Tuesday, May 26, 2009

Sen. Jon Kyl's flip-flop on judicial filibustering

On May 19, 2005, Sen. Jon Kyl (R-AZ) spoke out against filibustering judicial nominations of President George W. Bush, and said he was willing to give up the tool permanently, and not block future Democratic presidential nominees:
"Republicans seek to right a wrong that has undermined 214 years of tradition - wise, carefully thought-out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations but were never used to that end is an important indicator of what is right, and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore....

My friends argue that Republicans may want to filibuster a future Democratic President's nominees. To that I say, I don't think so, and even if true, I'm willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future. I know some insist that we will someday want to block Democrat judges by filibuster. But I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned."

But now he suggests he's willing to lead the filibustering against any Obama nominee who uses empathy:
The Senate's No. 2 Republican on Sunday refused to rule out an effort to block confirmation if President Barack Obama seeks a Supreme Court justice who decides cases based on "emotions or feelings or preconceived ideas."

Sen. Jon Kyl made clear he would use a filibuster, a procedural move to delay a final vote on a bill or nominee, if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench.

(Via Dispatches from the Culture Wars.)

UPDATE (May 28, 2009): Kyl continues to expand upon his hypocrisy on this issue:

Kyl, when Bush was in office, about the lack of necessity for long hearings on judicial nominees:
One might wonder why we would need more than just a couple of days of debate (the average of recent nominees is two to three days), especially since nothing new has been said for weeks. But, if the public has noticed anything during this process it is that senators value their right of unlimited debate.
Kyl on the need for long hearings on judicial nominees, now that Obama is in office:
"To that end, when John Roberts was first nominated on July 19, 2005, and subsequently re-nominated to be Chief Justice on September 6, 2005, Senate Republicans afforded the minority ample time to adequately examine his background and qualifications before he received a confirmation vote 73 days later.

"When Samuel Alito was first nominated on October 31, 2005, the minority was afforded 93 days before he received a confirmation vote on January 31, 2006.

"I would expect that Senate Democrats will afford the minority the same courtesy as we move forward with this process."

There's a bit of further irony here in that the delay for Alito's hearing, originally scheduled for December 2005 but moved to January 2006, was caused by Republican Senators Kyl and Mike DeWine (R-OH), because they needed the time for campaigning for re-election in their home districts.


Ktisophilos said...

What about a filibuster of judges who clearly can't keep the oath that all SCOTUS justices swear?

"I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God."

Obama's "empathy" contradicts "administer justice without respect to persons, and do equal right to the poor and to the rich".

I thought you were an originalist, Jim?

Jim Lippard said...

See the Volokh Conspiracy discussion on what Obama means by "empathy."I have to agree that it's unclear what he means (and note the typo in the linked transcript, which said "wasn't" instead of "was an" at a critical place). But what he means is irrelevant to the positions of any nominees, what's relevant is the nominee's positions. And if the nominee is bad, the Senate should not vote to confirm.

I'm a fan of a qualified original meaning interpretation, or "original principles." You start with original meaning, and if the world has significantly changed (e.g., with respect to technology, or the morality of slavery, racism, or homosexuality) you apply the original principles to the changed world. Thus the equal protection clause correctly entailed the result in Loving v. Virginia and will entail overturning of bans on same-sex marriage.

Ktisophilos said...
This comment has been removed by the author.
Ktisophilos said...

My point was that a nominee fulfilling Obama's "empathy" criterion could not honestly swear the oath. There is a good reason why Lady Justice wears a blindfold.

Yet we know that Sotomayor perfunctorily ruled in Ricci v. DeStefano against a white dyslexic firefighter denied his hard-earned promotion because of his race.

Also, Dr Richard Epstein, Distinguished Law professor at Univerity of Chicago (thus Obama's colleague and superior who has interesting things to say about him) regards her ruling in Didden v. Village of Port Chester as an even more egregious attack on property rights than Kelo.

As for filibustering, Obama has no right to expect easy confirmation of his choices after voting against his predecessor's choices he admitted were well qualified. But justifiably so after
Robert's racist and sexist comment: "I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina female who hasn’t lived that life." Oops sorry, I've got that mixed up something Sotomayor said ... ;)

I have to say that your view doesn't look like "originalism" but more like the "evolving standard of decency" of the anti-originalists.

Jim Lippard said...

Ed Brayton on Ricci v. DeStefano:

"The case that seems to be getting the most attention from opponents is Ricci v. DeStefano, a case involving claims of reverse discrimination because the city of New Haven, Connecticut, decided to set aside the results of a written test for firefighters because basing promotions on those results would have a disparate impact on minorities.

A group of firefighters filed suit claiming that this amounted to reverse discrimination. The district court ruled in favor of the city, finding that their intent was not to discriminate but to avoid potential lawsuits from the other side based on Title XII discrimination claims. Judge Sotomayor was part of a three-judge panel that upheld that district court ruling, but they did so in a per curiam ruling, without spelling out the reasons why.

They did, however, offer some reasons for upholding the district court in an opinion written when the full circuit considered an appeal for an en banc rehearing (reconsideration of a case by the full appeals court), an opinion joined by Judge Sotomayor. In essence, they argue that the legal standard requires that the plaintiffs show that the city acted with the intent to discriminate, but the evidence in the case indicates that the city acted in order to avoid potential lawsuits.

The case is now on appeal to the U.S. Supreme Court and a ruling will be issued before the confirmation hearings for Judge Sotomayor begin. It is quite possible that the Supreme Court will overturn that ruling and remand the case back down to the district court for a retrial, but if they do so it will likely be a 5-4 decision because it's really a close call in terms of the legal issues."

Brayton argues that Sotomayor is not a radical, she's fairly conservative in following precedent.

My position on constitutional interpretation is mostly in agreement with Randy Barnett's _Restoring the Lost Constitution_ (click for my Amazon.com review), which is based on original meaning (as opposed to original intent, like Scalia).

Ktisophilos said...

Scalia has made it clear that he supports original meaning not original intent. That is, what the words [note, not some "principles"] would have meant at the time, not the impossible task of trying to get into what was in legislators' heads. According to one of your fellow atheists:

“Curiously, though, Scalia is unusual among conservative judges in that he rejects the Original Intent doctrine, according to which the best way to interpret a law or the Constitution is to find out what the original authors intended it to mean and to do. According to Scalia, "It is our task ...not to enter the minds of the Members of Congress — who need have nothing in mind in order for their votes to be both lawful and effective." Instead, Scalia focuses on what he calls "original meaning" — he looks at what the authors of the Constituton meant at the time because it creates a "rock-solid" foundation upon which he can base objectively correct decisions, but does not rely upon it solely.”

That's a weak excuse for Sotomayor's perfunctory dismissal of firefighters who were clearly denied a promotion because of their skin colour. And if she had "empathy", it should have been for a hard-working dyslexic fireman who spend lots of money preparing for the test, then told afterwards, just because he suffers dermal hypomelanism, "just kidding, you don't get the promised promotion."

Back to Kyl, it's just a case of "what goes around, comes around."

Jim Lippard said...

You're right, Scalia calls himself an originalist with respect to meaning, not intent--the most famous advocate of the latter is probably Bork. He has said: "The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

Scalia's often inconsistent in his application of originalism, however (unlike Thomas), and doesn't like to look at legislative history for determining original meaning (though he sometimes does).

There are clearly changes over time to what cultures consider morally acceptable; I think there is such a thing as moral progress, with the abolition of slavery being a fairly clear-cut case. There have been past cases where the principles enshrined in the Constitution are at odds with the law, yet were considered constitutional based on the current climate, such as Dred Scott, which denied that Scott was a U.S. citizen because he was property, not a person, and slaves could not be citizens, even though Dred Scott was a person born in the U.S. Article II, Section 1 of the U.S. Constitution refers to "natural-born citizens," thus implying that there's birthright citizenship, which Justice Curtis' dissent in Dred Scott pointed out, and birthright citizenship was made explicit in the 14th Amendment.

The Constitution's original meaning has a very expansive view of individual rights and limited view of government powers, and there are clearly many laws (and court decisions, including Supreme Court decisions) at odds with what it says. In my view, slavery, anti-miscegenation laws, anti-same-sex-marriage laws, and drug prohibition laws all fall afoul of what it says in various ways. It's not so much that our understanding of the Constitution needs to change to reverse these decisions, it's that our understanding of what individual rights are and misunderstandings and errors in past constitutional decisions need to be reversed.

Jim Lippard said...

Ktisophilos: Looks like the conservative view of empathy has changed since the confirmation hearings of Alito:

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Ktisophilos said...

Here's the difference: Alito wasn't nominated because of his "empathy", or because he was a wise white man for that matter.

As for slavery, this was countered by an amendment to the Constitution, not pretending that its meaning changed with "evolving standards of decency". Of course, standards do not always evolve towards decency, e.g. Germany from the 1920s through 40s.

I agree about the Constitution's view of limited government though, but the socialists in both parties, as Hayek put it, don't care. Also a view about expansive individual freedom. This in line with the traditional British common law view that anything was allowed unless it was forbidden.

Ktisophilos said...

Here's real flip-flopping: the Dems' pontificating against allowing “rhetoric to cloud the confirmation process”, compared with their disgraceful attacks on a better qualified Hispanic nominee, and only to the appellate court, Miguel Estrada. But Estrada's problem was that he was a Hispanic who wasn't liberal. And the confirmation battle was so nasty that his wife died at the time.

Let's also not forget the disgusting attacks on Charles Pickering, accused of being racist although he was long an enemy of the KKK and was highly respected by the African-American community of his own area.

If the GOP just let Sotomayor be confirmed without a fight, they just show that they deserved to lose. It's pathetic how they let radicals like Ginsberg be confirmed after the way the Dems “Borked” and subjected Thomas to a “high-tech lynching”, and the Dems including Obama himself paid back Ginsberg's easy ride by blocking a lot of GWB's appointments.

Who wants to support a party that lets the opposition gets its way, no matter who won the election?

Jim Lippard said...

One correction: Estrada's wife died of an accidental overdose of sleeping pills in 2004, three years after Estrada's confirmation battle.

Ktisophilos said...

Now we know that Sotomayor's "Wise Latina" bloviating was not just a slip of the tongue, as Obama claims. She has repeatedly said much the same thing since 1994. See also Krauthammer: Sotomayor Believes That Females & Minorities Have Superior Judgment & Entitlements. So much for Obama the Carmaker-in-Chief's claim for bringing in a "post-racial America".

Ktisophilos said...

Supreme Court overturn's "wise Latina's" racist ruling.

High Court Rules for White Firefighters in Discrimination Suit
Ruling Reverses High-Profile Decision by Supreme Court Nominee Sonia Sotomayor
By Robert Barnes
Washington Post Staff Writer
Monday, June 29, 2009 12:07 PM

‘... In effect, the court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.

‘The court's conservative majority said in a 5 to 4 vote that is what happened in New Haven.

‘"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony M. Kennedy. ...

‘Kennedy said the standard for whether an employer may discard a test is whether there is a strong reason to the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.

‘In New Haven's case, "there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city," Kennedy wrote.

‘...The lead plaintiff, Frank Ricci, is a veteran firefighter who said in sworn statements that he spent thousands of dollars in preparation and studied for months for the exam. Ricci said he is dyslexic, so he had tapes made of the test materials and listened to them on his commute to work.’ [The Wise Latina had no empathy for him! I'm just waiting for the media/dem hatchet job on "Frank the Firefighter" matching that on "Joe the Plumber".]

To avoid a charge of "lying by omission", I'll point out that the usual leftist suspects once again argued, in effect, argued that equality of outcome was more important than equality of opportunity.

Ktisophilos said...

Sotomayor not only lacked empathy for the white dylexic fireman denied promotion for racist reasons, but also for the white Jeffrey Deskovic, wrongly convicted of rape and murder despite negative DNA evidence? She denied two valid appeals on technicalities, costing him six more years in jail. He was eventually exonerated when new DNA evidence pointed to another man's guilt. Deskovic says:

"Despite Sotomayor's rhetoric, her ruling in my case showed a callous disregard for the real-life implications of her rulings. She opted for procedure over fairness and finality of conviction over accuracy. Many of the victims of wrongful convictions serving long sentences had exhausted their appeals long before they were exonerated. In how many of those cases did Sotomayor vote to refuse to even consider evidence of innocence?"

So what's so great about Sotomayor, apart from her appointment by the Obamessiah-who-is-almost-God?

Jim Lippard said...

Ed Brayton on Sotomayor, Alito, and the Ricci case.

Sessions embarrassed by his appeal to Cederbaum to criticize Sotomayor, reminiscent of the Marshall McLuhan scene in Woody Allen's "Annie Hall."

Jim Lippard said...

Investigative journalist Dennis King, who's done in-depth investigation of Lyndon LaRouche, on Sotomayor's ties to a cultish Marxist psychotherapy group.

Ktisophilos said...

Brayton and his source are unreasonable. The Ricci case was clearly a case of denying these firefighters a promotion they had earned, solely because of their skin colour. Of course, this is a reversal of MLK's dream.

As for "Also: if empathy is irrelevant to judicial decision-making, why are GOP Senators calling Frank Ricci as a witness at this hearing?" What's the problem? It's fighting the opponents with their own weapons: "OK, Obama, since you want "empathy" so much, we'll give you empathy, and show that two can play that game."

Same goes for the whinging about Kyl: it's quite reasonable for the GOP to complain about Dem filibustering, including by Obama, then argue, "well, if that's the way you want to play, then what goes around comes around."