Friends, The new Alliance Alert Daily Digest is finally here! You can subscribe to the daily e-mail here: Subscribe to our mailing list * indicates required Email Address * First Name * Last Name *
AP: A major gay-rights group said Thursday that Chuck Hagel’s comments on gays and his past votes are “unacceptable,” another strike against the former Republican senator’s chances of becoming the next defense secretary.
The Hill: President Obama will nominate Sen. John Kerry (D-Mass.) to replace Hillary Clinton as the secretary of State on Friday, according to multiple reports.
Blog of the Legal Times: By voice vote on December 17, the Senate confirmed Fernando Olguin to the U.S. District Court for the Central District of California and Thomas Durkin to the U.S. District Court for the Northern District of Illinois.
Mark Sherman at AP: “The vicious opposition by the left to Bob Bork’s nomination turned what had sometimes been a contentious confirmation process into literally a political campaign,” Meese said Wednesday.
Wall Street Journal: The U.S. Senate has had many low, retrograde moments, but easily among the worst was its 1987 rejection of Robert Bork to sit on the Supreme Court. Bob Bork died Wednesday at age 85, having contributed far more to American law than the 58 Senators who voted against him and more than most Supreme Court Justices.
The New American: Alan Sears of Alliance Defending Freedom, a conservative legal advocacy group, said in a statement that Judge Bork “stands as a constitutional giant of our generation, indeed, one of the greatest legal minds and tireless defenders of religious freedom in American history.” Sears said that Bork “had a dramatic impact on our nation, on its legal culture, and on the minds and hearts of many of its finest judges, law professors, students, and attorneys. Perhaps his greatest mark was the restoration of scholarship on Originalism, which has helped preserve the ingenious framework for freedom forged by our nation’s founders that many others in the legal profession had hoped to toss into the dustbin of history.”
Andrew Cohen at The Atlantic (includes video of the confirmation hearings): The relentless honesty and arrogant mien of Robert Bork, who has died at 84, during his unforgettable 1987 Supreme Court nomination hearing resulted in two very important things for this nation. First, it precluded the ideologue from becoming a life-tenured justice, which has meant over the intervening 25 years many saving graces for progressives and many bitter disappointments for conservatives. Second, it changed (forever, I suspect) the way judicial confirmation hearings unfold, by encouraging earnest nominees to say to the Senate Judiciary Committee nothing at all candid, specific, or profound about their judicial philosophies or views of the law.
Jeffrey Rosen at the New Republic: My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.
Alan Sears at Townhall: In October 2010, the Alliance Defending Freedom was privileged to recognize Judge Robert H. Bork with the “Edwin Meese III Award for Originalism and Religious Liberty.” At that time, we described him as, “one of the greatest legal minds in American history, and a person who has made an indelible impact on our nation, on its legal culture, and on the minds and hearts of many of its finest judges, law professors, students, and attorneys.”
Guardian: The government is facing a clash with some of the country’s most senior judges who will this week attempt to force ministers to relinquish control of the running of the supreme court. The constitutional dispute between the judiciary and the executive focuses on who should have the power to appoint the chief executive of the UK’s highest court – ministers or the judges who sit on it.
National Review Bench Memos: In a move that surprised no one, North Caroline governor Bev Perdue has appointed appellate judge Cheri Beasley to the Supreme Court of North Carolina
NJ.com: Gov. Chris Christie yesterday nominated a Japanese-American judge and the Board of Public Utilities chief to the state Supreme Court, hoping to finally win over Senate Democrats who landed their strongest punch against the Republican governor by rejecting his last two nominees earlier this year.
National Review Bench Memos: North Carolina governor Bev Perdue has issued an executive order ”temporarily modifying” a previous executive order in which she established a so-called “merit selection” system for appointing judges. Under the terms of her new EO, she will simply appoint a nominee of her choosing rather than select from a panel of nominees submitted by an independent commission.
Washington Blade: The Senate Judiciary Committee reported out by voice vote the nomination of Pamela Ki Mai Chen, whom President Obama nominated in August for a seat on the U.S. District Court for the Eastern District of New York. The panel reported out her nomination in an en banc vote as part of a group of seven nominees.
Blog of the Legal Times: The announcement could be good news for Donna Murphy, a lawyer with the U.S. Department of Justice’s Civil Division. DeMint, who made headlines earlier this year for vowing to reject all White House judicial nominees, has been blocking Murphy’s confirmation to the District of Columbia Superior Court.
Blog of the Legal Times: The freeze on federal judicial nominations appears to be thawing for the first time since the presidential election, at least when it comes to district court nominees.
Ken Klukowski at Breitbart: President Barack Obama made headlines months ago when he installed controversial nominees to key government positions, bypassing the U.S. Senate by declaring the Senate in recess so that Senate confirmation was not needed. Today a federal appeals court signaled that it might rule Obama’s move unconstitutional, and remove those officials from power.
Washington Times: A federal appeals court on Wednesday questioned not only President Obama’s controversial January recess appointments but the entire system of such appointments, using oral arguments in a case to cast doubt on whether presidential powers can ever be exercised unless Congress has adjourned for good.
Blog of the Legal Times: The Senate confirmed a federal district judge Monday night and agreed to hold a confirmation vote for a second district judge before the end of the lame duck session, but at the same time cast doubt on whether 17 other pending judicial nominees could get votes this year.
NBC News: A federal appeals court on Wednesday takes up the issue of a president’s power to make appointments when the Senate is out of town, one that has divided Congress and the White House for decades.
AP: In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama’s decision to bypass the Senate in appointing three members to the National Labor Relations Board.
National Review Online Bench Memos: As if the governor needed more excuses to make the issue a priority, the state’s judicial nominating commission decided to kick sand in his eyes by sending him a disappointing slate of finalists for a Court of Appeals vacancy.
AP: Senate Democrats rallied to U.N. Ambassador Susan Rice’s defense as Republicans said they were even more troubled by her account of the deadly attack on the U.S. Consulate in Benghazi, Libya, and signaled they would try to scuttle her nomination if President Barack Obama tapped her as the next secretary of state.
Blog of the Legal Times: President Barack Obama sent three judicial nominees to the Senate on Tuesday for the Eastern District of Pennsylvania, all with experience working as public defenders or with a legal aid organization.
Washington Blade: The White House announced on Tuesday that Obama named Nitza Quiñones Alejandro as part of a group of three nominees to sit on the U.S. District Court for the Eastern District of Pennsylvania. According to the Human Rights Campaign, Quiñones is a lesbian and was recommended by Sen. Bob Casey (D-Pa.).
Eric Black at the MinnPost: One belief important to the myth that binds us is this: That when the Supreme Court exercises its role as final decider on important public issues, it does so modestly, on a non-partisan, non-ideological basis and only when necessary to protect the Constitution from clear excesses committed by the political branches. Preserving that belief can be a tall order, and that perception is at a low ebb.
Washington Times: When Congress recessed in September for several weeks ahead of the November elections, they left behind 19 judicial nominations that had been approved by the SenateJudiciary Committee but that were awaiting final Senate action. Most are noncontroversial, as 17 received bipartisan support in the committee and seven have support from Republican home-state senators.
Richmond Times Dispatch: In his first term, President Barack Obama has had an unprecedented impact on what was long considered the most conservative federal appeals court in the country. Except for the handful of cases that make it to the U.S. Supreme Court, the Richmond-based 4th U.S. Circuit Court of Appeals is the court of last resort for the states of Virginia, Maryland, West Virginia and North and South Carolina.
The Future Interpretation of the Constitution as a Result of the Reelection of President Barack Obama | Wilson Ray Huhn at SSRN
Huhn, Wilson Ray, The Future Interpretation of the Constitution as a Result of the Reelection of President Barack Obama (November 13, 2012). Available at SSRN: http://ssrn.com/abstract=2174934
On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.
LoHud.com: Supreme Court nominees never again get the kind of attention that comes during the confirmation process, Justice Sonia Sotomayor said Monday in a question-and-answer session with law students.
Roll Call: Hatch’s position, however, is not shared by all his Republican colleagues. The list of stalled nominees includes several who have the strong backing of their home-state Republican senators. Sens. Susan Collins of Maine and James M. Inhofe of Oklahoma, for example, are pressing for confirmation votes in the post-election session.
Des Moines Register: U.S. Sen. Tom Harkin, D-Ia., has nominated two Iowa women to replace retiring Judge Michael J. Melloy on the 8th U.S. Circuit Court of Appeals. The names submitted to President Barack Obama are . . .
BuzzFeed: The White House announced on Wednesday that President Obama has nominated Judge William Thomas, an out gay man, to serve on the United States District Court for the Southern District of Florida. Thomas would be the first out LGBT black man to serve as a lifetime-tenured federal judge.
WhiteHouse.gov: Today, President Obama nominated Valerie E. Caproni, Kenneth John Gonzales, Raymond P. Moore, Judge Beverly Reid O’Connell, Judge William L. Thomas, Judge Analisa Torres and Derrick Kahala Watson for District Court judgeships.
AP: A potential showdown vote to limit Senate filibusters would not come until January. Democrats are threatening to resort to a seldom-used procedure that could let them change the rules without GOP support, all but inviting Republican retaliation.
AZ Central: Judges are rarely voted off the bench in Maricopa County or in the Arizona appellate courts. And despite a campaign by “tea party” and other conservative groups to unseat certain judges in retention elections because of perceived political or judicial leanings, no judges were turned out this year, either.
Jess Bravin at WSJ: With the incoming leadership of the executive and legislative branches nearly a carbon copy of the current versions, Tuesday’s election could have the biggest effect on the sole unelected branch of government: the federal judiciary.
Houston Chronicle: Three of the nine court seats are on the ballot, but just one Republican faces a Democratic opponent. Justice Nathan Hecht is being challenged by San Antonio lawyer Michele Petty, a Democrat, along with candidates running under the Libertarian and Green banners.
STLToday: The Missouri Plan has faced mounting criticism in recent years, primarily from conservatives who claim it gives too much power to trial lawyers. They prefer judicial elections or systems modeled after the federal government that rely on gubernatorial appointees confirmed by state lawmakers.
Florida Baptist Witness: Jordan Lorence, an attorney who has argued a case before the Supreme Court, told Baptist Press that three issues are at play in determining whether a justice retires: age, health and the political party of the sitting president . . . “If Romney gets to pick Ginsburg’s replacement or even Kennedy’s replacement, that would be a huge shift,” Lorence, who works with the Alliance Defending Freedom, said. “And if President Obama picks the replacement for Scalia, that, too, would cause a huge shift on the court.”
Ilya Somin at the Volokh Conspiracy: After the first presidential debate and again after the debate between the VP candidates, I lamented the fact that the candidates and moderators had almost completely ignored judicial nominations.
Star Tribune (AP): New Supreme Court Justice Wilhelmina Wright was set Tuesday to take her oath and a spot on the seven-member panel. Wright is blazing a path as the first black woman to serve on the court.
East Valley Tribune: The governor chose Court of Appeals Judge Ann Scott Timmer over Maricopa County Superior Court Judge Douglas Rayes, also a Republican, and Democrat Diane Johnsen.
AP: A closely divided Supreme Court. Four justices in their 70s. Presidential candidates with dramatically different views of the ideal high court nominee.
William J. Haun at National Review Bench Memos: If it is true that much unhappiness in the world has come because of things left unsaid, then we would be wise to turn our attention to an issue left unsaid by both Governor Romney and President Obama during their respective convention speeches: the role of the courts, and their state after four years of liberal judicial nominee
The Globe and Mail: Prime Minister Stephen Harper has strengthened his imprint on the Supreme Court of Canada bench, naming a centrist judge from Quebec – Mr. Justice Richard Wagner – as his fifth appointment to the nine-judge bench since the Tories came to power in 2006.
AZ Central: Since she took office in January 2009, 35 of her 38 appointments to the Arizona Supreme Court, Court of Appeals, and the Superior Courts of Maricopa and Pima counties have been Republicans, according to records from the Arizona Supreme Court, which oversees all courts.
Washington Times: Republican senators on Wednesday joined a lawsuit arguing President Obama violated the Constitution when he used his recess appointment powers earlier this year to fill several controversial jobs.
NBC: There are still 42 days and four debates left before the presidential election and many signs point to a close outcome, but recent polling both nationally and in key battleground states like Ohio has conservatives concerned about the impact President Obama could have on the judiciary in a second term.
Blog of the Legal Times: The Senate confirmed Gonzalo Curiel for the Southern District of California and Robert Shelby for the District of Utah, posts that are considered judicial emergencies because of the workload faced in the districts.
Blog of the Legal Times: The Senate Judiciary Committee today approved the nomination of William Baer to lead the Justice Department’s Antitrust Division on a 12-5 vote.
AP: With four justices in their seventies, odds are good that whoever is elected president in November will have a chance to fill at least one Supreme Court seat. The next justice could dramatically alter the direction of a court closely divided between conservatives and liberals.
Gregg Nunziata at USA Today: The stakes are high in this presidential election, and one of the most consequential questions before the voters concerns the branch of government that is not officially on the ballot. In November, Americans will set the direction of the U.S. Supreme Court for decades to come.
Blog of the Legal Times: With a confirmation of a woman to the District Court of the Southern District of Iowa late Monday afternoon, Obama had confirmed as many women to the federal bench in his first term—72—than George W. Bush did in his two terms in office, a White House spokesman said in an email to media.
NOLA.com: Federal District Court Judge Susie Morgan ruled Saturday that Justice Bernette Johnson has the seniority needed to succeed Catherine “Kitty” Kimball as chief justice of the Louisiana Supreme Court when Kimball retires early next year. In a decision issued just before 7 p.m., Morgan ruled that “any tenure accrued by Justice Johnson between Nov. 16, 1994 and October 7, 2000, is to be credited to her for all purposes under Louisiana law,” which would include determining whether she is the second most senior justice after Chief Justice Kimball.
Michael Fragoso at Public Discourse: Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees–a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.
Washington Post: On Monday, public-interest group Common Cause filed a legal brief in a U.S. District Court trying to persuade the court that the filibuster’s 60-vote threshold in the Senate violates the Constitution. “Our filing today demonstrates how far the Senate, now effectively dominated by a minority, has strayed from the intent of America’s founders as expressed in our Constitution,” Common Cause president Bob Edgar said in a statement.
Washington Post: Supreme Court Justice Anthony Kennedy says the Senate confirmation for new federal judges is too political and is keeping out highly qualified candidates who don’t want to go through the difficult process.
Carl Tobias at The Hill: In June, the Senate GOP leadership proclaimed that it would invoke the “Thurmond Rule” and oppose appointment of each appeals court nominee recommended by President Barack Obama until after the November election. This decision threatens the confirmation of William Kayatta, the excellent, noncontroversial nominee whom Obama selected after First Circuit Judge Kermit Lipez took senior status in late 2011.
National Review Bench Memos: Senator Graham would like to “stop the politics around being a judge,” but said nothing about the fact that the ABA’s privileged role in judicial selection has further politicized the process, usually tilting it leftward. The ABA’s glaring ideological bias has been noted by prominent commentators . . .
Governor Sean Parnell today appointed Anchorage attorney Peter Maassen to the Alaska Supreme Court. Maassen is the 22nd justice appointed to the Court, and he replaces Justice Morgan Christen, who was appointed to the United States Court of Appeals for the 9th Circuit.
Blog of the Legal Times: In a new study, an expert on federal judicial nominations has tried to inject some hard data into the sometimes overheated debate about President Barack Obama’s record on filling the bench . . . And Obama’s appellate court confirmations have altered the balance in federal circuit courts, Wheeler said in his paper.
Blog of Legal Times: The nomination of Caitlin Halligan was returned to the White House on Tuesday, ending her second bid for a judgeship on the U.S. Court of Appeals for the D.C. Circuit before it could get started.
KRQE.com: The judicial nominating commission unanimously recommended former Justice Paul Kennedy, a Republican who is a prominent criminal defense lawyer, and career prosecutor Steven Suttle, a Democrat who worked for 14 years in the attorney general’s office before retiring in 2010.
NJ.com: But Nicholas Scutari (D-Union), head of the Senate Judiciary Committee, said recently he would hold hearings for Christie’s next two nominees only “as long as one’s a Democrat” and “as long as the need for partisan balance is recognized and continued.” While “partisan balance” sounds like a noble aspiration, in practice this unwritten rule has more often than not served to entrench a 4-3 Democratic majority. Over the 65-year history of the modern Supreme Court, Republicans have held a sustained four-member majority only twice.
Clint Bolick at SCOTUS Blog: Should control over Supreme Court nominations figure prominently in the forthcoming presidential election? Yes, big-time. Will it? Not likely.
Blog of the Legal Times: Senate Republicans once again made clear Thursday that there is serious opposition to Caitlin Halligan becoming a judge on the U.S. Court of Appeals for the D.C. Circuit.