My last entry was titled, "White House Misplays Grassley for a Chump." It referenced (without linking) a New York Times "news" story saying that the President would put Senate Judiciary Chairman Chuck Grassley "in an awkward dilemma" should Grassley choose to obstruct the possible Supreme Court nomination of fellow Iowan, long-time criminal defense lawyer, and now Judge, Jane Kelly.
The Times also had this juicy paragraph (emphasis added), perhaps explaining why it believes that Sen. Grassley would face so serious a problem by opposing a hard Left replacement for Antonin Scalia:
Nevertheless, Mr. Obama has publicly predicted that Republicans, faced with a well-qualified candidate and a constitutional mandate to provide advice and consent, will ultimately relent and allow hearings.
I went all the way through Stanford Law School and forty years of practice without knowing, until today, that there is "constitutional mandate to provide...consent." I had thought the Senate could withhold consent.
With the NYT, you learn something new every day.
Not that I want to overplay this. The Times' story is just the most recent -- and far, far from the last -- predictable effort by the liberal press to make Republicans sweat for insisting that voters, through the election coming up in eight months, have a say in the next Supreme Court appointment.
I've been surprised, though, by the juvenile giddiness of the cheer-leading for Jane Kelly. First, little effort is being made to hide its political nature, see, e.g., here. Second and relatedly, Judge Kelly -- though a very nice lady for all I know -- has less than three years' experience as a judge. Before then, virtually all her work was in an extremely narrow sliver of law, federal criminal defense, an area that occupies a tiny portion of the SCOTUS docket. Third, if Jane Kelly has any notable legal scholarship, I've been unable to find it. I just Googled "Jane Kelly" and "publications" and found zip, except for an intriguing entry (the second one) titled, "Publications by Jane Kelly, mystery author."
Fourth, if I'm recalling correctly, the main question Democrats were asking when President Bush nominated Sam Alito to the Supreme Court, was, "Can anyone seriously say that this is the most qualified person in the country?"
No one is asking that question about Jane Kelly, probably because the answer is obvious. As for the further notion that, as smart and even-handed as she may be (or may not be), she would come close to filling the shoes of an intellectual giant like Antonin Scalia.....well....hello!
Last, I don't know that the Kelly trial balloon has any more lift to it than the one launched for Brian Sandoval (whose name will make a great trivia question by next Halloween), but it seems to have at least a little more seriousness to it. If that's right, there's one more question we should ask: Is there any real reason to put Jane Kelly on the Supreme Court other than to have a quasi-automatic vote for criminal defendants?
Result-orientation used to be thought of as a bad thing in judging. But that was then.
From my brief research, IMO Kelly (who seems like a nice lady) is just another "true believer" public defender, but with a Harvard law degree.
Have the people claiming this "constitutional mandate" given any basis at all why such a mandate exists for the Supreme Court and not for the courts of appeals? I cannot think of any plausible argument for such a distinction.
The Senate did, in fact, stall such nominations for longer than the time Mr. Obama has remaining in office, and it did so while Joseph Biden was chairman of the Judiciary Committee.
Stalling nominations is rough politics, but to say it violates the Constitution is preposterous.
I would prefer that neither side did it, but for the Democrats to get away with it in one phase of the political cycle and Republicans to roll over and be good sports in the opposite phase is the worst of all possible scenarios.
If interested, do the following Google Scholar search: "kelly, circuit judge, dissenting"
I have often found that a judge/justice's dissenting opinions paint a pretty good picture of their predilections.
Bill, I think "federal" criminal cases --- including here, of course, state cases involving federal constitutional issues that arise in all criminal cases --- occupy close to 30% of the SCOTUS docket and likely close to 75% of its cert pool. (Kent likely has better numbers here, and I hope he can/will report his sense of just how much of the modern SCOTUS docket involves criminal cases.) Key point: I think it is a gross misrepresentation that Judge Kelly's prior work as a FPD involved issues that are only a "tiny portion of the SCOTUS docket." (I think "tiny" generally means much less than 10%.) Also, FWIW, Judge Kelly also had two years clerking, I believe, at both the district and circuit level before she became an FPD.
That all said, I somewhat share your sense that Judge Kelly does not have credentials as diverse or as impressive as my personal favorite short-lister: Rep Paul Ryan's pal and TWICE Senate confirmed DC District Judge Ketanji Brown Jackson.
Doug --
You can type TWICE in bold letters all you care to, and that will not make either Kelly or Brown Jackson a worthy successor to Antonin Scalia.
You might actually think that Republicans can be fooled or bullied into letting Obama fill the shoes of a giant with a left-leaning lightweight. And Republicans have not shown a uniformly stiff spine in the past, that's true.
So let's try another bet (up to now you've shied away from them, willing to back up your views with rhetoric but not hard cash). I have $500 that says the vacancy will not be filled until after the people have spoken in the election this November.
If there is something unethical about making that bet ("unethical" being a word you've used before) please quote the language in the canons that says so.
If not, the bet is open. I'll keep it open till next Friday, just to make sure you have plenty of time to think it over.
P.S. You and I know the Left is salivating, if not openly cackling, at even the prospect that Justice Scalia's seat will be taken by a results-oriented advocate who's spent years working in behalf of (sometimes violent) criminals. Why not just come out and say it?
paul --
If you have particular dissents you view as revealing, it would be very helpful if you could provide links.
Many thanks.
Bill,
Just do an Eighth Circuit database Westlaw, Lexis or Google Scholar search for "kelly, circuit judge, dissenting." You will retrieve 4 of her dissents, all criminal law related.
If you want some more insight into her legal mindset, open this link: http://www.iowabar.org/?page=IowaLawyerArchives
Scroll down to the link to the September-October 2013 Iowa Lawyer Magazine. Open the link and go to page 6. Read the quote attributed to Judge Kelly in a 2004 Des Moines Register interview.
Her opinion about why people commit crimes tells us a lot about her views on crime and consequences: "I have never met a client that I didn't find something redeeming about. It's poverty, mental illness, people being left behind in school, unable to get jobs, left out of a culture that seems to give [others] everything. I don't understand that level of rage, but it's obviously out there," she said about the behavior that creates the situations she had to defend.
Personally, I don't believe she will be Obama's nominee. From what I can tell, she seems like an intellectual lightweight (when compared to any of the Supreme Court justices; when compared to many Court of Appeal and District Court judges; when compared to many state court judges; and when compared to many Supreme Court advocates, including Kent.)
I would get down on my knees to give thanks if Kent ever got nominated to the Supreme Court.
Decency evolves: Pamela Karlan would be the natural choice to replace Scalia; an intellectual heavyweight who would reflect the values of progressives, as Scalia did for conservatives. Kent believes in hardball. The Democrats should play it as hard as the GOP does. Let the current Senate block her and if Donald Trump loses and takes down the GOP Senate in the process, President Clinton can renominate Karlan and the new Senate can confirm her.
When the Democrats -- ever the Party of privacy rights and civil liberties -- poked through Robert Bork's trash looking for porn video boxes, the modern era of brass-knuckles-in-judicial-selection began.
That's what it is. I don't like it and I don't have to like it. But with that as the state of play, it's past time the Republicans got with it. They have been far less clear-thinking about judicial nominees than the Democrats.
Other than that, I don't disagree with what you're saying, with two caveats. First, I wouldn't be sure Trump is going to get nominated; the opposition to him is intense, and he has yet to get to 50%. Second, I wouldn't be sure Sec. Clinton is going to get nominated, either. Indeed, I wouldn't be sure she's going to wind up in the White House as opposed to the Big House.
My perspective is different. I'm not sure that the Republicans have been less "far sighted" than the Democrats when it comes to judicial nominations, and I think that it's time for the Democrats to fight fire with fire. When you let the Federalist Society vet your nominees, which certainly happened under the latter President Bush, you get ideological nominees who want to produce a judicial counter-revolution and I think that has often happened. Just look at the latest Voting Rights Act decision, Heller and Citizens United. The changes are stark ones. While the number of committed conservatives never quite reached five, Kennedy is considerably to the right of O'Connor. And filibustering every nominee to the DC Circuit while in the minority for the express purpose of maintaining power on that bench after a failed election was a ballsy move--so much so that it broke the filibuster itself.
No one knows what will happen between now and November. Trump may not get to fifty percent himself, but denying him the nomination if he comes in with a strong plurality is risky. I doubt that he or his supporters will take that with equanimity. It's all speculation, but a time may come when the less dangerous move is to confirm someone who looks like a relative or potential moderate now as opposed to risking a worse outcome next year.
"Kent believes in hardball."
That is a misstatement of my position, which I think I made quite clear.
My position is that if one side throws hardballs, the other side must also. It is the Democrats who ratchet things up a notch with every phase of the cycle. I think it's deplorable what has happened to the confirmation process, but unilateral disarmament by the Republicans is not the answer.
Blanket filibusters of all DC Circuit nominees by the minority in order to keep control isn't ratcheting things up? The wall of opposition through filibusters that McConnell placed to President Obama's legislative proposals at the beginning of 2009 wasn't a departure from past norms? It got to the point where the press was saying routinely that measures failed because they didn't get 60 Senate votes. Polarization hasn't been symmetric:
http://www.theatlantic.com/politics/archive/2014/06/yes-polarization-is-asymmetric-and-conservatives-are-worse/373044/
I'm not saying that conservatives haven't been smart or ideologically motivated and disciplined. Just the opposite. Perhaps our side could use a Federalist Society of its own and a similar sized stable of generous committed billionaires willing to spend hundreds of millions every election cycle to even the playing field.
On the other hand, if your base gets driven crazy enough, strange things can happen. There does seem to be a lot of unhappiness among the GOP establishment lately. It will be an interesting year.
Do you honestly think that Sotomayor is a heavyweight?
federalist -
No. And although I enjoy reading his principled and pointed opinions, I don't think Thomas was in that category when he was nominated. But (with the help of talented clerks?) he has grown in intellectual stature in my eyes. I should have said: when compared to "most" of the Supreme Court justices.
Before the George W. Bush Administration, the filibuster had only been used once against a judicial nominee -- a crooked LBJ crony who was taking money from people with business before the Court.
The big quantum leap in obstruction was the routine use of the filibuster to prevent nominees from getting a vote based merely on ideological disagreement, and it was the Democrats who took that leap.
For those who don't get the "quantum leap" reference, I am referring to differences in kind as opposed to differences in degree.
This is a very interesting conversation, and I wish to assert, inspired by paul, that Prez Obama seeking to replace Justice Scalia with Judge Ketanji Brown Jackson would be quite comparable to Prez GHW Bush seeking to replace Justice Thurgood Marshall with Judge Clarence Thomas.
In both cases, we would have a late-in-term Prez able and eager to replace an SCOTUS icon/legend of great stature (and controvesy) with a little-know "diversity" candidate, intended in part to shift the court's jurisprudence significantly in part to make it make difficult for an opposition Senate to refuse a hearing/vote.
I will not take your bet, Bill, because I share your view that odds are now against any Senate hearing for any Obama candidate (UNLESS, as I am now hoping, GOP nominee Donald Trump says as part of his campaign for the general, the Senate ought to at least have hearings).
The difference is that, this time, a liberal replacement for Scalia will swing the balance of the Court, possibly for a generation. With Scalia, it was a 4-1-4 Court, going with the Left on Obergefell, the disparate impact case, and of course Obamacare. It went with the right on Glossip, Citizens United and Heller. So it was a down-the-middle Court.
With a liberal replacement, it swings to the Left, 5-1-3. All three of the latter rulings will be in jeopardy, to start with.
But America does not want a more liberal Court, as I showed in an earlier (and unanswered) post, http://www.crimeandconsequences.com/crimblog/2016/02/q-do-americans-want-a-more-lib.html
By preventing one, the Republican Senate is doing the country's will.
1. "Perhaps our side could use a Federalist Society of its own..."
It has one. The ACS.
2. "...and a similar sized stable of generous committed billionaires willing to spend hundreds of millions every election cycle to even the playing field."
Gosh, where are George Soros and Peter Lewis now that you need to push them behind the curtain? This is not to mention the Koch brothers, whose main philanthropy this year has been to push mass sentencing reduction for people like Wendell Callahan.
3. "On the other hand, if your base gets driven crazy enough, strange things can happen. There does seem to be a lot of unhappiness among the GOP establishment lately. It will be an interesting year."
Won't it ever. The Democratic Party is no longer capable of, or interested in, distancing itself from socialism; its leading candidate is the subject of an FBI investigation, and sells influence in the poorly disguised form of six-figure "speaking fees;" and it can't genuflect enough to the BLM movement. You get booed in that Party if you say "All lives matter," or if you hesitate to condemn the police as Nazis.
Wonderful!
Bill--Politically, I wouldn't trade my position for yours. The GOPs leading candidate, Dinald Trump wants me to know that there is nothing wrong with the size of his genitalia. He is going to build a big beautiful wall between Mexico and the United States that he will make the Mexicans pay for and will bar the admission of 1.7 billion Muslims to the Unired States. He will kill the families of terrorists (or perhaps not, since his positions change daily), he had difficulty knowing if he should condemn David Duke and the Ku Klux Klan, and he wants to alter libel laws to make it easier to sue newspapers that offend him. He's never held elective office, has had four bankruptcies, has only the foggiest notions of policy or government, made ridiculous assertions about President Obama's place of birth, and described Mexicans as rapists and drug dealers. The 2012 GOP Presidential nominee just condemned him in the harshest terms. Trump's a real winner. Good luck with him.
The second runner up, Ted Cruz, seems barely more tolerable to the Republican establishment, Given his extreme politics and tendency towards obstructionism, I can see why.
As for your assertion that Hillary Clinton is on the verge of indictment, I'm sure Alex Jones and Infowars insists that's true. If saying it makes you feel better about your parties' precarious position, I wouldn't want to rob you of it. On the other hand, I've seen little evidence that it's true. Benghazi was going to be the golden ticket so many times before, but multiple investigations laid an enormous goose egg at considerable taxpayer expense. I imagine that the belief in this imminent indictment is as well grounded as rumors that Hillary Clinton had Vince Foster executed.
Anything can happen. Perhaps President Donald Trump or Ted Cruz might name someone exceptionally conservative to replace Scalia and at some point Justice Ginsberg as well. Given the difficulties I'm seeing on the GOP side though, I'm hopeful for a different outcome.
1. Nice try attempting to tie anything I have said (or Kent has said) to support for Trump. Could we see a quotation for that?
2. Here's what you said: "As for your assertion that Hillary Clinton is on the verge of indictment..."
This is what I actually said: "The Democratic Party is no longer capable of, or interested in, distancing itself from socialism; its leading candidate is the subject of an FBI investigation...'
Is being subject to an investigation the same thing as being on the verge of an indictment? Of course not. That why you have to fabricate my position rather than quoting it.
Not that fabrication is unheard of from defense lawyers, mind you.
3. "If saying it makes you feel better about your parties' precarious position, I wouldn't want to rob you of it."
This blog is about substance. Do not get superior with me, and do not condescend. If you do it again, there will be consequences.
You are capable of better manners. Use them.
(1) How much is their really to the email investigation and (2) is it right to say that Hillary Clinton is the target of an FBI investigation?
https://www.washingtonpost.com/blogs/plum-line/wp/2016/03/04/clinton-emails-continue-to-be-non-scandal-disappointing-republicans/
(1) Not much so far, and (2) no.
Pointing out the disgraceful state of the GOP campaign seems a fitting rejoinder to your criticisms of the Democratic one. Happily, I've not seen anything like the GOP race before. I've had to reassure my fourteen year old daughter that Presidential campaigns aren't usually like this one.
Is it possible, please, for you to stop the fancy dance with words?
(1) You have zero idea as to how much there is to the email investigation, unless you have had unauthorized access to grand jury material. Nor, while were at it, did I purport to say how far along it is.
(2) You then ask whether it is "right to say that Hillary Clinton is the target of an FBI investigation?" You answer, "no."
But again, that is not what I said. What I said was that Clinton "is the subject of an investigation."
As you can't help knowing, with your experience, there is a big, big difference between being the TARGET and the SUBJECT of a grand jury investigation. But you walk right past that difference, since your debating point disintegrates if you use my actual words.
Being the "subject" of an investigation may well be as meaningful in this instance as the fact that Clinton was a subject of the Benghazi investigations.
As we saw in those endless investigations, which ended in Clinton's eleven hours of pointless questioning by the Gowdy Committee, where there's smoke there's fire, or fog, or perhaps a smoke machine. In contrast, the situation on the Republican side seems quite serious and worrisome, doesn't it? What do you think of Trump anyway?
Good grief.
"Being the 'subject' of an investigation may well be as meaningful in this instance as the fact that Clinton was a subject of the Benghazi investigations."
As you full well know, there is an enormous difference between a Congressional investigation (Benghazi) and the FBI/grand jury investigation (the unsecured emails). In the latter instance, there is a big and well known difference between "subject" and "target."
But you want to walk past that, too.
Hey, look, when you use language in a manner that deliberately slippery, intelligible conversation becomes impossible.
You keep saying grand jury. So you are aware that a grand jury has been convened, or is that just speculation on your part?
Perhaps you know something the Washington Post doesn't:
"So far, there is no indication that prosecutors have convened a grand jury in the email investigation to subpoena testimony or documents, which would require the participation of a U.S. attorney’s office."
https://www.washingtonpost.com/world/national-security/in-clinton-email-investigation-justice-department-grants-immunity-to-former-state-department-staffer/2016/03/02/e421e39e-e0a0-11e5-9c36-e1902f6b6571_story.html
Of course you're right. If the Post doesn't know it, it can't be true!!!
Far out.
I am done indulging your dishonest and diversionary tactics. At least three times on this single thread, you have intentionally misrepresented Kent's position and mine. Admit it, apologize, and return to the topic of the entry, which is whether there is a constitutional mandate for the Senate to consent to a Supreme Court nomination.
[This comment has been suspended because of the commenter's intentional and repeated misrepresentations of others' positions, and because it continues to attenuate the thread well beyond the subject of the entry. The commenter had been given notice that there would be consequences for this behavior].
Bill, I think one can reasonably assert that the appointment of Justice Thomas to replace Justice Thurgood Marshall did, in fact, "swing the balance of the Court for a generation." Right before the appointment, Justice Souter replaced Justice Brennan, and thus arguably the most liberal Justices left after Thurgood left were Justices Stevens and Blackmun (both of whom, I must note, we GOP appointments, though they migrated left over time). And we really did not know where Justice Souter was headed at that time.
At least on major issues, the right circa 1991 had CJ Rhenquist, and Justices Scalia, O'Connor, Kennedy and White. Even if you call these last three moderates, the court without Marshall has 2 on the right, 2 on the left and 4 in the middle (and 5 of those 6 on the middle and left were GOP appointees). The replacement of Marshall with Thomas gave the right 3 solid votes, and perhaps four others likely to swing its way when the issue was really significant. The left was left with just Stevens and Blackmun.
This is not to say that the Senate has any obligation to do anything. It is to say simply the only point I was eager to make: Prez Obama seeking to replace Justice Scalia with Judge Ketanji Brown Jackson would be quite comparable to Prez GHW Bush seeking to replace Justice Thurgood Marshall with Judge Clarence Thomas.