TalkLeft predicted here that the president's poor choices to fill judicial vacancies would not be confirmed during the current lame duck Senate session. This editorial reminds us why the nominees don't deserve confirmation:

The four most controversial nominees that President Bush resubmitted are ideological in the extreme. William Myers III, a longtime lobbyist for mining and timber interests, would no doubt use his position on the San Francisco-based United States Court of Appeals for the Ninth Circuit to gut environmental laws. William Haynes II, who helped develop the administration’s torture and “enemy combatant” policies as the top lawyer for the Pentagon, could be counted on to undermine both civil liberties and reasonable limits on executive power.

With the newly Democratic-controlled Senate, four of President Bush's terrible judicial picks may finally get axed for good, according to Neil Lewis in Sunday's New York Times.

There is a strong consensus that the four most conservative of Mr. Bush’s nominations to the federal appeals courts are doomed. Republicans and Democrats say the four have no chance of confirmation in the next several weeks of the lame-duck Congressional session or in the final two years of Mr. Bush’s term.

• William J. Haynes II, the Pentagon’s chief lawyer who was responsible for the much-criticized military interrogation policies;

• William G. Myers III, a longtime lobbyist for the mining and ranching industries and a critic of environmental regulations;

• Terrence W. Boyle, a district court judge in North Carolina; and

• Michael B. Wallace of Mississippi, a lawyer who was rated unqualified for the court by the American Bar Association.

As to Bush's options at this point:

Whether Democrats take control of the Senate (which we can guardedly say seems probable) or share power (with Cheney as the Republican tiebreaker), the nuclear option is off the table. Even if 50 Republicans are in the Senate, they won't have the political will to threaten an end to the judicial filibuster, both because threats of extremism aren't playing well with voters and because the nuclear option only made sense in the context of a permanent Republican majority. Republicans don't need the judicial filibuster during the next two years, but they'll want to have it intact if a Democrat takes the presidency in 2008. The dream of a permanent Republican government (a nightmare for the rest of the country) is gone, and with it the nuclear option.

If the Senate has 50 Democrats (grudgingly counting Lieberman as a de facto Dem voter, an assumption that remains to be tested), they can use the filibuster to save us from the worst judicial appointments during the next two years. If Democrats control the Senate, they can block judicial nominees who would move the federal judiciary even further to the right. (Republicans did this effectively during the Clinton years.) The president will have to learn that "advise and consent" doesn't mean "rubber stamp"; if he can't heed that lesson, his nominees should be consigned to oblivion. Two years from now, a better president is likely to give the Senate better choices. The country can wait, if that's what it takes to restore balance to the judiciary.

by TChris

A recent report by People For the American Way analyzes decisions written by Bush-appointed judges and concludes that "more and more opinions seek, sometimes successfully, to cut back broadly on Americans' rights under our Constitution and laws." According to PFAW Legal Director Elliot Mincberg:

"What we're seeing is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts."

That news provides another reason to rescue the Senate from Republican rule. After all, we have two more years of President Bush, no matter what happens in November.

The report, Confirmed Judges, Confirmed Fears, is available here.

by TChris

Some states elect judges. Other states try to remove politics from the process of judicial selection by appointing judges on the basis of merit. The federal experience shows that politics can play a decisive role in the appointment of judges, but some states use (supposedly) neutral selection panels to recommend judicial candidates, providing at least a minimal safeguard against blatantly political choices.

When judicial candidates must raise funds to campaign for election, the public wonders whether judicial decisons are influenced by campaign contributions. To avoid conflicts of interest, judges should recuse themselves from any case in which they accepted contributions from a party to the lawsuit. A NY Times investigation reveals that Ohio Supreme Court justices consistently decline to remove themselves from cases that involve campaign contributors. (A sidebar identifies similar judicial conflicts in Illinois and West Virginia.)

The new Supreme Court term begins Monday.

The American Constitution Society has a preview of five of the upcoming cases written by leading legal experts.

This is the first full-term in which Justice Alito and Chief Justice John Roberts will participate fully. Other sites with round-ups: ScotusBlog, which also has many of the case briefs available for download.

by TChris

New York isn't the only jurisdiction to vest significant power in judges who have little acquaintance with the law. The problems exposed by the NY Times' investigation of municipal courts (inaptly named "justice courts") abound in other states. Still, some of the Times' examples of injustice are particularly egregious:

People have been sent to jail without a guilty plea or a trial, or tossed from their homes without a proper proceeding. In violation of the law, defendants have been refused lawyers, or sentenced to weeks in jail because they cannot pay a fine. Frightened women have been denied protection from abuse. ...

A mother of four ... went to court in that North Country village seeking an order of protection against her husband, who the police said had choked her, kicked her in the stomach and threatened to kill her. The justice, Donald R. Roberts, a former state trooper with a high school diploma, not only refused, according to state officials, but later told the court clerk, "Every woman needs a good pounding every now and then."

Senators Richard Durbin and Edward Kennedy are calling for a new investigation into Bush judicial nominee William Haynes. Durbin and Kennedy sent this letter today to Sen. Arlen Specter asking for new hearings on Haynes in light of allegations he pressured military lawyers to support the Administration's military commissions bill. Here is the text of the letter, which I received by e-mail:

September 15, 2006

Dear Chairman Specter,

We recently learned of allegations that, in meeting earlier this week, the White House and Department of Defense General Counsel William J. Haynes pressured senior judge advocates general into signing a letter on the Administration's proposed revisions to the War Crimes Act and Common Article 3 of the Geneva Conventions. It is alleged that the JAGs were kept in this meeting for several hours, until they agreed to sign the letter. That letter was subsequently used to suggest that the JAGs supported the Administration's proposals.

This is progress. The Supreme Court has announced that beginning next month, it will post transcripts of oral arguments the same day they are argued. They will be available free on the court's website.

I hope televised oral arguments are next. While I am not in favor of televising criminal trials or pre-trial hearings without the consent of the defendant, I think appellate hearings consisting solely of legal arguments should be available to all. They are a tremendous educational tool.

As General Counsel of the Department of Defense, William Haynes was a principal architect of policies that led to the abuse of detainees in Guantanamo, Iraq and Afghanistan. Bush has nominated him for a seat on the 4th Circuit Court of Appeals. The Senate Judiciary Committee will hold confirmation hearings starting today, July 11th.

Human Rights First has a webpage dedicated to concern about his nomination.

In additon, more than 20 military leaders have written a letter(pdf) opposing his nomination.

Former Ken Starr Deputy and Bush water-carrier Brett Kavenaugh was confirmed to a seat on the D.C. Court of Appeals. He may be the most unqualified appeals judge to be appointed in decades.

According to his DOJ resume, he has never been a judge or a trial lawyer. He's never tried a case. He has been a law clerk numerous times and a Starr deputy during Clinton (after which he became a partner at Starr's firm, Kirkland and Ellis.) He spent a year in the Solicitor General's office and then became associate counsel for Bush. Since 2003, he has been a staff secretary in the White House counsel's office.

Remember Texas Supreme Court Justice Nathan Hecht who served as the Administration's unofficial spokesman in advancing Harriet Miers' nomination to the Supreme Court? (Background here.)

He has been admonished for his conduct by the State Commission on Judicial Conduct which issued a public admonition to him for his media comments.

Last fall Hecht estimated that he gave 120 interviews to the press about Miers' qualifications for the bench -- including information about her religious beliefs and views on abortion -- after her Oct. 3, 2005, nomination came under attack from conservative groups. [See "Texas Attorneys Support Dallas Native's High Court Nomination," Texas Lawyer, Oct. 10, 2005, page 1.]

At that time, Hecht jokingly said to Texas Lawyer that he had been acting as a "PR office for the White House" and had been filling in gaps about Miers' background to the press, countering some conservatives' skepticism about her qualifications -- statements that were referenced in the commission's admonition. [See the commission's admonition.]