Posts Tagged ‘Judges’
October 13th, 2017 at 11:43 am
Stat of the Day: Trump & McConnell Quickly Reshaping Judiciary
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Whatever one’s opinion of Donald Trump, his tweets or his legislative accomplishments to date, he has unmistakably achieved great progress on the issue perhaps foremost among his supporters’ minds.  Along with Senate Majority Leader Mitch McConnell (R – Kentucky), whose efforts began while Barack Obama was still president after Justice Antonin Scalia’s passing, Trump is already reshaping the nation’s judicial branch, as The Wall Street Journal’s Kimberly Strassel details:


Mr. Trump has now nominated nearly 60 judges, filling more vacancies than Barack Obama did in his entire first year.  There are another 160 court openings, allowing Mr. Trump to flip or further consolidate conservative majorities on the circuit courts that have the final say on 99% of federal legal disputes.  This project is the work of Mr. Trump, White House Counsel Don McGahn and Senate Majority Leader Mitch McConnell.  Every new president cares about the judiciary, but no administration in memory has approached appointments with more purpose than this team.”


October 2nd, 2012 at 6:05 pm
Put Judges on the Presidential Agenda

That’s what Curt Levey of the excellent Committee for Justice recommends in an insightful op-ed today. Well worth a read, both for its analysis and for its advice to Romney. If I get a chance this evening or tomorrow, I will add my own thoughts on this topic in a subsequent post here.

September 9th, 2011 at 11:26 am
More on the 4th Circuit Obamacare Ruling

Tim had a great post explaining why the 4th Circuit’s dismissal of the two Obamacare lawsuits is not all that big a deal. He’s absolutely right, in terms of ultimate effects. At the American Spectator (in the first of my three unrelated, half-formed thoughts), I explain why on legal grounds the rulings are an absolute outrage anyway, even though, as Tim said, they don’t really harm the overall argument against the individual mandate as the issue moves inexorably toward the Supreme Court.

As I explained:

The grounds on which the judges made the decision are so ludicrous as to be intellectually bankrupt.

Against all reasonable evidence and against the rulings of every other court, both liberal- and conservative-dominated, that has considered the issue, this Fourth Circuit panel concluded that the mandate actually operates as a “tax.” Congress has broader powers to tax than it does merely to regulate; thus, legal challenges to a tax face a higher bar. Because these obstreperous judges say it is a tax that hasn’t actually been imposed yet (it has been passed by Congress but not yet implemented), they say the university has suffered no harm yet and thus can’t sue. The absurdity is that the mandate is in no way a tax. By both definition and implementation, it imposed no tax but instead a penalty for non-compliance. President Obama himself repeatedly argued in public that it wasn’t a tax. Congress didn’t call it a tax. And every other court — at least four district courts and two appeals courts — that has analyzed this claim has made mincemeat of the administration’s contention that it is a tax. Most of those courts haven’t just rejected the claim; they have eviscerated it.

As I said on my radio show last night (in the introductory 15 minutes, before I interviewed Rick Santorum), this is why the fights over judges are so important.  Bad judges are an affront to constitutional republicanism. And this ruling by three bad, liberal judges is an abomination.

May 19th, 2011 at 11:39 am
Liu Might Lose

To follow up on yesterday’s post, it now appears there is at least a reasonable chance that Republicans actually will muster the strength to block horrendous judicial nominee Goodwin Liu. Senate Minority Leader Mitch McConnell has been leading the charge, and he expressed optimism this morning. Here’s what Leader McConnell said to Jed Babbin a few mins ago on Laura Ingraham’s show: “This is a very bad nominee… I’m optimistic that we will be able to defeat the nomination.” In this morning’s Washington Post, “[ranking Judiciary Committe Republican Chuck] Grassley predicted that he had the votes lined up to block Liu from being confirmed.” Obviously it’s a bad idea to count chickens before they’ve hatched, but as McConnell said, there are reasons for optimism.

Meanwhile, even South Carolina’s Sen. Lindsey Graham, who has been annoyingly over-solicitous of Democrats for many years of judicial battles, sent a “Dear Republican Colleague” letter to all his fellow Senate Republicans. I’ll quote extensively from it:

“Only in the most extraordinary of circumstances, such as when a judicial nominee is ethically compromised or displays a fundamental disregard for the constitutional role of a judge, should the Senate prohibit them from office. Unfortunately, Goodwin Liu falls short of the minimum threshold for confirmation to the federal bench. I write today to urge a ‘no’ vote on the motion to invoke cloture on the nomination of Professor Goodwin Liu to the Ninth Circuit Court of Appeals…. The reasons for voting against cloture on Professor Liu’s nomination are undoubtedly ‘special and strong.’ Through his writings, Professor Liu has expressed preference for an extreme judicial philosophy that relies on a judge’s personal and subjective beliefs, not precedent and case law…. Unlike other nominees who have compiled lengthy records in the judiciary or government service, Professor Liu has spent the vast majority of his career in academia. That’s not disqualifying, of course, but his lack of broader experience fails to demonstrate an ability to uphold and respect the law in the face of personal disagreement.”

Graham then went on to provide a sample of Liu’s outrageous comments, and also blasted Liu for engaging in a “vicious personal attack on Justice Alito at the Judiciary Committee hearing considering his nomination to the Supreme Court.” Finally, Graham concluded: “Professor Liu has advocated for a staggeringly subjective and malleable judicial philosophy. Rather than deciding cases on the basis of law established by the political branches and past precedent, Professor Liu’s philosophy substitutes the role of the Judiciary for that of the Legislative and Executive branches of government. To Professor Liu, a federal judge may be less an impartial arbiter of justice than an advocate engaging in policymaking from the bench.”

Wow. That’s strong stuff. Coming from Graham, it may well convince wavering Republicans to stand strong against the nomination.

May 10th, 2011 at 11:30 am
The Lindsey Graham Pro-Obamacare Panel

Virginia Attorney General Ken Cuccinelli seems destined to lose the next round of his lawsuit challenging the constitutionality of Obamacare, and he can blame South Carolina Republican Senator Lindsey Graham for it.

At the Fourth Circuit U.S. Court of Appeals, Cuccinelli drew a horribly liberal three-judge panel to hear his case. Two of the judges are Obama appointees, and one is a Clinton appointee. The two Obama appointees should not even be on the court — but they are because of failures by, or the outright underhandedness, of Graham.  If Graham had worked harder to force approval of GW Bush judicial nominees for his own Fourth Circuit, the Circuit would remain among the most conservative in the nation, rather than now trending liberal.

Both of the Obama appointees came for seats that stood vacant during the entire eight years of the Bush presidency. Yes, eight whole years. Maryland’s Andre Davis filled a seat to which US Attorney Rod Rosenstein had been nominated by Bush. So solid were Rosenstein’s credentials that even the liberal Washington Post editorialized not just in his favor, but impassionedly in his favor, several times. Yet he never even received a vote.  North Carolina’s James Wynn came from a state that for two of those eight years enjoyed two Republican senators — thus, no “blue slip” problem — while Republicans held a strong 55-45 majority in the Senate. In short, there should have been no reason at all not to fill that seat.

Meanwhile, a South Carolina seat (Graham’s home state!) and a Virginia seat also went unfilled for years, with the Virginia seat also open during the two years of highest Republican ascendancy and with two GOP home-state senators.

Why is this in large part Graham’s fault? Several reasons.

First, he was a key player on the Judiciary Committee. Judiciary Committee members worth their salt will at least usually be able to push through the nominees from their own state, especially when both senators from the state approve. Graham in particular, if his own boasting were to be believed, should have been especially able to secure approval for nominee Steve Matthews — because his vaunted “outreach” to Democrats, via the “Gang of Fourteen” (about which more in a moment) and otherwise, should have given him even more sway with Demo committee members than an ordinary GOP committee member would have had. Instead, for all of his bipartisanship (or actual defections to the Dems), Graham was powerless to gain the approval for Matthews — if he even tried. It is highly possible that he didn’t really try, because he was trying to screw over the Bush administration for not nominating some lackey of his own. Either way, that South Carolina vacancy, later filled by Obama nominee Albert Diaz, can be laid at Graham’s door.

Then there is the Gang of Fourteen in general. The alternative to the Gang of Fourteen deal was to employ a parliamentary maneuver called the “constitutional option” that would have ruled a permanent filibuster out of order if used to kill a judicial nomination (and only if used against a judicial nomination). It was Graham, more than any other single member, who negotiated the Gang of Fourteen deal that killed the constitutional option. After the deal, all nominees were supposed to get final floor votes (without filibuster) unless they represented “extraordinary circumstances.” Gee, that didn’t work. After the Gang deal, fewer Bush nominees made it through the Senate during a time of GOP majority than the number of CLINTON nominees who made it through the Senate while the GOP held a majority. In other words, a Republican Senate was kinder to Clinton than it was to Bush. That’s hardly a triumph for Graham and his Gang.

Then there is the Virginia seat. Not one but three Bush nominees were serially blocked, two of them while Republicans held total sway. (Ironically, one of them, E. Duncan Getchell, is now the Virginia Solicitor General who will argue Cuccinelli’s case before the Fourth Circuit.) One of them was not just a failure of Graham to effectively support, but instead a victim of Graham’s deliberate sabotage. William J. Haynes was a superb nominee and was senior counsel at the Pentagon. Graham joined the Dems in effectively accusing Haynes of being responsible for “torture” of enemy detainees, even though the plain truth is that Haynes was instead responsible for reining in the amount and intensity of “enhanced interrogation” that was used. The real story was that Graham blocked Haynes because of a personal vendetta involving Air Force JAG rivalries against civilian Air Force attorneys. It was a petty vendetta, and one for which Haynes really was a mere stand-in for Graham’s ire, not even a real party to the dispute.

Publicly, for a long time, Graham refused to acknowledge responsibility for blocking Virginia’s Haynes (who originally also hailed from his home state of South Carolina, and who attended college in North Carolina, so he had ties to three of the four Fourth Circuit states), but then Graham bragged about it at a primarily liberal event (if my sources are accurate).

The reason all this is important is because a three-judge panel is chosen randomly by computer. But if there are more conservative judges to choose from, the odds of the computer assigning conservative judges to a particular case are obviously much higher. The leftist panel selected for the Cuccinelli case would almost assuredly not have been chosen (heck, two of them would not even have been on the court) if the Fourth Circuit remained a stalwart conservative bench — which it would have if Republicans, led by Graham, had fought harder and smarter to get Bush’s nominees approved.

Instead, the Fourth Circuit now leans left. Even if Cuccinelli appeals a bad three-judge panel decision to the whole circuit court en banc, the odds are at least slightly against him winning at that level. (Of course, he’ll still have a decent shot at winning at the U.S. Supreme Court, but that’s another story.)

And it really is Lindsey Graham’s fault.

November 15th, 2010 at 4:04 pm
TODAY’S LINEUP: CFIF’s Renee Giachino Hosts “Your Turn” on WEBY Radio 1330 AM
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CST to 6:00 p.m. CST (that’s 5:00 p.m. to 7:00 p.m. EST) on Northwest Florida’s 1330 AM WEBY, as she hosts her show “Your Turn.”  Today’s star guest lineup includes:

4:00 pm (CST) Virginia Scharff, author of “The Women Jefferson Loved”

4:30 pm (CST) Susan Ferrechio, Chief Congressional Correspondent for The Washington Examiner, New Congress

5:00 pm (CST) Sheriff Larry Dever, Immigration

5:30 pm (CST) Timothy Lee, Center for Individual Freedom, Deficit/Economy/Judges

Please share your comments, thoughts and questions at (850) 623-1330, or listen via the Internet by clicking here.  You won’t want to miss this!