talking about the outcome of specific cases" but instead should assess "what methodology a judge will use" in deciding cases.²¹

Senators also insist that nominees answer inappropriate questions regarding his or her opinions of Supreme Court rulings. Since judges are required to adhere to Supreme Court precedent, once a nominee makes a commitment under oath that he will do so, that should end the matter. A nominee's opinion about Court rulings is irrelevant.

Sen. Herb Kohl (D-Wisconsin), for example, asked Miguel Estrada, President Bush's nominee to the U.S. Court of Appeals for the D.C. Circuit, his opinion of the Supreme Court's federalism decisions and whether he agreed with recent district-court rulings striking down the death penalty. Sen. Dianne Feinstein (D-California) asked: "Do you believe that Roe [v. Wade] was correctly decided?" Sen. Patrick Leahy (D-Vermont) asked how Estrada would have decided Romer v. Evans, which held unconstitutional Colorado's Amendment 2, which prohibited special rights for homosexuals.

Yet, the Senate has confirmed other nominees even though they refused to answer such questions. Justice Thurgood Marshall 1967, Justice John Paul Stevens in 1975, Justice Sandra Day O'Connor in 1981, Justice Antonin Scalia in 1986 and Justice Ruth Bader Ginsburg refused to answer many such questions in 1993. Sen. Kennedy loudly defended Justice O'Connor's refusal to discuss her abortion views, and the Senate unanimously confirmed Justice Scalia.

Sen. Cornyn also addressed the impropriety of and the refusal of Justices Ginsburg and Stephen Breyer to answer such questions during their confirmation hearings:

The Senate overwhelmingly confirmed President Clinton's nominees to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer, after they repeatedly upheld judicial tradition and ethics by refusing to answer questions about how they would rule in specific cases. Indeed, as Justice Ginsburg herself noted just a few years ago, "[I] n accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate. … [T] he line each of us drew in response to preconfirmation questioning … is crucial to the health of the Federal Judiciary. … When [a nominee] promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest."²²

Abraham Lincoln, who was a lawyer, said: "We cannot ask a man what he will do (on the court), and if we should, and he should answer us, we should despise him for it."

4. Demanding Access to Confidential Memos:

There were numerous demands made during the confirmation battles over the President's nominees to the circuit courts of appeal. Take for example, Miguel Estrada.

Senate Democrats demanded to see confidential memos that Estrada had written when he served in the office of Solicitor General. He rightly and respectfully declined.

Every living former Solicitor General, both Republicans and Democrats, signed a letter opposing release of confidential memos by their assistants, which was sent to the members of the Senate Judiciary Committee. Nonetheless, the demands continued and Democrats continued to mislead the public by claiming they had a right to the memos.

Since 1976, the Senate has confirmed 67 appeals court nominees who had previously worked at the Justice Department, seven of them in the Solicitor General's office. The Senate has never asked any of them for the confidential memos Democrats demanded from Estrada.

In order to appreciate the impropriety of such a demand, imagine that your legal opponent's attorney demanded to see confidential memos that your attorney had written on your behalf. He or she would be subject to ethics violations and malpractice liability for complying. That's why Miguel Estrada couldn't comply and those who made the demands knew it. He wrote the memos in question on behalf of his client, the United States of America, in relation to litigation.

Americans must demand that senators' unjustified demands aren't allowed to subvert the confirmation process and deny confirmation of qualified nominees.

Click here for the first part of this series.

Click here for the third part of this series.

Printer Friendly Version

Recent Articles

Consider Judges When You Vote in November

Justice and Fairness Dead in Judicial Confirmation Process

Judging a Judge

Press Conference in Support of Judge Conrad

Obstruction of Judicial Nominees Continues

E-Alert: Tell Everyone You Know About the Obstruction of Circuit Court Judicial Nominees

The No-Credibility Senate

Isn't It Time to Stop the Nonsense?

Time to 'Walk the Walk' on Judicial Nominations

Want to Be a Federal Judge? Then Shut Up!