The Republican Lawyer Blog : Judicial Appointments

District Court Nominee Opposed by Sessions Because of Judicial Activism

Maya Noronha — Mon, 23 Jan 2012 11:06:00 GMT

On May 2, 2007, Judge John Gerrard of the Nebraska Supreme Court authored an opinion on capital punishment six days before the date of an execution of an inmate named Carey Dean Moore. The opinion by Judge John Gerrard demonstrates reason for very serious concern about whether Gerrard lets an agenda influence his judicial rulings. Gerrard wrote an unprecedented opinion intervening in the matter, when the inmate didn’t actually request a stay of his execution in 2007.

The Nebraska Supreme Court, on its own motion, intervened in order to evaluate whether the electrical chair was a constitutional method to conduct the death penalty. As the dissenting opinion by three justices in the 2007 case said that the Nebraska Supreme Court “has no immediate basis to act and it is unprecedented to do so.” The dissenters explained, “there have been no requests for relief to this court by Moore, nor has he rescinded his earlier request that no action be taken by this court in his case.” Furthermore, the dissenters could find “no case which a court suspending a state’s executions outside of the court’s authority to act in response to a request for relief in an existing case by the condemned person.”

Later, the Nebraska Supreme Court received the opportunity to decide the constitutionality of electrocution and decided in another case that the electrical chair was unconstitutional. Currently, there are still 9 states (Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia) that permit electrocution. The state legislature passed a law allowing for capital punishment by lethal injection, and Moore was resentenced to death by lethal injection. Moore has a new execution date: June 12, 2012.

On June 20, 1980, Moore was first sentenced to death for the 1979 murders of Omaha taxi drivers Reuel Van Ness, Jr. and Maynard Helgeland. Moore confessed that he planned and carried out the murders. Moore said of the 2007 stay of his execution: “I was confused. Very confused. I mean, I gave up my appeals.” Moore then wrote a pamphlet detailing how he committed the killings. He has not said differently, and he told the Lincoln Journal Star just last June: “I am guilty.”

Senator Jeff Sessions (R-Ala.) has opposed Judge John Gerrard's nomination to be a federal judge on the District of Nebraska. Sessions has expressed “very serious concern” about Gerrard’s role in authoring the 2007 stay of execution. Judges should not use their position on the bench to rewrite the law, because that’s not the proper role of the judiciary.

Obomination: Obama’s Recess Appointment Timing Is Change We Should Not Believe In

Maya Noronha — Fri, 06 Jan 2012 12:55:00 GMT

This week’s Obomination is what Republican Leader Mitch McConnell decried as “particularly egregious” and Speaker John Boehner denounced as an “extraordinary and entirely unprecedented power grab.” It was “a very grave decision by this heavy-handed, autocratic White House” according to Senator Orrin Hatch and seen as “an arrogant abuse of presidential power” by Senator John Cornyn. Forty-seven Senators wrote a letter of disapproval to the president.

Barack Obama appointed Richard Cordray director of the Consumer Financial Protection Bureau through a recess appointment, while the Senate was in a “pro forma” session. But that’s not all. Hours later, Obama installed Terrence Flynn, Sharon Block, and Richard Griffin as National Labor Relations Board (NLRB) Members, appointments also made during the Senate’s pro forma session.

A previous Obomination delved into Obama’s disregard for separation of powers and checks and balances, but now Obama has launched an all out war with such constitutional principles. He has taken action to “needlessly provoke a constitutional conflict between the Senate and the White House.” As its name suggests, a President may use the recess appointment authority to appoint individuals to Senate confirmed positions during a recess of the Senate. Majority Leader Harry Reid first used the pro forma session to prevent President George W. Bush from making recess appointments. The question of the constitutionality of Obama’s appointments is one that will surely be brought to the judiciary.

Prior recess appointments by the Obama Administration have put radicals in power – and these radicals would never have been confirmed by the Senate if presented with the opportunity to advise and consent. Exhibit A: Craig Becker, appointed to the NLRB. The NLRB, responsible for a number of radical decisions during Becker’s tenure, has lost a great deal of credibility.

To borrow a phrase from President Obama, “yes, he can” doesn’t mean “yes, he should” – for several reasons. First, Senator Hatch explained how presidential appointments to the NLRB and similar agencies have been conducted previously: “Appointments to the NLRB have traditionally been made through prior agreement of both parties to ensure that any group of nominees placed on the board represents an appropriate political and philosophical balance.” In addition, as many members and scholars have noted, prior administrations have not made an intrasession recess appointment while the Senate was actually in pro forma session. In fact, the shortest length of an intrasession recess in which a President made a recess appointment was ten days. As Rep. Jim Jordan of the Republican Study Committee noted the day of the Obama recess appointments, “The House and Senate both met yesterday.”

Obama, the former constitutional law professor, should reread (perhaps out loud like Congress did) the Constitution. The relevant part is Article 2 Section 2: “he [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Officers of the United States.” While the President clearly has the authority to make recess appointments, Obama’s use of the appointment stretches the limits of the Constitution. Does “Advice and Consent” have any meaning anymore if the President can just bypass the Senate’s legitimate role in the confirmation process?

Obama’s Constitution is very different from what was written in Philadelphia in 1787. This is change the Founders didn’t believe in. And for good reason, neither should we.

Brown, Collins and Snowe: Among the Senators Who Voted No

Maya Noronha — Wed, 07 Dec 2011 11:44:00 GMT

Senator Harry Reid failed to get enough votes to get another radical into a robe. With cloture failing to receive 60 votes, Caitlin Halligan was filibustered. Among those voting nay to cloture were Scott Brown (R-MA), Susan Collins (R-ME) and Olympia Snowe (R-ME).

The RNLA had previously issued a letter of opposition. Thomson Reuters News & Insight reported on the RNLA’s position on the nomination:

The Republican National Lawyers Association has also come out against her nomination, claiming that she made inconsistent statements about her judicial philosophy. In Senate testimony, the association says, Halligan wasn't candid about her views on the Constitution as a ‘living document.’

Republican Leader Mitch McConnell said, “Ms. Halligan’s record of advocacy for an activist view of the judiciary and a legal career…leads any reasonable person to conclude that she would bring that activism to the court.” He added, “We should be putting people on the bench who are committed to an even-handed interpretation of the law so everyone who walks into a courtroom knows he or she will have a fair shake. In my view, Ms. Halligan is not such a nominee.”

The ranking Senate Judiciary Committee Republican, Charles Grassley, said, “there is a lot at stake with nominations to this court” (referring to the D.C. Circuit, to which Halligan was nominated). Despite the Democrats’ complaints, they have been guilty of obstruction to the D.C. Circuit. One specific example Grassley identified was Bush’s D.C. Circuit nominee Peter Keisler; Grassley explained, “Mr. Keisler was eminently qualified to serve on that court. He had a distinguished academic and professional record. Despite his qualifications, Mr. Keisler waited 918 days for a committee vote, which never came.” Grassley pointed out that six of Bush's nominees, including eventual Supreme Court Justice John Roberts, endured “delays, filibusters, multiple hearings, and other forms of obstruction.”

Halligan Would Undermine Second Amendment

Maya Noronha — Tue, 06 Dec 2011 16:29:00 GMT

The D.C. Circuit is often considered the “second highest court in the land” because of the important decisions heard by its judges. One such example is District of Columbia v. Heller, the Second Amendment case. Judge Silberman’s 2007 opinion was affirmed by Justice Scalia the following year.

Given the role that the D.C. Circuit plays in pivotal cases which greatly impact our country, nominees for those seats should be seriously scrutinized. Caitlin Halligan, a nominee for the D.C. Circuit, gives cause for concern. Instead of faithfully upholding the Second Amendment, Caitlin Halligan, if she were to be confirmed as a judge on the D.C. Circuit, would likely undermine the right to bear arms. The National Rifle Association and the Gun Owners of America have both issued letters in opposition to her nomination.

Halligan worked to undermine the Protection of Lawful Commerce in Arms Act (PLCAA), which passed Congress with strong support for both sides of the aisle. When Halligan was solicitor general of New York, the state sued the firearms manufacturers for criminal misuse of guns by third parties. In 2001, Halligan represented New York in a lawsuit against gun manufacturers, arguing that the legal sale of handguns created a “public nuisance” under state law. Halligan was also involved in an amicus curiae brief in the Second Circuit claiming that the PLCAA was unconstitutional, but her arguments were rejected by the Second Circuit, and by every other appellate court considering the issue.

Halligan has also mischaracterized the PLCAA, claiming that the PLCAA “would likely cut off at the pass any attempt by States to find solutions—through the legal system or their own state legislatures—that might reduce gun crimes or promote greater responsibility among gun dealers” and that the PLCAA “would make the gun industry the only industry in the country to be so broadly shielded from lawsuits.” In fact, Congress had previously passed targeted liability protection for many industries and other enterprises, ranging from aircraft manufacturers to food banks to makers of medical implants.

Halligan’s views on the Second Amendment have been widely rejected by every other court. She came out in opposition to a law that had wide bipartisan support. Her legal analysis of gun laws was not even factually correct. Halligan should not be on the second highest court in the land.

More Judicial Obstruction for Bush than Obama

Paul Jossey — Thu, 03 Nov 2011 11:33:00 GMT

There has been lots of hand-wringing about judicial nominations from Democrats on Capitol Hill and their cohorts in the blogosphere about the supposed slow pace of action on President Obama’s judicial nominations. But a close examination of the numbers does not bear out the faux hysteria. In fact, the speed of movement for President Obama’s nominations compared with those of President Bush’s would make NASCAR star Jimmy Johnson jealous.

Iowa Senator Chuck Grassley, ranking member of the Senate Judiciary Committee, addressed the complaints in a prepared floor statement on October 11, 2011. Senator Grassley refuted the prevailing liberal spin with the facts:

We have taken positive action on 84 percent of President Obama’s judicial nominees. . . President Obama’s circuit court nominees are waiting, on average, only 66 days to receive a hearing. Compare that to the 247 days President Bush’s circuit nominees were forced to wait. The same can be said for district court nominees, who have only waited 79 days under President Obama. Nominees of President Bush waited, on average, 120 days for a hearing.

Moreover, a stark contrast exists between the number of cloture votes cast in the last Congress opposing Bush judicial nominees compared to those opposing Obama’s choices:

During our consideration of the 98 judicial nominations submitted during this Congress there have been two cloture motions . . . In the last Congress, there were four cloture motions made in relation to the 105 judicial nominations submitted. I would remind my colleagues that at least 18 of President Bush’s judicial nominees were subjected to cloture motions – many of them had multiple cloture votes. According to my count, there were approximately 30 cloture votes on Bush judicial nominees.

Senator Patrick Leahy recently complained about the raw numbers of judicial nominees confirmed at this stage of the Bush and Obama presidencies. But Mr. Leahy fails to account for the much smaller number of judges President Obama has nominated, thus distorting the totals. As the RNLA blog has reported before, even those on the political left have complained about President Obama’s lackluster pace in nominating judges. Finally, the President insists on pushing through nominations to seats where the workload has actually decreased, for instance Caitlin Halligan to the Circuit Court for the District of Columbia, instead of concentrating on judicial “emergencies” where the Senate’s attention is needed most.

The numbers just don’t bear out the liberal complaints about the pace of judicial confirmations in the current Senate. An examination of the facts reveals the President Obama’s indolence in nominating qualified nominees combined with the positive action the Senate Judiciary Committee has taken on most of the potential judges he has nominated, leaves Democrats with little to complain about.

Halligan Not a Good Choice for D.C. Circuit

Maya Noronha — Wed, 02 Nov 2011 14:45:00 GMT

Lack of candor, contradictory remarks and the lack of a need for another judge on the D.C. Circuit are reasons the RNLA is opposing the nomination of Caitlin Halligan.

Senator Coburn asked Caitlin Halligan about her views about tort liability for gun manufacturers. Halligan said, “I am not familiar with the laws of any other state or federal law, and have no basis for an opinion regarding any such claims that might be brought in other jurisdictions.” For someone “not familiar” with the law, how could she have filed an amicus brief on the very subject in the Second Circuit?

In addition, Halligan has also mischaracterized legal matters. In 2003, Halligan said that the federal Protection of Lawful Commerce in Arms Act (“PLCAA”) would prohibit state legislatures from introducing anti-gun bills. This is an inaccurate description of the PLCAA, which does not prevent such laws.

Halligan presented herself as an originalist in answering a question from Senator Grassley. She claimed she could not recall “expressing an opinion on this issue in the past.” However, she had given remarks that “[t]ime and time again we have seen how the dynamics of our rule of law enables enviable social progress and mobility.”

The push for this nominee is baffling, because the D.C. Circuit is not in immediate need of another judge based on caseload. Instead of focusing on judicial vacancy crises elsewhere, Obama now seeks to place a person on the federal bench who raises so many red flags and where sitting judges can accommodate the caseload.

Read the RNLA’s letter of opposition to Caitlin Halligan here.

Judicial Activism and Obama’s Judicial Vacancy Problem

Andrew Swafford — Wed, 19 Oct 2011 14:58:00 GMT

On October 5, Justices Antonin Scalia and Stephen Breyer appeared before the Senate Judiciary Committee to speak about the role of judges under the Constitution. Senators on both sides of the aisle were quick to come to the issue of why so many judicial vacancies still exist on the federal bench. Of course, it has been widely reported that President Obama has not made filling these vacancies a high priority in his administration. Furthermore, Judicature has reported that the Obama administration’s “judicial selection machinery suffered from organizational and coordination weaknesses.” Nevertheless, Justice Scalia offered an additional reason why the judicial selection process has slowed to a grinding halt: The Living Constitution.

Liberals have long clung to the idea that the Constitution is a living, breathing document, and thus, should reflect the views of contemporary society. Activist judges that employ this kind of judicial interpretation interject their own political beliefs or policy preferences at the expense of reading the actual text of the document. Furthermore, it is a usurpation of the legislative function as judges that have adopted this philosophy have created rights in the Constitution that simply do not exist. This runs contrary to what Scalia referred to as “the real distinctiveness of America which is the separation of powers.” Scalia said that judges should apply constitutional values as they “were understood by those who adopted the amendment” instead of formulating their own ideas about what modern society needs or would want. Justice Breyer, for his part, defended the Living Constitution, asserting that changes in technology and societal beliefs must be considered in matters of constitutional interpretation. Scalia rightly countered that he was not able to discern the beliefs of modern society and argued these matters should be taken up at the voter’s box.

Scalia ultimately reasoned that confrontational judicial nomination proceedings and judicial vacancies were a symptom of this philosophy. The justice noted that instead of the Senate focusing on the right questions such as whether or not a judicial nominee is “a good lawyer,” members must pose the question, “what kind of new Constitution will you write?” Scalia ended by saying he was “hopeful the Living Constitution will die,” Justice Scalia provided some great advice to a President that has both failed to make the judicial nomination process a priority, while at the same time, nominated various individuals to the federal bench that even his Democrat friends in the Senate could not even support. Instead of nominating controversial judges that would impose their own ideas of what the Constitution ought to mean, the President would do well to appoint judges that do not desire to rewrite the Constitution with their own views.

Republican Candidates Discuss Judges at Values Voter Summit

Maya Noronha — Thu, 13 Oct 2011 12:42:00 GMT

Among the topics discussed by the presidential candidates at the Values Voter Summit in Washington, D.C. this past weekend were the proper role of judges and respect for the Constitution.

Michele Bachmann said, “We must prevent this president from having the chance to nominate one more liberal ideologue to the Supreme Court. That can never happen again.” She continued, “We need justices who will respect life and respect the Constitution of the United States and respect the limits of the Constitution of the United States, and together we must pledge a renewed commitment to the enduring strength of this magnificent constitutional order and the enduring vitality of a free people whose constitution guarantees unequivocally our right to create and dream in the context of a free society and a free economy.”

Newt Gingrich remarked, “we have judges who don’t understand the Constitution” who are “radically changing our society through judicial dictate.” Gingrich traced the problem to American law schools which teaches a “fundamentally, profoundly, ignorantly anti-American” judicial model. He said, “one of the major impediments to democracy today is the very behavior of the law schools that teach an usurpation of power that is utterly unsustainable.”

He used examples of inappropriate behavior as use of foreign law and judicial involvement in national security issues. He said, “With each passing decade, the judges have become more hostile to the American tradition. They openly discuss using foreign sources of information.” Gingrich continued, “The idea of the courts will take on responsibility for defending the United States is a clear and fundamental violation of the Constitution and a fundamental violation of the executive branch’s power.” Newt Gingrich announced that he released a paper, “Bringing the Courts Back Under the Constitution” further explaining these principles.

For more coverage of the Republican presidential candidates on judges, click here.

Disclaimer: The Republican National Lawyers Association (RNLA) provides information of interest to lawyers about candidates for public office. However, the inclusion of information about these candidates is not an endorsement of a specific candidate for public office.

Obomination: The White House’s Responsibility for Judicial Vacancies

Maya Noronha — Thu, 01 Sep 2011 17:03:00 GMT

The White House has turned to the word “unprecedented” again. This time, Obama is claiming that Senate Republicans are responsible for the supposedly “unprecedented” judicial confirmation delays. The real reason why the current president has not had comparable numbers of confirmations as prior presidents is because nominating judges has simply not been a priority for the Obama administration.

With 2012 looming in the horizon, Obama has scrambled to put the blame for the record number of current judicial vacancies elsewhere. The White House has turned to an infographic about “historic delays” in judicial nomination, claiming that “[t]he rising number of judicial vacancies is a direct result of unprecedented delays in the Senate confirmation process.” Obama said, “[a] minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees.” Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has complained, “This is not how the Senate has acted in years past with other Presidents’ judicial nominees. Vacancies are being kept high, consensus nominees are being delayed and it is the American people and the federal courts that are being made to suffer.” Similar arguments appear in various editorials, like The New York Times, The Washington Post, The Atlantic and Politico.

There’s definitely someone who deserves the blame, but not who’s been in the media. Obama should take accountability for his failure to nominate. Ranking Member Senator Charles Grassley (R-Iowa.) said, “It’s disingenuous to say Republicans are holding up the judicial confirmation process.” Committee for Justice executive director Curt Levey told PBS that a judicial “vacancy may have existed for a long time because Obama was very slow to appoint a nominee.” The Washington Post reported that “Obama was woefully slow in sending up nominations early in his term, nominating only 34 in 2009.” According to Judicature, the Obama administration’s “judicial selection machinery suffered from organizational and coordination weaknesses.” Former Chief Counsel of the Senate Judiciary Committee (under then-Chairman Orrin Hatch) Manus Cooney said, “there is not sufficient presidential leadership to force a focusing of the mind of policymakers to try to reach agreement. There are nominees for less than half of the vacancies on the Federal Court…”

Regarding the wait nominees have had to endure, Curt Levey set the record straight. He said, “there are many of Bush's nominees who waited literally years after they got out of committee. There were some nominees who were waiting throughout most of the eight years. So the fact that there's only one out of the 20 who's even been waiting three months I think tells you that things are going fast.” Ed Whelan wrote, “the delays encountered by the 15 district-court nominees on the Senate’s executive calendar are, in the aggregate, much shorter than the delays experienced by 39 of George W. Bush’s.” He added, “only seven of the pending district-court nominees are beyond the 180-day mark (from first nomination), whereas 34 of Bush’s 39 were.” Moreover, “only one of the pending district-court nominees is beyond the nine-month mark, whereas eleven of Bush’s were.”

Let’s not forget that the Senate is controlled by the same party as President Obama. The White House could have, but hasn’t, put pressure on Senator Reid to schedule votes, invoke cloture or even just ask for a time agreement on district judge nominations. Further evidence of Obama’s poor judgment on nominations can be seen with selection of Liu and Chatigny, who were so controversial that that even Democrats did not want to take a vote.

Obama’s approach to judicial nominations has drawn criticism from the left. Eleanor Acheson, who managed the DOJ’s role in the Clinton administration’s judicial nomination process, said that Obama has “not established the priority or invested the resources necessary… to focus on… nominations and to keep the nominations pipeline up to the Senate full at all times.” Furthermore, she lamented that “we have heard nothing from President Obama since his inauguration” about judicial nominations.

Obama is responsible for these judicial vacancies. That’s the truth no matter how many infographics the White House creates.

Unlike Obama, Republican Candidates Would Appoint Impartial Judges

Maya Noronha — Thu, 30 Jun 2011 01:42:00 GMT

Back in 2008, Obama said that “…the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings, and, in those circumstances, what I do want is a judge who’s sympathetic…” This “empathy” standard is actually—as Senator Orrin Hatch (R-Utah) has explained—“a code word for an activist judge.” Obama’s approach of appointing judges whose personal beliefs influence their rulings from the bench has roundly been rejected by the candidates for the Republican Presidential nomination. Take a look at some of their statements:

Michelle Bachmann: “I do not believe the judges should be legislating from the bench. As President of the United States, I would not appoint judges who are activists.” (June 27, 2011).

Herman Cain: “A justice must issue rulings based on the Constitution, not on any political leanings or desires to legislate from the bench.” (February 22, 2011).

Newt Gingrich: “I believe that the justices who believe that their personal view outweighs the voters of their state, the governor and the legislature of their state are fundamentally acting outside the American system. I think the American system was one of a balance of power. I think this whole modern – it starts with the Warren Court in 1958, 1959, this whole modern notion of judicial supremacy is false, and I think that that’s going to be one of the major issues in 2012 and beyond is whether you want judges dictating the nature of American or you want judges who accept the law and who have respect for the legislative and executive branches.” (May 25, 2011).

Gary Johnson: “Judges should be appointed who will interpret the Constitution according to its original meaning. Any court decision that does not follow this original meaning of the Constitution should be revisited.” (Unknown Date)

Tim Pawlenty: “As governor of the state of Minnesota, I appointed to the Supreme Court a conservative court for the first time in the modern history of my state…I’m the only one up here – I believe I’m the only one up here – who’s appointed solidly, reliably conservative appointees to the – to the court.” (June 13, 2011).

Ron Paul: “The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. As a society, we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.” (October 5, 2004).

Mitt Romney: “I will support justices who believe in following the Constitution and not legislating from the bench.” (June 13, 2011).

Rick Santorum: “[E]xtreme liberal judges [are] destroying traditional morality, creating a new moral code and prohibiting any dissent…The Supreme Court has become the supreme branch of the government, imposing its unrestrained will on all of the people…The only way to restore this republic our founders envisioned is to elevate honorable jurists like Samuel Alito who want to replace the hubris of this court with humility and respect for the common sense of the American people.” (July 9, 2006).

Goodwin Liu Withdraws Name

Brian Bennett — Fri, 27 May 2011 17:07:00 GMT

As previously reported, last week the Senate Democrat’s cloture motion to bring the nomination of Berkeley professor Goodwin Liu to a vote failed with bi-partisan support. Displaying even some Democrats’ concerns with Liu, who sought a seat on the 9^th Circuit Court of Appeals, and some speculate, the Supreme Court.

Facing opposition from both sides of the aisle, Liu has withdrawn his name for the vacant seat on the 9^th Circuit Court of Appeals. Writing a letter to President Obama, Liu said, "with no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future."

Sen. Grassley, ranking member of the Judiciary committee said:

I hope the President accepts Mr. Liu’s request so we can finally move forward with a consensus nominee who reflects the mainstream of American views, respects the rule of law and the Constitution, and has an appropriate judicial temperament.

Even with three Republican Senators not voting, and one voting present, the Democrats still feel far short of the 60 votes needed in order to close debate and bring Liu’s nomination to a vote. Highlighting Republicans’ willingness to stick together on such an important vote. As Leader McConnell said, prior to the vote:

The point here is that Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution, but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want.

Liu is so extreme that five out of the nine remaining members of the bi-partisan Gang of Fourteen, who agreed in the 109th Congress to only filibuster judicial nominees under "extreme circumstances" voted against cloture.

Even if the cloture motion for Liu would have passed, it is unclear that his nomination would have been confirmed. Democratic Senators such as Jim Webb said:

The root word of judgment is, of course, judge, and this is our duty today: to decide whether Professor Liu’s almost complete lack of practical legal experience, coupled with his history of intemperate, politically charged statements, allow us a measure of comfort and predictability as to whether he would be fair and balanced while sitting on one of the highest courts in the land.

This emphasizes the infighting between Senate Democrats, as opposed to the solidarity of Senate Republicans on judicial nominations, hopefully not just for this nominee, but for all nominations in the future. It is also remains troubling that President Obama would nominate someone so extreme and ill suited that such harsh comments would come from members of his own party.

What Does an Appointment Cost These Days?

Chris Berg — Wed, 09 Jun 2010 20:59:00 GMT

We’ve seen the news reports of the Obama Administration’s attempts to woo candidates out of divisive Senate Primary contests. Tomorrow we’re going to see an interesting day in the Senate, but for different reasons. No, it’s not Seersucker Thursday – it’s the day that the Senate Judiciary Committee will discuss two of President Obama’s most controversial nominees. Sure, Goodwin Liu received quite a bit of attention, but tomorrow two of his would be colleagues deserve some additional scrutiny: Robert Chatigny and John McConnell.

Robert Chatigny is President Obama’s nominee to the Second Circuit. McConnell has been tapped to serve as a District Judge for the District of Rhode Island. These two men however could not have taken more different, yet controversial paths.

Mr. Chatigny currently sits on the District Court for the District of Connecticut. He’s been on the bench since President Clinton nominated him in 1994. While on the bench he has found that an individual convicted of possessing child pornography is entitled to a reduced sentence because he helped children “cultivate an interest in music.” He also overturned Connecticut’s online sex offender registry – a decision unanimously overturned by the Supreme Court.

Mr. McConnell does not come to the bench with prior judicial experience. Mr. McConnell serves as Treasurer of the Rhode Island Democratic Party. He’s proven his liberal stripes by donating nearly $700,000 to Democratic candidates and causes – including a $50,000 to President Obama’s Inauguration Committee.

This Hamilton Will Never be Compared to the Author of the Federalist Papers

Chris Berg — Tue, 17 Nov 2009 15:12:00 GMT

There are a lot of reasons that the nomination of Judge David Hamilton should trouble you. The RNLA has explained why it is opposing his nomination. Senator Sessions is planning on filibustering Hamilton. Here's what some of the other Conservative groups are saying about Hamilton:

The Committee for Justice

This week, the Senate votes on President Obama's nomination of District Court Judge David Hamilton to the Seventh Circuit. Because of Hamilton's fundraising activities for ACORN, his leadership positions with the Indiana branch of the ACLU, his statements supporting judicial activism, and most importantly, his rulings putting liberal ideology above the rule of law, he is the first and only Obama circuit nominee to draw heated opposition.

There are many examples of Judge Hamilton's tendency towards liberal judicial activism (see letter from Sen. Sessions). However, the most bizarre and controversial instance is Hamilton's 2005 ruling prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah.

The Heritage Foundation

Judge Hamilton, currently a federal trial court judge in Indiana, has a long career of liberal political and judicial activism, though the media has touted him as a "moderate." His political background involves fundraising for ACORN and serving as vice president for litigation and a board member for Indiana's ACLU branch. His rulings as a district judge reveal an inability to part with the extreme political leanings that are characteristic of these two organizations.

The Republican National Committee

Hamilton Said The Concept Of Footnotes Isn't New, Just Working Out The Details Of How The Constitution Applies To New Situations. "In defense of his 2003 remarks on 'footnotes' to the U.S. constitution, Hamilton told the Senate Judiciary Committee in April that 'the concept of the footnote implies what we're trying to do is not something new, but work out the details of how those principles [in the Constitution] apply to new situations.' He cited the racial desegregation of schools in the 1960s to drive home his point." (Cristina Corbin, "Obama's First Judicial Nomination Re-Ignites Controversy Ahead Of Vote," Fox News, 11/06/09)

* * *

Hamilton Struck Down A Law That Required Sex Offenders To Submit To Internet Monitoring By Law Enforcement. "Last year, Hamilton struck down an Indiana law that required sex offenders to submit to routine and warrantless law enforcement monitoring of their Internet activity. Hamilton said it violated the U.S. Constitution. 'The prospect of searches 'at any time' without a search warrant, without probable cause, and without even reasonable suspicion of wrongdoing, would dramatically impair the privacy these plaintiffs have the right to enjoy in their own homes under the Fourth Amendment,' he wrote." (Margaret Talev and Marisa Taylor, "Obama Judicial Pick Will Test Pledge To End Confirmation Wars," McClatchy, 3/17/09)

If this liberal activist is confirmed, who will President Obama nominate next?

RNLA Opposes Confirmation of Judge David Hamilton to Seventh Circuit

Justin Riemer — Mon, 16 Nov 2009 19:00:00 GMT

Today, the RNLA sent a letter to all U.S. senators stating our opposition to the confirmation of Judge David Hamilton to the Seventh Circuit Court of Appeals. Hamilton's record as a judge for the District Court for the Southern District of Indiana is outside of the mainstream and he has consistently placed ideology ahead of his duty to impartially adjudicate cases before the court. Please click here for the letter urging senators to vote against his confirmation.

A cloture vote on Hamilton's confirmation is expected tomorrow.

The Obama Judicial Legacy

Chris Berg — Wed, 11 Nov 2009 16:12:00 GMT

While in many ways the President sets our national agenda, his judicial nominations hold a power that lives on long after his presidency. As President Bush's term in office drew to a close the Senate became more obstructionist and blocked his judicial nominees. Yesterday by a vote of 72-16 the Senate confirmed Judge Andre Davis to the Fourth Circuit. This shifts the balance in the Circuit.

The New York Times notes that:

Prior to the Senate vote yesterday, there were 21 appellate vacancies and 76 more for district courts. With the Supreme Court issuing fewer than 100 decisions a year, lower courts have the final say in more than 99 percent of cases.

More nominations are on the way, including one judge who briefly worked for ACORN. What's a Republican Senator to do? Defer to the President and his selection of his judicial appointments, or offer thorough and legitimate inquiry into the nominee's judicial record and philosophy? I suspect that question is beyond this blog to determine. I would point you to Curt Levey at the Committee for Justice for an interesting take on how Republican Senators should treat the confirmation process.