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Unprecedented obstructionist tactics
  • Since President Bush took office, more appeals court nominees have waited at least a year for a hearing than in the last 50 years combined.
  • During President Bush's first two years in office, only 53% of appeals court nominees were confirmed compared to a rate of over 90% during the same period for the last 3 Presidencies.
  • A minority of Senators are now engaging in unprecedented filibusters of two highly qualified appeals court nominees who have the support of a majority of Senators. And more filibusters are threatened.
  • Yesterday, a minority of Senators for the 6th time blocked a vote on Miguel Estrada and for the 2nd time blocked a vote on Priscilla Owen.
  • Some Senators are applying a double standard to Miguel Estrada and Priscilla Owen.

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I have only a passing familiarity with this aspect of the American justice system, but one explanation comes to mind immediately. Could it be that the judges nominated by the Bush administration are more extreme/controversial than those nominated by previous administrations?
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"A minority of Senators are now engaging in unprecedented filibusters "

This is patently false. Filibusters are not unprecedented. In fact, filibusters of judicial nominees is a republican tactic dating from 1968. Many nominees over the last 200 years never even reached the floor where they COULD be filibustered, because they are blocked in comittee.

And thats just one item on the list.

[ June 25, 2003, 06:03 PM: Message edited by: Everard ]

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Wow, what a stellar example of conservative "argument"!

Point one: This looks like a fact, and is probably verifiable. Note that it does not adequately address the apparent issue of a shortage of judges, since it does not mention how "more" is determined. It could be a greater percentage -- unlikely, since these words would have been more precise then the alternative, which is that it means more in sheer numbers. Which is a fairly meaningless "more" without knowing, for example, whether there were "more" or "less" vacancies these last two years than in the last 50. Additionally, the statement does not take into account the common occurrence that most judges are confirmed near the end of a presidency.

Point two: Another apparent fact, which is in all likelyhood verificable. However, this point, and well all of them, really, do not take into account the judicial nomination policy shifts which have occurred since about the time that Bush took office: Specifically, that home-state senators and the ABA are no longer consulted with respect to judicial nominees to any meaningful degree. This means that it's a heck of alot more work for folks to become educated about judicial nominees.

Point three: This point contains three apparent facts -- that some senators have filibustered, on two nominees, and that more filibusters have been threatened if these nominees are brought back. The rest of it is rhetoric which comprises no more than the author's opinion. This point also introduces the minority / majority distinction, a key feature in point four.

Point four: Verifiable facts, again, with some twists. First, the facts here are stated much more clearly than in earlier points, there is absolutely no slant and it would be very difficult to say that anything has been unaccounted for. Second, the minority has been previously painted by opinion as obstructionist to both a majority of the senate and our dear president, not only with respect to these nominees but all judicial nominees, generally. This point illustrates the earlier points without accounting for their weaknesses, while the earlier statements' strengths necessairly lead to this bad result.

This point just makes me wanna stand up and shout 'A Vote Against Estrada is a Vote For Hillary!'

Point five: Pure opinion, and not really necessary, as point four was the clincher.

There you have it folks, how to be a conservative commentator 101 [Smile]

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The dishonesty from the filabustering dems is worth mentioning.
several more important political observers have called upon the GOP to discontinue allowing other work to go on while the filabuster of Miguel Estrada and Priscilla Owen continue. The Democrat’s filibustering of President’s Bush’s nominatees to the DC Circuit Court of Appeals is longer than their blockage of the Civil Rights Bill in the 1960s.

Interesting that the only filabuster by the Democrats longer than their attempt to block Civil Rights is one to prevent the first Latino and a woman a place on the bench. A strange decision by the "party of the people."

Hypocrisy abounds. the Democrats have presented a united front blaming President Bush for naming "unacceptable and unqualified" nominees for judicial office. They acknowledge the votes are present to confirm the nominees if the names can reach the floor. The hypocrisy is in both calling the nominees substandard, when in actuality, each nominee is highly rated and praised by most all rating boards, incuding the American Bar Association and several Democratic senators who have worked directly with the nominees; and in blocking a straight up or down vote on the floor. 60 votes are needed for cloture, so at least 40 Democrats have used their blocking power to prevent a hearing and vote on the floor.

In earlier times, when the Democrats had the majority, they were adamant about the right to get such names to the floor, when nominated by a Democrativ President. Even when the nominees were arguably incompetent or poorly rated nominees with no assurance of confirmation, the GOP generally allowed the names to come to the floor for hearings and a vote. The few political hot potatoes that were bottled up in committee were usually just tabled by sufficient two-party votes in committee, not filabustered to prevent a vote.

DASCHLE IN 1999: “I Find It Simply Baffling That A Senator Would Vote Against Even Voting On A Judicial Nomination.” (Senator Tom Daschle (S-SD) Congressional Record, 10/5/99)

In 1997, Sen. Patrick Leahy (D-VT) Said Senate Should “[A]ccept Our Responsibility And Vote People Up Or Vote Them Down. …If We Want To Vote Against Them, Vote Against Them.” (Senator Patrick Leahy, Congressional Record, 10/22/97)

In 1997, Sen. Joe Biden (D-DE) Said “[I]t Is Not … Appropriate Not To Have Hearings On [Judicial Nominees], Not To Bring Them To The Floor And Not To Allow A Vote …” (Senator Joe Biden, Congressional Record, 3/19/97)

In 1997, Sen. Barbara Boxer (D-CA) Said The Senate Should Not“[O]bstruct The Process And Prevent Numbers Of Highly Qualified Nominees From Even Being Given The Opportunity For A Vote On The Senate Floor.” (Senator Barbara Boxer, Congressional Record, 5/14/97)

In 1998, Sen. Ted Kennedy (D-MA) Said “We Owe It To Americans Across The Country To Give These Nominees A Vote. If Our Republican Colleagues Don’t Like Them, Vote Against Them. But Give Them A Vote.” (Senator Ted Kennedy, Congressional Record, 2/3/98)

In 1998, Sen. Richard Durbin (D-IL) Demanded “Vote The Person Up Or Down.”  (Senator Richard Durbin, Congressional Record, 9/28/98) In 1999, Sen. Tom Daschle Said “An Up-Or-Down Vote, That Is All We Ask …” (Senator Tom Daschle, Congressional Record, 10/5/99)

In 1999, Sen. Dianne Feinstein (D-CA) Said “It Is Our Job To Confirm These Judges. If We Don’t Like Them, We Can Vote Against Them.” (Senator Dianne Feinstein, Congressional Record, 9/16/99)

In 2000, Sen. Chuck Schumer (D-NY) Said “[W]e Are Charged With Voting On The Nominees. The Constitution Does Not Say If The Congress Is Controlled By A Different Party Than The President There Shall Be No Judges Chosen.” (Senator Chuck Schumer, Congressional Record, 3/7/00)

In 2000, Sen. Tom Harkin (D-IA) Urged “[T]he Republican Leadership To Take The Steps Necessary To Allow The Full Senate To Vote Up Or Down On These Important Nominations.” (Senator Tom Harkin, Congressional Record, 9/11/00)

In 2001, Sen. Harry Reid (D-NV) Declared “[W]e Should Have Up-Or-Down Votes In The Committee And On The Floor.” (CNN’s “Evans, Novak, Hunt & Shields,” 6/9/01)

In 2001, Sen. Byron Dorgan (D-ND) Said “My Expectation Is That We’re Not Going To Hold Up Judicial Nominations. …You Will Not See Us Do What Was Done To Us In Recent Years In The Senate With Judicial Nominations.” (Fox News’ “Special Report With Brit Hume,” 6/4/01)

Miguel Estrada's Qualifications and Bipartisan Support oficial reply to the Senate:

Miguel Estrada is an extraordinary qualified judicial nominee. The American Bar Association, which Senators LEAHY and SCHUMER have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. The ABA rating was entirely appropriate in light of Mr. Estrada's superb record as Assistant to the Solicitor General in the Clinton and George H.W. Bush Administrations, as a federal prosecutor in New York, as a law clerk to Justice Kennedy, and in performing significant pro bono work.

Some who are misinformed have seized on Mr. Estrada's lack of prior judicial experience, but five of the eight judges currently serving on the D.C. Circuit had not prior judicial experience, including two appointees of President Clinton and one appointee of President Carter. Miguel Estrada has tried numerous cases before federal juries, argued many cases in the federal appeals courts, and argued 15 cases before the Supreme Court of the United States. That is a record that few judicial nominees can match. And few lawyers, whatever there ideology or philosophy, have volunteered to represent a death row inmate pro bono before the Supreme Court as did Miguel Estrada.

Miguel Estrada is strongly supported by the vast majority of national Hispanic organizations. The League of United Latin American Citizens (LULAC), for example, wrote to Senator LEAHY to urge Mr. Estrada's confirmation and explain that he "is truly one of the rising stars in the Hispanic community and a role model for our youth." A group of 19 Hispanic organizations, including LULAC and the Hispanic National Bar Association, recently wrote to the Senate urging "on behalf of an overwhelming majority of Hispanics in this country" that "both parties in the U.S. Senate ... put partisan politics aside so that Hispanics are no longer denied representation in one of the most prestigious courts in the land."

The current effort to filibuster Mr. Estrada's nomination is particularly unjustified given that those who have worked with Miguel — including prominent Democratic lawyers whom you know well — strongly support his confirmation. For example, Ron Klain, who served as a high-ranking adviser to former Vice President Gore and former Chief Counsel to the Senate Judiciary Committee, wrote: "Miguel is a person of outstanding character, tremendous intellect, and with a deep commitment to the faithful application of precedent. ...The challenges that he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, and genuinely devoted to helping those in need."

President Clinton's Solicitor General, Seth Waxman, wrote: "During the time Mr. Estrada and I worked together, he was a model of professionalism and competence. ... In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views — or indeed that they reflected any consideration other than the long-term interests of the United States. I have great respect both for Mr. Estrada's intellect and for his integrity."

A bipartisan group of 14 former colleagues in the Office of the Solicitor General at the U.S. Department of Justice wrote: "We hold varying ideological views and affirmations that range across the political spectrum, but we are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints." One former colleague, Richard Seamon, wrote that he is a pro-choice, lifelong Democrat with self-described "liberal views on most issues" who said he would "consider it a disgrace" if Mr. Estrada is not confirmed.

President Bush nominated Miguel Estrada nearly on May 9, 2001. He is well-qualified and well-respected. By any traditional measure that the Senate has used to evaluate appeals courts nominees, Miguel Estrada should have been confirmed long ago.

There has never been a successful filibuster of a court of appeal nominee. Only a few years ago, Senator Leahy and other Democrat Senators expressly agreed with then-Governor Bush that every judicial nominee was entitled to an up-or-down floor vote within a reasonable time. On October 3, 2000, for example, Senator LEAHY STATED:

"Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmation are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don't leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no--not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting `maybe,' but we are doing a terrible disservice to the man or woman to whom we do this."

Senator Daschle similarly stated on October 5, 1999, that "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."

The Senate's traditional approach to appeals court nominees, and the approach envisioned by the Constitution's Farmers, is far different from the standard that you now seek to apply. Senator BIDEN stated the traditional approach in 1997: "any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life, and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court." Congressional Record, March 19, 1997. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Federalist No. 76. It was anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." No. 76.

[Democrats] have suggested that Mr. Estrada's background, experience, and support are insufficient to assess his suitability for the D.C. Circuit. You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: "Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests--a cost that also would be borne by Congress itself. ... Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process."

It bears mention that the interest asserted here is that of the United States, not the personal interest of Mr. Estrada. Indeed, Mr. Estrada himself testified that "I have not opposed the release of those records. ... I am exceptionally proud of every piece of legal work that I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything that I have done for the government or for a private client."

Sen. Hutchinson Defends Judge Priscilla Owen from "Breathtakingly dishonest" Attacks

U.S. Senate - Executive Session

May 1, 2003

   Senator Kay Bailey Hutchinson: Thank you, Mr. President. And I thank the chairman for yielding time to me to talk about someone I know well, someone I have observed over the years, and who is one of the most outstanding people I have ever seen nominated for a Federal bench. She is a legal scholar. She has the temperament for a judge. And I think nothing shows her temperament better than her demeanor during the ordeal through which she has been put.

   She has been held up since May 9, 2001. She has had two hearings--not one--in which she was grilled by members of the Judiciary Committee, and she came out spotlessly clean. And even Members who today are going to vote against her have said she is one of the most qualified legal scholars they have seen before their committee. In fact, I have to say, I think there are a number of Democrats who really think she should be confirmed, but they are being held back by the special interest groups and the pressures not to confirm this qualified woman.

   Justice Priscilla Owen is an 8-year veteran of the Texas Supreme Court. She graduated cum laude from Baylor Law School. She earned the highest score on the Texas bar exam that year. She was a practicing lawyer before she was nominated for the supreme court. And she has been elected since her nomination and won over 80 percent of the vote of Texans and was endorsed by every newspaper in Texas.

   She enjoys broad support. The American Bar Association, as the distinguished chairman mentioned, has voted her unanimously well qualified. The Dallas Morning News called her record one of accomplishment and integrity.

   The Houston Chronicle wrote: She has the proper balance of judicial experience, solid legal scholarship, and real world knowhow. This is exactly what we want in judges, people who have been in the real world, who have practiced law, who know what it is to be in a courtroom and see two sides of the issue. She also has the academic qualifications that you would want in a judge.

   I cannot think of any better qualification. She has been supported across the board by people with whom she has served, both Democrat and Republican.

   Let me read the words of former Texas Supreme Court Chief Justice John Hill, who also served our State as attorney general. He is a Democrat. He denounced the false accusations about Priscilla Owen's record by special interest groups. He said:

   Their attacks on Justice Owen in particular are breathtakingly dishonest,ignoring her long held commitment to reform, and grossly distorting her rulings.

   Tellingly, the groups made no effort to assess whether her decisions are legally sound. He said:

   I know Texas politics and can clearly say that these assaults on Justice Owen's record are false, misleading, and deliberate distortions.

   In addition, another judge with whom she served on the Texas Supreme Court, Raul Gonzales, gave her a sterling endorsement.

   Two former State bar presidents who are women--there have not been but three or four women State bar presidents, one of whom is Harriet Miers, who supports Justice Owen; she is now counsel to President Bush--yesterday Colleen McHugh, a Republican, a former State bar president, and Lynne Liberato, a Democrat, a former State bar president, ringingly endorsed Justice Owen.

   These are the people who have seen her in action, who have seen her opinions, who have worked before her court on both sides. They have won, they have lost, and they have given her the ringing endorsement.

   I think there are two areas where the other side has distorted the facts. It has continually been quoted, Judge Gonzales' opinion dissenting from the opinion of Justice Owen--hers was the dissent; his was the majority--in which he said he thought she was being judicially active. But Judge Gonzales is the very person who recommended her to the President for the Fifth Circuit slot because he looked at the totality of her record, and he felt that she was the best qualified person for this nomination.

   He held her in such high regard that he singled her out and took her from the supreme court to suggest that she should be on the Fifth Circuit because he knows that she follows the law as she sees it and does not allow her personal opinions to interfere, which is why I think she has been attacked by the pro-abortion groups who misunderstand her opinions.

   Texas has a parental notification statute on abortion. The law was passed in the year 2000. This is not parental consent; it is parental notification. So in the years since the law was passed, the supreme court has been called upon to look at the lower court opinions. Justice Owen has voted with the majority 11 times out of 14. And, in fact, out of those 14 cases that have come before the court, only 3 have reversed the lower court opinions.

   I think the reason Justice Owen has so adhered to the lower court fact finding is for the very reason we want her on the bench; that is, that she believes the trier of fact is the court that should make the decisions on fact; and unless there is a reason to believe that lower court has misconstrued the intent of the legislature under the law, that court should not be reversed. Even if she believes that maybe the court made a mistake on the facts, she does not put herself in the place of the fact finders since she is not the one who heard the facts in person.

   She is not a judicial activist. She is the opposite. In fact, her record shows that she has gone far beyond what most judges do not to put her personal opinions in place. I do not know what her views on abortion are. She has never told anyone what her views on abortion are because she does not ever intend to let her personal views skew an opinion on this very sensitive issue.

   She also said, in defending her record on these issues, that she took the Supreme Court of the United States interpretation of the words that would define when a young woman under the age of consent would be able to make the decision on her own without notifying her parents. She took the U.S. Supreme Court, which is exactly what a judge should do.

   So I think Justice Owen has been put into the political meat grinder in Washington, DC. Anyone in Texas you would ask--now, I am not saying that everyone in Texas would say she is their choice; I am not saying that because I have not talked to everyone in Texas about her in particular, but the vast majority of people who know her best, who have practiced before her court, who know the supreme court and what it takes to be a good judge, they have come up here, Democrats and Republicans--not just Democrats and Republicans, leading Democrats and Republicans, the former Democratic attorney general, the former Democratic supreme court chief justice, and another former Democratic justice on the supreme court--they have come forward to say she should be confirmed,

   that they support her, that she is the right kind of person for a judgeship.

   I hope we will be able to meet the 60-vote standard the Democrats are now setting for many judges. That 60-vote standard is wrong. It is against the Constitution. She deserves a vote. She should have the 51-vote standard as the Constitution intended. I hope the Democrats will give her that chance. She is the most qualified person for this position we could ever put forward. I know her personally. I know her integrity. I know what a wonderful human being she is. I have seen her demeanor as she has gone through this meat grinder.

   I hope the Senate will give her the dignity she deserves and confirm her today.

[ June 25, 2003, 08:27 PM: Message edited by: WmLambert ]

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