Orrin Hatch

The Personhood Movement: Internal Battles Go Public: Part 2

This is the second post in a RWW series on the reemergence of the fetal personhood movement and what it means for the future of abortion rights in the U.S.

Part 1: The Personhood Movement: Where It Comes From And What It Means For The Future Of Choice
Part 3: The Personhood Movement: Undermining Roe In The Courts
Part 4: The Personhood Movement: Regrouping After Defeat

As proponents of the “personhood” strategy to end legal abortion like to remind those who will listen, the original goal of the anti-abortion rights movement after Roe v. Wade was to pass a constitutional amendment overturning the decision. And one possible amendment — along with a dubious statutory alternative  — would have done so by defining “personhood” as starting at conception.

In the 1970s and 1980s, dozens of anti-Roe “Human Life Amendments” were introduced in Congress, containing a variety of language. Only one made it to an up-or-down vote in Congress: the “Hatch-Eagleton Amendment,” which would have simply gutted Roe by stating, “A right to abortion is not secured by this Constitution.” In June of 1983, the amendment fell far short of the two-thirds majority needed for a constitutional amendment, garnering just 49 yes votes.

But there was another strategy for amending the Constitution to reverse Roe, one that rather than just returning to the states the power to regulate abortion would have overturned Roe by declaring that fetuses are "persons" protected under the Constitution. In 1976, one such amendment was put up for a test vote in the Senate, garnering only 40 votes in support.

The language of these amendments was a matter of bitter internal debate among anti-abortion rights groups. One draft amendment formulated by the National Right to Life Committee in 1974, known as the NRLC Amendment, would have declared that the word "person" in the 14th and 5th Amendments "applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development," but included a specific exemption for "medical procedures required to prevent the death of the mother."  

Some members of NRLC’s budding coalition thought the amendment didn’t go far enough to prohibit abortion, arguing that the “life of the mother” exception was too broad. Two founding members of NRLC, Judie and Paul Brown, had left the group because they perceived it as too willing to compromise and founded their own anti-choice group, the American Life League (ALL) and helped to establish the radical abortion “rescue” movement. In 1979, ALL wrote its own amendment, nicknamed the “Paramount Amendment,” which would have erased all abortion exceptions by declaring, “The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency.”

Faced with a splintering movement, NRLC held months of talks with its fellow anti-abortion groups, hoping to hammer out a Human Life Amendment that they could unify behind. In October of 1981, NRLC announced that “with tears of joy and happiness” it had “solved what formerly appeared to be an irreconcilable difference over a fundamental question: how to allow for just those abortions truly needed to prevent the death of the mother without at the same time making her right to life superior to that of her unborn child.”

NRLC’s new “Unity Amendment,” which was introduced by Sen. Jesse Helms of North Carolina that December (and which ALL still refused to support), tightened the “life of the mother” exception by adding the stipulation that abortion would be allowed only to “prevent the death of either the pregnant woman or her unborn offspring, as long as such law requires every reasonable effort be made to preserve the life of each.”

All of these amendments failed to get off the ground, as did a novel and controversial legislative approach to achieve the same goal. In 1981, Helms and Sen. Henry Hyde introduced a bill that they claimed could overturn Roe without a constitutional amendment or a new Supreme Court majority, by simply declaring that life begins “at conception.” The effect of the law, the New York Times reported at the time, would be to once again allow “states, if they choose, to prosecute abortion as murder.” President Reagan got behind the strategy, but legal scholars called the bill unconstitutional. NRLC and the National Conference of Catholic Bishops continued to favor the constitutional amendment strategy, doubting that the Helms-Hyde bill would hold up in the courts.

By that time, however, it became clear that a constitutional amendment and the Helms-Hyde personhood bill weren’t going anywhere in Congress, and proponents had already started focusing on other strategies to turn back the tide on abortion rights.

In 1975, the National Conference of Catholic Bishops had developed a plan to turn every diocese into an anti-choice political machine and to use its existing infrastructure to set up an office in every congressional district. The bishops’ plan included a four-pronged legislative strategy, which continues to guide the anti-choice movement today:

(a) Passage of a constitutional amendment providing protection for the unborn child to the maximum degree possible.

(b) Passage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.

(c) Continual research into and refinement and precise interpretation of Roe and Doe and subsequent court decisions.

(d) Support for legislation that provides alternatives to abortion.

In other words: fight for an amendment to undo Roe, but at the same time work through the courts and legislatures to make it harder for women to access legal abortion. While Roe would remain the law of the land, women would not be able to actually exercise their rights.

Part of this strategy involved targeting public funding for abortions. Frederick Jaffe, Barbara Lindheim and Philip Lee explained in their 1981 book "Abortion Politics":

The new strategy was outlined by RTL [Right to Life] leader Randy Engel, who urged restrictive riders on “any and all federal legislation related directly or indirectly to health,” in order to keep the abortion issue visible and build support. She argued that the efforts to win interim legislation would provide antiabortion workers with political experience, would educate the public, and would force members of Congress to go on record one way or the other. Not least important, she added, this strategy would require the forces supporting abortion rights to expend time, effort and resources in opposing riders.

One of the early victories of this strategy was the 1976 passage of the Hyde Amendment, a rider to the health and human services spending bill that prohibited Medicaid from funding abortions for low-income women. The Hyde Amendment was a victory, but it provoked yet more squabbling within the anti-abortion rights movement.

When it was first passed, the Hyde Amendment contained one exception: for abortions that could save the life of a “clearly endangered” pregnant woman. But because it was attached to a spending bill, the Hyde Amendment had to be renewed annually. The next year, after a lengthy legislative deadlock, Congress kept the exception for saving a woman’s life and added additional exceptions for ensuring a woman’s long-term health and for pregnancies resulting from rape or incest.

The 1977 compromise allowing abortion funding for rape and incest survivors — which has been modified several times since then — was a setback for anti-choice hardliners, but the anti-abortion rights movmement's leaders continue to celebrate the Hyde Amendment’s repeated renewal. In 2013, on the amendment’s anniversary, National Right to Life crowed that “over one million people are alive today because of the Hyde Amendment.”

But Daniel Becker, a longtime personhood activist and founder of the new Personhood Alliance, sees it differently. “The Hyde Amendment,” Becker wrote in his 2011 book on the personhood concept, “damaged the very fabric of our mission. No longer would the lofty rhetoric of ‘sanctity of all human life’ and ‘the personhood of the unborn’ be embodied in a strategy to achieve those protections. The prolife movement had a seat at the political table, but contented itself with crumbs.”

In 2007, the anti-choice movement achieved another seeming victory that was divisive in its own ranks. The Supreme Court, which now included George W. Bush appointees John Roberts and Samuel Alito, reversed a previous decision and upheld the 2003 ban on a specific procedure that the anti-choice movement had labeled “partial birth abortion.”

Linda Greenhouse wrote in the New York Times that the decision, Gonzales v. Carhart, was a “vindication” of the anti-choice movement’s strategy of pursuing a “partial birth” ban after the 1992 Planned Parenthood v. Casey made a more sweeping victory look unfeasible: “By identifying the… procedure and giving it the provocative label ‘partial-birth abortion,’ the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses.”

As with the congressional fight over abortion coverage in Medicaid, abortion rights opponents hoped to use the debate over so-called “partial birth” abortion, an exceedingly rare procedure, to keep attention on their efforts to end legal abortion entirely.

But not everybody in the anti-choice movement was thrilled. In fact, the decision that was widely seen as a victory for the anti-choice movement brought into the public eye a long-simmering split in the movement.

Six weeks after Gonzales was handed down, a coalition of anti-abortion groups, including the Colorado chapter of National Right to Life, took out a full-page ad in newspapers around the country attacking Focus on the Family founder James Dobson for supporting the ruling.

One Denver pastor in the group, Bob Enyart, accused mainstream pro-life groups of fundraising off a strategy that “has no authority to prevent a single abortion” because other procedures could be used in place of the banned operation. Colorado Right to Life President Brian Rohrbough told the Washington Post, “What happened in the abortion world is that groups like National Right to Life, they're really a wing of the Republican Party, and they're not geared to push for personhood for an unborn child — they're geared to getting Republicans elected. So we're seeing these ridiculous laws like the Partial-Birth Abortion Ban put forward, and then we're deceived about what they really do."

As the Post noted, NRLC’s detractors started referring to the group as the “pro-life industry” — a term intentionally reminiscent of the anti-choice movement’s “abortion industry” epithet for abortion providers, implying that those groups had sold out and cared more about their fundraising than their mission. (Several years later, Rep. Paul Broun of Georgia was using similar rhetoric to question the group’s motives.)

A week later, leaders of Colorado Right to Life confronted the board of NRLC at its annual meeting, attacking its “immoral and failed anti-abortion strategy.” Enyart told the board, in a speech secretly recorded by Colorado Right to Life:

We’ve provided cover to pro-choice politicians, even Democrats, who would say, ‘I’m not an extremist, I supported the partial-birth abortion ban.’ We wasted 15 years while 20 million kids — 20 million kids — have died. We’ve spent a quarter of a billion dollars as an industry for a ban that does not have the authority to save one life. You guys are worried about what’s growing in Colorado. I’ll tell you what’s growing in Washington, D.C. It’s called the abortion weed. Child-killing regulations — that’s what National Right to Life is really good at — child-killing regulations prune the abortion weed and sanction its root.

National Right to Life promptly voted to kick the Colorado group out of the organization. Colorado Right to Life then hired an Abraham Lincoln impersonator to accost conference-goers with a revised version of the Gettysburg Address: "Four score and seven years ago, our fathers brought forth upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal...no exceptions!"

It was around this time that the “personhood” strategy began to see a national reemergence in the public eye, and along with it a legal theory that had long been dismissed even by leaders in the anti-choice movement.

The next post in this series will look at the debate within the anti-choice movement on how to best confront Roe v. Wade in the courts.

Twelve Republicans Who Broke Their Pledge To Oppose Judicial Filibusters

After waging an unprecedented campaign of obstructionism against President Obama’s nominees, Republicans are now crying crocodile tears over a rules change that would end the filibuster on certain judicial nominees.

NBC News points out that Republicans are not blocking judicial nominees over “concerns about ideology or qualifications, but over the president’s ability to appoint ANYONE to these vacancies.” This unprecedented blockade leaves Democrats with few options, as dozens of nominees are left unable to receive a simple confirmation vote.

It’s even harder to be sympathetic to Senate Republicans when you remember that just a few years ago, many of the very same Republicans who are today filibustering President Obama’s nominees willy-nilly were vowing that they would never, ever filibuster judicial nominees. Some even declared that judicial filibusters were unconstitutional and un-American.

But that was before there was a Democrat in the White House.

We take a look back at some of the Senate’s most strident opponents of filibustering judicial nominees, turned master obstructers.

1. Mitch McConnell (KY)

“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).

“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).

2. John Cornyn (TX)

“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).

“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).

3. Lamar Alexander (TN)

“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).

“I would never filibuster any President's judicial nominee. Period” (6/9/05).

4. John McCain (AZ)

“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).

5. Chuck Grassley (IA)

It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).

“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).

6. Saxby Chambliss (GA)

“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

7. Lindsey Graham (SC)

“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

8. Johnny Isakson (GA)

I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).

9. James Inhofe (OK)

“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).

10. Mike Crapo (ID)

“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

11 . Richard Shelby (AL)

“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).

12. Orrin Hatch (UT)*

Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

*Hatch claims he still opposes filibusters of judicial nominees and often votes “present” instead of “no” on cloture votes. But as Drew noted: “Because ending a filibuster requires 60 ‘yes’ votes, voting ‘present’ is identical to voting ‘no.’ Hatch’s decision to vote ‘present’ is an affirmative decision to continue the filibuster.”

GOP Senators Decide Attacking Women's Equality Is a Winning Message on Judicial Nominee

Yesterday, the Senate Judiciary Committee voted along party lines to approve the nomination of Georgetown Law professor Cornelia “Nina” Pillard to the Court of Appeals for the District of Columbia, which is often considered to be the nation’s second-highest court. The party-line vote wasn’t exactly a surprise – Republicans have decided they don’t want President Obama to fill any of the D.C. Circuit’s three vacancies, so have voted against both nominees who have come before them so far – but the content of at least some GOP senators' objections to Pillard was notable.

Specifically, both Republican senators who chose to speak on their decision to vote against Pillard went out of their way to object to Pillard’s record on women’s equality.

Yes, the Republican “rebranding” effort is going so well that they are now threatening to hold up a judicial nominee because she believes that men and women should be equal in the eyes of the law and has been very successful in arguing that view in the courts.

Pillard has a long record of working with Republicans and Democrats to defend women’s equality: She worked with the Bush administration to successfully defend the Family and Medical Leave Act in the Supreme Court and crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women (which earned her the respect of, among others, the head of the school who was at the time opposed to allowing women in).

She also has worked on women’s equality issues as an academic, including questioning abstinence-only education that presents a double standard to boys and girls…which  is what has sent the far right into a fit.

At yesterday's committee vote on Pillard’s nomination, both Sen. Chuck Grassley (the ranking Republican on the committee) and Sen. Orrin Hatch lifted talking points from right-wing activists like the Family Research Council, Phyllis Schlafly and Ed Whelan of the National Review to attack the nominee’s academic writings on reproductive rights and abstinence education and to even, bizarrely, question whether she appreciates the “benefits of marriage.”

And then every single Republican on the committee voted against allowing her nomination to go to the full Senate for a vote.

To put this in context, Republican senators including Grassley and Hatch were quick to defend demand the confirmation of George W. Bush judicial nominees who made rape jokes and belonged to clubs that excluded women and espoused any number of offensive views, claiming that they could hold these personal views and still be fair judges. As PFAW's Drew Courtney wrote in the Huffington Post yesterday:

Too often we're told that judicial nominations fights are too complicated, too subtle to get major national attention. Not this time. The Republican message is crystal clear: rape-joke making, gay-bashing, abuse-defending, discrimination-supporting, law-skirting, ideology-pushing Republican men are welcome to be judges in our federal courts.

Women who expect to be treated as equals are not.

Hatch: Obama a 'Despot' for Enforcing Voting Rights Act, Blue States 'Treat Minorities Like Dirt'

Sen. Orrin Hatch (R-UT) accused President Obama and Attorney General Eric Holder of acting like “despots” over the “outrageous” Justice Department decision to challenge new voter suppression efforts in Texas.

While the Supreme Court recently gutted a key enforcement of the Voting Rights Act, DoJ retains the right to ask a federal court to impose preclearance requirements on a particular state under Section 3 of the law, which the court’s ruling did not alter.

“He’s trying to reinstitute the Voting Rights Act in Texas; if I was a Texan I would be so doggone livid and mad about that I don’t think I’d ever get over it,” Hatch told NewsMax. “It just shows how this administration ignores the law; they act like they are tinpot despots.”

After arguing that the administration’s actions to protect voting rights are part of a plan to create permanent Democratic control, he claimed that Democratic-leaning states treat people of color the “like dirt”: “Some of the worst states are blue states where they treat minorities like dirt, don’t care of them, don’t do what’s right about them and frankly a lot of this liberal stuff comes out of those states.”


Hatch: Abortion is 95% of What Planned Parenthood Does

Last week, amid the Religious Right freak-out over the Obama administration's rule requiring health insurance plans to cover contraception, the Family Research Council hastily organized a webcast to rally the opposition called "Healthcare Mandate: Violating the Separation of Church and State."

Among the guests was Sen. Orrin Hatch who claimed that the issue was not about contraception but rather about abortion as he asserted that abortion constitutes 95% of what Planned Parenthood does as an organization:

If that sounds familiar, it is probably because Sen. John Kyl made the same claim last year. Kyl's claims was so thoroughly debunked as patently false [in reality, it is about 3%] that his office was reduced to laughably asserting that "his remark was not intended to be a factual statement."

Apparently Hatch missed that entire spectacle, or simply doesn't care, as he freely repeating the falsehood as FRC's Tony Perkins assured him that he was correct.

Right Wing Leftovers

  • Sad news: Elizabeth Edwards has died.
  • CBN "journalist" David Brody explains that President Obama is "starting to get the message ... [that] America is a center-right nation."
  • Bryan Fischer blasts Orrin Hatch and John Kyl for selling out to President Obama. 
  • John Voight says that Sarah Palin saved Alaska by stepping down as governor. 
  • Chris Christie's bullying act is getting old.
  • Finally, Peter LaBarbera remains very angry at the Southern Poverty Law Center.

Right Wing Round-Up

  • Speaking at the National Prayer Breakfast, President Obama called the proposed anti-gay Uganda legislation "odious" ... and Ugandan officials are apparently not pleased.
  • One Iowa warns that "right-wing extremists are resorting to underhanded tactics in an attempt to take away the freedom to marry."
  • Americans United says a brief filed by Wallbuilders is "offensive, disrespectful and essentially advocates that the government should feel free to discriminate against all non-Judeo-Christian religions." Yep, that sounds like Wallbuilders.
  • Apparently, Sen. Orrin Hatch meant the exact opposite of what he said when he stated that was open to the idea of repealing Don't Ask, Don't Tell.
  • Finally, do you think Sen. Mitch McConnell will be forced to apologize for insulting the FBI? Me neither.

Right Wing Leftovers

  • Interesting info: Mass Resistance started up in 1993 in Cardinal Bernard Law's residence with a bunch of people from around the state. It was mostly clergy and other related people who wanted to talk about issues having to do with the culture wars and after a series of months, Mr. Camenker was elected to run the group in late 1993. In 1994, they named themselves the "Interfaith Coalition." Later, after same sex marriage became law in the state, a blogger in the group set a up a site called "Mass Resistance," and the group changed the name. Right before that, they were known as the "Parent's Rights Coalition."
  • You know what the White House needs?  Someone with "Divine Integrity."
  • For some reason, the Washington Post thought it was a good use of space to let Sarah Palin write an op-ed about Copenhagen and climate change.
  • Anti-immigration hero and Hazleton mayor Lou Barletta is mounting yet another challenge to Rep. Paul Kanjorski.
  • It looks like Gov. Mark Sanford will escape impeachment.
  • Business Insider: Health insurance industry trade groups opposed to President Obama's health care reform bill are paying Facebook users fake money -- called "virtual currency" -- to send letters to Congress protesting the bill
  • Have you always want to see Sen. Orrin Hatch sing about Hanukkah. Well, here you go.
  • Finally, Chico The Car Guard is just like the shepherds to whom the angles announced the birth of Christ!

The History of Manuel Miranda

It seems that, after years of operating behind the scenes and under the radar, Manuel Miranda has returned to once again take a lead role in the judicial confirmation wars.

Just in the last few days, Miranda has burst back onto the scene, drafting a letter calling on Senate Republicans to filibuster Sonia Sotomayor's nomination, suggesting that Senator Mitch McConnell should resign if he can't wage a better fight to stop her and, just for good measure, saying that, unlike Blacks, Hispanics "think like everybody else," whatever that is supposed to mean.

As such, Miranda is now getting a lot of attention, especially regarding the history of how he was ousted from his position as a one-time aide to Sens. Orrin Hatch and Bill Frist only to re-emerge as a one-man judicial confirmation army. 

So now seems like a good time to dust off a report I wrote several years ago shortly after the results of the investigation by the Sergeant at Arms of the U.S. Senate was released, which chronicled Miranda's role in accessing internal Democratic memos regarding the issue of judicial nominations while he was working for Senators Hatch and Frist.

It was this behavior that caused Miranda to lose his job, though he has steadfastly denied any wrong-doing, consistently insisting that he was, in fact, a beacon of morality and ethics as he worked to expose Democratic "collusion" with outside interest groups.

Though the Senate report, known as the "Pickle Report" after Sergeant at Arms William Pickle, suggested that Miranda could have faced various charges for his behavior, he was never charged with any crime

As I suspect that most people barely even remember the "Memogate" controversy from 2003-2004 and aren't going to wade through the Pickle Report's 40 pages to figure out what went on, I've decided to post the report [PDF] I wrote at the time and excerpt this section covering the Pickle Report's findings on Miranda's activities:

The Pickle Report

While right-wing pundits and activists were busy defending Miranda and disparaging the investigation before knowing all the facts, Sergeant-at-Arms Pickle plowed ahead. Over the course of three months, Pickle and his staff interviewed over 160 individuals and conducted detailed “forensics analysis of the Judiciary Committee servers, available backup tapes, and the desktops of relevant staff members.” In March, Pickle finally completed his investigation and presented his report to members of the Senate Judiciary Committee. Thanks to this report, we now know how the documents were obtained and who was responsible. We also know that nearly everything right-wing pundits said about the theft of the documents and the subsequent investigation was totally wrong.

As the report explains, in the fall of 2001 a Judiciary Committee Nomination Unit clerk, Jason Lundell, had learned how to access documents contained on Democratic computers by watching the System Administrator do some work on his computer and then duplicating the Administrator’s key strokes once he was alone. By doing so, he was able to gain access to the entire network and read, modify or delete Democratic documents because the newly hired and inexperienced system administrator had failed to restrict access to appropriate users.

Initially, Lundell downloaded between 100-200 pages of Democratic documents having to do with the nomination of Judge Charles Pickering and turned them over to two of his supervisors. Almost immediately both supervisors concluded that possessing such documents was improper and destroyed them and ordered Lundell to do the same and delete any files on his computer.

A short time later, Miranda joined the Committee staff as a counsel for the Nominations Unit. Not long after Miranda came on board, Lundell showed Miranda how to access the Democratic files but explained that he had been ordered not to use them. According to the Pickle Report, Miranda told Lundell not to listen to his supervisors and that there was nothing wrong or illegal about accessing Democratic files. Thus Miranda not only became the recipient of the Democratic documents, but a key figure in obtaining them, guiding Lundell about what information to look for and where to look.

From the fall of 2001 until January 2003, when Miranda left the Judiciary Committee to work for Senator Frist, he and Lundell downloaded several thousand internal Democratic documents and possibly shared them with other Republican staffers and the media. Miranda repeatedly requested files from Lundell even after he began working for Frist and thus no longer had access to the Judiciary Committee’s server. At one point Miranda even asked Lundell to “undertake a discreet mission” to gather documents and provide them to Sean Rushton, Executive Director of the Committee for Justice, so that he could build up a relationship with the press. Lundell replied that he would be “happy to assist in this covert action” and subsequently e-mailed Rushton 169 documents. Lundell and others speculated that Miranda himself also turned over documents to Rushton and others but Miranda denies this and it is impossible to know the truth as the Wall Street Journal, the Washington Times, the Committee for Justice and the Coalition for a Fair Judiciary all refused to cooperate with Mr. Pickle’s investigation. Despite this lack of cooperation, the Pickle Report does note that when the files showed up on the Coalition for a Fair Judiciary’s website, one of the documents contained a directory path that forensic review determined came from “an e-mail from a web page that was viewed and printed by Mr. Miranda with Internet Explorer.”

As for Miranda’s allegations that Democratic staffers on the committee were made aware that their documents were vulnerable, this too is contradicted by the report. Common sense dictates, and the report notes, that “[t]he Democratic staff working on judicial nominations clearly did not know there was a vulnerability. If they had, presumably they would have protected their files.” But beyond this, the allegation that the Democrats had been made aware of the problem seems to have come solely from Miranda himself. Miranda claims to have heard from Lundell that another staffer named Ryan Davis had informed the system administrator of the vulnerability. But Lundell denied ever telling Miranda this and Davis claimed that he did not recall ever having such a conversation with the administrator.

Furthermore, during the investigation, Miranda claimed to have kept printed versions of the documents that he considered the most valuable in a folder, which he asserted he had lost during his move to Frist’s office. It was not until his final interview with investigators that Miranda got around to informing them that a friend had made a “backup disk” for him of relevant Democratic documents. But Miranda refused to provide the friend’s name to investigators out of a stated desire not to prolong the investigation. As the Pickle Report concluded, the existence of the backup disk coupled with the claim that he “lost” his file containing Democratic documents “leaves open the possibility” that Miranda still “has Democratic documents in his possession.”

The Pickle Report concluded by outlining the “criteria for possible referrals for disciplinary action and for criminal prosecution to the Department of Justice,” noting that Miranda and others could potentially face prosecution for ethical violations, professional misconduct, violation of the Computer Fraud and Abuse Act, lying to investigators and violating various criminal statutes.

Of course, Miranda disputed many of the report's findings at the time and will no doubt continue to do so even today. 

Nonetheless, the report, written in 2004, covers not only Miranda's dealings while working on the Hill, but his ties to the various right-wing media outlets and judicial groups who sought to use the ill-gotten internal Democratic memos for partisan purposes, and explains just how Miranda went from being an obscure Senate aide to the right-wing folk hero and leading crusader in the judicial confirmation wars we know today.

Manuel Miranda Makes Republican Enemies

Yesterday we noted that Manuel Miranda and his Third Branch Conference (formerly known as the National Coalition to End Judicial Filibusters) had returned and sent a letter to Republican Senators demanding that they carry out a "traditional filibuster" against Sonia Sotomayor.

Though the letter was signed by more than a hundred right-wing leaders and activists, Miranda is and always has been the leader of these efforts ... and now he's taking his demands one step further:

[I]n an interview with POLITICO, Manuel Miranda – who orchestrated the letter – went much farther, saying that Mitch McConnell should “consider resigning” as Senate minority leader if he can’t take a harder line on President Barack Obama’s first Supreme Court nominee.

Miranda accused McConnell of being “limp-wristed” and “a little bit tone deaf” when it comes to judicial nominees.

"Limp-wristed" seems to be Miranda's insult of choice when it comes to sitting US Senators, because it is the same term he used in attacking Sen. Orrin Hatch several years ago when Hatch refused to defend Miranda when he was forced to resign from his positon on the Hill when it was learned that he had improperly obtained hundreds of internal Democratic memos:

I do admit that reading Democrats' documents on an unprotected server to help defend the president's embattled nominees was political hardball, and I have learned that one shouldn't play hardball with a limp-wristed team captain. 

It seems as if Miranda is not only calling out leading Senators like McConnell, but other right-wing judicial groups as well:

Miranda also declined to ask the Judicial Confirmation Network, one of the leading conservative judicial groups, to sign on to his letter, calling the group “an arm of [Republican] leadership” in the Senate.

Wendy Long of the Judicial Confirmation Network said the group is not affiliated with the leadership and said she didn’t “really understand” the comment.

Now, we'll agree that the JCN is essentially an arm of the Senate Republicans, but they have also been among the most vocal critics of President Obama's judicial nominees David Hamilton and Sonia Sotomayor.  They've also led the charge against several of his Department of Justice nominees, including Dawn Johnsen David Ogden, and Elena Kagan.

While we obviously have fundamental disagreements with the Judicial Confirmation Network, nobody can deny that they have been leading the right-wing opposition to President Obama on these issues and have a far greater impact than does Miranda and his gaggle of letter-signers.  

And it seems as if Miranda's superiority complex is, not surprisingly, starting to alienate people:

Miranda, now the chairman of the conservative Third Branch Conference, served as counsel to McConnell’s predecessor, then-Senate Republican Leader Bill Frist. He left that job in 2004 amid allegations that he improperly accessed thousands of memos and emails from Democratic staffers – circumstances McConnell’s supporters recalled as they pushed back hard against Miranda’s arguments Monday.

“It’s unfortunate that one disgraced former employee of previous Senate leadership has decided to air out his grievances rather than join the conservative effort to examine Judge Sotomayor’s record,” said a senior GOP Senate aide. “Not only did this guy steal the Democrats’ playbook, he seems to be implementing it.”


Sen. Orrin Hatch says he spoke with President Obama, who "assured me that he would not be picking a radical or an extremist for the court that he was very pragmatic in his approach and that he would pick somebody who would abide by the rule of law.” Hatch also speculates that the White House could announce its nominee as soon as this week.

Following Arlen Specter's defection, Sen. Jeff Session has been chosen to take over his position as ranking Republican on the Judiciary Committe in a move that is being welcomed by right-wing groups:

“He is someone who has a tremendous amount of experience with legal policy issues that the committee has to involve itself in,” said Leonard Leo, the executive vice president of the Federalist Society, an organization of conservative lawyers ... Jay Sekulow, the chief counsel of the American Center for Law and Justice, expects changes under Sessions.

“I assume he will bring in some conservative staff,” said Sekulow. He called Sessions’ elevation on the committee “good for Republicans.”

Phyllis Schlafly has now gotten around to weighing in with her latest column, accusing Souter of flipping "from presumed conservative to liberal as soon as the media began ridiculing him" and attacking President Obama and several of his nominees, including David Hamilton:

We would also like to know if Obama's Supreme Court nominee is cut from the same cloth as his first judicial nomination, David F. Hamilton. He's a former fundraiser for ACORN and a former leader of the Indiana chapter of the ACLU.

Ed Whelan starts the opposition research, announcing "one [possible nominee] whose candidacy I take seriously and whom I have previously written very little about is Seventh Circuit judge Diane P. Wood. I will address her record in this and subsequent posts" and concludes that "her course of conduct signals the dangers of judicial lawlessness that inhere in Obama’s badly misguided standard for judging."

Smear Job on David Ogden Comes up Short

The Senate is currently debating the nomination of David Ogden to be Obama’s Deputy Attorney General. That, in itself, is telling. Ogden was expected to sail through the confirmation process, but by last week there was talk of a full-on filibuster.

It’s not easy to disrupt the confirmation of a widely respected attorney with previous government experience and bipartisan backing. It takes big lies and a big megaphone. But the Religious Right and its Senate allies managed just fine.

To hear Senator Orrin Hatch talk about it, you’d think that Obama had actually nominated Larry Flynt to be Eric Holder’s deputy: “The pornography industry is excited about Mr. Ogden’s nomination.”

But that’s nothing. Here’s how the executive director of the Traditional Values Coalition summed up Ogden: “He will be a great ally for advocates for death and homosexuality inside the Justice Department.”

Bear in mind, they’re talking about a man who enjoys the backing of the National District Attorneys Association, National Association of Police Officers, Fraternal Order of Police, National Center for Missing and Exploited Children, and many others. He even won the support of Republican Senators Specter, Graham, and Kyl in committee.

Ogden’s right-wing antagonists don’t care about any of that. They’ve latched onto a handful of cases involving abortion and obscenity from his many years as a corporate lawyer and have distorted them beyond all recognition. Ogden, for instance, represented the American Library Association in its fight against overzealous internet filtering and the American Council for the Blind over whether the Library of Congress should make a Braille version of Playboy, as was the practice for other popular periodicals.

These cases had very real First Amendment implications. But never mind that. His old casework is enough for the Traditional Values Coalition to call him a “pro-pornography zealot.” Concerned Women for America has even speculated that his nomination might mean that the “United States will also fund the international production and distribution of pornography.”

These smears reached hundreds of thousands – perhaps millions – of Americans via right-wing cable news, talk radio, and blogs. Senate conservatives took notice, hence the five ‘no’ votes in the committee and the grumbling about a filibuster. In fact, Senator Majority Leader Reid was forced to file cloture on the vote.

Ogden will surely be confirmed when the Senate finally votes on his nomination today (around 2 pm). But the outlandish rhetoric from the far right and the willingness by conservative Senators to play along are sure signs of what’s to come.

Smear Job on David Ogden Comes up Short

The Senate is currently debating the nomination of David Ogden to be Obama’s Deputy Attorney General. That, in itself, is telling. Ogden was expected to sail through the confirmation process, but by last week there was talk of a full-on filibuster.

It’s not easy to disrupt the confirmation of a widely respected attorney with previous government experience and bipartisan backing. It takes big lies and a big megaphone. But the Religious Right and its Senate allies managed just fine.

To hear Senator Orrin Hatch talk about it, you’d think that Obama had actually nominated Larry Flynt to be Eric Holder’s deputy: “The pornography industry is excited about Mr. Ogden’s nomination.”

But that’s nothing. Here’s how the executive director of the Traditional Values Coalition summed up Ogden: “He will be a great ally for advocates for death and homosexuality inside the Justice Department.”

Bear in mind, they’re talking about a man who enjoys the backing of the National District Attorneys Association, National Association of Police Officers, Fraternal Order of Police, National Center for Missing and Exploited Children, and many others. He even won the support of Republican Senators Specter, Graham, and Kyl in committee.

Ogden’s right-wing antagonists don’t care about any of that. They’ve latched onto a handful of cases involving abortion and obscenity from his many years as a corporate lawyer and have distorted them beyond all recognition. Ogden, for instance, represented the American Library Association in its fight against overzealous internet filtering and the American Council for the Blind over whether the Library of Congress should make a Braille version of Playboy, as was the practice for other popular periodicals.

These cases had very real First Amendment implications. But never mind that. His old casework is enough for the Traditional Values Coalition to call him a “pro-pornography zealot.” Concerned Women for America has even speculated that his nomination might mean that the “United States will also fund the international production and distribution of pornography.”

These smears reached hundreds of thousands – perhaps millions – of Americans via right-wing cable news, talk radio, and blogs. Senate conservatives took notice, hence the five ‘no’ votes in the committee and the grumbling about a filibuster. In fact, Senator Majority Leader Reid was forced to file cloture on the vote.

Ogden will surely be confirmed when the Senate finally votes on his nomination today (around 2 pm). But the outlandish rhetoric from the far right and the willingness by conservative Senators to play along are sure signs of what’s to come.

The GOP's Evolving Definition of "Advice and Consent"

Both The Hill and Politico are reporting on a letter [PDF], signed by all forty-one Republicans in the Senate, sent to President Obama yesterday warning him that they will not hesitate to filibuster his judicial nominees if they are not consulted before he makes his picks:

President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senate’s constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.

“Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee,” the letter warns. “And we will act to preserve this principle and the rights of our colleagues if it is not.”

In other words, Republicans are threatening a filibuster of judges if they're not happy.

My, how times have changed.  I seem to remember a time, just a few years ago when President Bush was in office, when the Republican understanding of the Constitution's "advice and consent" clause was that it entitled the President to make nominations of his choosing while the Senate's role was merely to confirm or reject his nominees.

In fact, that is exactly what they said, repeatedly.  For example, here is Sen. Orrin Hatch saying it:

It seems to me that the only way to make sense of the advice and consent role that our Constitution's framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character or inability to follow the law are evident.

In other words, the question of ideology in judicial confirmations is answered by the American people and the Constitution when the President is constitutionally elected. As Alexander Hamilton recorded for us, the Senate's task of advice and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

To do otherwise, it seems to me, is to risk making the federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success – an independent judiciary.

But it wasn't just Republican Senators making that argument; it was the standard argument of all the conservatives who were active on the issue of judicial nominations. 

Here is John Eastman testifying [PDF] before the Senate Judiciary Committee making that point explicitly:

[R]ecent claims that the advice and consent clause gives to the Senate a co-equal role in the appointment of federal judges simply are not grounded either in the Constitution’s text or in the history and theory of the appointment’s process.

And here he is making it again:

Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish]." As the text of the provision makes explicitly clear, the power to choose nominees — to "nominate" — is vested solely in the President, and the President also has the primary role to "appoint," albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one than is currently being claimed.

Here is the same point being made by the Judicial Confirmation Network:

"It is apparent from the rhetoric included in the 'Memorandum of Understanding' that at least 14 Senators - the signers of this compromise - fail to understand the Constitution's 'advice and consent' clause. Article II, Section 2 of the Constitution reads: '[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court .' The Senate's advice and consent role is part of the 'appointment' process, not the 'nomination' process, which the Constitution commits solely to the President."

And here it is once again, this time being made by Steven Calabresi, who just so happens to have been a co-founder of the Federalist Society:

The President was supposed to play a leading role in the selection of judges and that role is defeated by giving a minority of senators a veto over presidential nominees.

Second, giving a minority of Senators a veto over judicial nominees will violate the separation of powers by giving a Senate minority the power to impose a crude litmus test on judicial nominees, thus undermining judicial independence.

I could go on, but I think you get the point.

Isn't it amazing how, just a few years removed from arguing that the Senate's sole role in the confirmation process was to either confirm or reject nominees and trying to blow up the Senate with the "nuclear option" in order to get rid of the filibuster, the Republicans in the Senate are now demanding a veto over the President's nominees and threatening to filibuster if they don't get their way?

Right Wing Leftovers

  • How cool is Facebook?  So cool that even the hipsters over at the American Family Association now have their own page.
  • John Hagee writes that he is praying "fervently for [Barack Obama's] success" and calls on the Religious Right, when they disagree with the new president, to do so with "the same civility and respect that he has thus far shown to us."
  • The AP reports that the Arkansas Family Council is trying to intervene in a lawsuit stemming from the recent passage of the law banning gays from adopting children, arguing that the current Attorney General is not supporting of the law and trying to bring in the Alliance Defense Fund to help defend it.
  • Much like the right-wing criticisms that helped sink Mike Huckabee's presidential aspirations, some commentators are now saying that Gov. Bobby Jindal "doesn't actually walk his conservative talk."
  • Phill Klein now has his own website called Stand With Truth where he can share his views:
  • President Obama did not mention abortion once in his inaugural address despite the issue being the most divisive in our nation. Just as President Franklin Pierce did not once mention slavery in his only inaugural address in 1853, less than a decade before the issue plunged the nation to war.

    On abortion, politician Obama has survived through political calculation, deception and with gratitude to a self-indulgent culture full of distraction and willful ignorance. And his first actions have been aggressively opposed to this significant civil rights issue. Yet, President Obama will not escape the judgment of history.

  • Finally, last week we noted that Sen. Orrin Hatch had stepped in to help save Rob Schenck's annual National Service for the Pre-born, allowing it to be held at the new Capitol Visitor Center - now some footage of the event has been put on-line:

Right Wing Leftovers

  • Coral Ridge Presbyterian Church, formerly the home church of the late D. James Kennedy, has chosen a new pastor to replace its founder: Rev. Tullian Tchividjian, who just so happens to be the grandson of Billy Graham.
  • Sen. Orrin Hatch stepped in at the last minute and saved Rob Schenck’s annual National Service for the Pre-born by signing on as an official sponsor so that the event could take place in the US Capitol Visitor Center.
  • Sean Hannity has thrown his support to Michael Steele for Republican National Committee Chairman.
  • Connecticut Democrats are calling on Sen. Joe Lieberman to apologize for a litany of things, including his support of John Hagee.
  • Ralph Reed stayed away from Barack Obama’s Inauguration yesterday, but still couldn’t help but get overwhelmed by the emotions of the day – not because of our historic new president but because “it was a lot more emotional to watch George W. Bush depart the capital than I thought it would be.”
  • Finally, Matt Barber is not happy with the new White House’s proclamation of “support for the LGBT community,” seeing it as evidence that “Barack Obama’s administration will likely be the most leftist, divisive and discriminatory in recent memory”:
The gravity of this situation cannot be overstated.  Right out of the shoot, Obama has told the world that he is signing off, without exception, on every demand of the extremist homosexual and transsexual lobbies.  The radical homosexual agenda and religious and free speech liberties cannot occupy the same space.  It’s a zero-sum game.  When 1 - 2 percent of the population is granted special rights based on deviant sexual proclivities and changeable sexual behaviors, to the detriment of everyone else, that’s called tyranny of the minority.  People of faith and those of you with traditional values: hold on to your hats – it’s going to be a bumpy four years.

Will the Judicial Confirmation Network Stick to its Pledge?

Shortly after the election, we noted that the Judicial Confirmation Network, which had been founded with the express purpose of helping to get President Bush’s judicial nominees confirmed, was starting to sing a different tune, proclaiming that the burden would now be upon President Obama and his nominees to prove that they are qualified to sit upon the federal bench and issuing an ominous warning that “senators will be accountable for [their] votes.”

At the time, it appeared as if the JCN’s mission was about to shift from one of working to get judges confirmed to one of working to ensure that they didn’t get confirmed.  But in a letter to the editor in the Washington Times, JCN Executive Director Gary Marx says that under President Obama the organization’s mission will remain the same:

The Judicial Confirmation Network was founded, in part, to support the principle that every nominee who goes to the full Senate deserves an up-or-down vote. We did not support this principle out of some amorphous notion of "bipartisanship," but rather, we believe it is the duty of the Senate to perform its constitutional role in the judicial-selection process. The Constitution is quite clear on this role, and nowhere does it require a supermajority for confirmation of the president's nominees.

If the Senate abides by the historical procedural rules governing the confirmation process, the Judicial Confirmation Network intends to stick to its principles and urge up-or-down votes - even on nominees we may oppose. It would be quite understandable if Republican senators felt otherwise - most have had extensive experience with Democratic promises of reciprocity.

Of course, the meaning of this pledge relies heavily on what Marx considers to be “the historical procedural rules governing the confirmation process” – Curt Levey of the equally right-wing Committee for Justice suggests that Marx means “those rules include respect for blue slip privileges.”

So now the question becomes which “historical procedural rules” regarding the blue slip does Marx mean; the rules Republicans had in place when Bill Clinton was President or the different ones they implemented when George W. Bush became president?

It was, on the whole, an unusual display of Democratic solidarity. On April 27, all nine Democrats on the Senate Judiciary Committee -- backed, according to ranking member Patrick Leahy, by the entire Democratic caucus -- signed a letter to White House counsel Alberto Gonzales about George W. Bush's proposed nominations to the federal bench. "We are not going to be rolled over," promised New York's Charles Schumer, who called the letter a "shot across the bow." The confirmation process, warned Leahy, "may grind to a screeching halt."

But not because Gonzales and Judiciary Committee Chairman Orrin Hatch were planning to fill several dozen of the nearly 100 vacancies on the federal bench with staunch conservatives. No, the offense at hand was far more grave: At a confirmation hearing in early April, Hatch had hinted that he might change an obscure policy called the "blue slip," which senators have traditionally used to exercise near-veto power over judicial nominees. During the Clinton years, any one senator could block any candidate from his or her home state (by refusing to return a memo of approval printed, literally, on a blue slip of paper); under George W. Bush, Hatch informed the Democrats, a veto would require the opposition of both home-state senators -- a substantial dilution of a treasured prerogative of office.

The JCN says it will continue to press for up-or-down votes on judges that it opposes and so, for now, we’ll just have to take them at their word despite that fact that it seems exceedingly unlikely that it will actually do so once the battle over judicial nominations inevitably heats up.

Rob Schenck on NPR? 

Rob Schenck is not exactly a household name – in fact, he’s barely known even to those who monitor the Religious Right, but that doesn’t mean he doesn’t have a history of influence with member of Congress and the right-wing movement.

We’ve been writing about Schenck for awhile now, primarily in the context of his crusade to expose the fact that Barack Obama might really be a Muslim infidel … and even if he’s not, his Christian faith is “woefully deficient,” as well as his reportedly successful efforts to sneak into the Senate Judiciary Committee hearing room and anoint the chairs with oil before Samuel Alito's confirmation hearings.

While Schenck might not be a right-wing powerbroker, he is something of a name dropper as this video check-in from earlier in the week demonstrates in which he reports that he’s on his way to Utah to join Sen. Orrin Hatch for a golf tournament before meeting up with Jay Sekulow of the American Center for Law and Justice.  

None of this is particularly relevant or groundbreaking and we probably wouldn’t even bother mentioning it were it not for the announcement at the end that he will be attending and providing commentary for both the Democratic and Republican conventions on behalf of National Public Radio:

Schenck released a statement today confirming that he “will travel to Denver on Saturday, August 23, to observe and comment on the Democratic National Convention and surrounding events” but makes no mention of NPR.  

Is Schenck really going to be providing commentary for NPR on the Democratic Convention?  If so, did NPR bother to do any research on just who they were bringing on-board?

During the early 1990s … [Schenck] was arrested a dozen times during protests outside women's health clinics and abortion doctors' homes, and is renowned for outrageous publicity stunts, including dangling an aborted fetus in Bill Clinton's face outside the 1992 Democratic National Convention. With former Elim classmate Randall Terry, Schenck helped start Operation Rescue, a hardline anti-abortion group that embraced "direct action" in an effort to shut down reproductive health clinics and prevent doctors from practicing abortion.

Schenck, along with his twin brother Paul, have a long history of militant anti-abortion activism and first came to fame by targeting local doctor Barnett Slepian who was, in 1998, assassinated by an anti-abortion activist:


25 October 2000

Buffalo News

Two years after Dr. Barnett A. Slepian's assassination, a new book written by a former local pro-life activist raises the question of whether the Schenck twins played an indirect role in singling out Slepian as a potential target for violence.

Author Jerry Reiter, a former member of the Town of Tonawanda church led by the Revs. Paul and Robert Schenck, never accuses the twin brothers of being involved in any murder plot or the harboring of the killer.

But in his book, "Live From the Gates of Hell," Reiter writes that his former pastors brought national Operation Rescue leaders here for protests outside the same home where Slepian later was killed.

The author questions how "an obscure physician from a midsize city like Buffalo" wound up on a national short list of targeted abortion providers.

"It was impossible to say with certainty who had put Slepian on the secret list, but it was possible that the national leadership would not have known about Slepian at all if it had not been for Rob and Paul Schenck," Reiter writes. "They were the first to choose him as a target for anti-abortion protesters."


Reiter writes that he was shocked when Robert Schenck told him that neither brother had heard of James C. Kopp before the FBI announced him as a suspect in Slepian's murder. The Schencks and Kopp had been arrested at demonstrations in the same cities.

Spitting in the Face of the Facts

It appears as if the Senate Republicans and their right-wing allies are gearing up for a battle over judges, primarily over the nomination of Leslie Southwick to a seat on the Fifth Circuit Court of Appeals.

A few weeks ago, Sen. Arlen Specter met with representatives of more than a dozen right-wing organizations -Including Concerned Women of America, the Family Research Council, and the Judicial Confirmation Network -  to complain that he was “fed up” with the Democrats’ supposed failure to confirm enough judges and to urge these groups to get involved in pressing for more confirmations.

And that is just what they have done. 

Today, the Committee for Justice and nearly 60 other right-wing groups released a letter [PDF] they sent to the Senate Judiciary Committee, blasting Democrats for making it “it impossible for the Senate to fulfill its constitutional duty of advice and consent in good faith.” 

The letter claims that failure to confirm Bush’s judges is at least partially responsible for Congress’ low approval rating and warns that the issue will play a role in upcoming elections.  

It then proceeds to make a series of strikingly hypocritical claims: 

The American people are equally unsympathetic to the claim that certain nominees cannot get a hearing because of the Judiciary Committee’s arcane “blue slip” policy. That policy is rightfully perceived as serving senators rather than the public. Because the policy exists entirely at the discretion of the committee chairman, blame for the resulting delays cannot credibly be laid outside the committee.

President Bush fulfilled his constitutional duty by nominating the outstanding men and women who await action in the Judiciary Committee. We respectfully request that you allow the Senate to fulfill its constitutional duty of advice and consent, by ensuring that each and every judicial nominee is given a hearing and is reported out of committee for consideration by the full Senate in a timely manner. If you cannot support a particular nominee, vote him or her out of committee without a positive recommendation, or vote against confirmation. But please do not deny the nominee a fair up-or-down vote on the Senate floor. In other words, we ask only that you do your job by putting statesmanship above politics and special interests.

Of course, back when President Clinton was in office, the “blue slip” policy was used routinely by Republicans to block his nominees but was unilaterally changed when Republicans took control of the Senate under President Bush in order to prevent Democrats from doing the same to Bush.  Now that Democrats are back in control of the Senate, these groups seem to think that the “blue slip” policy switch orchestrated by Sen. Orrin Hatch should still be in place in order to benefit President Bush’s nominees. 

As for the claim that Democrats must ensure that “each and every judicial nominee is given a hearing and is reported out of committee” … well, let’s just say that is not how Republicans operated under President Clinton either.

Then, just for good measure, Concerned Women for America, despite having signed on to the above-mentioned letter, issued its own press release defending Southwick by accusing those who oppose his confirmation of “spitting on the reputation” of Iraqi War vets.     

"Judge Southwick is a brave, considerate, intelligent American hero -- just the type of person that we need on the federal bench," stated Wendy Wright, President of Concerned Women for America.  "Yet liberal special interest groups have unfairly smeared a good man -- a war veteran -- for doing his constitutional duty of upholding the law and serving in the war.

"Some Democrat senators have followed their lead, in effect spitting on the reputation of this honorable judge and Iraq war veteran.  Is this what other Iraq War veterans will face when they return home?  Will their sacrifice, courage and honor be besmirched by people who put their interests above the welfare of our country?"

Normally when it comes to judges, the Right just tends to accuse its opponents of being sexist, racist, or otherwise bigoted – so accusations that they are also hostile to our troops is a new, though not surprising, development.  

Facts Optional When It Come to Judges

As we have noted before, there appears to be something about the issue of judicial nominations that makes the Right take leave of their senses.  

For example, Vision America’s Rick Scarborough frets about the Democratic take-over of the Senate in January but insists that, despite the election results, “the American people elected George W. Bush in 2004 with the expectation that he would keep his campaign promise to nominate judges” who share the Right’s agenda regardless of which party controlled the Senate and is urging him to ignore calls to nominate any sort of “compromise” candidates.

To this end, Scarborough claims


When Clinton was president, there was no talk of compromise candidates. Our 42nd President put hard leftists like Ruth Bader Ginsberg on the bench.


The only thing that can be taken from this ridiculous claim is that Scarborough either doesn’t know or doesn’t care about the facts because, as Senator Orrin Hatch recounted in his autobiography, at a time when Democrats controlled the Senate and he was merely the ranking minority member of the Judiciary Committee, President Clinton still conferred with him when it came to potential nominees for the Supreme Court

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

In the end … he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease.

Scarborough is not the only one who seems oblivious to history, no matter how recent. In Human Events, Judicial Watch’s Tom Fitton writes that


Liberals in the Senate have turned the judicial confirmation process on its head, obstructing the President’s judicial nominees for political reasons. They even resorted to launching judicial filibusters, ignoring the constitutional directive to provide up-or-down votes on all judicial nominees. Why? Not because the nominees were unqualified. But rather because they didn’t like the nominees’ philosophy of judicial restraint.


As we have noted repeatedly, if folks on the Right are really concerned about judicial nominees being denied a vote because one or more senators don’t “like the nominees’ philosophy,” perhaps they can start hounding Sen. Sam Brownback to lift his hold on the nomination of Janet Neff -  a hold that Brownback says is going to continue indefinitely

“I’m still looking at the Neff situation, and I will in the future,” Brownback said.

Neff has said she attended [a same-sex commitment ceremony] as a friend of one of the two women, a longtime neighbor.

Neff has declined to answer Brownback’s queries on whether the Constitution guarantees a right to same-sex marriage or civil unions, saying it would be improper to address questions that might come before her as a federal judge.

Brownback called gay marriage a developing area of the law best not left to the judiciary anyway.

“To me these issues should be decided by the legislative bodies, not by the judicial bodies, and it seems to me this may indicate some view of hers on the legal issue. And that’s what I’m concerned about here, is her view of the legal issue involving same-sex marriage,” Brownback said.

One has to marvel at Scarborough’s willingness to claim that there is no need for consultation or compromise on Supreme Court nominees despite the standard set by Hatch and Clinton - and Fitton’s willingness to blast Democrats for opposing nominees based on philosophy at a time when Brownback is doing exactly that.   

Never let it be said that the Right will let pesky things like facts get in the way of their partisan polemics.

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