Saturday, May 03, 2003

The Dante's Inferno Test has sent you to Purgatory!
Here is how you matched up against all the levels:
Purgatory (Repenting Believers)Very High
Level 1 - Limbo (Virtuous Non-Believers)Moderate
Level 2 (Lustful)Very Low
Level 3 (Gluttonous)Low
Level 4 (Prodigal and Avaricious)Very Low
Level 5 (Wrathful and Gloomy)Low
Level 6 - The City of Dis (Heretics)Very Low
Level 7 (Violent)Low
Level 8- the Malebolge (Fraudulent, Malicious, Panderers)Moderate
Level 9 - Cocytus (Treacherous)Low

Take the Dante Inferno Hell Test

Thursday, May 01, 2003

Judges There has been some excellent discussions lately concerning the delays in the confirmations of Judges and the recess appointments of Judges.

History or Who's Fault is It Anyway?

  • Juan Non-Volokh ("JNov") has a good review of the history of delays here in response to the "It was the Republicans fault" essays by JJ Gass and Jack Balkin. I particularly appreciate the fact that JNov traces the roots back to the Fortas-Thornberry nomination by LBJ. He goes on to note that "Democrats retaliated against two of Nixon's High Court picks..." One of those picks, Clement Haynsworth, was nixed in clear retaliation for Fortas (the Washington Post editorial page acknowledged it was wrong to oppose Hayesworth when he passed away), the other, G. Harold Carswell, was manifestly unfit for the office. (Somewhere at home I have a newsclipping from then White House counsel William Hubbs Rehnquist denying he would be considered because "I'm not a Southerner, I'm not a woman, and I'm not mediocre" [or words to that effect].) That defeat led to the nomination of Harry Blackmun.

  • Another Judge who was unfairly slimed, but not mentioned thusfar, was Judge Kenneth Ryskamp who was nominated by the elder Bush to a seat on the 11th Circuit but rejected by the Senate Judicairy Committee in 1991. At that point in time, this was an escalation in the partisanship because this was a sitting District Court Judge who received the ABA's highest rating. A year ago, I wrote:
    Judge Kenneth Ryskamp was nominated by Bush Sr. in 1990 or 91. I remember doing some work in Florida a few years later with some of those notorious "left-wing" attorneys (yeah, politically they might have been), and I noticed they had quite a few cases before Ryskamp, so I asked about him. They all thought he got a bum deal -- they acknowledged he was conservative, but they thought he was fair.
    It's been a dozen years, but this one still ticks me off.
  • So how does this downward spiral end? Someone has to make the first move and I believe that George W. Bush did make a step in the right direction when he sent up his first slate of nominations, containing Roger L. Gregory and Barrington D. Parker, both Democrats. Indeed Gregory had been nominated by President Clinton (and appointed to the 4th Cir. as a recess appointee), but not confirmed before the end of Clinton's term. It would've been nice to see the Senate Democrats take a similar step in recognition of this peace offering, by confirming the rest of that first slate. Alas, Miguel Estrada, part of that first slate, has not been confirmed. Maybe Gass or Balkin can tell me where the Leahy gang has similarly offered de-escalation?

    Recess Appointments
  • The Gregory appointment mentioned in the item above shows that recess appointments of Judges, while rare, does happen.
  • Back here I noted that William Brennan was a recess appointment to the Supreme Court. According to information on the Cornell website, this happened on October 16, 1956. "Three months later, on January 14, 1957, Brennan was formally nominated to the Court, and the Senate confirmed the appointment on March 19, 1957."
  • If you haven't done so, please read Lawrence Solum's essay: "Going Nuclear: The Constitutionality of Recess Appointments to Article III Courts" on his blog.
  • In my note above, I said that Bush should pick a fight with the Senate Democrats and recess appoint any judge whose nomination had been pending for a year and had not received a hearing. I agree with Prof. Solum's assessment, this would be going nuclear (except, doesn't that mean that President Clinton already went nuclear when he recessed appointed Gregory?). Nevertheless, the situation has changed -- the President's party is now in control of the Senate. Perhaps my view on this will change again -- I could see recessing Estrada if there is no hearing. Yet, I think the President's party has made it easy for the the Democrats by allowing a fillibuster lite version of this.

    Another Olive Branch
    Last thing -- I mentioned earlier one scenario that could take place should the Chief Justice step down would be to nominate Breyer to take his place:
    It could be that Bush might go to Joe Biden, former chair of the Judiciary Committee, and Teddy Kennedy, to broker a deal to get a conservative along the line of Rehnquist -- J. Michael Luttig? -- named to the Court, in exchange for the elevation of Stephen Breyer to the CJ spot. [Breyer was Chief Counsel, U.S. Senate Judiciary Committee, 1979-1980, when Biden was chair -- and with his Harvard connection, is considered to be a Kennedy man] It could be argued that this would slightly tip the Court to the left, because Breyer would have authority to pick the writer of the decision (that is, when he is in the majority). And a Luttig is not any more or less conservative than Rehnquist.
    This could still happen -- it's in Bush's nature, I believe, as a firm-handed peace-maker.
  • Tuesday, April 29, 2003

    Programing Note. I guess I was mistaken when I said I'd be on hiatus during Lent. Actually, it looks like it will be much longer. I've had a busy spring for work -- which impacts everything else -- I'm primarily responsible for doing the homeschooling of my daughter who is in 8th grade.

    At least I'll be seeing America.

    I'll be back, albeit infrequently.