The Volokh Conspiracy

The editorial board of the New York Times has finally decided to abandon its support of filibustering nominees it opposes.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Now that it has been shown the filibuster can be used against nominees of both parties, perhaps some Senate Democrats will now agree to support a bi-partisan deal to ensure all judicial nominees receive a prompt up-or-down vote within a set time after their nomination. Senator Leahy supported legislation along these lines back when Bill Clinton was President, only to abandon the idea once George W. Bush was in office. Republicans toyed with the idea as well, but are loathe to offer such a gift to a sitting Democratic President.   Perhaps both could agree to forego filibusters for whomever occupies 1600 Pennsylvania Avenue next.

It is said little gets done in an election year, particularly when it comes to nominations. But the fact that it is an election year provides a rare window of opportunity. It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013. Such a deal could ensure prompt committee and floor votes of nominees within a set number of days after they are referred to the Senate and their paperwork in complete. Unacceptable nominees could still be opposed, but they would have to be opposed on the merits, and so long as the White House makes nominations with dispatch, there would be no concern about excess judicial vacancies.

The window for a deal along the lines above will not stay open long, as neither side will sign on to something they believe will advantage the other side. The question is whether enough members of the Senate care enough about the judiciary to make it happen.  If not, any deal like this will have to wait another three or four years.

The rule of thumb in judicial nominations is that a circuit court nominee with Supreme-Court-level credentials will have a harder time getting confirmed than a nominee without those credentials. Each side tries to limit the Supreme Court “farm team” of the other side. So if a nominee’s resume includes the kind of elite credentials that Supreme Court nominees often have, the scrutiny goes up. Given that, it seems important to note a recent circuit court confirmation of a nominee with Supreme-Court-like credentials that flew by the Senate (relatively speaking): Stephen Higginson, confirmed last week to the Fifth Circuit.

Higginson is a summa cum laude graduate of Harvard College, former Editor-in-Chief of the Yale Law Journal, a former law clerk to Justice White, and a law professor. He was nominated to the Fifth Circuit on May 9, 2011; he had a Judiciary Committee hearing June 8, and was reported out of the committee July 14th; and he was confirmed by a Senate vote of 88-0 on October 31st.

CNN reports that in a recent speech Justice Elena Kagan acknowledged that she has gone practice shooting and hunting with Justice Scalia — and that she likes it.  From the story:

She recalled paying a courtesy call on Sen. James Risch (R-Idaho) shortly after her nomination to the court by President Obama in May 2010. Risch asked her about gun rights, and remarked she may not realize how important the issue was to some Americans, especially in his home state.

She admitted never having owned or fired a gun before. “But I told the senator if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia.”

And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.

“You’re Jewish,” deadpanned Rabbi Mitchell Wohlberg.

“Yeah, but it turns out, it’s kind of fun,” said Kagan, laughing.

President Obama has nominated Paul Watford for a seat on the Ninth Circuit; you can find Watford’s very impressive bio here. I’ve met Watford a few times, and he’s always struck me as extremely bright, a moderate, and very much a “lawyer’s lawyer.” For those reasons, I hope he will be confirmed.

The Los Angeles Times is reporting that California Governor Jerry Brown is nominating University of California at Berkeley law professor Goodwin Liu to the California Supreme Court.  President Obama had nominated Liu to the U.S. Court of Appeals for the Ninth Circuit, but Liu withdrew his nomination after Senate Republicans blocked his confirmation.

(Hat tip: Ed Whelan)

The Journal-Sentinel reports on a letter by several dozen prominent law professors objecting to Senator Ron Johnson’s efforts to block consideration of President Obama’s nomination of University of Wisconsin law professor Victoria Nourse to a seat on the U.S. Court of Appeals for the Seventh Circuit. The signatories represent quite an ideologically diverse group (and include a couple of conspirators).

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce...among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

In the wake of Goodwin Liu’s decision to withdraw his nomination to the Ninth Circuit, the Chairman of the California Democratic Party is urging Senate Majority Leader Harry Reid consider the “nuclear option.” TPM Muckraker reports:

Former California State Sen. John Burton writes that if Republicans controlled the Senate — “God forbid” –they “would not hesitate to flush the sixty-vote procedure down the toilet.”

“After reading about the despicable act by the Republican minority, denying Goodwin Liu an up-or-down vote to sit on the Ninth Circuit Court of Appeals, I believe it is time to consider taking a page from the Republican playbook when they were in the majority and threatened to exercise the nuclear option when dealing with Presidential appointees,” Chairman Burton writes in the letter.

“Many Democrats throughout California and the nation are sick and tired of the minority party’s disproportionate impact on one of the great legacies of President Obama, an enlightened and intelligent judiciary,” Burton writes.

Burton’s letter is here.

The AP is reporting that Goodwin Liu has withdrawn his nomination to the U.S. Court of Appeals for the Ninth Circuit. In a letter to President Obama, Liu cited the “desperate need for judges” on the Ninth Circuit and noted his belief that “continuing my nomination will not address that need any time soon.”

UPDATE: Goodwin Liu’s letter is here.

Shortly after Senate Democrats failed to invoke cloture on Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit, I received a press release from the Leadership Conference for Civil and Human Rights denouncing the “use of partisan filibuster” against Liu’s confirmation. LCCHR CEO Wade Henderson called the Republican filibuster “a reckless escalation in the ongoing campaign by the Senate’s Republican minority to delay and deny confirmation votes to scores of well-qualified judicial nominees.” He further charged that the filibuster showed “disrespect” to the federal courts, adding:

Some nominees have been forced to put their lives and careers on hold for up to two years. But the greatest cost has been to justice itself and the people of our nation who depend on the federal courts to enforce their rights and settle their disputes. Courtrooms without judges are simply incapable of dispensing justice.

The release also quoted LCCHR executive director Nancy Zirkin:

“America’s courts are being held hostage to a stubborn minority of senators placing politics above responsible stewardship of our judicial system,” said Nancy Zirkin, executive vice president of The Leadership Conference. “Highly qualified nominees like Professor Liu deserve to have an up-or-down confirmation vote on the Senate floor.

“We commend those senators who put partisan politics aside today to vote to allow a confirmation vote on Professor Liu,” Zirkin said. “And we urge senators of both political parties to follow suit and give advice and consent to the president’s nominees. It’s their responsibility to a functioning justice system and to our Constitution.”

From these statements, it would seem that LCCHR’s position is that blocking up-or-down votes on judicial nominees shows “disrespect” to the courts and holds the judicial system “hostage.” But that is not the LCCHR’s position. To the contrary, the LCCHR has championed the use of the “partisan filibuster” to defeat nominees it opposed. During the Bush Administration, for example, the LCCHR “applauded” and praised the “leadership” of those who filibustered Miguel Estrada and celebrated those Democratic Senators who filibustered Priscilla Owen. Further, in a 2005 letter, the LCCHR declared that a nominee who could not overcome a filibuster was presumptively unqualified for the federal bench.

In addition to protecting the rights of the minority, the Constitution assigns the Senate final responsibility to advise and consent on the President’s judicial nominees. This means that the Senate is required to evaluate every nominee on his or her fitness to serve on the federal judiciary and to reject candidates who do not convince at least three-fifths of the Senators that they are suitable for lifetime appointment.

The same letter suggested that only those nominees who could receive bipartisan support should be confirmed.

LCCR believes that the appointment of judges with bipartisan support is critical, because judges confirmed without support across party and ideological lines would likely reflect an extreme judicial philosophy. Accordingly, the opinions they rendered would not be likely to reflect mainstream jurisprudence on civil rights. As a result, the progress this country has made on civil and human rights could be jeopardized in the future.

[Ironically, this argument does not support the filibuster of Bush's appellate nominees, all of which would had some Democratic support. At the same time, it would suggest that Goodwin Liu was a bad nominee.]

My point is not simply that LCCHR supported the filibuster of some nominees and opposed it for others. Rather the LCCHR — like many players in these debates — have switched their position on the acceptability of the filibuster itself, and the “partisan filibuster” in particular. When used to block nominees they oppose, it is an important tool. When used to block nominees they favor, it “disrespects” the courts and undermines the functioning of the judicial system.

As readers know, I oppose the filibuster of all judicial nominations. I believe all nominees should receive up-or-down votes — even those I might oppose — and that obstruction of judicial nominees does undermine the functioning of the judiciary. But it’s hard to take seriously those who now mouth principled opposition to filibusters, “partisan” or otherwise, when they were happy to champion filibusters in the past.

The vote is still ongoing, but by count there are already 40-plus votes against cloture, including one Democrat (Senator Ben Nelson).

UPDATE: The vote is 52 in favor, 43 opposed, and one “present.”

SECOND UPDATE: The roll call vote will be available here later this afternoon. (The Senate posts roll call votes approximately one hour after they take place.)

Earlier today the White House announced that President Obama has nominated Alaska Supreme Court Justice Morgan Christen to the U.S. Court of Appeals for the Ninth Circuit. Of note, Justice Christen was appointed to the Alaska Supreme Court by then-Governor Sarah Palin. In Alaska, a judicial council recommends potential judicial appointees for selection by the Governor, and Christen was one of two potential justice picks forwarded to then-Governor Palin in 2009.

Senate Majority Leader has filed a cloture petition on the pending nomination of University of California at Berkeley law professor Goodwin Liu to a seat on the U.S. Court of Appeals for the Ninth Circuit. A vote to end debate on the nomination could come as early as tomorrow.

Professor Liu is among the most controversial of President Obama’s judicial nomination, in part for his prominent role in opposing the confirmation of Samuel Alito to the Supreme Court. The pending vote sets up a confirmation in the Senate and will reveal whether Senate Republicans are willing to follow the precedent set by Senate Democrats some years back and filibuster an appellate judicial nominee. Already members and commentators are debating whether Professor Liu’s nomination presents the sort of “extraordinary circumstance” referenced in the “Gang of 14″ deal that ended Democratic filibusters of several Bush nominees. As Senate Democrats will need at least seven Republicans to vote for cloture, it could be close. I have several posts on the Liu nomination from last year: here, here, here and here, and my overall view of the nomination has not changed. I believe Liu is qualified, and would vote to confirm him were I in the Senate, but I also understand why many Republicans are not willing to extend this courtesy to this nomination.

As I’ve blogged before at some length, I believe that the Senate should be quite deferential to a President’s judicial nominees, and do not believe that ideological differences are sufficient grounds to oppose, let alone filibuster, a judicial nomination. Indeed, I do not believe that Presidential nominations should ever be filibustered, and would prefer all such nominations to receive an up-or-down vote. The problem is that such a norm of conduct cannot be maintained if it is not reciprocal — unilateral disarmament does not create a stable equilibrium — and tactics adopted by one party (if not forsworn) will be adopted by the other. It’s only a matter of time.

Perhaps one day Senate leaders will realize that the downward spiral of politicization that infects the judicial confirmation process is bad for the judiciary and bad for the country, and agree to stand down. Neither side will want to do so if they will know it will work to the benefit of the other party’s nominees. But a deal should be possible to, for instance, agree to end filibusters and and obstruction of nominees after a date certain, such as after the next Presidential election. I discussed this briefly in a post last year. Alas, I doubt the Senate is any closer to such a deal.

While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.

The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .

In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for "inter-agency or intra-agency memorandums or letters"], but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29

Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to force her recusal should the health care litigation reach the High Court, so the sudden disclosure is curious.

At NRO’s Bench Memos, Carrie Severino comments further on the disclosed documents here and here.

In May 2009, in the wake of news that Justice David Souter would retire from the Supreme Court, Jeffrey Rosen penned “The Case Against Sotomayor” for The New Republic, in which he argued thatthen-Judge Sonia Sotmayor was not the best available nominee.  Rosen reported that he was hearing from others on the Left who were concerned that she would not be “a judicial star of the highest intellectual caliber who has the potential to change the direction of the court” and that her temperament might limit her influence with other justices.  Rosen’s article was controversial, and prompted many negative responses from other liberals (some of which I chronicled in this string of posts).

Now it is revealed that at least one prominent liberal academic shared the concerns raised in Rosen’s article, and expressed them to the White House.  As just reported by Ed Whelan on NRO, on May 4, 2009, noted Harvard Law School professor Laurence Tribe wrote President Obama urging him not to nominate Sotomayor to the High Court.  Tribe wrote:

If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the  impact within the Court would be negative in these respects.  Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

It’s unclear whether Tribe was one of Rosen’s sources, but Tribe’s concerns are similar to those Rosen identified in his reports.  Only time will tell whether these concerns were justified.

As Whelan notes in a series of posts on Bench Memos, there’s more in the letter — much more — including praise for Elena Kagan, comments on Judge Diane Wood, unflattering comments about Justices Breyer and Kennedy, and an appeal for a job at DoJ.  Charlie Savage of the NYT also reports Professor Tribe has revised his opinion of Sotomayor.  He provided the following comment to Savage via e-mail:

I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I can say this much: I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I regret any contrary implication some may try to draw from my letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision and were happily negated by her performance as a justice thus far.

UPDATE: More from WSJ Law Blog.