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."