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One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Thursday, April 06, 2017

A Thirty Years War On Judicial Appointments

A Brief History Of The ‘Scorched-Earth Ideological Wars’ Over Judicial Nominations

In 1987 Liberals ‘Legitimized Scorched-Earth Ideological Wars Over Nominations At The Supreme Court’ By Smearing Robert Bork With ‘Intellectual Vulgarization And Personal Savagery’

“Robert Bork's Supreme Court Nomination 'Changed Everything’ …liberals and civil rights activists to launch an all-out campaign to defeat the nomination, beginning with a speech by Sen. Edward Kennedy, D-Mass., on the Senate floor within hours of the nomination announcement. ... Liberal groups followed up with mass mailings, lobbying, newspaper ads and a small buy of TV ads. … Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court...” (“Robert Bork's Supreme Court Nomination 'Changed Everything, Maybe Forever,'” NPR, 12/19/12)
·         WASHINGTON POST In 1987: “…many aspects of the campaign against him that did not resemble an argument so much as a lynching… We are not being playful when we say that much of the anti effort was almost enough to make you pro. It's not just that there has been an intellectual vulgarization and personal savagery to elements of the attack, profoundly distorting the record and the nature of the man.” (Editorial, “The Bork Nomination,” The Washington Post, 10/5/1987)

Bork Opponent: ‘I Regret My Part In What I Now Regard As A Terrible Political Mistake’

JAMES ROBERTSON, Retired U.S. District Judge & Former Bork Opposition Researcher: “In the summer of 1987, I led a team of young lawyers to oppose President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. … I regret my part in what I now regard as a terrible political mistake. the treatment of Bork touched off a Thirty Years’ War on judicial appointments. We have politicized the judicial confirmation process far beyond historical norms and undermined public confidence in the judiciary.” (James Robertson, “The Judicial Nomination War Started With Bork. Let’s End It With Gorsuch,” The Washington Post, 3/15/17)

Then In 1991 ‘The Abusive Monsters’ Of The Left Attempted ‘A High-Tech Lynching’ Of Clarence Thomas

“…as a stark reminder of the disdain that Clarence Thomas has faced in certain circles ever since President Bush nominated him to the Supreme Court on July 1, 1991. A tidal wave of contempt overtook his nomination, degrading the confirmation process into what Thomas famously denounced as ‘a circus ... a national disgrace ... a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.’” (“Justice Thomas, Undaunted,” Weekly Standard, 7/18/16)
·         “Mob Mentality: From the moment that nominee Clarence Thomas appeared likely to be confirmed by the Senate, he has been the subject of truly disturbing attacks, privately and publicly. Juan Williams first exposed this in the midst of the confirmation process, in a Washington Post essay, ‘Open Season on Clarence Thomas.’” (“Justice Thomas, Undaunted,” Weekly Standard, 7/18/16)

JUAN WILLIAMS: “The phone calls came throughout September. Did Clarence Thomas ever take money from the South African government? Was he under orders from the Reagan White House when he criticized civil rights leaders? Did he beat his first wife? Did I know anything about expense account charges he filed for out-of-town speeches? Did he say that women don't want equal pay for equal work? And finally, one exasperated voice said: ‘Have you got anything on your tapes we can use to stop Thomas.’ The calls came from staff members working for Democrats on the Senate Judiciary Committee. … The desperate search for ammunition to shoot down Thomas has turned the 102 days since President Bush nominated him for a seat on the Supreme Court into a liberal's nightmare. Here is indiscriminate, mean-spirited mudslinging supported by the so-called champions of fairness: liberal politicians, unions, civil rights groups and women's organizations. They have been mindlessly led into mob action against one man by the Leadership Conference on Civil Rights.” (“Open Season On Clarence Thomas,” The Washington Post, 10/10/1991)
·         WILLIAMS: “To listen to or read some news reports on Thomas over the past month is to discover a monster of a man, totally unlike the human being full of sincerity, confusion, and struggles whom I saw as a reporter who watched him for some 10 years. He has been conveniently transformed into a monster about whom it is fair to say anything, to whom it is fair to do anything. …the liberals have become the abusive monsters.” (“Open Season On Clarence Thomas,” The Washington Post, 10/10/1991)

THE BUSH ADMINISTRATION

In The Early 2000s, Democrats ‘Change The Ground Rules,’ Invented Routine Judicial Filibusters For Lower Court Nominees, & Filibustered 10 Judicial Nominations

‘Charles E. Schumer Recommended Using An Extreme Tactic The Filibuster,’ ‘Urged Democratic Colleagues In The Senate To Use A Tactic That Some Were Initially Reluctant To Pursue’

2001: “Forty-two of the Senate's 50 Democrats attended a private retreat this weekend in Farmington, Pa., where a principal topic was forging a unified party strategy to combat the White House on judicial nominees. The senators listened to a panel composed of Prof. Laurence H. Tribe of Harvard Law School, Prof. Cass M. Sunstein of the University of Chicago Law School and Marcia R. Greenberger, the co-director of the National Women's Law Center, on the need to scrutinize judicial nominees more closely than ever. ... ‘They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite,’ a person who attended said.” (“Democrats Readying For Judicial Fight,” The New York Times, 5/1/2001)
·         SEN. CHUCK SCHUMER (D-NY): “What we're trying to do is set the stage.” (“Democrats Readying For Judicial Fight,” The New York Times, 5/1/2001)

2003: “…Charles E. Schumer recommended using an extreme tactic the filibuster -- to block some Bush administration nominees for federal judgeships Most important, people on Capitol Hill say, Mr. Schumer urged Democratic colleagues in the Senate to use a tactic that some were initially reluctant to pursue, and that has since roiled the Senate: a filibuster on the floor of the chamber to block votes on nominees he and other Democrats had decided to oppose.” (“An Infuriating Success; Schumer Draws Fire For Tactics Blocking Judicial Nominees,” The New York Times, 11/1/03)

Ten of President Bush’s judicial nominations encountered a total of 21 defeated cloture motions over a period of two years in 2003 and 2004. (“Cloture Attempts On Nominations: Data And Historical Development,” Congressional Research Service, 6/26/2013)
1.       Miguel Estrada:       one, two, three, four, five, six, seven
2.       Charles Pickering:   one
3.       William Pryor:          one, two
4.       Priscilla Owen:        one, two, three, four
5.       Carolyn Kuhl:          one, two
6.       Janice Brown:         one
7.       William Myers:         one
8.       David McKeague:    one
9.       Henry Saad:            one
10.   Richard Griffin:        one

Dems: Miguel Estrada ‘Especially Dangerous’ Because ‘He Is Latino’

“In November 2001, as Democrats debated whether to undertake an unprecedented filibuster of President George W. Bush’s judicial nominees, liberal groups met with Senate Democrats… an aide to Dick Durbin told his boss that liberal activists in the meeting ‘identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.” (“'Because ... He Is Latino': The Glorious History Of The Democrats' Filibuster Fight,” Washington Examiner, 11/23/13)
·         “…Estrada's critics pronounced that he was not really Hispanic, in spite of being born and raised in Honduras. Angelo Falcon of the Puerto Rican Legal Defense and Education Fund did not find Estrada Hispanic enough: ‘It's not good enough to simply say that because of someone's genetics or surname that they should be considered Hispanic.’” (“He’s Not Hispanic, He’s A Conservative,” National Review, 6/1/09)

“Miguel Estrada, whose nomination by President Bush to an important federal appeals court post was blocked by an extraordinary filibuster mounted by Senate Democrats, gave up his two-year struggle today.” (“Stymied By Democrats In Senate, Bush Court Pick Finally Gives Up,” The New York Times, 9/5/03)

In 2006 Democrats Escalated Again & Attempted To Filibuster Judge Samuel Alito’s Nomination To The Supreme Court
(Alito Nomination - Cloture, CQ Vote #1: Motion Passed 72-25: R 53-0; D 19-24; I 0-1, 1/30/06)

President Obama is the “first US President to have ever voted to filibuster a Supreme Court nominee.” (“First President In US History To Have Voted To Filibuster A Supreme Court Nominee Now Hopes For Clean Process,” ABC News, 5/30/09)

THEN-SEN. BARACK OBAMA (D-IL): “Well, I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values.” (ABC’s “This Week,” 1/29/06)

ABC’s GEORGE STEPHANOPOULOS: “And my question then is, can you filibuster on judicial philosophy alone?” SEN. JOE BIDEN (D-DE): “Absolutely.” (ABC’s “This Week,” 11/6/05)
·         Q: “Senator Kerry wants a filibuster. Do you support the senator's filibuster?” SEN. JOE BIDEN (D-DE): “If there is any possibility of keeping the judge off the bench, I would support that, because I don't think he should go on the bench, because of his vast, vast expansive view of the president's power.” (CNN’s “American Morning,” 1/27/06)

SEN. CHUCK SCHUMER (D-NY): “Nothing is off the table.” “Asked whether Democrats might filibuster Alito's nomination, New York Democrat Charles Schumer would not rule that out. SENATOR CHARLES SCHUMER (Democrat, New York): It's too early to tell. Nothing is on the table, and nothing is off the table.” (NPR’s “All Things Considered, 10/31/05)

President Obama Later ‘Regrets’ Filibuster

“President Obama ‘regrets’ filibustering the nomination of Supreme Court Justice Samuel Alito in 2006, his top spokesman said Wednesday… ‘That is an approach the president regrets,’ White House press secretary Josh Earnest said.” (“White House: Obama 'Regrets' His Filibuster Of Supreme Court Nominee,” The Hill, 2/17/16)

THE OBAMA ADMINISTRATION

In 2013 Democrats Look To ‘Fill Up The D.C. Circuit’

SEN. MITCH McCONNELL (R-KY): “…before this current Democrat gambit to 'fill up the D.C. Circuit one way or another,' the Senate had confirmed 215 of the President's judicial nominees and rejected a grand total of 2. That's a confirmation rate of 99%. Clearly, Republicans have been willing to confirm the President's judicial nominees. And on the D.C Circuit, we just confirmed the President's last nominee to that court by a vote of 97 to 0.” (Sen. McConnell, Press Release, 11/21/13)

Those two rejected judicial nominees were:

1. Goodwin Liu, who was rejected on May 19, 2011
2. Caitlin Joan Halligan, who was rejected on March 6, 2013

Democrats Triggered The ‘Nuclear Option’ Anyway

“November 21, 2013: Senate Democrats took the dramatic step Thursday of eliminating filibusters for most nominations by presidents, a power play…” (“Reid, Democrats Trigger ‘Nuclear’ Option; Eliminate Most Filibusters On Nominees,” The Washington Post, 11/21/13)

SEN. CHUCK SCHUMER (D-NY): “And our strategy will be to nominate four more people for each of those vacancies … we will fill up the D.C. Circuit, one way or another.” (Sen. Schumer, Remarks, 3/13)
·         “Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.” (“Obama Seeks To Shift Conservative Tilt Of Key Court,” Washington Post, 4/2/13)

Dems Who Voted For It Now Say They ‘Wish It Hadn't Happened’

“Schumer: I wish we hadn't triggered ‘nuclear option’ … ‘Wish it hadn't happened,’ Schumer said.” (“Schumer: I Wish We Hadn't Triggered 'Nuclear Option,'” CNN Politics, 1/3/2017)

But Before The 2016 Election, Democrats Threatened To Use The Nuclear Option Under A Potential Hillary Clinton Presidency
‘“They Mess With The Supreme Court, It'll Be Changed Just Like That”
[Former Sen. Harry]

“Vice presidential candidate Tim Kaine warned on Thursday that his party would move to eliminate rules allowing a minority of Senate Republicans to block Supreme Court nominees should they refuse to consider those nominated by a future president Hillary Clinton.” (“Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate,” The Huffington Post, 10/28/2016)
·         SEN. TIM KAINE (D-VA): “If these guys think they’re going to stonewall the filling of that vacancy or other vacancies, then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’” (“Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate,” The Huffington Post, 10/28/2016)
·         “Democrats, Kaine ultimately predicted, ‘will change the Senate rules to uphold the law.’” (“Tim Kaine: Democrats Will Nuke Filibuster For Supreme Court Nominees If GOP Won’t Cooperate,” The Huffington Post, 10/28/2016)

SEN. HARRY REID (D-NV): “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if [they] try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told 'em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” (“Harry Reid's Parting Shot: Dems Will Nuke The Filibuster For SCOTUS,” TPM, 10/24/2016)
·         “‘They mess with the Supreme Court, it'll be changed just like that in my opinion,’ Reid said, snapping his fingers together. ‘So I’ve set that up. I feel very comfortable with that.’” (“Harry Reid's Parting Shot: Dems Will Nuke The Filibuster For SCOTUS,” TPM, 10/24/2016)

“Senator Harry Reid says Democrats should move to curtail the filibuster if they win the White House and Senate in November only to run up against persistent use of the tactic by Republicans. ‘Unless after this election there is a dramatic change to go back to the way it used to be, the Senate will have to evolve as it has in the past,’ Mr. Reid told me, referring to a former tradition of rarely mounting filibusters. ‘But it will evolve with a majority vote determining stuff. It is going to happen.’” ( “A Democratic Senate Might Need to Curtail Filibuster, Harry Reid Says,” The New York Times, 8/31/2016)

SEN. JEFF MERKLEY (D-OR): “A rule change should be a last resort... If there’s deep abuse, we’re going to have to consider rules changes. (“Will Democrats Nuke the Filibuster?,” The New Republic, 10/31/2016)

“[Sen. Amy] Klobuchar [D-MN], and fellow Judiciary Committee member Sheldon Whitehouse of Rhode Island in a separate interview Monday, agree with what Clinton’s running mate, Tim Kaine, told the Huffington Post -- that a Senate Democratic majority would likely change the rules if needed to prevent Republicans from keeping the vacancy indefinitely. ‘I don’t think we’ll have a choice,’ she said, if Republicans line up to filibuster Clinton’s picks. ‘My hope is we won’t get there.’” (“Clinton’s Supreme Nightmare: GOP Blockade of Court Nominees,” Bloomberg Politics, 11/01/2016)


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