How Joe Biden Wrecked the Judicial Confirmation Process

The vice president can't complain if Republicans object to Obama's Supreme Court nominee.

Vice President Joe Biden is widely praised for the expertise he brings in helping Barack Obama choose a replacement for retiring Supreme Court Justice David Souter. Having served for three decades on the Senate Judiciary Committee, he is considered an asset both for his relationships with committee members and his familiarity with the nuts and bolts of judicial nominations. So let's have a look at how the confirmation process actually fared under Mr. Biden's leadership.

As a member of the Senate Judiciary Committee, Mr. Biden was present for the nomination and confirmation of every currently sitting Supreme Court justice except for John Paul Stevens. In 1986, the year before Mr. Biden took over as committee chairman, Antonin Scalia was approved by the Senate in a vote of 98-0. Then came Robert Bork and a presidential election.

Before Judge Bork's nomination, Mr. Biden had said he would support him. And why not? He was widely considered a dazzling legal mind and had even received (during his confirmation to the D.C. Circuit Court of Appeals) a rating of "exceptionally well-qualified" from the liberal-leaning American Bar Association. "Say the administration sends up Bork," Mr. Biden told the Philadelphia Inquirer in November 1986, "and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special-interest] groups tear me apart, that's the medicine I'll have to take."

But by the time of the actual nomination, Democrats were promising to play "hardball" with President Ronald Reagan's nominees and Mr. Biden was running for president. Mr. Biden's Democratic colleagues lined up against the nominee. They were led by Sen. Edward Kennedy, who demonized him with a monologue on "Robert Bork's America," which he promised would be "a land in which women would be forced into back alley abortions." Liberal groups joined the chorus for Mr. Biden to recant his earlier support, which he did, helping to defeat Mr. Bork's nomination.

Back then the tactics were considered shocking. Warren Burger, the former chief justice, said he was "astonished" by the comments he'd read about a nominee he thought was one of the most qualified he'd seen in 50 years. If the Senate rejected Mr. Bork, he said, "then they shouldn't have confirmed me."

Just one year after the conservative Mr. Scalia's unanimous confirmation the winds had changed dramatically. The Senate had hitherto proceeded on the principle that it owed the president deference on his judicial selections. No longer.

"The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Mr. Biden said in August 1987 in defense of his newfound opposition to Judge Bork. "The Senate has an undisputed right to consider judicial philosophy." With that marker placed, the ultimate winner of the seat vacated by Justice Lewis Franklin Powell Jr. was a nominee nearly devoid of political philosophy -- Anthony Kennedy.

Mr. Biden's obstruction was further rewarded by the first President Bush. In attempting to dodge controversy, he gave liberals David Souter, whose appeal was enhanced by the fact that he had been a federal judge for less than a year and had almost no paper trail.

By the time Clarence Thomas's confirmation hearings came around, Mr. Biden's modus operandi was well known. In his book, "My Grandfather's Son," Justice Thomas recalls that before the Anita Hill inquisition began, Mr. Biden called him and said "Judge, I know you don't believe me but if the allegations come up I will be your biggest defender." "He was right about one thing," Justice Thomas wrote, "I didn't believe him."

Under Mr. Biden's leadership, holding up nominations to the nation's appeals courts also became a routine exercise. In 1988, the Senate Judiciary Committee delayed 17 months before refusing to confirm law professor and scholar Bernard Siegan to the Ninth Circuit Court of Appeals because of his libertarian positions on economic issues. In 1992, Mr. Bush's nominee to the 11th Circuit, Edward Carnes, endured an eight-month delay and an attempted filibuster before finally being confirmed. By 1992, 64 judicial nominees were stuck in the senatorial muck waiting for the Judiciary Committee to give them a yea or nay.

The Senate obstructionism that began with Reagan's nominees thus became a game of political revenge as each new batch of nominees was made to suffer at the hands of one party for the treatment its nominees had received in the last round. Republicans blocked some of President Bill Clinton's nominees, including briefly, Sonia Sotomayor, the Second Circuit judge said to be on Mr. Obama's short list to replace Mr. Souter. Unable to bottle up Miguel Estrada in committee in 2003, Democrats filibustered him on the floor of the Senate. Sen. Carl Levin (D., Mich.) held up as many as four judicial nominations for years in retribution for Republicans blocking Mr. Clinton's nomination of Helene White (she was confirmed for the Sixth Circuit last year). And so on.

The effect of this game has been toxic not only for the nominees but for the courts. Many circuits have suffered judicial emergencies, defined as vacancies on courts overwhelmed by their caseloads, or vacancies languishing more than 18 months on busy circuits. Some stood open longer. The Bush administration's 2006 appointment of Peter Keisler to fill the D.C. Circuit seat vacated by John Roberts was left to expire, unfilled, at the end of the administration.

True, Supreme Court nominees John Roberts and Samuel Alito were confirmed -- but without the support of then Sens. Joe Biden or Barack Obama. Mr. Alito was confirmed by a vote of 58-42, the second narrowest margin in Senate history (after Clarence Thomas). Even Chief Justice Roberts's margin of 78-22 was contentious in historical terms. Ruth Bader Ginsburg was confirmed 93-3, Sandra Day O'Connor 99-0, John Paul Stevens 98-0, and David Souter 90-9.

What is in store for Mr. Obama's nominees remains to be seen. Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has said he isn't inclined to the filibuster even if it is an option and most expect the president's Supreme Court choice will be confirmed.

As a matter of judicial philosophy, however, Mr. Obama has said he wants a nominee who "understands that justice isn't about some abstract legal theory or footnote in a case book." If that is considered by opponents as grounds for rejection Joe Biden will know where they're coming from.

By COLLIN LEVY - Ms. Levy is a senior editorial writer at the Journal, based in Washington.

Source:  in The Wall Street Journal, page A13

Posted: Daily Thought Pad

Karl Rove: Obama's Past Will Haunt Court Pick

Karl Rove, the former senior adviser and deputy chief of staff to President George W. Bush, opined in a Wall Street Journal Op-ed this week that President Barack Obama may have painted himself into a corner as the battle looms over retiring Supreme Court Justice David Souter’s replacement.

“Mr. Obama will pay a price for voting against Mr. [John] Roberts and Samuel Alito after calling them ‘qualified’ and lauding their temperament, humility, excellence, passion for the law, and respect for precedent," Rove wrote.

“Both won confirmation with bipartisan support. By voting against well-qualified conservative nominees, Mr. Obama lost the ability to argue that a well-qualified liberal should be given the benefit of the doubt,” he argued.

Rove also highlighted then-Sen. Obama’s vote to allow a filibuster of Alito, making it at best supremely awkward for President Obama to now insist that his nominee has a right to a full Senate vote.

Combative Republicans will be very mindful of the Obama history as the latest political drama unfolds. Furthermore, as Rove points out, there is also an important procedural item swirling in the mix.

Rule IV of the Senate Judiciary Committee requires that a motion to end debate and bring a nominee to a vote pass with 10 votes in the affirmative, one of which the minority must cast.

“Before last week,” noted Rove, “that Republican was likely to be Arlen Specter, but he’s now a Democrat. Mr. Obama will have to consider if his pick is likely to win over at least one Judiciary Republican.”

Some of those entering the Supreme Court derby early on are: Sonia Sotomayor, judge of the U.S. Court of Appeals for the 2nd Circuit and potentially a history-making first Hispanic on the court; Elena Kaga, solicitor general of the U.S. Justice Department and former dean of Harvard Law School; and Diane Wood, judge of the U. S. Court of Appeals for the 7th Circuit.

Also adding to the Obama dilemma, wrote Rove, is the matter of timing. With just over 100 days in office, there just hasn’t been time to vet the prospects.

This rush to judgment is made all the more significant when cast against the backdrop of five administration nominees already found stained with the ugly blemish of unpaid taxes.

“Mr. Obama knows he has used up any capital that could have purchased forgiveness for such offenses by a Supreme Court nominee,” Rove wrote.

Looking on the Bright Side

Despite the obstacles, Obama has several things working in his favor, Rove wrote.

“First, Democrats control the Senate. It helps a great deal to have the Judiciary Committee chairman as an ally,” he noted.

Furthermore, he recalled, Republicans generally do not handle Supreme Court nominees as roughly as do Democrats.

“Consider their treatment of President Bill Clinton’s picks for the high court. Ruth Bader Ginsberg was confirmed by a 96-3 vote in 1993. The following year, Stephen Breyer was confirmed by a vote of 87-9. There were no fireworks at either hearing — and nothing close to what Democrats did to Robert Bork and Clarence Thomas,” Rove reminded.

Then there is the matter of Souter turning out in practice to be reliably liberal. Souter was appointed by former President George H.W. Bush — but the ostensible conservative often voted along liberal lines.

“An Obama nominee is also unlikely to dramatically change the court’s direction,” opined Rove. “A liberal replacing a liberal will smooth the path for most potential nominees.”

Finally, on the positive side of the ledger, there is the simple numbers game. Only 23 of 158 Supreme Court nominees have been rejected or withdrawn — and only 14 when the president’s party controlled the Senate.

‘Empathy,’ ‘Understanding’ – Hogwash

Rove’s primary advice for Republicans is that they should explain their view of the judiciary’s proper role and why Obama’s touted desire that a nominee have “empathy” and “understanding” is an “amorphous basis on which to pick a justice.”

What’s more, opined Rove, what Obama really wants isn’t a justice with “empathy” and “understanding” — he wants a liberal, activist Supreme Court justice.

“Senate Republicans may not be able to stop Mr. Obama’s nominee, but they can explain to the public the party’s reasons for opposing judges who think of themselves as legislators with life tenure,” he concluded.

By: Dave Eberhart -  Newsmax