Hiatus

I took a break from posting for a while as I ran an election campaign, but I have decided to start posting again occasionally. Sorry for the interruption, but it feels good to be back.

John Roberts

The president has nominated John Roberts to be the 109th member of the United States Supreme Court. After two presidential campaigns in which the president indicated that his nominees would be jurists in the mold of Justices Scalia and Thomas, he has kept his word. Roberts is by all indications a superb lawyer, having served as assistant solicitor general and argued numerous cases before the Supreme Court, and for the last two years served as a judge on the D.C. Federal Court of Appeals. His wife, interestingly enough, has served as executive vice-president of Feminists for Life.

Already the attacks on Roberts and calls for opposition to his nomination have begun, some from even before his nomination. Likewise, Democratic Senators are demanding that Roberts answer all questions posed, a standard not required of Clinton nominees: "Then-chairman Sen. Joseph Biden told Ginsburg, 'You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 forms probably, over your tenure on the court.'" It is also a standard that places a candidate in the awkward (and unethical) position of essentially prejudging a case.

It should certainly be an interesting summer for political junkies.

Good op-ed by Senator Cornyn

Senator John Cornyn has written a reasonable opinion piece about the upcoming Supreme Court nomination "battle" at National Review Online. It's a worthwhile read.

Speaking of Senator Cornyn, he would make an excellent nominee for the high court, and the political downside seems to me to be minimal. He is a senator from a state with a Republican governor, so his replacement in the Senate would most likely be a Republican, maintaining the partisan balance of power in that chamber. He has appellate court experience as a former Texas state supreme court justice (where Alberto Gonzales also received his judicial experience). He is reliably conservative. And coming from the ranks of the Senate, his (former, if nominated) colleagues might be less inclined to perform the slash and burn mission on his character that possibly awaits other potential nominees.

Since he is editorializing about the O'Connor vacancy, it seems unlikely that he will be the nominee for that seat. But I would not be surprised, if the president gets up to three nominations, if Cornyn's name does not appear on a very short list of candidates.

The Framers on Advice and Consent

I have posted on this topic before, but with the retirement of Justice O'Connor and the looming Supreme Court vacancy, the question is worth asking again: Are the Democrats being true to the Constitution in their pleas to the President about his Supreme Court nominee?

Hillary Clinton recently said that, in light of the Supreme Court vacancy, President Bush should "take seriously the Constitution’s charge and to engage the U.S. Senate – both Republicans and Democrats – in a process of genuine consultation in order to identify and to ultimately confirm a consensus nominee." Ted Kennedy, in a floor statement in the Senate, noted that "consultation was not mentioned by the Majority Leader in his address on judges earlier this week, and the omission is glaring, since consultation is the heart of the 'advice' requirement in the constitutional requirement that the President appoint judges with the 'advice and consent' of the Senate. Under the Constitution and the Senate Rules, every Senator's hands are on the oars of this vessel." Chuck Schumer, in a press release anticipating the retirement of the Chief Justice, said in a letter to the president that was signed by all but one of the Democratic senators, "Balanced Supreme Court nominations have been arrived at through careful consideration, close consultation, and bi-partisan consensus. I hope that you will follow in this important tradition as the historic duty of your first Supreme Court nomination approaches. Democratic Senators are more than ready to meet with you in a spirit of bipartisan cooperation. You pick the time and the place and we will be there."

And of course, the "Gang of 14," in their "agreement," said, "We believe that, under Article II, Section 2, of the United States Constitution, the word 'Advice' speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

Is this really the role the Founders intended the Senate to play in the nomination process? A review of the relevant history suggests the answer to that question is a resounding "no."

In Federalist 66, Alexander Hamilton wrote,

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Not content to leave the explanation of this power at that, Hamilton wrote in Federalist 76 that:

The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of NOMINATION, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference
between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

The Framers would no doubt find the quotations from the above-listed Senators, as well as the statement in the Gang of 14 agreement, mind-boggling, and contrary to the power of appointment granted to the President. Senators do not yet have their hands on the oars (although it is a bit unseemly for Senator Kennedy to use nautical analogies). And while the Gang of 14 may think that advice means pre-nomination consultation, those arguing for the ratification of the Constitution disagreed.

O'Connor retires

Justice Sandra Day O'Connor today informed President Bush that she intends to retire from the Supreme Court upon the nomination and confirmation of her successor. O'Connor has been commonly known as a "swing vote," usually siding with the Court's conservative bloc but occasionally siding with the liberal bloc. That conventional wisdom did not hold in this term, however, as in the seventeen 5-4 decisions issued, she sided with the conservatives in only 3 cases.

President Bush now has an opportunity to leave a legacy for a generation on the Supreme Court. As much as I do not like it, the Supreme Court has evolved in our constitutional system into a far more powerful and influential branch than the Framers could ever have intended. Bush campaigned in 2000 and 2004 on the promise to nominate justices to the Supreme Court in the mold of Justice Scalia or Justice Thomas, justices who will faithfully interpret the law as written and not legislate from the bench. It's time for the president to step up.

The source of authority

Joel Belz recently wrote a column in World magazine commenting on how God has gradually gone from being explicitly acknowledged as the Creator in our founding document, to the implicit rejection of God that manifests itself through bans on prayers in public schools and recognition of God in the public square, to an explicit rejection of God in governmental affairs. His example of this last development was this column by Michael Kinsley discussing the politics of embryonic stem cell research, which includes the following paragraph:

"First, do the embryos used for stem cell research and therapy have rights? They are clumps of a few dozen cells, biologically more primitive than a mosquito. They have no consciousness, are not aware that they exist, and never have been. Nature itself creates and destroys millions of these every year. No one objects. No one mourns. In most cases no one even knows. If my life is worth no more than the survival of one of these clumps, then it is terribly unfair that I can plead my case on the op-ed page, and they can't. But I have no trouble feeling that the government should value my life more than the lives of these clumps. God may disagree. But the government reports to me and to other adult Americans, not to God."

Setting aside the political and moral issue of embryonic stem cell research, I am fascinated by Kinsley's suggestion that government reports only to its citizens, not to God. It is true that ours is a government of laws and not of men, but that simply means that our social compact requires that we all submit ourselves to laws enacted by our duly elected representatives, and are not thereafter subject to the whims of various leaders. Recall, however, the very nature of our government as stated in the Constitution: "We the People of the United States . . . do ordain and establish this Constitution for the United States of America." John Marshall stated that, "The people made this Constitution, and the people can unmake it. It is the creature only of their will, and lives only by their will." And as Abraham Lincoln so eloquently reminded us, ours is a "government of the people, by the people, [and] for the people." The "government," as Kinsley refers to it, is a monolithic creature that has no loyalties or obligations beyond itself and the citizens to whom it reports. But in fact, the government is those citizens. Do "the people" answer to anyone other than themselves? Do citizens, then, have a higher obligation?

In both the Christian and Jewish tradition, the answer is emphatically "yes." Romans 13:1 teaches that all authority comes from God. We are commanded by God in Ecclesiates 12:13-14 to govern ourselves, and that we will answer for the decisions we make: "Now all has been heard; here is the conclusion of the matter: Fear God and keep his commandments, for this is the whole duty of man. For God will bring every deed into judgment, including every hidden thing, whether it is good or evil." Proverbs 16:12 instructs us that, "It is an abomination for kings to commit wicked acts, For a throne is established on righteousness." Further, in I Samuel 12:24-25, God told Israel (to use Kinsley's verbiage) that "the people" were directly responsible for the decisions of the "government": "But be sure to fear the LORD and serve him faithfully with all your heart; consider what great things he has done for you. Yet if you persist in doing evil, both you and your king will be swept away."

The first highlighted portion of Kinlsey's article is also telling for its rampant secular underpinnings: "If my life is worth no more than the survival of one of these clumps, then it is terribly unfair that I can plead my case on the op-ed page, and they can't." Believers, though, are obligated to speak out for those who can't speak for themselves. Perhaps the most appropriate passage for this particular topic is in Proverbs 31:

"The sayings of King Lemuel—an oracle his mother taught him: . . . 'Speak up for those who cannot speak for themselves, for the rights of all who are destitute. Speak up and judge fairly; defend the rights of the poor and needy.'"

In terms of the Judeo-Christian tradition, then, it is not just a question of the decisions of a faceless bureaucracy; the decisions of the leaders are reflections of the people's desires. If all authority comes from God, and we the people, in exercising that authority, have established a government for ourselves, we are responsible for the decisions that government makes, and we are to be vigilant at all times to guard against denying those same God-given liberties to the voiceless, the defenseless. Attempts to excise God from public life and morality from public decisions are temporal affairs; the consequences, however, are eternal.

Rehnquist to go this month?

Southern Appeal is reporting that Chief Justice William Rehnquist will announce within the next four weeks that he is retiring from the Supreme Court. A Rehnquist retirement means at least one, and possibly two (if the president elevates an associate justice to CJ), confirmation battles on Capitol Hill this year. This should be an interesting ride.

Challenge to Kentucky marriage amendment rejected

Last November, eleven states, including Kentucky, added constitutional amendments recognizing marriage as it has traditionally been defined, as the union of one man and one woman, and declining to adopt any alternative versions of marriage. Kentucky's amendment was quickly challenged in court as having been improperly enacted pursuant to Kentucky law governing the adoption of amendments. The Alliance Defense Fund, representing the Kentucky Family Foundation as well as the legislator who proposed the amendment, intervened to assist in defending the constitutionality of the amendment. In my former life as a private practitioner I had some very minor involvement in assisting ADF during the litigation.

The circuit court has now dismissed the challenge. It concluded that the amendment satisfied all legal requirements for enacting a constitutional amendment. The court made the point of emphasizing that no substantive due process or equal protection challenges had been made by the plaintiffs, and expressly declined to go beyond the arguments raised in the pleadings to address any federal constitutional issues. At one point, the court seemed almost offended by the argument that the amendment had been brought to prevent an activist court from reading Kentucky law as requiring recognition of marriage relationships beyond one man and one woman. ADF has a copy of the opinion here (pdf format).

Of course the decision will likely be appealed, and the circuit court's decision will probably not be the last word in this matter. But it's a good start.

Howard Morris, RIP

Howard Morris may not be one of the most familiar names from Hollywood to most Americans, but the name of Ernest T. Bass probably resonates with anyone who has ever seen "The Andy Griffith Show." Morris was only in a few episodes as the quirky Bass, but his impact was incredibly influential. Morris passed away Saturday at the age of 85. For the endless hours of entertainment he provided, a heartfelt thanks. RIP.

Filibuster deal

News from Washington tonight that a bipartisan group of Senators have reached an agreement that would prevent the Republican leadership from invoking the "nuclear/constitutional/Byrd" option by changing Senate rules to prohibit filibusters on judicial nominees. In return, the Democratic signatories to the agreement would abandon the use of the filibuster against judicial nominees except "under extraordinary circumstances," and would allow a vote on three of the currently stalled nominees. The agreement is here (pdf, courtesy of National Review).

At the press conference announcing the deal, Senator Byrd recited the story that gives this blog its title. Most of the senators who spoke reiterated that they believed the agreement was in the "finest tradition of the Senate," and the document itself opens with a high-minded flourish, that "the memorandum confirms an understanding among the signatories, based upon mutual trust and confidence." This calls to mind the phrase that concludes the Declaration of Independence, where the signers stated, "with a firm reliance upon the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." Ironic that one of the signatories noted at the press conference that "there is not a Jefferson among us."

In practical effect, this agreement may simply postpone this same fight until the summer, if Chief Justice Rehnquist retires and there is a vacancy on the Supreme Court. Democrats may deem any nominee similar to those allowed to be confirmed to the circuit court of appeal under this agreement unacceptable for a position on the nation's highest Court, invoking the "extraordinary circumstance" that would permit the use of the filibuster. Permit me a healthy dose of skepticism that this agreement will survive a Supreme Court vacancy.

Joe Biden on judicial filibusters

Senator Joe Biden recently gave a very interesting speech on the history of the Senate and the nature of our constitutional government, all while stressing the point that eliminating the judicial filibuster runs contrary to that history. While I disagree with that conclusion, the speech is worth reading for anyone interested in the topic.

At one point late in the speech, however, Biden begins mixing apples and oranges in his historical lesson. The bulk of his speech stresses how the Senate was designed to be representative of the states, as opposed to popular representation in that chamber. He also spends a great deal of time on the Constitutional provision that allows each house of Congress to make its own rules. But then he makes this peculiar argument:

"I suffer from teaching constitutional law for the last 13 years, an advanced class on constitutional law at Widener University, a seminar on Saturday morning, and I teach this clause. I point out the essence of our limited constitutional government, which is so different than every other, is that it is based on the consent of the governed. The governed would never have given consent in 1789 if they knew the outfit they were giving the consent to would be able, by a simple majority, to alter their say in their governance."

As I understand the adoption of the Constitution, the states, in their various ratifying conventions, were voting on whether the document prepared by the Philadelphia convention of 1787 should replace the Articles of Confederation. I am not aware of any great debate in these conventions over the internal mechanisms involving the rules of each house, which is the current discussion involving the use of the filibuster on the president's judicial nominees. The "consent of the governed" was given by the people to the Constitution as a whole, and any alteration in that document must come through the amendment process.

Biden's argument on this point was effectively rebutted in 1995 by Joe Lieberman:

"For too long, we have accepted the premise that the filibuster rule is immune. Yet, Mr. President, there is no constitutional basis for it. We impose it on ourselves. And if I may say so respectfully, it is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.

"The Framers of the Constitution, this great fundamental, organic American document considered on which kinds of votes, on which issues the will of the majority would not be enough, that a vote of more than a majority would be required, and the Constitution has spelled those instances out quite clearly. Only five areas: Ratification of a treaty requires more than a majority of the Senate; override by the Senate of a Presidential veto requires more than a majority; a vote of impeachment requires more than a majority; passage of a constitutional amendment requires more than a majority; and the expulsion of a Member of Congress requires more than a majority."

According to Lieberman (at least in 1995), it is the Senate rule allowing any filibusters that circumvents the Constitutional amendment process, altering the people's say in governance absent their consent. Biden needs to shore up this particular aspect of his argument.

The miracle of life

I am an extraordinarily blessed man. I have two beautiful, wonderful daughters, and the best wife a man could hope for. This week, my posting has been rather light. That was due in no small part to the fact that my wife gave birth early Thursday morning to our newest child, our son. We are thrilled and proud to welcome the new man of the house. Praise the Lord for his faithfulness and goodness to us!

NYT's strange standard for judges

In an editorial today, the Times claims that the filibuster is a tool that allows Democrats to block "a few of President Bush's most ideologically extreme and least qualified judicial nominees." Least qualified?

The American Bar Association has given ratings to all of the judicial nominees, including the seven circuit judge nominees who have been subjected to filibusters. The ABA ratings have traditionally been afforded great weight, and "[i]n a March 16[, 2001,] letter to President Bush, [Sen. Patrick] Leahy [D-VT] and [Sen. Charles] Schumer [D-NY] said that the 'ABA evaluation has been the gold standard by which judicial candidates are judged.'" Here are the nominees, followed by their ABA ratings [pdf]:

Janice Rogers Brown -- Qualified (majority)
Richard Griffin -- Well-qualified (substantial majority)
David McKeague -- Well-qualified (unanimous)
William Myers -- Qualified (substantial majority)
Susan Neilson -- Well-qualified (unanimous)
Priscilla Owen -- Well-qualified (unanimous)
William Pryor -- Qualified (substantial majority)
Henry Saad -- Well-qualified (substantial majority)

By what standard, then, does the Times deem these the least qualified of the president's nominees, other than its own ideological measure? Certainly not the "gold standard."

Are you sure that the FMA is unnecessary?

Thursday, a federal district judge struck down Nebraska's law recognizing marriage as only the union of one man and one woman as a violation of the U.S. Constitution. The opinion is sloppily reasoned and seems to be a hodge-podge of legal theories loosely tied together. Professor Volokh at The Volokh Conspiracy has a good analysis of the opinion, and why it should be reversed by the Eighth Circuit, or the Supreme Court, here.

So the Senate is the world's greatest deliberative body?

Not with oratory like this:

"Senate Democratic leader Harry Reid called President Bush 'a loser' during a civics discussion with a group of teenagers at a high school on Friday.

"'The man's father is a wonderful human being,' Reid, D-Nev., told students at Del Sol High School when asked about the president's policies. 'I think this guy is a loser.'"

Initially, Reid seemed to apologize, as he later called Karl Rove and asked that the apology be passed along to the President. Reid's spokeswoman said Reid expressed "regret for the comments, [and] that it was inappropriate." Given the weekend to think it over, however, Reid stuck by his original comment:

"'I tell people how I feel about things. I don't try to hide how I feel,' Reid said. 'Maybe my choice of words was improper, and I have indicated that maybe they were, but I want everyone here, I repeat, to know I'm going to continue to call things the way that I see them, and I think this administration has done a very, very bad job for this nation and the world.'"

For the man who leads the minority party in the chamber that bills itself as the world's most deliberative body, Reid's comments since becoming leader have been remarkably intemperate. This comment was made to a high school civics class, hardly the most ideal place to refer to the president as a "loser," particularly if you are concerned that high school students, in a civics class, learn to be civil. Reid has also disparaged the intellectual ability of Justice Clarence Thomas. Does anyone on Reid's side of the aisle have the courage to stand up to the minority leader and tell him that his comments do not contribute to the elevation of public discourse, but would be more appropriate if heard on "The Jerry Springer Show"? It doesn't seem so.

If Reid really wants to call things the way he sees them, that is fine, he is free to comment on the administration's policies to his heart's content, and as opposition leader has an obligation to do so. But an ad hominem attack on the president's personal character to a group of high school students has nothing to do with the job the administration is doing. Senator Reid owes the president a genuine, public apology.

D.C. in the House

Rep. Tom Davis (R-VA) is sponsoring a bill that would give the District of Columbia one vote in the House of Representatives, and would also increase Utah's Congressional delegation by one member, both until the 2012 census reapportionment, at which time the House would revert to 435 members apportioned among the states and D.C. The Washington Post editorializes in favor of this bill, noting that it would take D.C. halfway toward its goal of representation in both the House and Senate, and statehood. It's a measure that should spark debate.

First principles: The Constitution allows Congress "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States." Both Maryland and Virginia ceded portions of their states when the District was established on the Potomac River. In 1846, Congress passed a law returning the Virginia portion to that state, and the law took effect in 1847. The District is now entirely composed of the land ceded from Maryland.

Can simple legislation provide D.C. with a vote in the House of Representatives? Not if the Constitution is read literally. Article I, Section 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." Likewise for the Senate, according to the 17th Amendment: "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." There are five members of the House without floor voting rights, but who arer permitted to vote in committees; they are delegates from D.C., American Samoa, Guam, the U.S. Virgin Islands, and a Resident Commissioner from Puerto Rico. The lack of floor voting rights stems from the fact that none of these delegates are from a state.

My view is that voting rights for the District of Columbia in either house would require a constitutional amendment, which would undoubtedly result in D.C. statehood. A simpler solution would be similar to legislation proposed this year by Rep. Dana Rohrabacher (R-CA), which would allow D.C. residents to participate as Maryland residents for the purposes of Congressional and presidential elections. Under the 23rd Amendment, D.C. residents already are represented in presidential elections. The proposed legislation would permit D.C. residents a voice in Congress, albeit as citizens of Maryland, but provides most of what D.C. residents claim to have been seeking. Another solution would be to return the land ceded by Maryland to that state, with the federal government retaining control over properties on which federal buildings sit, such as the White House, the Capitol, and the Supreme Court, along with the federal agencies. Not surprisingly, Rohrabacher has no co-sponsors to his legislation, because it does not provide what the largely Democratic population base of the District seeks -- not just representation in Congress, but a greater Democratic presence there.

You make the call

For the record, I believe that, regardless of which political party is in control of the Senate, filibusters of judicial nominees are wrong. But compare the following statement of Senator Patrick Leahy on yesterday's "Fox News Sunday" to his remarks from the Congressional Record referenced by Chris Wallace. He is backpedaling vigorously and, I think, somewhat disingenuously from the substance of his original remarks. Yesterday:

"WALLACE: All right. Let's turn, if we can, to judges. I want to put something up on the screen that you said back in June of 1998. You said, 'I have stated over and over again that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported, that I felt the Senate should do its duty.' Then, in September 1999, you spoke again of filibusters: 'I think that is unfair to the judiciary, it is unfair to the nominees, and, frankly, it demeans the Senate.' Question, why were filibusters so terrible back in 1999, but they're legitimate now?

"LEAHY: Well, let me -- I can't see your screen, but I listened to what you said. And you said, I've stated over and over again -- and I imagine said -- dot, dot, dot -- that I object and fight against these filibusters. It's very convenient -- and I suspect you got this from the Republicans, that you left off what I said in there. What I said, I would refuse to put an anonymous hold on any judge. What I was talking about was the pocket filibusters in my quotes from The New York Times and the material I put in the Congressional Record at the time show very clearly, I was talking about the pocket filibusters, the anonymous holds the Republicans were doing.

"You remember that they filibustered 61 of President Clinton's judges. If they had one, if they had even one Republican who opposed them, they would stay bottled up, they'd never have a hearing, they'd never have a vote. Those were pocket filibusters requiring 100 senators to get a judge through.

* * *

"And on the occasion we broke through and actually got someone on the floor, they still filibustered them. In fact, Bill Frist voted to continue a filibuster. I guess it makes a difference who was president.

"WALLACE: Well, some people would say that's true for you too. In fact, what you said -- and we did have the dot, dot, dot; talking about the anonymous holds. I guess I would make two points there. First of all, under Bill Frist's new compromise, he would do away with the anonymous holds. He would guarantee that every nominee would get out of committee and get an up-or-down vote on the floor. But in addition, you did say that you were against the anonymous holds and that you would object and fight against any filibuster on any judge. You said that the Senate should do its duty and that there should be an up-or-down vote. Now my question is: Why did you feel that then but you don't feel it now?

"LEAHY: I was talking about the committee."

Let's see what the Congressional Record "clearly" shows, with extended quotes so I am not accused of unfairly "dot-dot-dot"ting the Senator's remarks out of context. And I didn't get this from Republicans; it comes from the Congressional Record, June 18, 1998:

"If Senators are opposed to any judge, bring them up and vote against them. But don't do an anonymous hold, which diminishes the credibility and respect of the whole U.S. Senate.

"I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote.

"I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.

"If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators."

And from the Congressional Record, October 14, 1998:

"The Majority Leader has yet to call up the nomination of Judge Richard Paez to the Ninth Circuit. That nomination was first received by the Senate back in January 1996, almost three years ago. His nomination was delayed at every stage and this is now the judicial nomination that has been pending the longest on the Senate Executive Calendar this year, seven months. Over the last few days the Majority Leader has repeatedly indicated that he would be calling up this nomination, but he has not done so.

"I have heard rumors that some on the Republican side planned to filibuster this nomination. I cannot recall a judicial nomination being successfully filibustered. I do recall earlier this year when the Republican Chairman of the Judiciary Committee and I noted how improper it would be to filibuster a judicial nomination. During this year’s long-delayed debate on the confirmation of Margaret Morrow, Senator HATCH said: 'I think it is a travesty if we ever start getting into a game of filibustering judges.' Well, it appears that travesty was successfully threatened by some on the Republican side of the aisle and kept the Majority Leader from fulfilling his commitment to call up the nomination for a confirmation vote.

* * *

"In his 1997 Year-End Report, Chief Justice Rehnquist focused again on the problem of 'too few judges and too much work.' He noted the vacancy crisis and the persistence of scores of judicial emergency vacancies and observed: 'Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote. The Senate confirmed only 17 judges in 1996 and 36 in 1997, well under the 101 judges it confirmed in 1994.' He went on to note: 'The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.'

"That is good advice. That is what this Senate should do, take up these nominations and vote them up or vote them down. I believe that if the Senate were given an opportunity to have a fair vote on the merits of the nomination of Judge Richard Paez or Timothy Dyk or any of the 21 judicial nominations pending on the Senate Executive Calendar, they would be confirmed. Perhaps that is why we are not being allowed to vote."

And from the Congressional Record, October 1, 1999:

"I do not deny each Senator his or her prerogative as a Member of this Senate. After 25 years here, I think I have demonstrated--and I certainly know in my heart--I have great respect for this institution and for its traditions, for all the men and women with whom I have served, the hundreds of men and women with whom I have served over the years in both parties. But this use of secret holds for extended periods to doom a nomination from ever being considered by the Senate is wrong, unfair, and beneath us.

"Who is it who is afraid to vote on these nominations? Who is it who is hiding their opposition and obstructing these nominees? Can it be they are such a minority, they know that if it comes to a fair vote, these good men and women will be confirmed?

"So rather than to allow a fair vote, they will keep it from coming to a vote. I would bet you that the same people who are holding these nominations back from a vote will go home on the Fourth of July and other holidays and give great speeches about the democracy of this country and how important democracy is and why we have to allow people to vote and express the will of the people--except in the Senate and, apparently, except if you are a minority or a woman.

* * *

"There is never a justification to deny any of these judicial nominees a fair up-or-down vote."

In fairness, Senator Leahy, did reference "anonymous holds" that occur when nominees are still in committee. However, he still called for a "fair up-or-down vote." His repeated calls for an up-or-down vote on the floor of the Senate make clear that his answer yesterday was intentionally evasive.

What did the Framers intend for the Senate?

Here is the view according to Senator Christopher Dodd (D-Conn.), speaking yesterday on NBC's "Meet the Press":

"The people who wrote this Constitution, many of them came from Virginia, people like Madison and Monroe and, of course, Hamilton from New York and others. And they set up a system, a bicameral system in the legislative branch. The Senate was to be a place where the rights of the minority were protected, using the vehicle of extended debate. The House is a place where the majority rules. That's why they set this system up."

Sen. Dodd was born in 1944, one year before the end of World War II, and 157 years after the Constitutional Convention. He has been in the Senate for over twenty years now, however, and should know better the history of that body and its structure in the Constitution. There is no "vehicle of extended debate" provided for in the Constitution. The Constitution allows each house of Congress to make its own rules, and it is from those rules that the filibuster has emerged. But his description of the Senate as "a place where the rights of the minority were protected," compared to the majority rule of the House of Representatives, is not what the Framers were shooting for.

As most people might remember from their high school civics classes, the debate in the Constitutional Convention over the establishment of the national government revolved around two competing plans: the Virginia plan, where both houses of the federal legislature were apportioned according to population, and the New Jersey plan, which envisioned only one house in the national legislature in which each state had equal representation. The compromise in the Constitution gave each state equal representation in the Senate, and proportional representation in the House. The Senate was not necessarily intended to be a place where minority rights were protected, but rather where the sovereignty of the states was respected. James Madison wrote in Federalist 62:

"The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. . . . A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.

"In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic." [Emphasis added.]

The Senate, therefore, was intended to preserve the sovereignty of the states by allowing each state an equal voice in one house of the national legislature. Indeed, under the Constitution, state legislatures selected the Senators; only with the ratification of the 17th Amendment in 1913 did Senators become chosen by popular vote. As noble as the protection of minority rights is, it is not, as the Senator stated, "why they set this system up."

Filibuster frustration

Bill Frist, Senate majority leader, offered a proposal that would have ended the bickering over whether judicial nominees are denied an up or down vote on the floor of the Senate. The offer was rejected by Harry Reid, Senate minority leader, although he did indicate that he would consider some of the proposals made.

In his floor speech, however, Senator Reid made a cinematic reference that, quite frankly, is becoming a bit tiresome to hear from any senator. He stated, "Again, I do not really like the proposal given, but I am not going to throw it away. I am going to work on it and see if I can come back with something that is in keeping with what I think is the 'Mr. Smith Goes to Washington' scenario."

In fact, a number of Democrats have recently cited this movie as inspiration for their judicial obstruction. Here are Robert Byrd, Dick Durbin, Harry Reid (again), and Dick Durbin (again), invoking the movie in support of their filibusters of judicial nominees. Here is probably the best description of what the Democrats are not doing, by Dick Durbin (again): "So if I am perplexed by an amendment offered by one of my colleagues, and I stand up to debate it and decide I am going to hold the floor of the Senate as long as my voice and body can hold out, I can do that, until such point as 60 colleagues, Democrats and Republicans, come together and say: Enough, we want to move to a vote. That is what it is all about."

Fine with me. Let's do it. Or as Senator John Kerry might have said, "Bring it on!" If Senator Reid and Senator Durbin really want to preserve the "Mr. Smith" scenario, let's go back to the days when a filibuster was truly a filibuster, when a senator actually had to take the floor and speak for hours on end to slow down debate on a matter. That is not the way filibusters work today. Now, if a party threatens a filibuster, the matter is simply not placed on the Senate agenda for debate. Both parties are to blame for this, however. Neither party wants to bear the political cost of a good, old-fashioned "Mr. Smith"-type filibuster because the Senate proceedings are televised live on C-SPAN (or C-SPAN2 -- not sure which). And Republicans don't want to do their jobs and sit in the chamber during a filibuster to ensure that there are always a majority of Republicans there to prevent a nominee from being voted down.

That "game" is frustrating and worn out. If Senator Reid wants to preserve the "Mr. Smith" scenario, fine. Let the Democrats read from the telephone directory for hours, and let the Republicans sit in their chairs listening (heaven forbid someone doze off and be caught on camera) and find out how America really feels about preserving the filibuster rule in the Senate, and how America feels about the way the Senate conducts business and spends taxpayer money. Take the floor, senators -- let's see how long you can hold out.

A Haunting Specter

Many conservatives were leery of turning the chairmanship of the Senate Judiciary Committee over to Arlen Specter after his post-election remarks that seemed to warn President Bush about forwarding conservative judicial nominees. Specter was ultimately given the post, despite a serious grass-roots campaign against him, when he issued this statement pledging to work for the president's nominees.

Specter delivered a speech on the Senate floor on Thursday, April 21, regarding judicial nominations, filibusters, and the constitutional option to end the filibusters, and stated the following:

"On these critical issues with these cataclysmic consequences, I urge my colleagues on both sides of the aisle to study the issues and to vote their consciences independent of party dictation. I have not rendered a decision on how I would vote on the constitutional/nuclear option, but instead have been working to break the impasse by confirming or rejecting the previously filibustered nominees by up or down votes. . . . Central to the definition of deliberation is thought. And we pride ourselves on being the world’s greatest deliberative body. And thought requires independence—not response to party loyalty or any other form of dictation. The lessons of our best days as a nation should serve as a model today for Senators to vote their consciences on the confirmation of judges and on the constitutional/nuclear option." [Emphasis added.]

The highlighted portion of his speech is notable for the contrast it appears to draw with the statement he issued to ensure his chairmanship:

"I have already registered my opposition to the Democrats’ filibusters with 17 floor statements and will use my best efforts to stop any future filibusters. It is my hope and expectation that we can avoid future filibusters and judicial gridlock with a 55-45 Republican majority and election results demonstrating voter dissatisfaction with Democratic filibusters. If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51 votes." [Emphases added.]

Now that he is safely ensconced in the Judiciary Committee chairmanship, Senator Specter apparently feels free to act as though that position were never in doubt. While the recent Senate speech would no doubt be cast by the senator as a pox on both the Republicans' and Democrats' houses, the tone of "I have not rendered a decision on how I would vote" on ending judicial filibusters stands in stark contrast to his assurance that there are "precedents to secure rule changes with 51 votes." We'll see if the major media pick up on this story. The Washington Times has run an article, but I have seen little elsewhere.

Deconstructing Ginsburg

Supreme Court Justice Ruth Bader Ginsburg, a Clinton appointee, recently gave a speech defending, even extolling, the virtues of looking to foreign law in interpreting the meaning of the United States Constitution. Today on National Review Online, Edward Whelan does a masterful job of dissecting Ginsburg's speech and explaining both why her view is contrary to the Declaration of Independence (the document Ginsburg uses as the basis for her speech), and exposing the fallacy behind her logic. It's a must-read for anyone interested in these recent developments on the Court.

Slippery slope of compromise

According to this story, Senate Minority leader Harry Reid is proposing a compromise to stave off a manuever that would ban judicial filibusters, the much talked about "nuclear option." Under Reid's proposal, Democrats would agree to up or down votes on two Bush nominees to the Sixth Circuit Court of Appeals, but are demanding that a third presidential nominee be withdrawn and replaced "by an alternative who is preferred by Michigan's two Democratic senators."

This is not a proposal that should be taken seriously by the Republicans in the Senate or, for that matter, anyone who seeks to preserve the constitutional design, and the maintenance of the presidential power, Republican or Democrat, to nominate the judges of his choice. The Constitution provides in Article II, Section 2, paragraph 2, that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." Alexander Hamilton elaborated on this presidential power in The Federalist Number 66:

"It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy." [Emphasis added.]

In recent years, with the increasing politicization of the judicial nomination and confirmation process, it has become fashionable for senators whose party does not control the White House to place undue emphasis on the "advice" portion of the "advice and consent" clause in an effort to convince the public that they are entitled to assist the president in selecting the nominee. If Hamilton is to be believed, however, it was never the vision of the Framers for judges to be selected by a committee consisting of the president and a group of senators. The choice of nominee lies solely with the president, regardless of party. The role of the Senate is to accept or reject that nominee. The compromise proposed by Harry Reid chips away significantly at this presidential power. It should be declined.

UPDATE: I recognize that, since Washington's first administration,there has existed the tradition of senatorial courtesy. As the Senate's website notes, however, that courtesy has traditionally been extended to senators of the president's own party in recommending nominees from the states which they represent. It is not a practice that allows senators of a party different from the president to dictate presidential nominees,the scenario envisioned by the Reid compromise.

Joe Lieberman, shame on you

I generally have a great deal of respect for Joe Lieberman, so when I came across these two separate speeches, given almost a decade apart, I was deeply disappointed in the rank partisanship from a politician who is usually better than this. First, from the Congressional Record, January 4, 1995, on the amendment to Senate rules to do away with the filibuster in the Senate (keep in mind, this was just after the 1994 midterm elections, when Republicans took control of both the House of Representatives and Senate):

"It is important now to make this effort to show that we have heard the message and that we are prepared to not only shake up the Federal Government but shake up the Congress. And not just for the sake of shaking it up, but because of a fundamental principle that is basic to our democracy, that is deep into the deliberations of the Framers of our Constitution and appears throughout the Federalist Papers, which is rule of the majority in the legislative body. It is this majority rule has been frustrated by the existing filibuster rule. So I am privileged to join as a cosponsor with my colleague from Iowa in this effort.

"Mr. President, whenever I explain to my constituents at home in Connecticut that a minority of Senators can by a mere threat of a filibuster --not even by the continuous debate, but by a mere threat of a filibuster --kill a bill on the Senate floor, they are incredulous. When I tell them that now as a matter of course a Senator needs to obtain 60 votes in order to pass a bill to which there is opposition, frankly, the folks back home are suspicious. . . .

"For too long, we have accepted the premise that the filibuster rule is immune. Yet, Mr. President, there is no constitutional basis for it. We impose it on ourselves. And if I may say so respectfully, it is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.

"The Framers of the Constitution, this great fundamental, organic American document considered on which kinds of votes, on which issues the will of the majority would not be enough, that a vote of more than a majority would be required, and the Constitution has spelled those instances out quite clearly. Only five areas: Ratification of a treaty requires more than a majority of the Senate; override by the Senate of a Presidential veto requires more than a majority; a vote of impeachment requires more than a majority; passage of a constitutional amendment requires more than a majority; and the expulsion of a Member of Congress requires more than a majority.

"The Framers actually considered the wisdom of requiring supermajorities for other matters and rejected them.

"So it seems to me to be inconsistent with the Constitution that this body, by its rules, has essentially amended the Constitution to require 60 votes to pass any issue on which Members choose to filibuster or threaten to filibuster.

"The Framers, I think, understood--more than understood--expressed through the Constitution and their deliberations and their writings, that the Congress was to be a body in which the majority would rule." [Emphases added.]

Joe Lieberman, in a press release from April 6, 2005, now supports the filibuster wholeheartedly:

“I am standing with my fellow Democrats in the Senate against the Republican nuclear option to ban the requirement for bipartisan majorities because I want to ensure judges appointed for life have bipartisan support and to ensure important legislation and rulings are upheld,” Lieberman said. “I am standing up to save the filibuster because it is vital to moderate, bipartisan government. That was the vision of our founding fathers and the spirit of our constitutional government.” [Emphasis added.]

Seriously, Joe. Today the filibuster is "the vision of our founding fathers and the spirit of our constitutional government," yet a decade ago the filibuster was "inconsistent with the Constitution," and "the Framers . . . expressed through the Constitution and their deliberations and writings, that the Congress was to be a body in which the majority would rule"? You even claimed that the Senate had amended the Constitution by its own rules in allowing the filibuster.

These are not the comments of a statesman. They are pandering to a political base. It's a shame a fine man has stooped so low.

UPDATE: Thanks to Lance at Ragged Edges for the link and the additional research.

The New York Times shifts on filibusters

On Tom Harkin's 1995 proposal to eliminate the filibuster, as re-printed in the Congressional record, here is a New York Times editorial:

"Time to Retire the Filibuster

"The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last season of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster . Hooray for him.

"For years Senate filibusters--when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor--consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.

* * *

"One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

"Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

"Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote--with votes occurring no more frequently than every second day--cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.

* * *

"The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose."

How a decade can change things. The Times now on the utility of the filibuster:

"Senator Frist and his backers want to take away the sole tool Democrats have for resisting the appointment of unqualified judges: the filibuster." Bill Frist's Religious War, April 16, 2005.

Remembering my father and Ernie Pyle

My father passed away ten years ago this week, and of course the upcoming anniversary has been on my mind for weeks. He was a World War II veteran from the Pacific theater, and one of the stories he often told was of being just up the beach from war correspondent Ernie Pyle on Ie Shima when Pyle was killed by a sniper's bullet. As it happens, Ernie Pyle was killed sixty years ago today. Reading this story about Pyle and the affection that the soldiers who he lived beside and reported on brought back fond memories of my father. It is a shame that today's soldiers will probably never have the same relationships with the journalists who cover their exploits as the WWII soldiers had with Ernie Pyle.

I miss my dad, but I rest in the knowledge that he is with our Heavenly Father and with his family who had gone on before.

Tom DeLay, Harry Reid & SCOTUS

Tom DeLay has been all over the news lately, taking slings and arrows from political opponents as well as suffering some self-inflicted wounds. A new story recounts criticism he leveled at Justice Anthony Kennedy:

"[H]e pointed to Kennedy as an example of Republican members of the Supreme Court who were activist and isolated.

"'Absolutely. We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous,' DeLay told Fox News Radio. 'And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.'"

As one who uses the Internet for research, my outrage is somewhat tempered, although the Supreme Court certainly has far more comprehensive research tools than Google or Ask Jeeves. What I found noteworthy about this story was the following quote and glaring omission: "Nevertheless, it is unusual for a congressional leader to single out a Supreme Court justice for criticism."

This may very well be true. But one recent incident of just such behavior was left out of the story. On December 5, 2004, newly-minted Minority Leader Harry Reid, Democratic senator from Nevada, said the following when asked why he could not support Clarence Thomas for chief justice: "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice."

Reid was unable to cite a single accurate instance of a poorly written opinion when he was later pressed on the matter. Still, if it is "unusual for a congressional leader to single out a Supreme Court justice for criticism," why did this very recent, high-profile incident of the new Senate minority leader calling a specific justice "an embarrassment" not merit a mention in the AP story?

UPDATE: For the record, I am fully cognizant of internet-based legal research tools provided by Lexis-Nexis and Westlaw.

Cohen says Scalia = Activist?

In today's New York Times, Adam Cohen has an opinion piece criticizing conservatives, Scalia, Tom DeLay, John Cornyn, and every other perceived evil he can find that offends the living Constitution. On closer examination, however, his argument collapses.

He begins by criticizing Tom DeLay, who last week "called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: 'We set up the courts. We can unset the courts.'" This is, conveniently or not, a Constitutional fact of life. The first sentence of Article III, Section 1 of the Constitution -- the Judicial Article -- states that, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." From the Framers, the principle is genius; from DeLay, however, it is ominous. The thoughts of the state courts being forced to interpret the byzantine federal code is mind-boggling, but it is part of the Constitutional design.

Cohen next sets his sights on Justice Scalia for his "mythical" adherence to originalism in the face of a "living" Constitution. Criticizing Scalia for his opinion in an 11th Amendment case, Cohen writes,

"The 11th Amendment says federal courts cannot hear lawsuits against a state brought by 'Citizens of another State, or by Citizens or Subjects of any Foreign State.' But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that 'despite the narrowness of its terms,' the 11th Amendment has been understood by the court 'to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.'"

In his piece, Cohen conveniently omits key sections of the opinion, and wholly omits context, leaving the casual reader with the impression that Scalia invented this 11th Amendment doctrine fourteen years ago. Scalia actually wrote, in Blatchford v. Native Village of Noatak,

"Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the 'plan of the convention.'" [Citations omitted.]

Scalia was actually adhering to a constitutional doctrine that had been in place for more than a century, that essentially says that states, as sovereigns, did not waive their immunity from lawsuits by citizens of their own states simply by entering into the Constitutional covenant. States cannot be sued in state courts by their own citizens without consent, and the Court has long held that the same principle applies in the federal courts. Besides, Scalia, unlike Justice Thomas, is loath to depart from the doctrine of stare decisis, or respecting long-standing judicial opinions, and has made that clear on a number of occasions. This criticism by Cohen, upon closer examination, deflates.

But he presses on, this time aiming at "The Supreme Court's conservative majority [which] regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act." These laws were declared unconstitutional by the Supreme Court because Congress passed them under the Commerce Clause, which gives Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This power relates solely to interstate commerce, not intrastate commerce.

In United States v. Morrison, the Court struck down a portion of VAWA that allowed victims of domestic violence to sue for civil damages in federal court under the Commerce Clause. Chief Justice Rehnquist wrote that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." In United States v. Lopez, Chief Justice Rehnquist wrote, "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Nothing in this opinion prevents state and local officials from making possession of a gun in a school zone a criminal act, but nothing in the Constitution empowers the Congress to do so. Cohen's cited examples of Scalia's "activism" are, rather, instances in which the Court has stated that the legislative branch of the federal government went beyond its specifically enumerated powers in the Constitution, striking the law as an improper exercise of power.

Cohen concludes with the thorn in the side of liberals, Bush v. Gore. He charges that "the court's conservative bloc trample[d] on the Florida state courts and stop[ped] the vote counting," a shockingly "activist" position. He conveniently omits that Scalia joined an opinion with Rehnquist and Thomas that would have based the ruling on Article II, Section 1, clause 2 of the Constitution, which states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." Rehnquist noted that, "A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question," and, concluded that the Florida Supreme Court "significantly departed from the statutory framework in place" prior to Election Day, in violation of the U.S. Constitution. Cohen also does not state that O'Connor and Kennedy, the latter of whom he has referred to as a "mainstream conservative," declined to join this opinion based on the text, opting instead for an equal protection violation argument.

Cohen is simply off the mark with today's diatribe, but it must have felt good getting the frustration out.