The Volokh Conspiracy

MSNBC wonders whether conservative groups will mobilize to defeat controversial judicial nominations if Senator Obama is elected president. I hope not. While I doubt a President Obama's nominees would be much to my liking, I do not think the Senate should reject a President's judicial nominees on ideological grounds. Rather, I believe the Senate's "advise and consent" role should be limited to ensuring that judicial nominees have the necessary qualifications and temperament (as in, an understanding of what it means to be a judge).

As Alexander Hamilton explained in Federalist 76, we are likely to get better nominees from a single decision-maker (the President) than a committee, and the primary purpose of Senate confirmation is to place a "check upon a spirit of favoritism in the President" and "to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." His concern was cronyism, not differences in judicial philosophy. Allowing the Senate to have a greater role, he warned, would encourage an undue focus on narrow and parochial concerns, and I think that is what we've seen as the confirmation process has become more politicized. Senators spend hours trying to get nominees to tip their hand on specific issues or cases, whereas recent Presidents have largely focused on a prospective judge's overall judicial philosophy. In my view, the latter is the better way to do it.

So if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight. This is how most Republicans treated President Clinton's nominations of Stephen Breyer and Ruth Bader Ginsburg, and equally qualified Obama nominees deserve nothing less. If this means that a President Obama gets to place several quite "liberal" jurists on the bench, so be it. Republicans have long argued that Senate Democrats have treated President Bush's judicial nominees unfairly. They're right, but the proper principled response is to set the right example, not to respond in kind, let alone to make our excessively politicized judicial confirmation process even worse.

UPDATE: Several comments make good points and raise important questions that I will address in a follow-up post. What is odd, however, is that some commenters seem to believe that Republicans have never obstructed Democratic judicial nominees. This is silly. While Republican opposition to Bill Clinton's Supreme Court nominees was far less that Democratic opposition to both Bushes' Supreme Court nominees, the Republican Senate certainly obstructed some of Clinton's nominees to lower courts -- obstruction which led Senate Democrats to respond in kind, and then some. I've blogged on this extensively before. For round ups with links, see here and here.

The Legal Times has an interesting article suggesting that either prospective VP could play a role in the selection of judicial nominees during the next administration.

In Biden, Sen. Barack Obama selected a running mate who, as chairman of the Senate Judiciary Committee from 1987 to 1995, officiated at the confirmation hearings of five Supreme Court justices, one would-be justice, and hundreds of lower court judges.

Palin brings less of a record in this regard, but she already has had more impact on the Alaska judiciary than her predecessor. Since taking office in December 2006, Palin has seated more than a dozen judges, including a state Supreme Court justice and a state court of appeals judge, the first appellate appointments in the state in more than a decade.

The article also includes some good reporting on Palin's approach to judicial selection as Governor of Alaska. Among other things, it notes that during interviews for prospective appointments, Palin asked prospective judges about their overall judicial philosophy, but avoided asking about specific cases.

Harrington, executive director of Alaska Legal Services Corp., interviewed with Palin in November 2007, days after the state Supreme Court issued a ruling striking down a law that required girls less than 17 years old and younger to get permission from their parents before receiving an abortion. Palin, who opposes abortion except in cases where the mother's life is threatened, called the ruling "outrageous." Harrington anticipated a question about the ruling. But Palin never asked about the case or any other, Harrington says.

"I was pleasantly surprised that the topic did not come up," he says. "I thought that was an indication that the governor and her staff were cognizant of the ethical responsibilities of someone who is a candidate for the court."

He and Palin discussed Alaskan native law, his role models and his work history. At one point, she asked him to define an activist judge. He said he was expecting that, too.

"I think she has a good sense of the separation of powers and the proper role of the judiciary," Harrington says. "She thinks the role of the court is to decide cases and controversies that come before it, and she wants judges to do a good job of applying the law and precedent."

A British jury cleared a half-dozen Greenpeace activists of charges they caused £35,000 of damage to a coal-fired power plant on the grounds that such actions were justified to help prevent the threat posed by climate change. Among those who testified on behalf of the activist was NASA scientist James Hansen. The Independent reports on the verdict:

Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage – such as breaking down the door of a burning house to tackle a fire. . . .

Kingsnorth was the centre for mass protests by climate camp activists last month. Last year, three protesters managed to paint Gordon Brown's name on the plant's chimney. Their handi-work cost £35,000 to remove. . . .

During the eight-day trial, the world's leading climate scientist, Professor James Hansen of Nasa . . . called for an moratorium on all coal-fired power stations, and his hour-long testimony about the gravity of the climate danger, which painted a bleak picture, was listened to intently by the jury of nine women and three men.

Professor Hansen, who first alerted the world to the global warming threat in June 1988 with testimony to a US senate committee in Washington, and who last year said the earth was in "imminent peril" from the warming atmosphere, asserted that emissions of CO2 from Kings-north would damage property through the effects of the climate change they would help to cause. . . .

During the trial the defendants said they had acted lawfully, owing to an honestly held belief that their attempt to stop emissions from Kingsnorth would prevent further damage to properties worldwide caused by global warming. Their aim, they said, was to rein back CO2 emissions and bring urgent pressure to bear on the Government and E.ON to changes policies. They insisted their action had caused the minimum amount of damage necessary to close the plant down and constituted a "proportionate response" to the increasing environmental threat.

This was not the first time a British jury bought a "lawful excuse" defense by Greenpeace activists. In 1999 a jury acquitted activists who sabotaged a field of GM crops.

In 2004, Ohio Democrats alleged Republican Secretary of State Ken Blackwell was applying the state's election rules to benefit Republicans. Now the shoe is on the other foot and Ohio Republicans are accusing Democratic Secretary of State Jennifer Brunner is make rule changes to help Democrats. Specifically, Ohio Republicans are challenging new rules that would allow some would-be early voters to register and vote on the same day. As the WSJ reports:

In Ohio, a recently enacted state law -- the subject of the Brunner directive -- allows residents, for the first time in a general presidential election, to vote early by absentee ballot without providing a justification. Advocates for the homeless and other groups say they will direct new voters to take advantage of the overlap between early voting, which begins Sept. 30, and voter registration, which ends Oct. 6. During that window, citizens can register and vote simultaneously. The outreach efforts are expected to benefit Democrats.

The Northeast Ohio Coalition for the Homeless, a Cleveland-based umbrella group for service providers, housing activists and others, is making plans to drive about 2,000 shelter residents to polling places during the overlap period. "This is a huge opportunity to prove to elected officials that very low-income people do vote," said Brian Davis, executive director of the group.

Republican officials are furious, charging that the one-stop process will encourage voter fraud. They argue that a state law requires Ohio residents to register at least 30 days before voting, so same-day registration and voting should be banned.

Ms. Brunner's position is that early ballots do not constitute votes until they are tabulated on Nov. 4, said Jeff Ortega, a spokesman for Ms. Brunner. In a statement about Friday's lawsuit, Ms. Brunner said, "It is unfortunate that a small, but vocal, group of Republican leaders continues to inject confusion and chaos in our elections."

A suit has been filed to stop the same-day registration and voting, and I will be curious to read the briefs and see how it comes out.

On Friday, the Washington Post ran this story about Gov. Sarah Palin's speech before a brigade of soldiers bound for Iraq -- at least, that link is to the story that is on the Post's web page. But this is not the story as it originally appeared. As Bill Kristol notes here, the second paragraph of the story was rewritten -- and an entire sentence replaced -- to fix a gross error that dramatically distorted what Palin had said. Most egregiously, there is no indication on the web-version of the story that it was corrected, not even a note at the end of the piece. Whatever one thinks of the Post's reporting here, it should at least acknowledge that it changed the story's text to fix an error. If we bloggers are expected to disclose substantive revisions to our blog posts, shouldn't the MSM be held to the same standard?

Today's Washington Post has a front-page story headlined "Many Versions of 'Bush Doctrine.'" Over on the op-ed page, Charles Krauthammer -- apparently the first pundit to coin the phrase, and a critic of Palin's nomination -- suggests there are at least four "Bush Doctrines," and the one Charles Gibson elucidated is the wrong one. For what it's worth, I don't know whether I would have identified the "right" definition of the "Bush Doctrine" if asked the same question, and I haven't seen the full interview yet, so I don't have an opinion of Palin's performance on this, or other, questions.

The National Law Journal reports that lawyer and law firm campaign contributions to the presidential candidates increased over the summer. McCain saw a bigger increase in law-related contributions, but Obama's take was still twice as high.

A new Interior Department Inspector General report details serious shenanigans at the Minerals Management Service office responsible for the "royalty-in-kind" program, including the acceptance of gifts from industry, cronyism, and "a culture of substance abuse and promiscuity," including illicit drug use and sexual relations with energy company representatives. (It even sounds worse than the Ohio Attorney General's office under Marc Dann.) . As the Washington Post reports:

Investigators from the Interior Department's inspector general's office said more than a dozen employees, including the former director of the oil royalty program, took meals, ski trips, sports tickets and golf outings from industry representatives. The report alleges that the former director, Gregory W. Smith, also netted more than $30,000 from improper outside work. . . .

n the report released yesterday, investigators said they "discovered a culture of substance abuse and promiscuity" in which employees accepted gratuities "with prodigious frequency." The report cited one e-mail from a Shell Pipeline representative asking a woman in the royalty office to attend "tailgating festivities" at a Houston Texans football game: "You're invited . . . have you and the girls meet at my place at 6am for bubble baths and final prep. Just kidding."

Besides Shell, the energy company employees mentioned in the report worked for Chevron, Hess and Gary-Williams Energy. The social outings detailed in the report included alcohol-, cocaine- and marijuana-filled parties where certain employees of the Minerals Management Service were nicknamed the "MMS Chicks" by the energy employees. The companies paid for federal workers to attend football and baseball games, PGA Tour events, Colorado ski trips, paintball outings and "treasure hunts," investigators found.

In response, Interior Department Dirk Kempthorne is promising reform.

It might not be a surprise that major law firm donations largely mirror those of law professors, and are weighted heavily toward Barack Obama (albeit not as heavily as lawprof donations), as Bruce Batista summarizes here. Why is this? Batista has his own ideas, and I'd be curious about others.