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Reading Room



September 13, 2006

The Honorable Arlen Specter
The Honorable Orrin G. Hatch
The Honorable Charles E. Grassley
The Honorable Jon Kyl
The Honorable Mike DeWine
The Honorable Jeff Sessions
The Honorable Lindsey Graham
The Honorable John Cornyn
The Honorable Sam Brownback
The Honorable Tom Coburn

United States Senate
U.S. Capitol
Washington, DC

Re: Last Chance on Judges

Dear Senators:

We write because this Thursday presents you with a last opportunity to make a difference in the rapidly approaching elections. The judges issue particularly the Democrats obstruction of the President's nominees was a decisive issue in the 2002 and 2004 Senate elections. And it can be decisive again this year. Unfortunately, over the last six months, Senate Republicans have missed several opportunities to highlight the issue, thus squandering a potential electoral advantage and providing Democrats with a free pass to obstruct the President's nominees without any political cost.

As you know, five of the President's circuit court nominees were returned to the White House at the beginning of the August recess, as a result of Democrats' continuing obstruction of the confirmation process. The President renominated all five nominees, and four of them - Randy Smith (9th Circuit), William Myers (9th Circuit), Terrence Boyle (4th Circuit), and William Haynes (4th Circuit) - are on your agenda for this Thursday's Judiciary Committee meeting.

We ask that you be present at the meeting and vote each of these four nominees out of committee on Thursday. For Boyle, Myers, and Smith, this will simply restore their nominations to the status quo before they were returned last month. But most importantly, it will tee up the judges issue so that Senate Republicans can use it to their advantage in the coming weeks by pushing for a confirmation vote on the four nominees.

With the election less than eight weeks away, Thursday's vote is crucial. It is the last opportunity to get nominees onto the floor in time for a pre-election confirmation fight that would focus voters? minds on the federal judiciary as the canonical example of the difference between the two parties.? This is the time to remind voters that it is the Republicans that put constitutionalist judges on the federal courts and the Democrats who are responsible for an activist judiciary that protected online pornography, restricted the death penalty, weakened private property rights, struck down the federal ban on partial birth abortion, declared the Pledge of Allegiance to be unconstitutional, and otherwise drove religion from the public square. Can the constitutional protection of gay marriage be far behind if Democrats have their way with the federal judiciary?

During the 2002 and 2004 Senate campaigns, judges and the judge-related social issues were front and center in the election debate. Not coincidentally, Republicans gained seats in the Senate in both those elections, despite predictions to the contrary. For example, in 2002, there were at least three Senate races in which the judges issue visibly helped the Republican win a close election.

Many of you ran and won in 2002 and 2004 because, in part, you promised to support the President's judicial nominees and to end obstruction by the minority Democrats. Maybe some of your colleagues who last ran in 2000 do not realize that things have changed. Perhaps you should consider those candidates running in 2006 who are not yet in your meetings but could use the judges issue to their advantage, if only you will tee it up for them.

Voting the circuit court nominees out of committee on Thursday, thus setting the stage for an up or down vote on the Senate floor, is truly a no-lose proposition. If Democrats do little to obstruct a confirmation vote, Republicans senators can claim credit for improving the judiciary. However, if Democrats filibuster or otherwise stand in the way of a vote, it will be clear to the public which party is the party of the obstruction and which party is trying to end judicial activism. Do not worry about whether Republicans have the votes to win the confirmation battle. The goal is to remind the American people of what is at stake when they vote on November 7.

Pushing for an up or down vote on the four obstructed nominees has benefits beyond the election as well. Each battle over nominations provides an educable moment, especially on the eve of an election, when voters are paying the most attention. Each battle is an opportunity for an important national debate over the role of judges and a dramatic reminder of the difference in the two parties values.

The opportunity here for an educable moment is heightened by the fact that, just one day after the election, the U.S. Supreme Court will hear oral argument in two pivotal partial birth abortion cases. What better time is there than now to remind voters that Republicans support judges who will respect the American people's desire to see this heinous abortion procedure outlawed.

We suspect that some Republican senators are content to rest on their laurels after the confirmations of John Roberts and Samuel Alito. But consider that, even if Republicans maintain control of the Senate, the loss of a few seats will threaten the confirmation of judicial nominees during the remainder of the President's term. Most alarmingly, it will imperil the confirmation of the next Supreme Court nominee and, with it, the future of the Supreme Court and the hot-button social issues it decides. If the President's future nomination of a fifth conservative for the Supreme Court is defeated by Democratic obstruction, voters will not pleased that Senate Republicans rested on their laurels rather than taking the fight to the Democrats this fall.

While Supreme Court nominations are the most important, nominations to the Fourth and Ninth Circuits - like those of Boyle, Myers, Smith, and Haynes - are not far behind. With the departure of Judge Michael Luttig from the Fourth Circuit, confirming Terrence Boyle and William Haynes is crucial if this important circuit is to maintain its conservative edge. Even more pronounced is the urgency of putting conservatives on the Ninth Circuit, a court that is so often reversed and so often in the news that it can only be described as a national scandal. Bundling Ninth Circuit nominees Myers and Smith on the Senate floor would provide a great opportunity to highlight the excesses of that circuit, particularly its decision to strike down the Pledge of Allegiance.

Finally, we ask you to consider the issue of fairness. With the exception of Randy Smith, the circuit court nominees in question have faced years of delay on the Senate floor or in committee. Judge Terrence Boyle was nominated to the Fourth Circuit more than five years ago and is now the longest waiting judicial nominee in history. And that doesn't even take into account the fact that he was nominated to the same court by the first President Bush, but was never given a hearing by the Democratic majority in the Senate. William Myers's nomination to the Ninth Circuit has been in limbo in the Senate for more than three years. He was the subject of a filibuster for nearly two years before his nomination was returned last month. After being nominated to the Fourth Circuit in 2003, William Haynes was quickly voted out of the Judiciary Committee.? Nonetheless, his nomination subsequently languished in committee for two years, after Democrats forced its return to the White House in 2004.

It should be obvious that these nominees deserve an up or down vote on the Senate floor while Republicans still have the numbers necessary to stave off a filibuster. To give them less will only worsen the difficulty the White House is having recruiting qualified people to serve on the federal bench. One need only look at the treatment of these nominees to see why the White House is having difficulty.

Since the confirmation of Justice Alito in January, Republican senators have missed various opportunities to keep the judges issue on voters minds. As a result, Senate Democrats have barely had to lift a finger to accomplish their goal of blocking the President?s conservative nominees. Fortunately, it is not too late to make the Democrats pay a price for their obstruction and to use the judges issue and judge-related issues to Republicans advantage in the upcoming election.

With only a few weeks remaining in the Senate's pre-election session, Thursday is truly the last opportunity to tee up this issue in time for a confirmation debate that could make the difference in November. That is why we ask that you be present at Thursday's meeting and that you vote each of the circuit court nominees out of committee. Please don't miss this last opportunity to end the 109th Congress with a bang rather than a whimper.

Sincerely,
Curt Levey
General Counsel
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