Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Wednesday, November 12, 2008

Senator Kyl on judicial nominees in Obama's administration

Readers will recall that when this issue came up at the end of President Bush's first term and the beginning of his second, we desperately urged the execution of the nuclear option to end filibusters against judicial nominees. Not only did we feel it to be extra constitutional, but we felt that it tied the hands of the president when it came to appointing federal officers. Never before had that happened (save Abe Fortas, and the obstruction was well-deserved), and it angered us then. Today it's reported that Senator John Kyl would be open to filibustering judicial nominees under "President" Obama:

Kyl, Arizona’s junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

“He believes in justices that have empathy,” said Kyl ...

The Senate breakdown stands at 57 to 40 in favor of the Democrats with races in Minnesota, Alaska and Georgia still to be decided. U.S. Sen. Joseph Lieberman, I-Conn., also needs to decide which party to caucus with. Republicans will need 41 votes to filibuster Obama nominees and Democratic legislation. The Arizona senator acknowledged that could be a challenge.

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

Ginsburg is 75 years old, Justice John Paul Stevens is 88. Breyer and Justice Antonin Scalia are 72. Justice David Souter is 69. It is expected that Obama will get to appoint two Supreme Court Justices and Kyl said as many as four judges to the influential U.S. Court of Appeals for the District of Columbia. That federal appeals court sometimes produces future Supreme Court nominees.

We completely understand why Senator Kyl would take this approach. He's correct: Obama would appoint jurists to the Supreme Court and the federal appeals courts that would empathetically rule over cases. Recall his 2001 interview where he explained his idea of the Constitution when it came to social justice. He wants judges that understand the social inequity and inadequacies in American life. In other words, he wants jurists that will invent what ever they see fit, and try to pigeon-hole it somewhere in the Constitution to justify their outlandish decisions.

While we disagree with Senator Kyl's tactic, it might just prove to be fruitful. For if a Republican filibuster is mounted, the Democrats will likely execute the nuclear option that we were planning to use prior to John McCain's idiotic Gang of 14 deal. While it most certainly won't help us, per se, it would end the use of filibusters against judicial nominees. And while we'd have to defend charges of being hypocritical because we were against the use of such a tactic, if it can be removed, and this is the way to do it, then so be it.

Of course there is another option, one posited by Hugh Hewitt, and that is to simply amend the Senate rules to abolish the filibuster, or keep it, but only for use in the most extreme circumstances. What would those circumstances be? Abe Fortas is a prime example of when such a tactic would be employed. When nominated to the Chief Justice's chair, it was discovered he had taken money for speaking fees at a university, but it wasn't the university that had paid the fees. It was private businesses, and some worried that should those companies ever be before Fortas and the Court that he wouldn't recuse himself, and that he'd treat them favorably instead of unbiased as a judge should. His nomination to the Chief Justice vacancy (Justice Earl Warren had retired) was killed by Republicans and Democrats alike. BUT, the filibuster wasn't a perpetual one. Eventually cloture was invoked, and they voted him down.

On this particular issue, we would support Senator Kyl mounting a filibuster if for nothing else than to end the practice altogether. So if and when this goes down, don't be calling us hypocrites. I think I've outlined our thinking on this rather well.

Publius II

1 Comments:

Blogger knowitall said...

That's funny, but true. He didn't have any experience, so how can he demand other liberal illuminati have experience for their positions.

November 17, 2008 at 6:24 PM  

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