Wednesday, May 27, 2009

Borking Judge Sotomayor and any other Obama Judge

Does anyone remember Judge Bork's nomination? It begat the word, Borking, which means (according to Wiki): To defeat a judicial nomination through a concerted attack on the nominee's character, background and philosophy

It was done again with the nomination of Justice Thomas. Now, we have a President who, supposedly campaigned on Bi-partisanship and Post-partisanship. Did President Obama live close to his rhetoric?

Because he was in the Senate, and not a Governor or Vice President, we can actually see how he voted when President Bush offered two nominees. Let's look:

Chief Justice John Roberts: Senator Obama voted NO;
Justice Alito: Senator Obama voted NO.

How do we return the favor?

William Jacobson, genius that he is, of Legal Insurrection , discovered something that can be used in the Judiciary Committee against Judge Sotomayor and every other judge that passes through Committee. It could not be done without Senator Specter flipping parties (a win-win in my book).

To Quote Mr. Jacobson:

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress?

Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what? The link in Dorf's post is to Congress Matters, which has the Senate Judiciary Committee rule:

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority. Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn

Another reason to hold Judge Sotomayor's nomination? Other then the fact she believes a Judicial ruling is better then Legislative action?

How were President Bush's Minority Judicial nominees treated?

Miguel Estrada was stopped; And Alberto Gonzalez was Borked (remember that word?). So was Judge Janice Rodgers Brown, an African American. Let's not forget Deborah Cook and Priscilla Owen. The full list is here.

The Republican Senators on the Judicial Committee should put a "Hold," on every Judicial nomination coming from this White House. If President Obama is really Bi-partisan, he will make sure the Senate Democrats follow through on every former President Bush Judicial nominee.

It's a fair trade. Remember, Senator Obama voted down both of President Bush's Supreme Court nominees, so we on the Right owe him the same courtesy.

Am I wrong?

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  1. Not wrong, but I think a bit misdirected. This is the type of partisan speak that always perplexes me. Otherwise intelligent people who make decisions and statements based on emotion and partisanship, not facts and situational realities.

    It seems to be how we stay a country divided and why administrations and "representatives" are able to do whatever they like.

    I suppose I don't understand those who insist on opposing the opponent just because they are an opponent--even when the opponent is doing the right thing. (Not to say Obama is doing the right things)

    What I hear is, "I don't care how good a decision he might make for the country, we should vote it down because he individually voted against two people I liked."

    If you lay out all the reasons you would support or oppose a nomination, I expect people would see your point. As it stands, all I can see is bitter partisanship masked as an argument.

  2. Erik,

    Thank you again for commenting in the Valley!

    The reason I brought up Senator Obama's votes is to show how he was not Bi-partisan when a Republican was in office. To allow Sontomayor through is too allow Democrats (and liberals) to say:

    Heads we win (voting on their Judges), tails you lose (Voting on GOP judges).

    For anything to be sucessful on capitol Hill and the nation, the Democrats, even in their current arrogance, must show support to the GOP or everything SHOULD stop.

    Again, the issue isn't over that I supported CJ Roberts or Justice Aliato; it is that President Obama cannot ask for support when he refused his.

    Erik, history did not start on 1/20/09 not did it begin on 1/20/00 -- but actions cause reactions. President Obama should have thought ahead when he was Senator Obama.

  3. JSF, your point is well taken however, Chief Justice Roberts was confirmed by healthy margins. In the case of the Roberts nomination the final vote was 78 in favor 22 against after his renomination becoming only the sixth justice to have achieved such a feat.

    The judicial nominations submitted by Former President Bush and the commissions given to said nominees were nullified at Noon on 20 January 2009, when the new President entered office.

    In order for President Bush's nominees to serve they would have to be resubmitted to Congress. Given the difference between the two this unlikely to happen. Even in cases where a president of one party has succeeded a president of the same party renomination is rare.

    Since, 1789 only in six instances did a Supreme Court Justice sit on the Supreme Court of the United States court after being renominated

    1. Associate Justice Paterson was originally considered for the seat held by Associate Justice Thomas Johnson but the nomination was withdrawn because, Paterson's term as a U.S. Senator had not yet expired. President Washington resubmitted the nomination after Paterson's term as a Senator had ended.

    2. Chief Justice Taney was originally considered for the seat held by Associate Justice Duvall but the vote was postponed, President Jackson then withdrew the nomination and when Chief Justice Marshall died President Jackson submitted his name.

    3. Associate Justice Catron was originally commissioned by President Jackson, a Democrat on his last day in office to fill a new seat on the court. Jackson's successor as president, Martin Van Buren also a Democrat resubmitted Catron's name.

    4. Associate Justice Matthews was originally commissioned by President Hayes, a Republican on his last day in office to fill the vacancy on the court caused by the retirement of Justice Swayne. Hayes' successor as president, James Garfield also a Republican resubmitted Matthews' name.

    5. Associate Justice Butler was originally commissioned by President Harding, a Republican on to fill the vacancy on the court caused by the retirement of Justice Day. At first Congress Demurred and Harding withdrew the nomination but, resubmitted it a month later achieving Bulter's confirmation.

    6. Chief Justice John Roberts, Jr.

    The only Supreme Court nominee made by President Bush who should and would have been Borked and rightly so was Harriet Miers. She was neither qualified nor competent to sit on the High Court. The State Bar of Texas, her home state was opposed to her nomination.

    Two others Chief Justices John Rutledge and Chief Justice Hughes served as associate justices before resigning and being recommissioned as Chief Justices several years later. In the case of Rutledge the interregnum between his term as Associate Justice and his brief tenure as Chief Justice was three years. In the case Hughes nearly fourteen years elapsed between his resignation as an Associate Justice in June 1916 and his reappointment as Chief Justice in February 1930.

    If the Republicans wish to Bork someone they should wait untill Justice Stevens is replaced. It would a more effective symbolic gesture and it should be used on a nominee whose caliber parallels that of Harriet Miers, G. Harrold Carswell, Clement Haynsworth, Jr., Homer Thornberry,Charles Whittaker, and Joseph McKenna, in the sense that each of these these individuals lacked the intellectual capacity to be competent Associate Justice on the high court.

  4. JSF, while I think that any conservative who has reservations should voice them, and vote on them, here's the caution of a 'Borking'. The left in this country has the majority of the Media. By Borking Sotomayer, you can guarentee being put in the absolute worst possible lite. It would be spun in such a way, as to make many independent voters move left. Obama was brilliant in this pick. He plays the race card through surrogates, and this cows most rino's. No, they won't Bork her. They know they can't, as things stand, and, sad to say, they haven't the backbone to try.

  5. I think that it is interesting that Bush didn't appoint a woman to replace Sandra Day O'Connor, but that Obama is nominating a woman and not just a woman, but a Hispanic woman from an urban background that is similar to his own. I think that the process of confirmation should be one that focuses less on the political end of things and more on the qualifications of the person to interpret the law and to be a good justice. Politics change from time and place as you and I both know. The issues may change, but what doesn't change is we need good judges with the wisdom to guide us and protect us from the slippery slope.

  6. JSF - I wholehearted agree with you. Obama's call for "restraint" rings hollow as he himself did not exercise restraint during his tenure in the Senate. Payback is a b*tch, isn't it?

  7. I tend to agree with Malcot's view of the confirmation process. Indeed the politicization of the advise and consent responsibilities violates the longstanding belief about the Senate as expressed by Vice President Burr in 1805, that the Senate should guard itself against the frenzy that oft infects the House of Representatives.

  8. The prime consideration and the reason Republicans must not allow Sotomayor out of committee is that she by her own words will be a capricious judge, not ruling according to the law but according to her own 'rich' experience as a Latina. I am against ruining her character as the Dems did to Bork and Clarence Thomas, simply judge her by her own words which disqualify her for hearing cases that will affect all Americans for generations to come.


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