Big Week in Judicial Confirmations

This week is a busy and important one for judicial confirmations.  First, the Senate is taking confirmation votes on six excellent circuit court nominees: Michael B. Brennan (Seventh Circuit), Joel M. Carson (Tenth Circuit), Kurt D. Engelhardt (Fifth Circuit), John B. Nalbandian (Sixth Circuit), Michael Y. Scudder (Seventh Circuit), and Amy J. St. Eve (Seventh Circuit).  The Senate invoked cloture on Judge Engelhardt's nomination this evening, 64 to 31.

Majority Leader McConnell is threatening to hold the Senate in session through the weekend to ensure that these nominees are confirmed.  He said on the Senate floor earlier today:

This week, the Senate will consider another slate of extremely well-qualified nominees for seats on the federal bench. A thoughtful, independent, and expert judiciary is a cornerstone of our constitutional order. It’s been the case since the very beginning. 

Accordingly, the six circuit court nominees we’ll now consider have excellent reputations in the legal field, and have demonstrated they understand the proper role of federal judges in our government. First up is Kurt Engelhardt of Louisiana, the president’s choice to serve on the Fifth Circuit Court of Appeals.

On Wednesday, the Senate Judiciary Committee will hold a hearing on Ryan Bounds (Ninth Circuit), J. Campbell Barker (Eastern District of Texas), Susan Brnovich (District of Arizona), Chad F. Kenney (Eastern District of Pennsylvania), Jeremy D. Kernodle (Eastern District of Texas), and Maureen K. Ohlhausen (Court of Federal Claims).  On Thursday, the Committee will meet to vote on the nominations of Mark Bennett (Ninth Circuit), Andrew Oldham (Fifth Circuit), and eight district court nominees.  

The Democrats and liberal activist groups have been busy smearing Ryan Bounds for months.  They have been complaining about his nomination moving forward after Oregon's two extremely liberal, Democratic senators returned negative blue slips for him.  Ed Whelan explained why this is sadly ironic:

Democratic senators Ron Wyden and Jeff Merkley, along with Republican House member Greg Walden, formed a selection committee to rank candidates for federal judicial vacancies in Oregon. According to this February 2018 letter from Wyden and Merkley to White House counsel Don McGahn, the selection committee “consisted of eight highly experienced and diverse Oregon attorneys” who “carefully reviewed the applications of all the judicial candidates” and interviewed the finalists. Bounds emerged from this process as one of the selection committee’s “four highest ranked candidates” (“listed in alphabetical order”) for the very position to which Trump nominated him. 

You’d think that the fact that the Wyden-Merkley selection committee ranked Bounds as one of the very top candidates would stand him in good stead with them. But Wyden and Merkley have not only declined to support his nomination and even returned negative blue slips on his nomination. . . .

Democratic Senator Mazie Hirono of Hawaii attempted, yet again, to distort the history on blue slips, but the Senate Judiciary Committee majority and RNLA member Ilya Shapiro corrected the misrepresentations in this Twitter thread.

Follow the RNLA on Twitter for updates on the latest judicial nomination and confirmation news.

In Senator Hirono's World, Pro-Lifers Cannot Be Judges

Judges rule on the law, not based on their personal beliefs. Chief Justice Roberts famously analogized this to being an “umpire.” As part of the Democrats' attacks on those with strongly held religious or conservative beliefs, judicial nominee Wendy Vitter was attacked for having strong conservative values. Senator Mazie Hirono seemingly believes that judges who have personal views on issues of “life” cannot set aside those views when ruling on the law and cited another former Chief Justice, William Rehnquist, as an example for her beliefs.

Hirono aggressively question Mrs. Vitter on her pro-life views and whether she could be fair.  She said (beginning at 1:53:00):

As Justice Rehnquist said and I can paraphrase him, none of you comes to this process as blank slates.  There are many times, that I am sure you will acknowledge, that all of you would acknowledge, when the facts of a particular case before you do not ah are not four square with a particular precedent that would be applicable.  So would you acknowledge there are times when the your role as a judge would require you to resort to whatever your other life experiences, your views.  Can you sit here and say those will never come into play because you will always find a precedent that is four square with a case that is before you? . . .

Justice Rehnquist was not off base when he said you do not all come here tabula rasa.

The problem, of course, is Senator Hirono completely butchers Chief Justice Rehnquist's statement.  Rehnquist was not talking about a potential judge's personal views but that they would should have an interpretive philosophy.  No one should become a judge if they don’t have a view on how to judge (emphasis mine):

Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions which would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.

Wendy Vitter has indeed been a hero to the pro-life community.  Rehnquist was not saying that excludes her from being a judge.  As she testified:

I won Louisiana Right to Life Award. Chairing Priests for Life.  And wrote several articles about the role faith has played in my life. . . .

But those views I take seriously to set aside. . . . I am going to look at every matter, every case based on the facts brought before me and the law. 

The second paragraph is key.  To be a good judge, her personal philosophy is irrelevant.  She could have won an award from Planned Parenthood and still be a good judge.  That said, for Senator Hirono that is seemingly all that matters.  She wants judges to agree with her personal views in favor of abortion.  That is not a judge, Senator.  That is what you can look for in a politician.  Senator Honoro needs to read what Chief Justices Roberts and Rehnquist say and, hopefully in a few years, the decisions of Judge Vitter, to know what a judge should do.