Senate Not Confirming Obama's Judicial Nominees

The Senate confirmed 19 judicial nominees in December, making a total of 62 since Mr. Obama took office, including Supreme Court Justices Sonia Sotomayor and Elena Kagan. At the same point in Mr. Bush's presidency, the Senate had confirmed 100 judicial nominees...

For years, both Democrats and Republicans have labeled as extremists judicial nominees picked by the opposing party's president, and they have marshaled reams of statistics intended to demonstrate that they are more fair-minded than their political adversaries when considering judicial candidates.

During Mr. Bush's presidency, Democrats' resistance broke only when a bipartisan "Gang of 14" senators cut a deal to approve most of the blocked nominees while letting a few of the most-controversial nominees languish.

The chief justice's report cited areas where the court system's case load significantly grew in 2010: nonbusiness bankruptcies, which increased by 14% to about 1.6 million, and fraud cases, up 12% to 9,400.

The figures indicated a federal crackdown on immigration violations, with criminal cases, mostly for improper reentry by aliens, up 9% to 28,000. In contrast, federal drug cases dropped 5% to 16,000.

The report, as usual, spoke of the need for adequate funding for the court system. "Congress will face extraordinary challenges in addressing the federal deficit," Chief Justice Roberts observed. But whatever happens across the street at the Capitol, "the Supreme Court itself is doing its part," he wrote, and planned to reduce its budget request next year.

"Not many other federal government entities can say that," he wrote.

The best way to fix the confirmation process is to repeal the 17th Amendment. As it is, politicians have to demagogue and preen and turn the process into a media circus because they have to get media attention to get re-elected. Get the media out of the process by getting politics out of the process and let Senators do their job with the more-effective oversight of state legislatures who will better enforce the Constitution's limits on the federal government that voters can.

The Commerce Clause

Reason TV explains how the Constitution's commerce clause was corrupted:



It's no coincidence that the Supreme Court corrupted the commerce clause only after a majority of justices were confirmed by a post-17th Amendment Senate. This is even more evidence that the 17th Amendment destroyed the Constitution's delicate balance of power between the three branches.

Kagan Confirmed

63-37

Another reason to repeal the 17th Amendment is to get politics out of the judiciary. Not only are Senators beholden to the party system, but judges are as well, due to the confirmation process. Politicians both oppose and support candidates based on party affiliation instead of qualifications. This is a disgraceful process.

Gay Marriage Ruling Sparks Federalism Debate

A judge’s decision on Thursday declaring that a state law allowing same-sex marriage in Massachusetts should take precedence over a federal definition of marriage has exposed the fractures and fault lines among groups working to bolster states’ rights.

The decision, by Judge Joseph L. Tauro of United States District Court in Boston, supports and echoes a central tenet of the Tea Party, 9/12 and Tenth Amendment movements, all of which argue that the authority of the states should trump Washington in most matters not explicitly assigned by the Constitution to the federal government.

Congress, the judge said, had infringed on a question that was the province of local voters and legislators.

But in using the argument to support gay marriage in Massachusetts, where the case arose, the judge created an awkward new debating point within the less-government movement about where social goals and government policy intersect, or perhaps collide.

Some people involved in the campaigns to limit Washington’s reach cheered what they said was a states’ rights victory.

“The Constitution isn’t about political ideology,” said Michael Boldin, the founder of the Tenth Amendment Center, a group based in Los Angeles. “It’s about liberty, and limiting the government to certain divisive issues — I applaud what I consider a very rare ruling from the judiciary.”

The debate is good, and we should be encouraging people to think about the Constitutional limits of the federal government. But as Ralph Rossum pointed out in his great book, Federalism, the Supreme Court, and the Seventeenth Amendment:

Justice Anthony Kennedy wrote a concurring opinion [in United States v. Lopez] with decidedly more activist overtones; he emphasized the need for the Court to "ensure that the federal-state balance is not destroyed." He found it strange that, "of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, only concerning the last does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the Judiciary to play a significant role in maintaining the design contemplated by the Framers." However, had he understood that the framers depended not on the Court but on Constitutional structure, i.e., the mode of electing the Senate, to protect federalism, he would have found it less strange. And, further, had he understood that the ratification of the Seventeenth Amendment removed the structural protection of federalism and therefore fundamentally shifted the federal-state balance, he would have appreciated both the futility and the inappropriateness of his efforts to protect the framers' design, now amended out of the Constitution.

The debate over federalism is one we need to have, but we should recognize that the Supreme Court isn't capable of fulfilling the role the Constitution originally designed for the Senate.

Advise And Consent

Another bad effect of the Seventeenth Amendment is that the Senate, having been captured by party interests, approves of judges who are captured by party interests. Thus, all branches are controlled by the party, and all branches want to centralize power within their own party.

And so Elena Kagan, like recent Justices, gets appointed because she shows loyalty to her party, and not because she has shown that she will be a fair and impartial jurist:


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This is why the judiciary became "activist" in the 20th century. These nominees get appointed by promising to impose the less-popular aspects of the party's agenda. They proceed to do for the party what the legislature would suffer if it did. I don't want an activist judicary that will impose either party's agenda.

Repeal the 17th Amendment, and put a Senate in place that will approve judges who will uphold the Constitution, instead of demagogues who will say whatever their constituents want while obeying the will of the party.

Justice Stevens Announces Retirement

The original Constitutional design of the Senate helped to limit the ability of politicians to place their party before their duty. State legislatures could oversee their representatives far better than the electorate, and they ensured that their senators would prevent as much as possible the centralization of power in Washington. Confirmation processes were less partisan and less prone to political grandstanding because they were concerned with the nominees' actual record rather than scoring political points. They also wanted to make sure that any appointees at least understood that the federal government was limited.

The 17th Amendment changed all that. Now the Senate is full of grandstanding politicians who care more about their party than anything. That won't change regardless of what party is in power. The only way to change that is to repeal the 17th Amendment.

Clarence Thomas: How to Read the Constitution

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

It's sad that we're so far away from debating what the original intent was; we're just debating on whether it's even relevant.

Senate Makes Historic Confirmation of First Openly-Biased Justice

68-31

Yet another reason why it's so important to restore the Senate to its original Constitutional role. Identity politics is touching every aspect of our government, with the debate being over superficial characteristics such as race or gender instead of more important intellectual arguments. American's don't even care about whether our judges, Presidents, or Congressmen will uphold the Constitution, because their race and gender trumps all.

I'm convinced that America cannot survive what is being done, and I'm further convinced that it's not the politicians' fault. The politicians would be powerless if the people did not keep giving them this power. And Americans have absolutely no interest in fixing the system.

America: it was nice while it lasted.

The Sotomayor Show Trials

The three-ring circus has begun. Hot Air has streaming video.

It's important to consider why the Constitution required Senate confirmation (or "advise and consent"). Originally, as most of the readers of this blog know, the Senate was considered the calm, sane counterpoint to the hot-blooded House. Having a Senate one step removed from the public opinion allowed its members to engage in more thoughtful, less pandering behavior. As it is now, Senators must appeal to the lowest common denominator in society, which is why this has become more "show trial" than Constitutional process. Byron York points out the ease with which an agenda is hidden from public scrutiny.

Republicans and Democrats have already reached the agreement that she will be confirmed, barring any major shift in public opinion. The party system that the 17th Amendment established shifted government into back room deals, where policy is made in shadowy, smoke-filled rooms while the public is distracted by the bright lights and loud noises of a common street magician's act.

Sotomayor's confirmation hearings are merely a show trial, designed to give the parties more ammunition in the war for public opinion. The pandering to different groups pits Americans against each other, as each believes his race, her gender, his class, her ethnicity, every individual's identity group is under attack. Everything is reduced to the lowest common denominator in the struggle to win the next election. And what is lost in all this?

Our freedom. Our freedom is worth less to our government than our votes are.

If we seek to have a government more interested in our individual freedom than pandering, we must repeal the 17th Amendment.

Supreme Court Throws Out Sotomayor Ruling

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Apparently, the dissenters are claiming that the Court should not be controlled by empathy. The question of empathy, though, is what group gets empathy. Some people think Latinas should get more sympathy, but the Court today agrees to provide equal empathy for all, otherwise known as equality of law. Justice is blind to group identity, and the Supreme Court today upheld that truth.

Sotomayor may just lose because of this.

Since We're on The Subject...

Sonia Sotomayor was reversed by the Supreme Court in 3 of her 5 opinions:

With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.

Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.

"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.

But opponents have an uphill battle.

Ms. Sotomayor's nomination is a direct affront to the ideal that we are a nation of laws. The "empathy" standard itself violates the concept of equal justice. The only way to stop her from being confirmed is to turn public opinion against her so that Senators won't vote for her. If we didn't have a 17th Amendment, Senators would be held accountable by state legislatures which would demand that they only support candidates who would maintain decentralization of power. Until the 17th Amendment is repealed, judicial nominations will continue to be circus events, filled with political posturing and absolutely certain to result greater and greater politicization of what is supposed to be an impartial and objective judiciary.