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By Marion Edwyn Harrison, Esq.
September 07, 2006
Except in some State legislatures, not much business usually is accomplished in a 19-day session of a legislative body. Congress reconvened on September 5, anticipates either recessing until after the November 7 elections or adjourning sine die on September 26 - perhaps not until October 6 but no later. If Congress recesses it would return for a lame-duck - that is, post-election - session. Any such session would be short because Senators and Representatives would not want to be in Washington in or around Thanksgiving, Christmas or New Year’s. If Congress were to adjourn sine die (literally translated, “without a date”) there would be no further session of the 109th Congress unless President George W. Bush called a special session.
The likelihood of the current short session’s accomplishing much other than further appropriations and routine work is low. Those who defiantly and almost consistently oppose Bush nominations for the Federal Judiciary, and particularly for the appellate seats, have a ready-made opportunity to delay and, if handled with sufficient obstructionism, to defeat, some or all pending nominations. The irresponsible opposition of the usual cohort already has had a negative impact upon the flow of litigation in the Federal Judiciary and upon the willingness of competent, qualified, respectable men and women to submit to the frequently ad hominem tortures of the Senatorial advice-and-consent process. That cohort, lest we forget, sometimes is numerous and includes some unexpected culprits. (Can one believe it? Senator Lincoln Chafee [Rhode Island] voted against the Samuel A. Alioto, Jr. Supreme Court nomination.) Its regular grouping consists, in alphabetical order, of Senators Joseph P. Biden, Jr. (Delaware), Richard J. Durbin (Illinois), Patrick J. Leahy (Vermont), Edward M. Kennedy and John F. Kerry (Massachusetts), Harry M. Reid (Nevada) and Charles E. Schumer (New York), others to a lesser extent.
As the current short session began there were 16 Courts of Appeals vacancies, 29 District Court vacancies, 14 appellate nominations and 16 trial-court nominations pending in various procedural stages in the Senate. The President has resubmitted five appellate nominations which the Senate returned to him before its summer recess: Judge Terrence W. Boyle, of North Carolina and William James Haynes II, of Virginia, for the 4th Circuit Court of Appeals; Michael Brunson Wallace, of Mississippi, for the 5th Circuit; William Gerry Myers III and Norman Randy Smith, both of Idaho, both for the gigantic 9th Circuit.
None, of course, would be a liberal judicial activist; hence, for that reason alone, each is unacceptable to the usual Senatorial suspects. In addition, one has some minor problems which opponents seek to transmogrify into major problems: he allegedly decided a few cases in which he indirectly held insignificant, possibly unknown to him, interests, but his real crime is that he and Senator Jesse Helms were close. Another served with distinction as General Counsel of the Department of Defense so his antagonists use that to argue he would champion mistreatment of terrorist prisoners; they clearly ignore the fact that, even were he so disposed (as to which there is no supporting evidence), he would be obliged to recuse himself if he had prior or related involvement. A third, one of the Deep South’s foremost private practitioners, ran afoul of the presently prevailing American Bar Association leadership which spearheads the ongoing movement to use the Legal Services Corporation to litigate all kinds of leftist causes at the taxpayers’ expense. Another is claimed to be anti-environment, principally upon the basis of some experience in private practice. It goes without saying that these nominees are not opposed for lack of competence.
Those Senators blocking nominations probably will tout their alleged objectivity because yesterday the Senate confirmed, 92 - 0, the nomination of Professor Kimberley Ann Moore to the Court of Appeals for the Federal Circuit. It is helpful to understand the jurisdiction and caseloads of the thirteen Federal Circuits before accepting any such claim.
The 1st - 11th Circuits are the appellate tribunals for the United States District Courts located within the Circuit, which comprises three or more States. The District of Columbia Circuit covers only Washington, D. C. Many of its cases arise from Federal administrative adjudications rather than the United States District Court for the [District of] the District of Columbia while many arising from District Court also involve administrative and regulatory law. (Not surprisingly, it often is billed as the second most important court. It also is something of a breeding ground for the Supreme Court, Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg having served upon it.) The Federal Circuit, also physically located in Washington, D. C., has nationwide jurisdiction. However, Federal Circuit jurisdiction differs from the other twelve. Rarely does the media focus upon it; rarely is there a controversial decision. The reason? Its jurisdiction, arising from various statutes enacted over many years, includes more “lawyer-like” subjects, such as various types of intellectual property, government contracts, customs, tax and claims cases. Indeed, the Federal Circuit, with even more specialized jurisdiction, once was called the Court of Customs and Patent Appeals. Hence, it is obvious that the usual Senatorial cabal did not oppose the Moore nomination inasmuch as the jurisdiction of the Court does not interest the activist leftist base to which their obstruction of nominees appeals. The obvious qualifications of the nominee are secondary in this context.
It remains to be seen how 100 Senators, or at least 51 to confirm or 60 to break a filibuster, will react in this short session. There is irony in the fact that both Houses of Congress are ducking or temporizing on major issues - e.g., reducing expenses, immigration - so, were they objectively to approach a handful of substantively qualified nominees, they would have plenty of time to confirm them. Of course, as long as they are going to tie up the Senate, as they did yesterday, on a Constitutionally unauthorized resolution demanding the resignation of the Secretary of Defense it does become difficult to find time to conduct the Nation’s business.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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