First Senatorial Session, 110th Congress - Recess after Further Jeopardizing the Judiciary
By Marion Edwyn Harrison (08/17/07)
On August 4, 2007 the First Session, 110th Congress, recessed, to return after Labor Day. Its record as to treatment of the Federal Judiciary and of nominees to the Federal Bench, to use a reasonably polite and undeservedly gentle adjective, is disgraceful. The handful of leftist United States Senators who would do almost anything to create and perpetuate judicial vacancies in anticipation of a Democratic Presidency come January 2009 has bought valued time.
Even more inimically, they further have discouraged untold numbers of qualified ladies and gentlemen from so much as thinking seriously of seeking or accepting a nomination to the Federal Bench. Senatorial torture chamber, reputations smeared, integrity challenged, irreplaceable time needlessly diverted, inadequate salaries: Who needs it?
This Commentary on June 13, 2007 (reprinted following) predicted a resurgence of active opposition to nominations. That prediction most regrettably has come to pass.
As of the August recess the number of vacancies is astounding: Of 179 United States Courts of Appeals (or Circuit) judgeships, 16 are vacant, eight nominees for those 16 seats pending - that is, deliberately delayed by the Senate. Imagine any kind of necessary workforce with 9% of its slots indefinitely vacant! The situation is also dangerous in the United States District (or trial) Courts: 34 vacancies, with 18 applicable nominees, out of 674 slots, a 5% vacancy. Some such vacancies are dangerously dated - e.g., The 1st Circuit (New England except Connecticut and Vermont), one since last year; 3d Circuit (Delaware, New Jersey, Pennsylvania), two since last year; 4th Circuit (Carolinas, Maryland, Virginia, West Virginia), with an astounding five vacancies, two as long ago as 1994 and 2000, a third since last year; 5th Circuit (Louisiana, Mississippi, Texas), two since 2004 and 2006; 6th Circuit (Kentucky, Michigan, Ohio, Tennessee), two since 2000 and last year; 7th Circuit (Illinois, Indiana, Wisconsin)), one since last year; 9th Circuit (Pacific States and the four most western Mountain States), one since 2004; District of Columbia Circuit, two since 2005.
The 110th Congress, some two-thirds of its legislative days concluded, so far has confirmed only three Courts of Appeals nominees. The average was 17 during the last two years of the Ronald Reagan, George H. W. Bush and William J. (Bill) Clinton Administrations. The Democratic Leadership supposedly agreed to seek to meet that figure but you know what some perceptive New Yorkers would say.
One not yet confirmed is Judge Leslie H. Southwick, so obviously qualified that he is endorsed by Senator Dianne S. Feinstein, who as a California Democrat necessarily is liberal but is bright and at times objective.
Who suffers from this leftist obstruction? Obviously a nominee suffers. Less obvious, but increasingly common, qualified people are disinterested, rendering it the more difficult for the President to find willing nominees. Perhaps less obvious yet to the public at large, litigants suffer because too many Federal court dockets are jammed.
Bar associations should become more aggressive, as only a few are, in educating the public and in appealing to Senators. The American Bar Association, unduly dominated by liberal activists since the days I was active (Board of Governors four years, House of Delegates ten years, Section Chairman, twice a Standing Committee Chairman, etc.), not surprisingly is shirking its responsibility to the overall bar and to the public.
The incumbent Senate Judiciary Committee Chairman surely isn’t helping. Perhaps if Senator Patrick J. Leahy had had a more outstanding legal career he would be less partisan. Meanwhile, if the Leahy criteria were applied to the Southwick nomination Southwick would have been confirmed quickly. What is that standard? 1. Judicial emergency as declared by the objective Administrative Office of the United States Courts. 2. Support by both homestate Senators. 3. American Bar Association highest qualified rating. 4. Previously approved by the Senate Judiciary Committee for a judicial nomination. Judge Southwick meets all four criteria. So much for sincerity and objectivity from the Leahy woods of Vermont.
The Senate yet has an opportunity to eliminate its pervasive obstruction. As long as Senators such as Leahy and Majority Leader Harry M. Reid defer to - sometimes lead - the obstructionists the 2007 - 2008 prospects will remain gloomy.
Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation
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Free Congress Foundation Commentary
A Resurgence of Active Opposition to Federal Judicial Nominations
By Marion Edwyn Harrison, Esq.
June 13, 2007
After limited calm, some of the usual leftist agitators and their United States Senatorial cronies have sprung to life. Never mind that there are thirteen vacancies on the United States Courts of Appeal, with several more projected before yearend; or that more and more highly qualified individuals are disinterested in such a nomination, some because they do not want to submit to the Senatorial torture chamber, some because the salary is inadequate, some for both reasons.
The latest agitation is vented against Judge Leslie H. Southwick, whom President George W. Bush nominated on January 9, 2007, for the United States Court of Appeals for the 5th Circuit. His credentials are quite adequate. A graduate of a fine college and law school, Rice University and the University of Texas, he clerked for the Presiding Judge of the Texas Court of Criminal Appeals, then for a Judge of the 5th Circuit Court of Appeals, for which he now is nominated. Twelve years an attorney in private practice, he then served as Deputy Assistant Attorney General, Civil Division, Department of Justice, in Washington, supervising 125 attorneys in the Federal Programs Branch, which defends litigation against the United States, and the Office of Consumer Litigation, consisting of 25 attorneys who litigate to enforce Federal consumer laws. In 1994 he was elected to the Mississippi Court of Appeals, serving until his term expired in 2006, less a 17-month leave of absence to serve as Judge Advocate with the Mississippi Army National Guard, including service in Iraq during the Iraqi War.
President Bush nominated him for the United States District Court; the United States Senate Committee on the Judiciary unanimously reported the nomination. Judge Southwick then declined to run for re-election to the Mississippi Court of Appeals inasmuch as the nomination was pending before the Senate. However, the Senate never acted upon his nomination, which automatically lapsed with adjournment sine die - that is, final adjournment - of the 109th Congress.
Judge Southwick’s alleged deficiency? Judicial experience? Governmental experience? Private-practice experience? Objectivity? Scholarship? None of the foregoing.
Rather, during his approximately eleven years as an appellate judge he voted upon some 7,000 cases. In the Court’s opinion in one of those in which he voted with the majority, in 2001, there is a phrase - which he did not write - upon which the leftist agitators have latched. The decision sustained a trial-court ruling granting custody of a child to her father rather than her lesbian mother (who had misconduct problems), amid its verbiage once using the phrase “homosexual lifestyle.” It is most unusual, and generally inappropriate, for an appellate judge who does not write the opinion in a case to file a concurring opinion objecting to a phrase in the opinion of the court unless the phrase enunciates, or ties into, an issue of law with which the judge disagrees or raises a significant point of law which the judge considers extraneous to the decision. Hence, whatever Judge Southwick thought of the phrase and whatever the phrase means in context, it would be most unusual were he to have filed a concurring opinion relating to that phrase.
The other case sustained a trial-court decision holding that a governmental agency was not required to fire a woman who upon one occasion while at work uttered a racial slur, apologized to the lady so slurred, who accepted the apology and filed no complaint. The determinative issue was one of law.
Obviously the Senatorial leadership is looking for an excuse “sellable” to some of its leftist support to blitz a nomination. Thus, we see the viable portent of a resurgence of active opposition to Bush nominees. Quietly failing to confirm six of nine (or five of eight, as one Senator counts) appellate nominees, and 23 of 38 trial-court nominees is not enough. The decision evidently has been made to go public and dramatic.
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