Men in Black (33 page)

68.
3 U.S.C. 15 (2000).

69.
U.S. Constitution, Amendment XII.

70.
U.S. Constitution, Article II § 1, cl. 2.

71.
Fla. Stat. §§ 102. 141, 102. 151 (2000).

72.
Fla. Stat. § 102. 166 (2000).

73.
Fla. Stat. § 102. 111 (2000).

74.
3 U.S.C. 6 (2000).

75.
3 U.S.C. 11 (2000).

76.
Judge N. Sanders Sauls was the rare exception where a judge limited his role in the controversy to that which was contemplated by the legislature. Activist judges will never limit their roles when the opportunity to shape public policy arises.

Chapter Twelve: Liberals Stack the Bench

1.
George W. Bush, “Remarks by the President During Federal Judicial Appointees Announcement,” May 9, 2001. Available at www.whitehouse.gov.

2.
George W. Bush, Presidential debate, Boston, Massachusetts, October 3, 2000.

3.
Press Release, March 22, 2001, “Leahy, Schumer: Bush Move to Curb ABA Review Will Hurt Federal Bench.”

4.
“Congress and the Court,”
Boston Globe
, April 22, 2001.

5.
Bruce Ackerman, “Foil Bush’s Maneuvers for Packing the Court,”
Los Angles Times
, April 26, 2001.

6.
Indeed, despite Democrats’ statements to the contrary, the use of the filibuster to block judicial nominees is unprecedented. Democrats rely on the case of Supreme Court Justice Abe Fortas’s unsuccessful attempt to be confirmed as chief justice. However, as pointed out by Senator John Cornyn of Texas, Fortas’s confirmation vote was delayed because his opponents wanted “adequate time to debate and expose serious problems with his nomination.” Moreover, “Fortas wasn’t denied confirmation due to a filibuster; he was denied confirmation due to the opposition of a bipartisan majority of senators.” John Cornyn, “Falsities on the Senate Floor,”
National Review Online
, November 13, 2003.

7.
Memorandum to Senator Edward Kennedy, dated April 17, 2002. See Appendix.

8.
Memorandum to Senator Edward Kennedy, dated June 4, 2002. See Appendix. Kate Michelman announced that she would be leaving her position as president of NARAL Pro-Choice America as of April 24, 2004.

9.
People for the American Way website. Available at www.pfaw.org.

10.
NARAL Pro-Choice America website. Available at www.prochoiceamerica.org.

11.
Memorandum to Senator Edward Kennedy, dated June 4, 2002. See Appendix.

12.
“Who is Priscilla Owen?” May 14, 2003. Available at www.whitehouse.gov.

13.
Memorandum to Senator Dick Durbin, dated November 7, 2001. See Appendix.

14.
Alliance For Justice, “Preliminary Report Opposing Professor Michael W. McConnell’s Nomination to the U.S. Court of Appeals for the Tenth Circuit,” September 18, 2002. Available at www.allianceforjustice.org.

15.
Byron York, “Catholics Need Not Apply?”
National Review Online
, July 30, 2003. Available at www.nationalreviewonline.com.

16.
Memorandum to Senator Dick Durbin, dated June 3, 2002. See Appendix.

17.
Memorandum to Senator Dick Durbin, dated November 6, 2001. See Appendix.

18.
“Members Meeting with Leader Daschle,” Memorandum, Jan. 30, 2003. See Appendix.

19.
“Talking Points on Estrada for Caucus,” Memorandum. See Appendix.

20.
U.S. Department of Justice, Office of Legal Policy, “Miguel Estrada, Biography.” Available at www.doj.gov.

21.
U.S. Constitution, Article II, § 2.

22.
Clinton Rossiter, ed., Federalist No. 66,
Federalist Papers
(New York: Penguin Books, 1961).

23.
John O. McGinnis, “The President, the Senate, the Constitution, and the Confirmation Process,” 71 Tex. L. Rev. 633, 636 (1993).

24.
Ibid., 654. Internal citations omitted.

25.
Michael J. Gerhardt, “Toward a Comprehensive Understanding of the Federal Appointments Process,” 21 Harv. J.L. & Pub. Policy 467, 479 (Spring 1998).

26.
Senator John Cornyn, “Our Broken Judicial Confirmation Process and the Need for Filibuster Reform,” 27 Harv. J.L. & Pub. Policy 181, 196 (Fall 2003).

27.
Evans v. Stephens, ___ F. 3d. ____ (11th Circuit, 2004), 2004 U.S. App. LEXIS 21354, 6.

28.
Ibid.

29.
Ibid.

30.
Byron York, “Will the GOP ‘Go Nuclear’ Over Judges?”
National Review Online
, May 8, 2003. Available at www.nationalreview.com.

31.
President George W. Bush, “President Calls for Judicial Reform,” May 9, 2003. Available at www.whitehouse.gov.

32.
President George W. Bush, “President Calls for Action on Judicial Nominees,” August 1, 2003. Available at www.whitehouse.gov.

33.
Ibid.

Chapter Thirteen: Restoring the Constitution

1.
Frédéric Bastiat, The Law, 1850.

2.
U.S. Constitution, Article III, § 1.

3.
U.S. Constitution, Article II, § 2.

4.
U.S. Constitution, Article II, § 4.

5.
Franklin Roosevelt, “Fireside Chat on Reorganization of the Judiciary,” March 9,1937.

6.
Gregory A. Caldeira, “FDR’s Court Packing Plan in the Court of Public Opinion.” Paper prepared for delivery at the 1999 Annual Meeting of the American Political Science Association, August 15, 1999. Available at pswebsbs.ohio-state.edu.

7.
“Garner, John Nance,” biography. Available at www.rra.dst.tx.us. Prior to the court packing proposal, Garner had been Roosevelt’s primary liaison with Congress. The vice president was thought by many observers to be the second most powerful leader in Washington, behind only FDR himself.

8.
Letter from Chief Justice Hughes to Senator Burton K. Wheeler, March 22, 1937.

9.
The “Four Horsemen,” as the justices were known, were James McReynolds, Willis Van Devanter, Pierce Butler, and George Sutherland. Justice Owen Roberts and Chief Justice Charles Evans Hughes frequently voted with the four to form narrow majorities against New Deal legislation on constitutional grounds.

10.
“Members of the Supreme Court of the United States.” Available at www.supremecourtus.gov/about/members.pdf.

11.
U.S. Constitution, Article IV, § 4.

12.
John Pickering, judge of the U.S. District Court for New Hampshire; removed from office March 12, 1804. Samuel Chase, associate justice of the Supreme Court; acquitted March 1, 1805. James H. Peck, judge of the U.S. District Court for Missouri; acquitted January 31, 1831. West H. Humphreys, judge of the U.S. District Court for the middle, eastern, and western districts of Tennessee; removed from office June 26, 1862. Charles Swayne, judge of the U.S. District Court for the northern district of Florida; acquitted February 27, 1905. Robert W. Archbald, associate judge, U.S. Commerce Court; removed January 13, 1913. George W. English, judge of the U.S. District Court for the eastern district of Illinois; resigned November 4, 1926; proceedings dismissed. Harold Louderback, judge of the U.S. District Court for the northern district of California; acquitted May 24, 1933. Halsted L. Ritter, judge of the U.S. District Court for the southern district of Florida; removed from office April 17, 1936. Harry E. Claiborne, judge of the U.S. District Court for the district of Nevada; removed from office October 9, 1986. Alcee L. Hastings, judge of the U.S. District Court for the southern district of Florida; removed from office October 20, 1988. Walter L. Nixon, judge of the U.S. District Court for Mississippi; removed from office November 3, 1989. Available at www.infoplease.com/ipa/A0194049.html.

13.
William Rehnquist,
Grand Inquests
(New York: William Morrow & Co., 1992), 76. At the time and up until the late nineteenth century, in addition to sitting on the Supreme Court, justices were expected to travel judicial circuits around the country and preside over civil and criminal trials in conjunction with lower court judges.

14.
Ibid. The Sedition Act, enacted in 1798, made it illegal to make derogatory remarks against the president or Congress.

15.
Ibid., 22–23.

16.
Ibid., 59.

17.
Ibid.

18.
Ibid.

19.
Ibid., 60.

20.
Ibid., 77.

21.
Ibid., 104. On only two of the articles was there even a majority vote in favor of conviction, and on none was there the two-thirds majority required for conviction.

22.
Ibid., 114.

23.
Raoul Berger,
Impeachment: The Constitutional Problems
(Cambridge, MA: Harvard University Press, 1973), 53.

24.
28 U.S.C. 372 (1980).

25.
Ibid. The Judicial Conference of the United States was created by an act of Congress in 1922 (it was originally called the Conference of Senior Circuit Judges) to be the principal policy-making body for the federal judiciary. In 1948, the name was changed to the Judicial Conference of the United States. In 1957, federal district judges were added to the conference.

26.
Ibid.

27.
28 U.S.C 372 (2004).

28.
Judges, judicial committees, or the judicial conference under the statute have full subpoena power for the purposes of investigating a complaint against a judge.

29.
28 U.S.C. 372 (1980).

30.
Reno v. American Arab Anti-Discrimination Committee
, 525 U.S. 471 (1999). Congress also has limited judicial review in the 1996 Prison Litigation Reform Act, in which the scope of the judiciary’s authority was severely restricted in the nature of the relief it could grant in altering prison conditions. Also, in the Antiterrorism and Effective Death Penalty Act, Congress restricted the number of habeas corpus petitions inmates can make to federal courts. Such limitations, however, would have to be included in each piece of legislation Congress passes. Another example is when the House of Representatives voted 233–194 in July 2004 for the Marriage Protection Act, a measure that would limit the Court’s jurisdiction in determining the constitutionality of the Defense of Marriage Act.

31.
42 U.S.C. 1997 (2004).

32.
22 U.S.C. 22 (2004).

33.
Mary Fitzgerald and Alan Cooperman, “Marriage Protection Act Passes,”
Washington Post
, July 23, 2004.

34.
U.S. Constitution, Article I, § 5. “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Member…”

35.
Powell v. McCormack
, 395 U.S. 486 (1996).

36.
Ibid., 490.

37.
Ibid., 549.

38.
I would suggest three-year intervals between terms and filling unexpired judicial terms by the same laws and customs that pertain to filling unexpired terms in the Senate or other fixed term offices. In other words, should a justice die, be removed, or leave office voluntarily at any point in the term, his or her successor would serve until the original term expires. This would ensure that the staggering of the terms of office would be preserved regardless of how many vacancies occur during any single presidential term or Congress.

39.
“‘The magic number in the Senate is 60, not 50,’ Senator Charles E. Schumer, the New York Democrat who sits on the Judiciary Committee, said in an interview. Mr. Schumer added, ‘If the president nominates people who are not part of the mainstream but who are far off, who will try to make law, not interpret it, and who will be way over to the ideological extreme, the controversy over judges will be alive.’” Sheryl Gay Stolberg, “Despite G.O.P. Gain, Fight Over Judges Remains,”
New York Times
, November 5, 2004.

40.
Linda Greenhouse, “Life at the Court Proceeds, but with Sadness and Uncertainty,”
New York Times
, November 7, 2004.

41.
Ibid. See also Charles Lane, “Following Rehnquist,”
Washington Post
, October 30, 2004.