Translation: "They are not Nazis! We want Nazis, socialists, anything but Americans, dammit!!!"
CFJ: Schumer v. Reality on Bush Judges
April 13, 2005
WASHINGTON, DC - The Committee for Justice, which defends and promotes constitutionalist judicial nominees, today rebutted liberal Sen. Charles Schumer's (D-NY) misleading characterizations of the debate over President Bush's judicial nominees:
SCHUMER: "We have approved 204 judges out of 214."
REALITY: When it comes to the powerful appellate courts the locus of the Senate's confirmation battles the story is very different. During President Bush's first term, he nominated 52 qualified men and women to the appeals courts; 35 were confirmed, 17 were not, the lowest appellate confirmation rate - 67 percent - in modern times.
Since the inauguration of the Democratic filibuster strategy in March 2003, the obstruction has been especially marked: of 34 appellate nominees in 2003 and 2004, Democrats filibustered ten - almost one-third - denying them up or down votes, and blocked an additional six through procedure in the Judiciary Committee.
SCHUMER: "We're not looking at this politically even though I saw a poll in The Wall Street Journal that said 41 percent of Republicans support what we are doing."
REALITY: The poll cited frames the question unfavorably to Republicans. A more balanced framing, from a poll by the Judicial Confirmation Network, finds 82 percent of voters agree that "if a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate." Further, by 78 to 12 percent, voters agree that, "Senators have a constitutional duty to vote on judicial nominations."
SCHUMER: "They [Republicans] did filibuster judges, by the way. Paez, Berzon were filibustered in 1999 and 2000."
REALITY: This statement is Orwellian. By definition, a filibuster occurs when a vote of cloture fails, not when it succeeds and a final vote occurs. In the cases of Paez and Berzon, the majority Republicans led by Chairman Orrin Hatch and Majority Leader Trent Lott rejected filibusters against judges and granted cloture, allowing both liberal nominees to be confirmed to the Ninth Circuit Court of Appeals, where they sit today.
SCHUMER: "But there's nothing in the Constitution that says that there has to be 51 votes for that judge. The Founding Fathers intended the Senate to be the cooling saucer . The point is that there have to be checks and balances here. A check and a balance does not necessarily always mean a majority vote. We have 60 votes before you can do certain kinds of spending increases. The Senate is always supposed to be the cooling saucer."
REALITY: The Constitution's Advice and Consent clause clearly stipulates a simple majority of Senators to confirm nominees. This has been settled law since U.S. v. Ballin in 1892. This standard is well known and is the only logical answer to why Democrats did not filibuster Justice Clarence Thomas' nomination in 1991.
By contrast, the filibuster appears nowhere in the Constitution. It evolved in the Senate years after the Framers wrote and ratified the Constitution. In other words, the Framers' system of checks and balances did not include the filibuster.
Just as there may be 60 votes required for certain kinds of spending increases under Senate rules, so there are numerous provisions that prohibit filibusters. If it is OK, for example, for fast-track authority to preclude filibuster of trade agreements, surely it is acceptable to preclude filibusters where they have never been used in 200 years.
The Senate has been considered the "cooling saucer" relative to legislation originated by the House of Representatives because its members were elected to six year terms, separated by election into three classes, and, most of all, because its members were chosen not by the people but by the state legislatures. Thus, senators were thought to be aloof from the short-term passions and democratic pressures of the House. While minority rights are a significant aspect of Senate tradition, permanent filibusters of judicial nominees with clear majority support do not have a historical pedigree.
SCHUMER: "And just because you have a bare majority doesn't mean you always get your way."
REALITY: On judicial confirmations, elections matter. During the first two years of President Clinton's first term (1993-94), when Democrats controlled the Senate, they confirmed nearly 100 percent of the appellate nominees. During President Carter's single term, the appellate confirmation rate was 93 percent.
It was Democrats who "blew up" the Senate in 2003 by refusing to honor the tradition that nominees with majority support, once out of committee, get a final floor vote from the full Senate.
SCHUMER: "One [Bush] nominee said slavery was God's gift to white people."
REALITY: This is a typical smear tactic: find an extra-curricular speech or article on non-jurisprudential topics such as religious faith, take a sentence out of context, and use it to paint the nominee as radical.
In this case, district court nominee Leon Holmes now a sitting judge confirmed with votes from both Arkansas Democratic senators defended and endorsed Booker T. Washington's view that slavery was a consequence of divine providence designed to teach white people how to be more Christ-like. In fact, nowhere had Mr. Holmes said he endorsed slavery or that slavery was a good institution.
The article at issue, written for a Christian audience, was an expression of his theological belief, shared by Washington, that God could bring good out of evil. So while Washington certainly condemned slavery as evil, having experienced it first-hand, he held a belief that ultimate good could come out of it. Mr. Holmes's article similarly expressed the view that good can come out of evil and that we are called upon to love all men and women.
In fact, Mr. Holmes also wrote his doctoral dissertation on the political philosophies of three major African-American thinkers and activists, W.E.B. DuBois, Booker T. Washington, and Martin Luther King, Jr. He was an admirer of all three, and wrote favorably of King's achievements in helping to integrate buses, schools, parks, playgrounds, lunch counters, and marriages.
SCHUMER: "Another [Bush nominee] said the purpose of a woman is to be subjugated to a man."
REALITY: This too refers to Leon Holmes, who co-wrote an article with his wife entitled, "Gender Neutral Language." The article, which appeared in a church newspaper, stated, "The wife is to subordinate herself to her husband," and, "The woman is to place herself under the authority of the man."
However, these statements are derived from the New Testament (Ephesians 5:22-25) and represent the orthodox teachings of his religion, not his view of the law. Moreover, the article contains other statements supporting the equality of men and women, such as "All of us, male and female, are equally sons of God and therefore brothers of one another"; "[T]he distinction between male and female in ordination has nothing to do with the dignity or worth of male compared to female"; "[M]en and women are equal in their dignity and value."
SCHUMER: "One nominee said that there should be no zoning laws. If you have a nice house in a suburban community and somebody bought the house next to you and put in a factory with a smokestack that was polluting, that's not a taking of property."
REALITY: In San Remo Hotel v. City and County of San Francisco, California Supreme Court Justice Janice Rogers Brown found a state law requiring hotel owners to pay a large fee to the state if they upgraded their hotels to be in violation of the California Constitution's Takings Clause. She did not claim there should be "no zoning laws" in Schumer's formulation.
Brown wrote, " [T]he facts of this case come down to one thing the City and County of San Francisco has expropriated the property and resources of a few hundred hotel owners in order to ameliorate off budget and out of sight of the taxpayer its housing shortage." This ruling places Justice Brown well within the legal mainstream, and follows U.S. Supreme Court precedents from Nollan v. California Coastal Commission and Dolan v. City of Tigard.
SCHUMER: "And my favorite, one of their nominees said that the whole New Deal was a Socialist revolution, and we ought to go back to the 1890s. No labor laws, no wages and hours laws..."
REALITY: In an extra-curricular speech, Justice Brown said the New Deal was the triumph of America's "socialist revolution," i.e. unlike many European nations, the U.S. reaction to the Great Depression was not a full fledged embrace of central planning and nationalized industry but rather the far milder New Deal. This is an unremarkable observation as a matter of history; moreover, it was not a point about the Constitution or American jurisprudence.
SCHUMER: In reference to the President's nominees, Sen. Schumer said, "these are extreme people."
REALITY: Consider the words of sometime Democrat advisor Prof. Cass Sunstein of the University of Chicago Law School. In the Washington Post ("A Bench Tilting Right," 10/30/04), Sunstein and co-author David Schkade explained:
"Remarkably, there are no significant differences among the voting records of Reagan, Bush I and Bush II appointees. The three most recent Republican presidents have shown extraordinary consistency in their choices."
In other words, the current President's nominees are in the same mold of those nominated by Republicans and confirmed with Democratic votes and without filibusters for the past 25 years. It is not President Bush who has veered off course, but Democrats who have gone over the liberal cliff by "nuking" the Senate with judicial filibusters.
Translation: "They are not Nazis! We want Nazis, socialists, anything but Americans, dammit!!!"
Thanks for this counter to Schumer. I will be phoning that office during the next day or two, and your post is great to have before calling.
Even I, who is a bit of a political junkee, didn't understand the basis of all the Dem spin.
Here's another if anybody knows. Husband comes home last night and asks "What happened to Abe Fortas?"
I shrugged. I've heard the name but didn't know any details. I asked why he wanted to know.
"Because I heard the Dems say that Repubs filibustered Abe Fortas. If this is true then I do NOT support the Repubs now for trying to stop a Dem filibuster."
So you see, even people who pay attention get confused by all these Dem talking points. Their spin if you will. Some would call them lies.
So how the heck is Jane and John Sixpack supposed to wade through it all?
Which, I understand, is part of the Dems' cheating plan. They only use the truth when it serves their purpose.