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Ed Whelan

@EdWhelanEPPC

Mar 6

New in Confirmation Tales: "Gang of 14 Agreement Preserves Senate Filibuster of Judicial Nominations"
“The nuclear option is gone for our lifetime,” crowed a “clearly euphoric” Democratic leader Harry Reid.
Eight years later, Reid himself would deploy the nuclear option, abolishing the filibuster of lower-court nominees and executive-branch nominees. 1/

In May 2005. the Senate prepared for a dramatic vote to abolish the filibuster for judicial nominations.
The stakes were high. If Frist succeeded, the Senate, with its 55 Republicans, could promptly confirm the dozen or so appellate nominees who had been held in limbo. At least as importantly, Bush would have an easy path to getting any Supreme Court nominees confirmed in the 109th Congress (2005-2006). And any justices or appellate judges who had been hesitating to step down out of fear that their seats would remain vacant would no longer have that concern.
Conversely, the consequences for Bush and Senate Republicans would be severe if Frist lost the vote on filibuster abolition. Democrats would be emboldened to expand their filibuster campaign more broadly, and the filibuster threat would weigh heavily over a Supreme Court vacancy. Conservative activists would react with rage against Republican senators who sank the cause. 2/

On the evening of March 23, the members of the Gang of 14—described by the New York Times as “an assortment of moderates, mavericks, and senior statesmen” and led by Republican senators John Warner and John McCain—announced their agreement. The seven Republican signatories agreed to oppose Frist’s effort to abolish the filibuster for judicial nominees. That meant that Frist would have a maximum of 48 votes for his measure, so it was doomed.
In turn, the seven Democratic signatories agreed to support cloture on the nominations of Priscilla Owen, Janice Rogers Brown (D.C. Circuit), and William Pryor (Eleventh Circuit). That meant that Frist would have the 60 votes he needed for cloture (with a couple to spare).
The signatories also agreed with respect to other nominations in the 109th Congress that nominees “should be filibustered only under extraordinary circumstances.” 3/

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Ed Whelan

@EdWhelanEPPC

Mar 5

By a vote of 5 to 4, the Supreme Court has denied the Trump administration's request that it vacate a district-court order requiring disbursements of foreign development assistance funds. Order calls for district court to clarify what it is ordering government to do. 1/

Justice Alito, joined by Thomas, Gorsuch, and Kavanaugh, vigorously dissents in 7-page opinion, says he is "stunned" that majority allows a "single district-court judge who likely lacks jurisdiction [to] have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars." 2/

3/supremecourt.gov/opinions/24pdf…

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Ed Whelan

@EdWhelanEPPC

Feb 14

Awesome letter of resignation by Hagan Scotten, lead prosecutor in the Eric Adams case. Scotten, BTW, is recipient of two Bronze Stars and former law clerk to Chief Justice Roberts and then-D.C. Circuit judge Kavanaugh. 1/

Adams prosecutor Scotten tells Emil Bove that Bove's first reason for motion to dismiss "is so weak as to be transparently pretextual" and second reason is "worse": "No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives."
And then this: "If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me." 2/

Here's the full letter. static01.nyt.com/newsgraphics/d…

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Ed Whelan

@EdWhelanEPPC

Feb 11

On the Rule of Law and Presidential Defiance of Judicial Orders
Some thoughts of mine on the topic. Link to blog post at end of thread.
1. It's not defiant, or even remarkable, for the federal government to decline to comply with an order while it seeks emergency relief from that order.

2. I do not hold an absolutist position against a president’s sustained refusal to comply with a court order. My position is instead that rule-of-law considerations in our constitutional system generally call for a very strong presumption in favor of executive-branch compliance with federal court orders. Truly extraordinary circumstances might well overcome that presumption.

3. In his first inaugural address, Abraham Lincoln drew a sharp and important distinction between the Supreme Court’s rulings in particular cases and the holdings or reasoning that underlie those rulings. As I understand Lincoln's position, the Rule of Law requires (at least as a general matter) that a ruling bind the parties in the case.
But, Lincoln explained, while the Court’s holding on a constitutional question is “also entitled to very high respect and consideration in all parallel cases by all other departments of the Government,” its holding does not bind the president and Congress in those other cases.
Lincoln’s remarks were of course directed at the Court’s infamous Dred Scott decision. Lincoln’s actions as president were faithful to his words. Rejecting the dual holdings of Dred Scott, Lincoln signed into law bills banning slavery in the District of Columbia and in other federal territories, and he instructed the executive branch to issue passports and patents to free blacks (thus recognizing them as citizens).

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Ed Whelan

@EdWhelanEPPC

Feb 6

New in Confirmation Tales, "William Pryor's Gamble on Recess Appointment Pays Off: Liberal Democrats' abortion politics backfires"
In 2004, George W. Bush rescued William Pryor from filibuster limbo by recess-appointing him to Eleventh Circuit. 1/

Pryor’s judicial career might well have ended when his recess appointment expired at the end of the Senate’s 2005 session. But that’s not at all how things turned out. The extraordinary measures by liberal Democrats to block Bush’s judicial nominees backfired on them. Pryor’s blunt and direct testimony on Roe v. Wade and abortion had the ironic effect of ensuring that he was ultimately confirmed. 2/

Liberal Democrats had aimed to stigmatize as unacceptable any judicial nominee who opposed Roe. But their more moderate colleagues who joined the bipartisan “Gang of 14 Agreement” in May 2005 expressly recognized that it was not disqualifying for an appellate nominee to regard Roe as “the worst abomination in the history of constitutional law” and to decry that it had “led to the slaughter of millions of innocent unborn children.” 3/

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Ed Whelan

@EdWhelanEPPC

Jan 23

New in Confirmation Tales, Teddy Roosevelt Quickly Regrets Appointing Justice Holmes: “I could carve out of a banana a judge with more backbone"
In Roosevelt’s distinctively vivid and outsized way, he provides an enduring lesson in how presidents are disposed to misjudge Supreme Court candidates. 1/

Here's link to new Confirmation Tales post. 2/confirmationtales.com/p/teddy-roosev…

It is essential, Roosevelt argued, that a justice be a “party man, a constructive statesman” in the “higher sense” of those concepts. But Roosevelt's "higher sense" suddenly descends into the question whether Holmes agrees with Roosevelt on every political matter that Roosevelt regards as important. 3/

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