by TChris

Having been burned by President Bush's end run around the "advise and consent" clause of the Constitution by appointing two conservative judges -- Charles Pickering and William Pryor -- who the Senate failed to confirm, Senate Democrats have vowed to halt any new judicial selections unless Bush agrees not to appoint more judges during a congressional recess.

"The President's use of recess appointments to circumvent the advise and consent process puts a finger in the eye of the Constitution," said Sen. Charles Schumer, D-N.Y.

Democrats are also upset that the White House has refused to fill vacancies on federal boards and commissions that require the appointment of Democrats.

Supreme Court Justice Anton Scalia refused to recuse himself from hearing a case involving VP Cheney's energy task force records--despite his spending a weekend hunting with Cheney. The Sierra Club had petitioned for his recusal. Supreme Court rules direct that the judge whose recusal is being sought is the judge who rules on the motion.

In an unusual response, Scalia said he will recuse himself when "on the basis of established principles and practices, I have said or done something which requires this course." He said the hunting trip to Louisiana was planned before the energy case reached the court. Those "established principles and practices" do not require or even permit him to step aside in the Cheney case, Scalia wrote.

Newsday says Scalia is wrong.

Scalia should reconsider. The court should urge him to do so. And if not-so-gentle persuasion fails, his court colleagues should decide for him. Unchecked, Scalia's intransigence will undermine public trust in the court's impartiality. That's too high a price for the nation's court of last resort to pay for one man's stubborn bad judgment....The Supreme Court has traditionally left recusal decisions to the justices involved. But if Scalia doesn't see the light, the full court should shine it in his eyes.

Here are more newspaper editorials calling for Scalia to step down from the case.

The fight between Congress and our federal judges is heating up. Congress wants to further limit judicial discretion in sentencing by reigning in judges who grant downward departures from the federal sentencing guidelines. Many judges are furious. Here's what Supreme Court Justice Anthony Kennedy had to say yesterday:

"I do think federal judges who depart downward are courageous," Kennedy told the House Appropriations Committee during a hearing on the court's budget. Judges should not have to "follow, blindly, these unjust guidelines," he said....The mandatory minimums enacted by the Congress are in my view unfair, unjust, unwise," Kennedy said.

by TChris

Congress must believe that federal judges, left to their own devices, will seize every opportunity to impose lenient, compassionate sentences upon those convicted of federal crimes. First it hogtied sentencing discretion by forcing judges to follow rigid guidelines. Then, in response to those rare occasions on which judges departed down from a guideline sentence to avoid an unjustly harsh result, Congress enacted the Feeney Amendment, further restricting their ability to impose fair sentences and requiring them to tattle on themselves when they do.

Since Republican administrations have chosen federal judges in 15 out of the last 23 years, Congress must think all those liberal Republican-picked judges are just too compassionate. But no judge of any political persuasion likes to have Congress meddling in judicial business. Judges inhabit a separate and equal branch of government, after all, and they know it. And they're mad.

"Feeney makes judges go from being 'the pinnacle' of the plea-bargaining process to being merely 'a nuisance,'" complains U.S. District Judge William Young, the chief federal trial judge in Massachusetts. He sees the amendment as further proof that Congress wants to vitiate the judiciary's role in sentencing while maintaining the aura of judicial independence and power. "Congress doesn't want to get rid of [the] symbolism [of judge-inspired sentences] because that conveys to our people that there has been judgment, that there has been reflection," Young adds.

Chief Justice Rehnquist isn't one of the liberal judges that Congress imagines to be running amuck in the judiciary, but he let Congress know that he doesn't like being ignored. Congress didn't bother to ask the judges what they thought of the Feeney Amendment before enacting it. Not a bright idea, Congress. Guess who gets to decide if your law is constitutional?

The Judicial Conference of the United States is composed of 27 federal judges presided over by Chief Justice William Rehnquist of the Supreme Court. The executive committee of the Judicial Conference is headed by 5th Circuit Appeals Court Judge Carolyn Dineen King. Tuesday, Judge King said:

Federal courts are swamped, partly because of Bush administration get-tough-on-crime policies that lead to more trials....[she] singled out drug and immigration prosecutions along the U.S.-Mexican border and Attorney General John Ashcroft's order last year that federal prosecutors should seek the severest charges and penalties.....Federal spending has not come close to keeping pace with the increase in caseloads prompted by decisions like those.

...Already, the courts are leaving jobs unfilled and will eliminate hundreds of other positions through buyout programs, court administrators said. "We're at the point this year and next year where we are talking about cutting bone," King said.

This judge has a good point. It will anger many, but however you slice it, he's right:

District Court judge asked local officials this week to remove "so help me God" and other religious references from the courtroom whenever he is presiding. Judge James M. Honeycutt wrote that the court system is seeing an increasing number of people from other cultures that are not necessarily Christian. He asked that the court take extra steps to accommodate such diversity by changing witnesses' oaths, bailiffs' calls and other procedures. "I believe that the burden should not be on those individuals to speak up and request an oath that does not mention God or use the Christian Bible," Honeycutt wrote.

Supreme Court Justice Antonin Scalia has taken a lot of heat for going on a duck-hunting trip as the guest of Vice President Dick Cheney, flying on Air Force Two, after the Supreme Court agreed to hear VP Cheney's appeal in which he is trying to keep details of his national energy policy task force a secret.

Now The Los Angeles Times reports that Scalia has another questionable hunting trip in his past:

Supreme Court Justice Antonin Scalia was the guest of a Kansas law school two years ago and went pheasant hunting on a trip arranged by the school's dean, all within weeks of hearing two cases in which the dean was a lead attorney. The cases involved issues of public policy important to Kansas officials. Accompanying Scalia on the November 2001 hunting trip were the Kansas governor and the recently retired state Senate president, who flew with Scalia to the hunting camp aboard a state plane.

Two weeks before the trip, University of Kansas School of Law Dean Stephen R. McAllister, along with the state's attorney general, had appeared before the Supreme Court to defend a Kansas law to confine sex offenders after they complete their prison terms. Two weeks after the trip, the dean was before the high court to lead the state's defense of a Kansas prison program for treating sex criminals.

Scalia later sided with Kansas in both cases.

The New York Times on President Bush's recess appointment of William Pryor to the 11th Circuit Court of Appeals:

Judge Pryor has testified before Congress in favor of dropping a crucial part of the Voting Rights Act, argued in favor of a Texas law that made gay sex illegal and taken outlandish positions on "federalism," a states' rights philosophy that seeks to undercut federal rights. He has reserved his most intemperate remarks for the issue of reproductive rights, declaring at one point that Roe v. Wade, the landmark ruling upholding abortion rights, had "ripped the Constitution and ripped out the life of millions of unborn children."

The recess appointment will last only until sometime in the fall of 2005. At that point, Judge Pryor will need Senate confirmation. Given his record, even that brief term seems much too long.

by TChris

President Bush will, for a second time, use a recess appointment to install a judicial nominee on the federal bench who failed to win Senate approval. Alabama Attorney General Bill Pryor will be appointed to the Eleventh Circuit this afternoon. Democrats opposed Pryor's appointment for reasons that TalkLeft reported last year.

Bush used a recess appointment last month to place Charles W. Pickering Sr. on the federal Court of Appeals for the Fifth Circuit. Both appointments will last until the next Congress takes office.

It seems likely that Bush made these appointments to appease conservatives who have been critical of the President's actions (and particularly his spending) outside of Iraq. Bypassing the Senate and appointing judges who are likely to favor conservative interests helps the President shore up his base of support.

The president used Democrats’ rejection of Pickering and Priscilla Owen in 2002 to urge his right-wing base to return Republicans to the majority in 2002. Following Republican success in that election, the judicial selection process began to be used in service of the president’s reelection effort. In an effort to shore up his right-wing base and recapture the White House, President Bush re-nominated all pending nominees in January 2003. And by nominating such lightning rods as Pryor and White House Counsel Brett Kavanaugh, the administration was offering more reassurance to the right wing that sympathetic judges would be appointed.

It is not clear that pandering to the right will help Bush in the general election, when he will need to appeal to moderate and independent voters. The President's desparate attempt to firm up conservative support illustrates his fear that even his core constituents won't be enthusiastic about voting or campaigning for him in November.

Several newspapers have called for Justice Scalia to step down from the case pending in the Supreme Court involving Vice President Cheney:

The Houston Chronicle says Scalia's impartiality is highly questionable.

The San Antonio Express News says hunters Scalia and Cheney are still in a blind.

The Seattle Post-Intelligencer says Scalia should recuse himself.

The Sierra Club may make a formal recusal request of Scalia.

Writer Peggy Hirsch explores the issue for TomPaine.com in Duckgate.

As for Scalia, he's still defending his hunting trip with the Vice-President and saying there's no need for his recusal.

Howard Bashman's 20 Questions interview with 9th Circuit Judge Stephen Reinhardt in today's "How Appealing" is a must read. TalkLeft's appellate friend Peter Goldberger says, "The judge's answers present a powerful, articulate and persuasive defense of the philosophy and practice of a true liberal judge, proudly in the Brennan tradition."

Again, our congratulations to Howard who opened up his own law practice today--a Pennsylvania appellate boutique--the press release is here. His new office address, if you want to send a card or a plant, or something (our idea, he hasn't asked for anything) is:

Law Offices of Howard J. Bashman
1250 Virginia Drive
Suite 1000
Fort Washington, PA 19034
Phone: (267) 419-1230
Telecopy: (267) 419-1231
Email: hjbashman@comcast.net

In response to the PROTECT Act in which Congress placed more limitations on judicial discretion at sentencing proceedings, one federal judge has begun videotaping sentencing proceedings:

The move comes amid a backlash over a new law intended to make it more difficult for judges to depart from federal sentencing guidelines, and to make it easier for the government to appeal light sentences. Weinstein claimed that the law effectively gives the Second U.S.Circuit Court of Appeals the power to re-sentence defendants when it finds that a so-called "downward departure" was unjustified.

"It would be very hard to do that without seeing the defendant," said Weinstein, adding he would make all tapes available to the appeals court.

Weinstein, who has a reputation as an activist jurist, is among several federal judges who have openly accused Congress of trying to bully them into imposing harsher sentences.