Posted 12:00 AM by Howard Bashman

Attorney's Appellate-Law Blog Wins Readership
Readers Rave About Blog Devoted to Appellate Law

By Brent Kendall

Daily Journal Staff Writer

November 12, 2003
PHILADELPHIA - Web sites are easy to come by.

With just a few dollars, and enough time to create and maintain some content, anyone potentially can reach a world of readers.

Unfortunately for most people, that readership extends to no more than a gang of devoted friends, maybe a Mom or Dad and a few random Google surfers.

Yet for all the many sites that underwhelm the public, a few find a winning formula.

Those with a combination of timing, luck, a well-selected niche and good writing become Internet mainstays, reaching thousands of readers.

One such site belongs to 39-year-old Philadelphia lawyer Howard Bashman, the creator and sole author of How Appealing, an Internet "blog" that offers news and commentary from the world of appellate law.

Bashman's site, which, in addition to exploring appellate topics, delves into an eclectic range of subjects from across the legal spectrum, is read not only by his friends and family but also by 10,000 others on an average day.

His nationwide audience includes judges, law clerks, pre-eminent legal practitioners, elite journalists and congressional staffers. And Bashman says the site even finds its way onto a few computer screens in the White House.

Bashman, who chairs the appellate group for the firm Buchanan Ingersoll, entered Web publishing reluctantly after a colleague encouraged him repeatedly to start a blog, a no-frills type of site filled with short entries and Web links that functions as an online notebook or diary for its publisher.

Bashman did a quick Internet search and, finding no prominent appellate-law sites, decided he'd give it a try.

He launched the site in May 2002, and it was an immediate success.

"Once I started my Web log, it became clear that no one else was doing what I was doing, and it developed a rather large and enthusiastic following pretty much right away," said Bashman, sitting comfortably in his modest 13th-floor office located in a modern high-rise overlooking Philadelphia's Center City district. "The following that I've gotten has really been beyond my wildest dreams."

A year and a half later, How Appealing has topped 2 million total page hits.

Bloggers publish largely in dribs and drabs, with a paragraph here and a paragraph there. Most try to write at least a little something once a day, because an essential part of blogging is posting with enough frequency to foster a dialogue with readers.

The hyperproductive Bashman often averages more than one post an hour. Over a recent seven-day stretch, he averaged 29 entries a day.

"If you look at what Howard is doing, it's pretty unique that he can maintain such a high-volume, high-quality level of information," said Denise Howell, a Los Angeles-based appellate and intellectual property lawyer with the firm Reed Smith, and author of the legal blog Bag and Baggage.

"For most of us mere mortals, if we can post about one or two things that we find interesting during the day, we feel like we've accomplished quite a bit," Howell said.

A recent day on How Appealing included posts on the sniper trials, appellate-court nominees Janice Rogers Brown and Claude Allen, Linda Tripp's settlement with the federal government, Alabama Chief Justice Roy Moore's Ten Commandments saga and the Supreme Court's decision to reinstate an Ohio man's death sentence.

These and other news bits come with links to a variety of stories, sometimes from widely read outlets but just as often from regional publications that are less prominent on the national public's radar screen - papers like the Tallahassee Democrat and the Barre-Montpelier Times Argus.

And then there are Bashman's postings about noteworthy decisions from the various appellate circuits.

Whether it's the 9th U.S. Circuit Court of Appeals' ruling in favor of the Beastie Boys against a copyright-infringement claim or the 3rd Circuit's ruling that the indefinite detention of an inadmissible alien is not a violation of due process, How Appealing has the information, quickly.

Bashman said he often gets these decisions out to the public before anyone else does.

"Part of that is simply knowing from experience what times the appellate courts issue their decisions," he said. "It's not hard to be the first one to report on that if you know what time it's going to happen and can set aside a minute or two to take a look.

"But it has gotten to the point now where at least on one federal appellate court, the clerk of court himself will send me an e-mail saying, 'This order has come down today,'" Bashman added. "And I don't know how many other people he's doing that for."

"The site is absolutely wonderful," said Roy Englert, an appellate litigator with the Washington, D.C., firm Robbins, Russell, Englert, Orseck & Untereiner.

"I will tell you flat out that it replaces 90 percent of the reading I used to do to keep up with legal subjects," Englert said. "I get all that information in one place from Howard's site and the things he links to."

Tom Goldstein, whose firm Goldstein & Howe specializes in Supreme Court litigation, maintains a Supreme Court blog that was inspired by How Appealing.

"There's definitely nothing comparable on the planet," Goldstein said of Bashman's site.

Goldstein said it was "freakish" how much Bashman covered with his one-man, part-time operation.

"There's no place you can go and nothing to which you can subscribe that can give you a better sense of what is going on in the law," he said.

Surprisingly, Bashman said he doesn't spend an inordinate amount of time on the site, devoting an hour or two during the day, with additional time late at night. He's a night owl, while his wife of 12 years and their 8-year-old son are not.

Bashman has no assistants or researchers that help him gather information, but, he said, he receives a good deal of assistance from How Appealing readers who e-mail him news stories, court information and all kinds of other tidbits.

"Even journalists don't hesitate to let me know of rulings they think I might be interested in, and oftentimes I'll reciprocate to them," he said.

Bashman has friendly relationships with, among others, reporters at the Associated Press, Boston Globe, New York Times and Washington Post.

Bashman said his blogging has Buchanan Ingersoll's blessing. His colleagues understand that he puts his work first, he said.

"The firm is very supportive of it. They realize that it's getting the firm a lot of attention," Bashman said. "As an appellate lawyer, the amount of billable hours that you can have to begin with are maybe smaller than you can have if you're a trial lawyer, and so as long as I'm carrying my own here, I think the firm is happy to have it happen."

In addition to How Appealing's daily fare, Bashman runs a monthly feature called "20 Questions for the Appellate Judge."

He launched the feature in January, thinking that it would give judges the opportunity to reach his audience "in a way that perhaps otherwise they would not be able to do."

Each Q&A session is done over e-mail, with Bashman tailoring individualized questions for each judge.

Bashman lines up his judicial participants by posting occasional calls for volunteers, a system that has worked well so far, he said.

Readers have sent Bashman suggestions on people he should invite to participate, "but I'm interested in having people do it who want to do it," he said.

His first volunteer was Judge Jerry Smith of the 5th Circuit (who had once amended a written opinion after reading a Bashman post that noted an error in it).

Up second was the 9th Circuit's Diarmuid O'Scannlain.

"I was happy to participate," said O'Scannlain, who called the "20 Questions" feature "a great idea."

"The kinds of questions I got and the questions that went to other judges were very revealing in and of themselves because they helped tell me what is of interest to appellate specialists," he said.

In addition to being a participant, O'Scannlain said he has read most of the other "20 Questions" sessions.

"I was interested in seeing how other judges in other circuits answered the same kinds of questions," he said.

Ninth Circuit Judges Andrew Kleinfeld and Michael Daly Hawkins also have participated, and Judge Stephen Reinhardt has volunteered to be Bashman's February 2004 interviewee.

How Appealing's success has bestowed on Bashman a level of fame that he had no way of predicting when he started.

And while he said he never intended the site to be a place "where Howard Bashman is being marketed," he admitted that the attention can only help his career.

A graduate of the Emory University School of Law in Atlanta, Bashman came to Buchanan Ingersoll in March 2001 after heading an appellate practice at Montgomery, McCracken, Walker & Rhoads, where he spent 10 years.

Bashman is co-chair of the Appellate Courts Committee of the Philadelphia Bar Association and recently was named a "Lawyer on the Fast Track" by American Lawyer Media.

Out of law school, Bashman clerked for Judge William D. Hutchinson of the 3rd U.S. Circuit Court of Appeals, a place where, rumor has it, he could land again someday - this time as a judge.

"That would be something that I would definitely be interested in doing at some point if the offer ever arose," he said.

Asked about his judicial philosophy, Bashman, a member of the Federalist Society, said he preferred rulings "to be narrow as opposed to broad."

"But I think that you never know what type of a judge you're going to be unless you become a judge," he said.

He said that he enjoys reading the work of judges who are guided by a wide range of philosophies.

"If anyone has ever thought to consider me, it would be an honor to be asked. And if it never happens, that would be fine, too," he said. "I really love what I do."

Bashman also said he might be interested in making a larger venture into journalism, possibly as a legal analyst in his spare time.

The profession has always interested him. He was editor-in-chief of his high-school newspaper, and as an undergraduate at Columbia University, he wrote for his college paper, the Columbia Daily Spectator.

He has been a monthly columnist for Philadelphia's legal newspaper, The Legal Intelligencer, for three years - a position that pre-dates his blog work.

Bashman said he occasionally gets nibbles from media people that lead him to believe that he could blog someday for a news outlet.

"If an offer like that ever came in, I'd certainly have to consider that, but in terms of doing that full time, I just don't see that being something that was financially conceivable," he said.

But, with a smile creeping across his face, he added, "If they wanted to surprise me, I'm willing to listen."

© 2003 Daily Journal Corporation. All rights reserved.

Posted 9:18 AM by Howard Bashman

THE WHITE HOUSE

WASHINGTON

April 2, 2003

Dear Senators Levin and Stabenow:

I respectfully write with regard to your March 19 joint letter to Chairman Hatch, which accompanied your return of blue slips indicating your opposition to a hearing and vote for five pending Michigan nominees for federal judicial seats. Your letter explains that you are objecting to these Michigan nominees – and will continue to object to future Michigan nominees – in order to protest the fact that two of President Clinton’s judicial nominees from Michigan did not receive hearings.

Although you have returned negative blue slips for all of these nominations, you do not indicate any opposition based upon qualifications to any of the five individuals in question. Nor did you express any such specific opposition during our pre-nomination consultations with your offices regarding these individuals. (This consultation history is described more fully in the attached response to an inquiry from Chairman Hatch.) In our judgment, all five nominees are indeed well qualified to serve on the federal bench, and deserve prompt hearings and votes. I will briefly review their qualifications below, before turning to your complaints regarding President Clinton’s nominees and, finally, addressing your blue slips.

I. The Nominees

David McKeague, Susan Bieke Neilson, Henry Saad, Richard Griffin and Thomas Ludington are well qualified for the judicial seats for which they have been nominated.

Judge McKeague has served on the U.S. District Court for the Western District of Michigan since 1991, when he was unanimously confirmed by the then-Democrat-controlled Senate. During his tenure as a district judge, he has on seven occasions been designated to sit on a panel of the Sixth Circuit. Chief Justice Rehnquist appointed Judge McKeague to serve on the Judicial Conference’s Committee on Defender Services, where Judge McKeague chairs the funding subcommittee. The Chief Justice also appointed Judge McKeague to the District Judges Education Committee of the Federal Judicial Center, which Judge McKeague chairs. The American Bar Association (“ABA”) has given Judge McKeague a “Well Qualified” rating for the Sixth Circuit.

Judge Neilson has served on the 3rd Judicial Circuit Court of Michigan since 1991. She has written numerous articles and was co-editor and author of Michigan Civil Procedure, a two-volume treatise on all areas of Michigan civil practice. This treatise was selected by the Michigan Judicial Institute for purchase on behalf of every trial judge in the State of Michigan and received the “Plain English Award” from the State Bar of Michigan. The ABA has unanimously rated Judge Neilson “Well-Qualified” for the Sixth Circuit.

Judge Saad has served on the Michigan Court of Appeals since 1994. During his 1996 retention election, he received broad bipartisan support, including endorsements from the Michigan Chamber of Commerce and the United Auto Workers. Judge Saad is also active in the community. He has served as President of the Wayne State University Law School Alumni Association, Chairman of the Board of the Oakland Community College Foundation, and as a Board Member on the National Conference of Christians and Jews. In 1995, he received the Arab-American and Chaldean Council Civic and Humanitarian Award for Outstanding Dedication to Serving the Community with Compassion and Understanding. The ABA has given Judge Saad a “Qualifed” rating. It also bears noting that Judge Saad was nominated to the Eastern District of Michigan by President George H.W. Bush a decade ago, but did not receive a hearing.

Judge Griffin has served on the Michigan Court of Appeals since 1989. He has served the bench and bar in a number of volunteer capacities. He is a former member of the federal judicial selection committee for the Western District of Michigan, and currently serves as Chairman of the Quality Review Committee for the Michigan Court of Appeals. The ABA has rated Judge Griffin “Well Qualified” to serve on the Sixth Circuit.

In sum, all four of the President’s Sixth Circuit nominees from Michigan have extensive experience on the state or federal benches; all are active in their communities and in the bar; all have extensive support in Michigan; and all have received Well Qualified or Qualified ratings from the ABA. We respectfully submit that by any traditional standard, Judges McKeague, Neilson, Saad and Griffin are superbly qualified candidates for the vacant seats on the Sixth Circuit – seats that have been designated “judicial emergencies” by the Judicial Conference.

Thomas Ludington is likewise fully qualified for the district court. He has considerable experience on the state bench – having served as Chief Judge of the 42nd Circuit Court in Michigan since 1995 – and enjoys wide support within the State. And he too has received a unanimous “Well Qualified” rating from the ABA.

II. The Basis of Your Objections

In explaining your negative blue slips, you note that two of President Clinton’s Michigan nominees to the Sixth Circuit, Judge Helene White and Kathleen McCree Lewis, did not receive hearings or votes.

We understand your position. President Bush has explained that too many nominees of both President Bill Clinton and President George H.W. Bush did not receive timely hearings and votes. For example, two of President George H.W. Bush’s Sixth Circuit nominees – John Smietanka and Justin Wilson – and his nominee to the Eastern District of Michigan, Judge Saad, did not receive hearings or votes in the then-Democrat-controlled Senate a decade ago.

President Bush has called on both parties to move on from the cycle of blame and retribution that has plagued the Senate for more than a decade. Since the 2000 campaign, the President has emphasized that every judicial nominee should receive a committee hearing and up or down floor vote within a reasonable time, no matter who is President or which party controls the Senate. On October 30, 2002, after nearly two additional years of Senate delays, the President advanced a plan involving all three Branches that would require, among other steps, the Senate to vote on nominees within 180 days of nomination. The plan would ensure a generous period of time for all Senators to gather information and have their voices heard and votes counted. Whether the nominee is John Smietanka or Helene White or Susan Bieke Neilson, whether the President is President Clinton or President Bush, whether the Senate is Republican- or Democrat-controlled, the President believes that the procedures for fair and timely Senate consideration and votes on judicial nominations should be the same.

III. The Significance of the Blue Slips

Against this backdrop, let me turn to your blue slips.

It has been my understanding that the blue slip is not a veto, but rather a device to ensure adequate pre-nomination consultation with home-state Senators, such as has occurred in the cases of these five nominees. We understand this to have been the consistent Senate policy for at least the last 25 years – during the Chairmanships of Senators Kennedy, Thurmond, Biden and Hatch. And in recent weeks, several other Democrat Senators (including former Chairman Leahy) have argued that Jorge Rangel and Enrique Moreno, nominees of President Clinton to the Fifth Circuit, should have received hearings and votes notwithstanding what the Committee deemed to be inadequate consultation with home-state Senators – thereby implicitly embracing the view that home-State Senators should not be allowed to veto a nominee.

We agree strongly with the bipartisan policy maintained by Senators Kennedy, Thurmond, Biden, and Hatch as Chairs of the Judiciary Committee. We respectfully agree that the tradition of consultation does not and should not entail a veto for home-state Senators, particularly a veto wielded for ideological or political purposes. Rather, the intention of the Constitution and the tradition of the Senate require, in our judgment, that the full Senate hold an up or down vote on each judicial nominee. If the objections of home-state Senators to a nominee are persuasive, those objections either will deter the President from submitting the nomination in the first instance or, alternatively, will convince a majority of the Senate that the nomination should be rejected. As Senator Kennedy stated in 1981, however, the Senate has not allowed and should not allow “individual Senators [to] ban, prohibit, or bar” consideration of a nominee.

* * *

Once again I respectfully suggest that all Senators should have their voices heard and their votes counted on the nominations of Judges McKeague, Neilson, Saad, Griffin, and Ludington – five individuals well qualified to serve on the federal bench.

I remain hopeful that we can work together to fill these judicial emergencies and I remain ready to meet to explore options.

Sincerely,

/s/

Alberto R. Gonzales
Counsel to the President

The Honorable Carl Levin
United States Senate
Washington, DC 20510

The Honorable Debbie A. Stabenow
United States Senate
Washington, DC 20510

Enclosures: March 28, 2003 Letter to Chairman Hatch

cc: The Honorable Bill Frist
The Honorable Thomas A. Daschle
The Honorable Patrick Leahy
The Honorable Orrin Hatch

Posted 9:10 AM by Howard Bashman

THE WHITE HOUSE

WASHINGTON

March 28, 2003

Dear Chairman Hatch:

Thank you for your letter of March 25, advising the President of a letter you recently received from Senator Levin and Senator Stabenow. As you note, Senators Levin and Stabenow have returned blue slips objecting to all five judicial nominees from Michigan pending before the Committee. The Michigan Senators’ letter further suggests that the White House did not engage in adequate consultation with them regarding these nominees. You have asked me to describe the nature and extent of consultation between the White House and the Michigan Senators regarding Richard Griffin, David McKeague, Susan Bieke Neilson, Henry Saad and Thomas Ludington. We are pleased to have the opportunity to explain why we believe there has been appropriate consultation.

Before turning to a chronological review of the record, we believe a general comment is in order. Senators Levin and Stabenow insisted from the outset that President Bush should renominate to the Sixth Circuit two nominees of President Clinton – Helene White and Kathleen McCree Lewis – who had not received hearings or votes. The Senators argued that “elementary fairness . . . necessitates that they be renominated, that hearings be held, and that they be voted up or down by the Senate Judiciary Committee.” See Levin-Stabenow Letter to President Bush (April 3, 2001). In response, we informed the Senators that we were in fact considering Judge White and Ms. McCree Lewis, along with numerous other candidates, for the Sixth Circuit, but that the President would not commit to renominating them for those seats. We explained that it is extraordinarily rare for a President to nominate for the federal bench an individual previously nominated by his predecessor, especially when the predecessor is from another political party; that President Bush was not responsible for the failure of Judge White and Ms. McCree Lewis to attain confirmation; and that numerous individuals appointed by President George H.W. Bush to the federal courts of appeals saw their nominations lapse without Senate action at the end of 1992, and did not have their names resubmitted by President Clinton. As we summarized, “President Bush is entitled to make his own appointments for these vacancies, and he may well prefer candidates other than those previously chosen by President Clinton.” See Gonzales Letter to Senators Levin and Stabenow (April 10, 2001).

Following this initial exchange, in which the White House made its position very clear, we moved forward with the process of evaluating candidates for the judicial vacancies in Michigan – including Judge White and Ms. McCree Lewis, whom we interviewed – and recommending nominees to the President. Throughout this process, we repeatedly consulted with the Michigan Senators, seeking their input on candidates time and time again, almost literally until the eve of their nominations. At no point did either Senator Levin or Senator Stabenow ever articulate any specific objections to any of the five nominees. Instead, the Michigan Senators consistently responded to our consultations by (1) continuing to ask that President Bush “address” the White and McCree Lewis situations by renominating them, and (2) refusing to provide feedback on our proposed candidates unless and until we gave in to that request.

Specifically, our records show that, prior to the nominations of the five individuals in question, the White House engaged in the following noteworthy consultations with the Michigan Senators.

• April 3, 2001. The Michigan Senators write to the President to announce their position: “[E]lementary fairness to [Judge White and Ms. McCree Lewis] . . . necessitates that they be renominated, that hearings be held, and that they be voted up or down by the Senate Judiciary Committee”; and “[n]ominating others in their stead would not only be inconsistent with your stated goal of bipartisanship, it would compound the difficult situation we are now in relative to filling the Michigan judicial vacancies on the Sixth Circuit.”

• April 10, 2001. I respond in writing as described above – stating that we are considering Judge White and Ms. McCree Lewis, but that President Bush is entitled to make his own appointments for the Michigan vacancies.

• May 17, 2001. At a meeting in my office, I provide the Senators with the names of individuals being considered for the Sixth Circuit (including Judges Saad, McKeague, and Griffin) and for the vacancy on the U.S. District Court for the Eastern District of Michigan (including Thomas Ludington). I invite the Senators to provide their feedback on those individuals. Senator Levin, however, states that he will not provide any reactions until “the larger issue” is settled.

• May 17, 2001. Following up on my meeting with the Senators, Associate Counsel Brad Berenson calls the Chiefs of Staff of Senators Levin and Stabenow, again providing the names of the candidates and soliciting the Senators’ reaction.

• May 23, 2001. Mr. Berenson consults again with Senator Levin’s Chief of Staff regarding Judges Griffin, McKeague and Saad – making clear that no nominations are definite, and again asking for reactions or feedback from the Senator. Mr. Berenson also delivers the same message and invitation by voice mail to Senator Stabenow’s Chief of Staff.

• June 7, 2001. Mr. Berenson again calls Senator Stabenow’s Chief of Staff seeking the Senator’s reaction to the potential judicial nominees. The Chief of Staff reports that Senator Stabenow does not know any of the individuals in question and again urges that no action should be taken on them until the White/McCree Lewis situation is addressed.

• June 15, 2001. Mr. Berenson again calls Senator Stabenow’s Chief of Staff – once again seeking the Senator’s reaction to the potential judicial nominees, and notifying the Senator that Susan Bieke Neilson is under consideration for the Sixth Circuit. Mr.Berenson also calls Senator Levin’s Chief of Staff to deliver the same message, but is told that the Chief of Staff can not talk until the following Monday.

• June 21, 2001. After leaving several telephone messages, Mr. Berenson succeeds in contacting Senator Levin’s Chief of Staff. Again, he seeks the Senator’s reaction to the potential judicial nominees we had identified on May 17; he also gives notice that Susan Bieke Neilson is under consideration for the Sixth Circuit.

• July 9, 2001. Mr. Berenson speaks by phone with Senator Levin’s Chief of Staff regarding Judge Neilson. Mr. Berenson leaves a voice mail message about Judge Neilson for Senator Stabenow’s Chief of Staff.

• August 8, 2001. Mr. Berenson places phone calls to both Senators’ Chiefs of Staff. Both are on vacation, so Mr. Berenson leaves messages regarding Judge Ludington.

• August 10, 2001. Senator Levin’s Chief of Staff writes to Mr. Berenson reiterating Senator Levin’s original position.

• August 14, 2001. Mr. Berenson responds to Senator Levin’s Chief of Staff, explaining that “although we gave careful consideration to the matter, including interviews of both women, the President does not intend to nominate both these women to the Sixth Circuit.” Mr. Berenson’s letter further notes that “[we] have . . . continued to keep the Senator fully informed at every stage of our deliberations, providing the names of individuals the President is considering for appointment and repeatedly soliciting the Senator’s views,” and advises that “we would prefer to have the Senator’s input before the President makes nominations.”

• August 17, 2001. I send a letter to then-Chairman Leahy (with copies to the Michigan Senators as well as to you), once again clearly setting out the White House’s position. I write that “I have met with Senators Levin and Stabenow and have listened carefully to their concerns regarding the history of nominations from Michigan to the Sixth Circuit. Although I understand their desire to have the President renominate two of President Clinton’s candidates for the Court of Appeals . . . we believe it would be unfair to expect the President to do so. The net result of our discussions is an apparent standoff in which the two Michigan Senators are attempting (inappropriately, in my view) to use the threat of negative blue slips against President Bush’s Michigan circuit nominees to compel the President to renominate Clinton nominees based upon grievances in which president Bush played no part.” I also reiterate that “[w]e remain committed to consulting closely with home-state Senators to identify judicial candidates the President may nominate with the support of the Senators; however, meaningful, good faith consultation by the Senators cannot, in my judgment, include a demand that President Bush select as nominees those individuals previously selected by the prior Administration.”

• August 22, 2001. Senator Levin’s Chief of Staff writes to Mr. Berenson, proposing a bipartisan commission for judicial nominations in Michigan.

• August 23, 2001. Mr. Berenson responds, explaining that the White House is not willing to consider a commission in Michigan at this time. Mr. Berenson elaborates: “Commissions exist or are under consideration in only two or three states in which history or other special circumstances clearly justify such an unorthodox mechanism. None of these circumstances exists in Michigan.”

• October 9, 2001. I meet with the Michigan Senators at Senator Levin’s office to discuss potential solutions to the Sixth Circuit impasse.

• October 31, 2001. I speak with Senator Levin to explain why the Michigan Senators’ commission proposal is not acceptable, and to inform the Senator of the president’s intent to make nominations to the Sixth Circuit seats shortly.

• November 1, 2001. Senators Levin and Stabenow write to urge me “to reconsider [their] proposal to jointly establish a bipartisan judicial nominating commission for the existing Michigan vacancies on the Sixth Circuit Court of Appeals.” Again, they do not provide any comments on Judges Griffin, McKeague, Neilson, Saad or Ludington – and they indicate that “we could not, in good conscience, return blue slips on Sixth Circuit nominees until the unfair treatment of the nominations of [Judge White and Ms. McCree Lewis] is addressed.”

• November 2, 2001. I respond to the Michigan Senators, respectfully declining to reconsider our decision not to establish a judicial nominating commission, and reiterating that we had proposed an appropriate solution to the Michigan situation. My letter also gives fair warning that “the President will soon make nominations to all of the existing federal judicial vacancies in Michigan,” and invites the Michigan Senators to reconsider their position.

Following these extensive consultations by the White House, the President nominated Judges McKeague, Saad and Neilson on November 8, 2001.

Still, our consultations as to the remaining vacancies continued even after this point. I met with the Michigan Senators on December 19, 2001, and again on February 7, 2002, to discuss solutions to the Michigan situation, and I called them on June 20 and 24, 2002. Seeing no prospect of resolution, the President nominated Judge Griffin to the Sixth Circuit on June 26, 2002. Judge Ludington was nominated later that year, on September 12.

In short, we engaged in repeated pre-nomination consultations with the Michigan Senators regarding these five nominees, making every reasonable effort to get the Senators’ feedback. We interviewed the candidates suggested by the Senators – Judge White and Ms. McCree Lewis. And we proposed our own reasonable solution to the matter. Notwithstanding these extensive efforts by the White House, the Michigan Senators steadfastly refused to provide feedback on the nominees, instead insisting that the President should first agree to nominate President Clinton’s candidates and/or to turn the process over to a commission. After several months, with no sign of progress, and having received no specific objections to any of the individuals in question, the President proceeded with his nominations, to address the acknowledged judicial emergencies on the Sixth Circuit. These emergencies continue to this day, and affect not only the constituents of Senators Levin and Stabenow, but also the citizens of Kentucky, Ohio and Tennessee.

I believe that any reasonable observer would agree that the record described above demonstrates that the White House engaged in appropriate consultations with respect to the five Michigan judicial nominees.

* * *

I trust that this letter provides the information you need regarding our extensive consultation with the Michigan Senators. However, I would be pleased to provide additional details if necessary.

Sincerely,

/s/

Alberto R. Gonzales
Counsel to the President

The Honorable Orrin Hatch
Chairman
Senate Judiciary Committee
United States Senate
Washington, DC 20510

Posted 11:01 AM by Howard Bashman

U. S. Department of Justice
Office of Legislative Affairs

Office of the Assistant Attorney General
Washington, D.C. 20530

March 18, 2003

The Honorable Tom Daschle
Minority Leader
United States Senate
Washington, D.C. 20510

Dear Mr. Leader:

I write to correct a significant and recurring misstatement of fact regarding the nomination of Miguel Estrada, which has been repeated several times on the Senate floor in the past several weeks. As noted below, several Democrat Senators have asserted or implied their belief that the White House and the Department of Justice reviewed Mr. Estrada's appeal, certiorari and amicus recommendations authored during his tenure in the Bush and Clinton Solicitor General's Offices before deciding whether to nominate him to the D.C. Circuit, and that the decision not to disclose these memoranda is based on the Administration's knowledge of their contents. Nothing could be further from the truth. Despite the fact that Counsel to the President Alberto Gonzales explained in a February 24th letter to Senator Schumer that "[n]o one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001," Senators continue to repeat this allegation, which warrants this additional response. An identical letter will be sent to Majority Leader Frist.

Because the professional opinions of attorneys in the Solicitor General's office are--and always have been--confidential, no one in the White House, the Department of Justice or anywhere else in the Executive Branch reviewed these privileged documents--not before Mr. Estrada's nomination on May 9, 2001, and not since then. Unfortunately, the mistaken notion that the Administration has reviewed Mr. Estrada's memoranda has grown rapidly from speculation to rumor to purported fact. In order that your colleagues might have the most accurate information available during your deliberations on Mr. Estrada's nomination, we wish to point out specific misstatements and erroneous assumptions on this issue and to set the record straight.

In a February 12, 2003, floor speech, Senator Leahy speculated that the Administration knows what is in Mr. Estrada's confidential memoranda:

Regarding the document request related to Mr. Estrada's nomination, he has told both Senator Hatch and myself, as well as several Members of the Senate, that he is perfectly willing to show us his writings and respond to them and answer questions about them, but he has been told by the administration that he cannot: the administration, however, would review those writings. They are the only ones who know whether this direct evidence of his views, the interpretation of law, is accurate or misleading--they are the only ones who have access to it and they say, basically: Trust us.

Congressional Record, Feb. 12, 2003, at S2251

Senator Durbin elevated the speculation to a conclusion on February 26:

Mr. Gonzales in the White House said, no, we will not consider producing anything. It leads Members to conclude on this side of the aisle that there is something very damaging in these materials that they do not want disclosed. It is the only conclusion you can draw. ..this White House, tentative and concerned about whether or not Miguel Estrada has said some things that could jeopardize his nomination, refuses to disclose.

Congressional Record, Feb. 26, 2003, at S2756.

Several days later, Senator Schumer repeated the mistaken assumption that the Administration has reviewed Mr. Estrada's memoranda:

Why won't Mr. Estrada or the administration--which is his sponsor, his mentor--in this particular situation why won't he give up these documents? I will tell you what most people think when they hear about it. And I have talked to my constituents, the few who ask me about this. They say he is hiding something. Do I know he is hiding something? Absolutely not. I have not seen the documents. But I tell you one thing: The great lengths that the administration and my colleagues on the other side have gone to not give up these documents makes one suspect there is something there they do not want people to see. So the documents are crucial.

Congressional Record, Mar. 4, 2003, at S3064.

Senator Kennedy extended the error when he suggested that the Administration reviewed Mr. Estrada's memoranda in the selection and vetting process prior to nomination:

We certainly have the obligation to do so when the Executive Branch prevents us from exercising our assigned constitutional powers of advice and consent by depriving us of any access to the only documents which might tell us what kind of a judge a nominee will be--the very documents which the President's lawyers used to select and vet the nominee.

Congressional Record, Mar. 1, 2003, at S3434.

In a March 13, 2003, floor speech, Senator Leahy completes the cycle of misstatements when he asserted that the Administration reviewed Mr. Estrada's memoranda in deciding whether to nominate Mr. Estrada.

The real double standard in the matter of the Estrada nomination is that the President selected Mr. Estrada in large part based upon his 4 1/2 years of work in the Solicitor General's Office, as well as for his ideological views. The administration undoubtedly knows what those views are and have seen those work papers. They know what he did. They picked him based on that, but they said even though we picked him based on that, we do not want the Senate to know what it was. We in the Senate cannot read his work, the work papers that would shed the most light on why this 41-year-old should have a lifetime seat on the Nation's second highest court.

We are to a point where the White House simply says, trust us, we know what he wrote and how he thinks and will make decisions, but we do not want you to know what he wrote, just rubberstamp him.

. . . . There seems to be a perversion to require the Senate to stumble in the dark about Mr. Estrada's views when he shared these views quite freely with others, and when the administration selected him for this high office based on these views.

Congressional Record, Mar. 13, 2003, at S3671

These assertions are simply wrong. First, each statement is based on the fundamentally erroneous premise that officials in this Administration have seen Mr. Estrada's memoranda. Let me assure you unequivocally-and permanently put to rest any misunderstanding--that at no time has this Department of Justice or the White House ever reviewed the memoranda that Miguel Estrada wrote during his tenure in the Solicitor General's office.

Second, the statements above mistakenly suggest that the Department of Justice has declined to release Mr. Estrada's memoranda because of concerns over their content. In reality, as we have explained, the Department has chosen to keep these documents confidential for the reason articulated by all seven living former Solicitors General--including four Democrats: "Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests."

Thank you for allowing me to set the record straight on this important point. I appreciate the opportunity to assure you and your colleagues that we in the Administration have never examined Miguel Estrada's confidential memoranda. I hope that by clearing up this misunderstanding, we will have taken an important step toward ending the filibuster of Mr. Estrada--the first filibuster of a lower-court nominee in American history--and allow the bipartisan majority of Senators who support Mr. Estrada to vote on his confirmation.

Sincerely,

/s/

Jamie E. Brown
Acting Assistant Attorney General

cc: The Honorable Orrin Hatch
The Honorable Patrick Leahy
The Honorable Edward Kennedy
The Honorable Charles Schumer
The Honorably Richard Durbin
The Honorable Alberto R. Gonzales, Counsel to the President

Posted 11:49 PM by Howard Bashman

Follow-up Questions for Miguel Estrada
Senator Blanche Lincoln

1. Is diversity a factor that an employer or a school could take into consideration?

RESPONSE: The federal courts have a long and distinguished history of ensuring equal opportunities for all persons irrespective of race, sex or creed, and in discharging their duties in this regard they have contributed significantly to the progress our Nation has made in the last 40 years in taking full advantage of the diversity of our citizens.

Diversity is a factor that employers and schools may properly take into consideration, except when it centers on considerations of race or sex that amount to unlawful discrimination. With respect to public employers and universities, because of the constitutional requirement of equal protection, racial classifications are viewed with disfavor and are presumptively unlawful. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), a government program that creates a racial classification must be subjected to “strict scrutiny.” That means that such a program may be upheld only if the classification is needed to further a compelling governmental interest and is “narrowly tailored” to achieve that end. See also Miller v. Johnson, 515 U.S. 900, 904 (1995) (“[r]acial and ethnic distinctions of any sort are inherently suspect and . . . call for the most exacting judicial scrutiny”); Adarand, 515 U.S. at 236 (“Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classifications be clearly identified and unquestionably legitimate”).

As is apparent from the nature of the strict scrutiny test—which calls for a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the “fit” between those justifications and the racial classification at issue—it would be difficult to say, as a general rule, that employers or schools may or may not utilize racial classifications irrespective of the particular circumstances at issue. Although the equal protection analysis that applies to classifications based on sex (requiring that the classification serve “important,” rather than “compelling,” objectives and that it be “substantially related,” rather than “narrowly tailored,” to those objectives, see United States v. Virginia, 518 U.S. 515, 533 (1996)), is somewhat more lenient than the analysis applicable to racial classifications, here, too, the constitutional analysis is by necessity contextual and does not lend itself to broad generalizations.

With respect to private employers, the relevant Supreme Court precedents suggest that race and sex may be taken into account, in some circumstances, in certain employment decisions. In Steelworkers v. Weber, 443 U.S. 193, 197 (1979), for example, the Supreme Court addressed the question whether an employer violated Title VII of the Civil Rights Act of 1964 by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” The Supreme Court upheld that voluntary plan, explaining that “break[ing] down old patterns of racial segregation and hierarchy” is consistent with Title VII when the employer’s voluntary plan does not “unnecessarily trammel” on the rights of white employees, does not require the discharge of any employees, does not create “an absolute bar” to anyone’s advancement, and does not extend indefinitely into the future but appears designed merely to eliminate a “manifest racial imbalance.” Id. at 208-12. The Court has applied a similar analysis to employers’ voluntary affirmative action plans that take an employee’s sex into account. See Johnson v. Transportation Agency, 480 U.S. 616 (1987).

With respect to higher education specifically, the Supreme Court considered the extent to which schools may (consistent with equal protection principles and Title VI of the Civil Rights Act) consider race in admissions 25 years ago in University of Calif. Regents v. Bakke, 438 U.S. 265 (1978). In that case, a majority of the Members of the Court invalidated a program that reserved a certain number of spots in a medical school program for members of certain racial or ethnic minority groups; a different majority of the Justices also reversed an injunction that had barred the medical school from ever using race as a factor under any circumstances. Justice Powell, the only participating Justice who was a member of both majority groups, accepted the argument that “attain[ing] a . . . diverse student body” was a compelling interest that satisfied strict scrutiny in the particular context of a “properly devised” university admissions program, a context that he believed infused with First Amendment considerations that counseled some deference toward the judgment of the educators who designed the admissions program. See 438 U.S. at 311-12 (opinion of Powell, J.).

Because Bakke produced no single majority opinion for the entire Court, the lower courts have divided on the question whether the various opinions issued by the individual Justices who participated in the case set forth a rule of law that lower courts are required to follow—and in particular whether Justice Powell’s opinion sets forth the controlling rule of law. Compare Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1247-50, 1261 (11th Cir. 2001), with Smith v. University of Washington Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002). On December 2, 2002, the Supreme Court agreed to decide this question in the Grutter case. The case will be argued before the Supreme Court on April 1, 2003, and a decision should be issued before the Court’s summer recess. The Court’s opinion in Grutter will provide the framework that I will be required to follow, and would follow, in assessing any challenge to the constitutionality of a university program that considers race as a factor in admissions. Of course, as explained above, the specific application of the Court’s decision in Grutter will necessarily depend on the particular circumstances relevant to the classification challenged.

2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one.

RESPONSE: Traditionally, it has not been considered appropriate to require judicial nominees to agree or disagree with specific Supreme Court precedents in the context of a nominee’s confirmation hearings, particularly where, as in my case, the nominee would (if confirmed) serve on an inferior court. There are several reasons for this view. As I explained when I appeared before the Committee, a nominee is not really in a position to “criticize” the work of the Supreme Court—in the sense of asserting categorically that the Court got it “right” or “wrong”—without doing the intensive work that the judicial function requires: that is, coming to the case with an open mind, listening to the parties, examining and critically testing the parties’ arguments, and independently examining the record and the case law. Judges, particularly inferior court judges, have no occasion, call or need to do that with respect to questions already decided. The job of a judge is to faithfully follow and build on precedent, not to question it. As Justice Cardozo once noted, “[t]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” Benjamin Cardozo, The Nature of the Judicial Process 149 (1921).

Perhaps more importantly, any statement by a nominee that a particular case is “wrong” not only is likely to be insufficiently informed, but also could easily lead to a perception that the nominee somehow has publicly committed or suggested that he will approach the relevant issues in a particular case with a jaundiced eye. I strongly believe, if I am confirmed, that I must enter judicial office (and must be believed by the public to have entered judicial office) completely unencumbered by any commitments to anyone other than compliance with the judicial oath. I can represent to you that no one at the White House or in the Executive Brach asked me to name any cases that I believe the Supreme Court got “wrong.” Had I been asked, I would have declined.

For those reasons, I do not believe I can list for you cases of which I am “critical” in the sense of suggesting cases that I might decide differently if I were a judge. At the same time, I can identify cases in which I do not believe the Supreme Court has ideally discharged its role as expositor of the law for reasons wholly unrelated to whether or not the particular ruling was correct. One example is Furman v. Georgia, 408 U.S. 238 (1972), which narrowly invalidated existing death penalty statutes, but did so without providing any real guidance for legislatures, lower courts or members of the bar: the Court issued nine separate opinions (five in favor of overturning the sentences, and four in favor of upholding them) spanning nearly 250 pages in the United States Reports, but produced no reasoned majority opinion. The failure of the Court to provide a unifying rationale was especially unfortunate because the Court was breaking new ground, and apparently departing from a very recent decision of the Court. See McGautha v. California, 402 U.S. 183, 207-08 (1971).

A similar example is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), a case involving the constitutionality of certain restrictions on advertising by liquor retailers. Although all nine Justices believed that the restrictions were not consistent with the First Amendment, the Justices issued a total of four opinions that variously disavowed the test for commercial speech restrictions previously set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U.S. 557 (1980), applied that test “narrowly,” and suggested a “less than strict” review was appropriate under Central Hudson. Seven justices, in two different plurality opinions, also “disavowed” or “distinguished” Posadas de Puerto Rico v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), another precedent that was barely a decade old. Again, while I hold no particular brief for any of the views advanced by the competing, overlapping opinions in 44 Liquormart, and certainly do not pretend to have the answer to the difficult questions confronted by the several opinions, I am critical of opinions like this one because they make it difficult for litigants and courts to derive needed guidance from Supreme Court pronouncements.

A final example of the type of case in which I believe the Supreme Court has served its role in our legal system less than well—wholly apart from the merits of the issue or the correctness of any particular ruling—is a line of cases dealing with the extent to which it may be appropriate to permit courts, rather than juries, to find facts that increase a criminal defendant’s sentence. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Jones v. United States, 526 U.S. 227 (1999), the Court in succeeding years narrowly divided (5 to 4) to permit and then apparently forbid such fact-finding by the court. A year later the Court, after a review of its precedents, again divided 5-4 in announcing that the Constitution requires the government to prove to a jury, beyond a reasonable doubt, any fact (other than a prior conviction) that increases the penalty for the crime beyond the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466 (2000). In so doing, the Apprendi Court strongly suggested that its ruling was fully consistent with Walton v. Arizona, 497 U.S. 639 (1990), for it noted that it had previously “rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges . . . to find aggravating factors before imposing a sentence of death.” Apprendi, 530 U.S. at 496-97 (citing Walton).

Barely two years later, however, the Court concluded that “Apprendi’s reasoning is irreconcilable with Walton’s holding” and accordingly “overrule[d] Walton in relevant part.” Ring v. Arizona, 122 S. Ct. 2428, 2432 (2002). On the same day it decided Ring, the Court issued another fractured ruling applying (but this time distinguishing) Apprendi, with at least one Justice in the five-member majority apparently concurring in the result primarily on the basis of his disagreement with Apprendi. See Harris v. United States, 122 S. Ct. 2406 (2002); see id. at 2420-22 (Breyer, J., concurring in part and concurring in the judgment); see also id. at 2420 (O’Connor, J., concurring) (“As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner’s arguments”). Again, without expressing any view on the merits of these difficult issues, it seems to me fairly plain that the Supreme Court’s opinions in these cases make it extremely difficult for legislatures, lower courts and litigants to obtain reliable guidance in this important area of the law, particularly in light of the Court’s decision to overrule a case that was barely a decade old and which seemingly was reaffirmed in Apprendi itself and in light of the fact that one half of the Court’s latest word on the subject (the Harris case) appears to turn on the votes of Justices who reject the governing precedent (Apprendi). In cases like these, I believe the Court serves its institutional role as expositor of the law less than well.

To sum up, my criticism of these cases reflects my strong belief than an appellate court is a court, not a collection of individual judges. The judges on an appellate court have a solemn responsibility to act collegially to produce rulings that are as reasoned and clear as possible. If confirmed, I would always strive to keep this in mind and remember that I am just one member of a multi-judge court. I would work very hard and collaboratively with other judges on the court not only to reach the right answers in every case, but to do so in a manner that provides the most reasoned and clearest possible guidance for the people affected by the court’s decisions.

3. Which judge has served as a model for the way you would conduct yourself as a judge and why?

RESPONSE: As I previously stated, I have a great deal of admiration for Justices Anthony Kennedy and Lewis Powell and for Judge Amalya Kearse—the judges for whom I worked as law clerk. Judge Kearse, who gave me my first job out of law school, was the first African American lawyer to become a partner in a major Wall Street law firm; she has one of the finest analytical minds of any lawyer with whom I ever have been privileged to work. Justices Kennedy and Powell, after distinguished careers at the bar, excelled as Justices in our highest Court; I deeply admire their life accomplishments, fair-mindedness, and collegiality.

There is, however, no judge who would serve as a model for my conduct as a judge with respect to the adoption of a particular methodology, philosophy, or approach to constitutional or statutory issues. There are several reasons for that. First, precedent often dictates or requires a particular methodological approach to a given part of the Constitution. The required methodological approach for the particular question at hand may be result of doctrinal developments in which the views of a particular Justice whom I may personally admire—say, for example, the second Justice Harlan—did not prevail or prevailed only in modified form. Whatever admiration I might have for a particular judge or Justice, my duty as a judge would be to follow the approach to the question that was adopted by the Supreme Court.

Second, I cannot honestly say that I am familiar enough with the entire body of work of any one particular judge to say without hesitation that I would “model” my work as judge on his or her approach. Many of our most renowned judges have lived prolific legal lives; Justices Holmes, Byron White, John Marshall and Thurgood Marshall, for example, served our country with distinction for several decades. I am fairly certain that most practicing lawyers (even those who, like me, are fortunate to practice regularly before the Supreme Court)—or, indeed, most court of appeals judges—generally would be able to offer only what might be loosely described as impressionistic judgments of the entire work-life of even our most renowned judges. To be sure, such judgments may be adequate to identify particular aspects of a judge’s work that one admires. For example, I have often been struck by the rhetorical power of Justice Jackson’s and Justice Scalia’s opinions; by the judicial restraint of Justice Frankfurter and the second Justice Harlan; by Justice Brennan’s thoroughness; by Chief Justice Rehnquist’s ability to forge consensus in difficult questions; and by the vision displayed by the first Justice Harlan in Plessy.

Last, but not least, I am very much my own man. If I am confirmed, I will view my job as getting the right answer to the cases that come before me—in light of the relevant text, history, precedent and any other interpretative aid that seems in my judgment appropriate in the circumstances—without any preconception as to how some other judge might approach the same or similar questions. As I stated when I appeared before the Committee, I believe one of the most important attributes of a judge is to have an appropriate process for decision-making. That entails coming to cases with an open mind, listening to the parties, reading their briefs, going back behind those briefs and doing all of the legwork needed to ascertain who is right in his or her claims as to what the law says and what the facts are. In an appellate court, where judges sit in panels of three, it also entails engaging in deliberations and giving ear to the views of colleagues who may have come to different conclusions. In sum, I am committed to judging as a process that is intended to give us the right answer, not simply a result.

Posted 2:26 PM by Howard Bashman

THE WHITE HOUSE

WASHINGTON

March 5, 2003

Dear Senator Daschle:

As you know, some Democrat Senators have engaged in a filibuster to prevent a vote on Miguel Estrada’s nomination. They have stated that they want more information about Mr. Estrada’s record before they will end the filibuster and allow the full Senate to vote up or down on the nomination. We strongly believe that the Senate has sufficient information and should hold an immediate up or down vote. In an effort to be responsive, however, I wrote to you on February 27 to indicate that Senators who want more information can and should avail themselves of three different and important sources: Senators should meet with Mr. Estrada, pose written questions to him, and/or pose inquiries to his former superiors in the Department of Justice and Judiciary. Since my offer of February 27, however, I understand that no Senator has submitted any questions to Mr. Estrada and that no Senator has submitted any inquiries to his former superiors. And only one Senator, Senator Byrd, has scheduled a meeting with Mr. Estrada.

We are deeply disappointed by and do not understand the near-uniform lack of response thus far to my suggestion of ways in which Senators could gather more information about Mr. Estrada. Being respectful of those who have stated that they want more information, however, I want to reiterate what I stated in my letter of February 27. I urge Senators engaged in the filibuster to avail themselves of the existing opportunities to gather additional information. Senators who want more information can and should promptly meet with Mr. Estrada, pose written questions to him, and/or pose inquiries to his former superiors in the Department of Justice and Judiciary. If the asserted basis for the filibuster -- the need for more information -- is the actual motivation, Senators who have engaged in the filibuster should avail themselves of these existing sources of information.

My renewed invitation is not to suggest that we find merit in the contention that Senators currently do not have sufficient information to vote up or down on Mr. Estrada. In that regard, I ask all Senators who have engaged in the filibuster to carefully compare the extensive transcript of Mr. Estrada’s hearing, as well as his subsequent written answers, to the transcripts of the hearings of President Clinton’s three appointees to the D.C. Circuit: David Tatel, Judith Rogers, and Merrick Garland. (Two of these three nominees had no prior judicial experience, like Mr. Estrada.) Such a comparison demonstrates beyond any reasonable debate that Mr. Estrada was asked for and has already provided far more information than any of those three appointees. Judge Tatel was asked a total of three questions at his hearing. Judges Rogers and Garland were each asked fewer than 20 questions at their hearings. The three appointees of President Clinton -- combined -- thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions. Judge Rogers refused even to give her views when asked about the notion of an evolving Constitution. And
Judge Garland did not answer questions about his personal views on the death penalty and on various Supreme Court precedents, stating only that he would follow the precedents. In short, we believe that the criticism of Mr. Estrada’s answers at his hearing is misplaced and reveals an unfair double standard being applied to Mr. Estrada.

We strongly believe that the record justifies an immediate up or down vote. I also respectfully urge those Senators who continue to filibuster on the ground that they need more information to avail themselves of the existing sources of information.
Please do not hesitate to contact me with any questions.

Sincerely,

/s/

Alberto R. Gonzales
Counsel to the President

The Honorable Thomas A. Daschle

Copy:
The Honorable Bill Frist
All United States Senators

Posted 12:10 PM by Howard Bashman

THE WHITE HOUSE

WASHINGTON

February 27, 2003

Dear Senator Frist, Senator Daschle, Senator Hatch, and Senator Leahy:

I write in connection with the nomination of Miguel Estrada. Some Democrat Senators have indicated that they would like to know more about Mr. Estrada’s record before a vote occurs. As I stated in my letter of February 12 to Senator Daschle and Senator Leahy, we believe that the Senate has had sufficient time and possesses sufficient information to vote on Miguel Estrada. More important, a majority of Senators have indicated that they possess sufficient information and would vote to confirm him.

But if some Senators believe they must have more information before they will end the filibuster of this nomination, we respectfully suggest that there are three different and important sources of information that have been and remain available and that would appropriately accommodate the request for additional information. We ask that you encourage interested Senators to avail themselves of these sources as soon as possible.

First, as I have written to you previously, individual Senators who wish to meet with Miguel Estrada may and should do so immediately. We continue to believe that such meetings could be very useful to Senators who wish to learn more about Mr. Estrada’s record and character.

Second, Senators who have additional questions for Mr. Estrada should immediately pose such questions in writing to him. We propose that additional questions (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February 28. Mr. Estrada would endeavor to answer such questions in writing by Tuesday, March 4. He would answer the questions forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before.

Third, Senators who wish to know more about Mr. Estrada’s performance and approach when working in the United States Government -- and, in particular, how that relates to his possible future performance as a Circuit Judge -- should immediately ask in writing for the views of the Solicitors General, United States Attorney, and Judges for whom Mr. Estrada worked and ask them to respond by Tuesday, March 4. In particular, interested Senators could immediately send a joint letter to each of the following individuals for whom Mr. Estrada has worked in the United States Government: Judge Amalya Kearse, Justice Anthony Kennedy, former United States Attorney Otto Obermaier, former Solicitor General Ken Starr, former Solicitor General Drew Days, former Solicitor General Walter Dellinger, and former Solicitor General Seth Waxman. In our judgment, these men and women could provide their views on Mr. Estrada’s background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney’s office, and Solicitor General’s office. And their views could assist Senators who seek more information about Mr. Estrada.

We believe that these sources of information, which have been available for some time, would readily accommodate the desire for additional information expressed by some Senators who have thus far supported the filibuster of a vote on this nominee. We ask that you encourage Senators who have objected to the scheduling of a vote to avail themselves of these sources of information. And we respectfully ask that the Senate vote up or down as soon as possible on Mr. Estrada’s nomination, which has been pending for nearly two years.

Please do not hesitate to contact me with any questions.

Sincerely,

/s/

Alberto R. Gonzales
Counsel to the President

The Honorable Thomas A. Daschle
The Honorable Patrick Leahy
The Honorable Bill Frist
The Honorable Orrin Hatch

Copy: All other United States Senators

Posted 10:47 AM by Howard Bashman

THE WHITE HOUSE

WASHINGTON


February 25, 2003


Dear Senators:

I write in response to your letter of today in which you effectively request a second hearing for John Roberts and Deborah Cook. The Committee and Chairman Hatch will determine, of course, the appropriate scheduling of hearings and mark-ups for judicial nominees.

As to Mr. Roberts and Justice Cook, we respectfully do not agree that a second hearing is necessary or appropriate. At their hearing, Chairman Hatch permitted Committee members as much time as they wanted (well into the evening) to ask questions. Senators also had the opportunity to submit follow-up questions. Several Senators did so, and the nominees answered promptly. (I also note that your letter of today does not identify any particular issues or cases or matters that require further inquiry or, more important, why such questions were not asked at the hearing or in written follow-up questions.)

We also believe there is no legitimate justification for the extraordinary delays that already have occurred with respect to these two nominees, who were nominated on May 9, 2001. And there is no justification for further delay. On several occasions during the 2000 campaign, Senator Leahy expressly agreed with then-Governor Bush that every judicial nominee should receive an up-or-down Senate floor vote within 60 days of nomination.

Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmations are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don’t leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no – not vote maybe. When we hold a nominee up by not allowing them a vote and not taking any action one way or the other, we are not only voting ‘maybe,’ but we are doing a terrible disservice to the man or woman to whom we do this.

October 3, 2000.

Both of these superb nominees have been pending nearly two years since their nominations on May 9, 2001. Indeed, John Roberts was first nominated to the D.C. Circuit more than 11 years ago. The Senate has had more than enough time to assess their records, qualifications, and integrity. We respectfully suggest that it is time to hold a vote in Committee and then an up-or-down vote on the floor.

We always offer the opportunity for Senators to meet individually with nominees, and that opportunity has existed for more than 21 months. Given the time that has passed since nomination, however, we do not believe that any additional meetings must or should delay Committee mark-up or Senate floor votes on these two outstanding nominees.

Thank you for your letter. I respectfully urge you to support Mr. Roberts and Justice Cook.

Sincerely,

/s/

Alberto R. Gonzales


The Honorable Patrick J. Leahy
The Honorable Edward M. Kennedy
The Honorable Joseph R. Biden, Jr.
The Honorable Herbert Kohl
The Honorable Dianne Feinstein
The Honorable Russell D. Feingold
The Honorable Charles E. Schumer
The Honorable Richard J. Durbin
The Honorable John Edwards
United States Senate
Washington, D.C. 20510

cc: The Honorable Orrin G. Hatch

Posted 12:41 PM by Howard Bashman

[As received via email from a reader of "How Appealing"]

RESPONSE TO PROFESSOR WILKES’ OPEN LETTER CONCERNING
THE INVITATION TO JUSTICE CLARENCE THOMAS
TO SPEAK AT THE UGA SCHOOL OF LAW
GRADUATION CEREMONY

Dear Members of the Law School Community:

As a graduate of UGA Law School who has remained very active at the law school, I am disturbed by Professor Wilkes’ diatribe regarding Justice Clarence Thomas’ invitation to speak at Georgia Law School Graduation this year. While I hesitate to give too much credence to the piece by responding, I fear that silence in the face of such a letter could be wrongly perceived as agreement or indifference. I therefore feel compelled to offer my two cents, for whatever it is worth.

Professor Wilkes’ vitriolic cry for censorship and intolerance has no place in society, and certainly no place in the academic arena, the very purpose of which is to promote free and open debate. And while no one disputes Professor Wilkes’ right to express his views, that is not to say that his choice to do so in this manner is appropriate, given his position and his methods. Although freedom of expression is an important principle, it is not the only principle by which professors at state universities should be guided. They also must take account of the institutional effects that their action may have. By engaging in these kinds of theatrics – and by "theatrics," I do not mean Professor Wilkes's protest, but the intemperate manner in which he goes about his protest, using phrases like "enemy of liberty" -- Professor Wilkes harms the entire university community, and thereby does not serve the taxpayers who fund his academic pursuits.

Further, to label the decision to invite a sitting Justice of the United States Supreme Court to speak at a law school graduation as “appalling, unwise, and perverse – the embodiment of bad judgment” cannot be justified on any level, and such personal attacks by a professor on the considered and free choices of his own students demonstrates an appalling lack of professionalism, even if it does fall within the scope of his rights.

Unfortunately, Professor Wilkes’ irrational rantings regarding Justice Thomas are hardly surprising. Professor Wilkes, like many in academia today, is tolerant of everything except anyone who disagrees with him on anything. Of course, the viability of his position is dependent upon censorship and intolerance, because if those who disagree with him are allowed to make their case, the inherent fallibility of many of his views is exposed.

But I digress. Professor Wilkes’ repeated argument that Justice Thomas does not “deserve the honor” of speaking at UGA Graduation is laughable. The fact that the man is a sitting Supreme Court Justice in and of itself rebuts this ridiculous notion. And this reason does not even take into consideration the fact that Justice Thomas is one of Georgia’s own sons and great success stories, rising from a segregated and impoverished childhood to be the second African American on the Supreme Court. Indeed, it is Justice Thomas who is honoring the law students by graciously agreeing to speak at graduation despite his important and demanding schedule. To suggest that Justice Thomas is somehow the one being honored is the height of arrogance.

Professor Wilkes devotes much of his piece attacking various positions taken by Justice Thomas while on the Supreme Court. I suppose it should go without saying, but Justice Thomas was nominated by the President and confirmed by the bipartisan Senate to serve on the Supreme Court. And, the decisions Professor Wilkes criticizes are only as contemptible as he suggests if you begin from his well-known ideological viewpoint (i.e., left-wing pro-criminal). To those inclined toward a less radical judicial philosophy, the fact that Justice Thomas is dedicated to enforcing the Constitution as written and that he refuses to disregard the rule of law to make policy is not nearly so outrageous or offensive. Indeed, some have even gone so far as to suggest that such an approach should be lauded, not criticized.

And, while a response to all of the cases Professor Wilkes cites is unnecessary, his comment that “Justice Thomas is one of the five right-wing Republican justices who handed the presidency to Republican candidate George W. Bush” is so far off that it simply must be addressed. In the light of the independent recounts performed in Florida the year after the election, even The New York Times, which is not exactly known for its pro-conservative disposition, conceded that “George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.” John Broder & Ford Fessenden, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, N.Y. TIMES, Nov. 12, 2001 at A1. See also Jackie Calmes and Edward P. Foldessy, Florida Revisited: In Election Review, Bush Wins Without Supreme Court Help, WALL ST. J., No. 12, 2001 (“In other words, despite the ferocity with which critics have assailed the logic of [the Supreme Court’s] decision, the findings indicate that the Supreme Court didn’t steal the presidential election from Mr. Gore, as some Democrats believe.”) Of course, Professor Wilkes ignores these well-accepted facts, because they do not comport with his extremist views. In other words, he’s already made up his mind, so please do not try to confuse him with the facts.

However misguided, unfounded and even laughable Professor Wilkes’ views are, I support his right to hold them and to act upon them by declining to attend graduation, because unlike Professor Wilkes, I do believe in free and open debate and the intellectual exchange of differing ideas. And, as a practical matter, I think holding graduation without Professor Wilkes is much like what Secretary Rumsfeld recently said about going to war without the French, “Going to war without France is like going deer hunting without your accordion.”

At the end of the day, I suspect Professor Wilkes’ letter does not speak for the majority – or even many -- of the law school community. In fact, I know many of the professors and administrators at UGA well, and I have nothing but the utmost respect for them as professors and as people. But Professor Wilkes’ letter is certainly cause for serious concern about the direction in which the law school is headed. If this type of intolerance and discrimination is permitted to go unchecked, I suspect that direction will be nowhere but down.

Holly A. Pierson

Posted 10:11 PM by Howard Bashman

[As received via forwarded email from a reader of "How Appealing"]

OPEN LETTER CONCERNING THE INVITATION TO JUSTICE CLARENCE THOMAS TO SPEAK AT THE UGA SCHOOL OF LAW GRADUATION CEREMONY


By Donald E. Wilkes, Jr.
Professor of Law
UGA School of Law
February 18, 2003


Dear Colleagues, Law Students, and Other Members of the Law School Community:

On Monday, November 25, 2002, the law faculty of the University of Georgia School of Law received a memorandum from Dean David Shipley which begins as follows: "I am pleased to announce that Justice Clarence Thomas has accepted the invitation extended by me, Class of 2003 President Josh Belinfante, Class of 2003 Vice President Megan Jones, and Class of 2004 Vice President Rebecca Franklin to be our graduation speaker on May 17, 2003."

The decision to invite Justice Thomas is appalling, unwise, and perverse–the embodiment of bad judgment. Anyone who has carefully examined his opinions in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus knows that Justice Thomas has one of the most anti-human rights voting records in modern Supreme Court history. This man does not deserve the honor of being invited to speak at the law school graduation ceremony. He is inimicus libertatis, the enemy of liberty. A worse choice of a judge as graduation speaker could hardly have made. Inviting a judge with his lamentable record on individual rights issues is a terrible mistake and sets a bad precedent. He is not the type of judge who should be held up as an example for students on the verge of entering the legal profession. He is unworthy of the high honor being bestowed on him by this law school. His appearance here will, in the eyes of future generations, be a blot on the reputation of and an embarrassment to this law school.

The poor judgment reflected in the disastrous decision to invite Justice Thomas unfairly places graduating law students on the horns of a dilemma. They must choose between, on the one hand, being forced to attend a ceremony where Justice Thomas will be feted and to listen politely to and applaud Justice Thomas's speech, or, on the other hand, foregoing attendance at their own graduation ceremony. Similarly, law faculty members must either attend Justice Thomas's speech or miss the ceremony.

And who is this man the students and faculty will be forced to listen to if they attend the ceremony? Justice Thomas is a reactionary judicial activist–a right-wing extremist pretending to be a neutral and impartial judge. His judicial philosophy amounts to "a new, aggressive, and repressive judicial activism." Niles, Clarence Thomas: The First Ten Years Looking For Consistency, 10 Am. U. J. Gender Soc. Pol'y & L. 327, 332 (2002). This man's judicial philosophy embodies the right-wing extremist agenda. He has a narrow view of the basic rights of Americans and usually votes to denigrate and attenuate those rights. In cases involving criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus he almost always sides with the government and rejects the claims of individuals that their rights were violated. "Thomas has . . . been a consistent member of the Court's most conservative wing since his first term. . . . If judicial liberalism is defined in the traditional fashion as support for individuals' rights in disputes with the government, Thomas stands out as a strong conservative in any analysis. . . . Justice Thomas has established a consistent and predictable voting record as a dependable member of the Court's most conservative wing. . . . [H]e articulates . . . a vision of constitutional interpretation that . . . advances his preferences for . . . diminution of constitutional protections for individuals." Smith, Clarence Thomas: A Distinctive Justice, 28 Seton Hall L. Rev. 1, 2, 28 (1997). He believes that the role of the courts in protecting individual rights is very limited. He not infrequently expresses an inclination to overrule landmark pro-human rights Supreme Court precedents. He doesn't think much of the writ of habeas corpus. Indeed, in O'Neal v. McAninch, 513 U. S. 432, 447 (1995), in a dissenting opinion, he went so far as to assert: "We have ample cause to be wary of the writ [of habeas corpus!]." I can recall only one case where Justice Thomas has ever voted in favor of granting relief to a habeas corpus petitioner, and in that case Justice Thomas, along with Justice Scalia, took a narrower view than the Court of the petitioner's rights and only concurred in part and in the judgment. Lynce v. Mathis, 519 U. S. 433 (1997). He is shrilly pro-death penalty. He "expresses little sympathy for the plight of the incarcerated." Note, Lasting Stigma: Affirmative Action and Clarence Thomas's Prisoners' Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1341 (1999). He is "the first justice to criticize, even indirectly, the ruling in Brown [v. Board of Education] . . ." Id. at 1348 n. 50. Furthermore, some of Justice Thomas's opinions rejecting claims of violations of rights are written a mocking, scornful tone inappropriate in a judge but typical of a right-wing extremist.

In deciding individual rights cases Justice Thomas almost always votes the same as the two other right-wing extremists serving on the Court, Chief Justice Rehnquist and Justice Scalia. See, e.g., Wilkins, Worthington, Chow, Chow & Becker, Supreme Court Voting Behavior: 2000 Term, 29 Hastings Const. L. Q. 247 (2002) (tables of voting patterns of Supreme Court justices since 1991 term). Justice Thomas is therefore one of the principal reasons why tragically in recent years the Supreme Court has been implementing a counterrevolution in criminal procedure and individual rights–a counterrevolution which has narrowed the legal rights and remedies of Americans against government, enlarged the power of the state over the individual, and transformed the role of the Court from that of the keeper of the nation's conscience to that of a cost-benefit analysis calculating machine.

Impius et crudelis judicandus est qui libertati non favet, the old legal maxim says. He is to be judged impious and cruel who does not favor liberty. This maxim fits Justice Thomas to a T.

Moreover, Justice Thomas is one of the five right-wing Republican justices who handed the presidency to Republican candidate George W. Bush in Bush v. Gore, 531 U. S. 98 (2000), the most outrageously partisan decision of the Supreme Court in history, a decision in which, as Vincent Bugliosi has written, "the Court committed the unpardonable sin of being a knowing surrogate for the Republican party instead of being an impartial arbiter of the law." Bugliosi, None Dare Call It Treason, The Nation, at 11 (Feb. 5, 2001).

In this letter I limit my critique of Justice Thomas to his voting record while on the Supreme Court. I put to one side the serious questions that have been raised about whether Justice Thomas lied or was deceptive or evasive when he testified at his U. S. Senate confirmation hearing in 1991. See, e.g., C. Smith & J. Baugh, The Real Clarence Thomas: Confirmation Veracity Meets Performance Reality (2000); J. Mayer & J. Abramson, Strange Justice (1994); Baugh & Smith, Doubting Thomas: Confirmation Veracity Meets Performance Reality, 19 Seattle U. L. Rev. 455 (1996); Bell, Clarence Thomas: Evasive or Deceptive, 21 N. C. Cent. L. J. 194 (1995); Tushnet, Book Review, 63 Geo. Wash. L. Rev. 466 (1995). Contra: D. Brock, The Real Anita Hill (1993); O'Daniel, Book Review, 5 Tex. Rev. L. & Pol. 495 (2001).

When Justice Thomas appeared at the University of North Carolina School of Law in 2002, the Black Law Students Association there staged a teach-in protest, and the five African-American law faculty members boycotted his appearances and issued a joint letter which stated in part: "We will not participate in any institutional gesture that honors and endorses what Justice Thomas does." To all of which I say, Amen.

In protest of Justice Thomas's appearance here I shall not attend the law school graduation ceremony. Instead, at the time Justice Thomas speaks, I will deliver my own speech at the Arch, the Tate Center, or some other appropriate site on campus a good distance away from the law school graduation ceremony. The speech will focus on Justice Thomas's deplorable record as a Supreme Court justice and the blows that record has inflicted on liberty, freedom, rights, and justice. My speech will be part of a lawful, respectful, peaceable, classic exercise of First Amendment rights, and I hope there will be many others there to hear me and to express their concern about Justice Thomas's anti-individual rights decisions and right-wing extremist ideology.

Here is a summary of a few of the numerous Supreme Court decisions in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus where Justice Thomas has voted against an individual's claim that his or her rights were violated:

In Hudson v. McMillian, 503 U. S. 1 (1992), the Court held that the eighth amendment cruel and unusual punishments clause is violated when prison officials maliciously and sadistically use force to cause harm to an inmate, whether or not significant injury is evident. The plaintiff inmate had proved in federal district court that while he was in handcuffs and shackles two prison guards had, when there was no need to do so, punched him in the mouth, eyes, chest, and stomach, as well as kicked and punched him from behind. As result of this episode the inmate suffered minor bruises, swelling of his face, mouth, and lip, loosened teeth, and the cracking of his partial dental plate. The inmate had been awarded $800.00 in damages against the two guards and a prison supervisor who watched the beating but did nothing except tell the two guards "not to have too much fun." Justice Thomas filed a dissenting opinion in which Justice Scalia joined. In his dissenting opinion Justice Thomas argued that (1) a use of force that causes only insignificant harm is not cruel and unusual punishment, and (2) the cruel and unusual punishments clause regulates sentences, but not the treatment of prisoners. Justice Thomas's dissent is notable for its "combative, faintly mocking tone." Note, Lasting Stigma: Affirmative Action and Clarence Thomas's Prisoners' Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1345 (1999). In that dissent, Justice Thomas claimed that "[t]oday's expansion of the Cruel and Unusual Punishments Clause [is] beyond all bounds of history and precedent . . . and another manifestation of the pervasive view that the Federal Constitution must address all ills in our society." He added: "The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation." 503 U. S. at 28. Justice O'Connor, speaking for the majority, reproved Justice Thomas in these words: "To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the 'concepts of dignity, civilized standards, humanity, and decency' that animate the Eighth Amendment." 503 U. S. at 11. Justice Thomas's dissent in this case prompted an editorial in The New York Times labeling him "The Youngest, Cruelest Justice." The Youngest, Cruelest Justice, N. Y. Times, at A24 (Feb. 27, 1992).

In Morgan v. Illinois, 504 U. S. 719 (1992), the Court held that (1) in a capital punishment trial a juror who will always impose the death penalty for capital murder is not "impartial" in the sense required by the sixth amendment, (2) the Constitution requires that voir dire directed to this specific "bias" be provided upon the defendant's request, and (3) that the more general questions about "fairness" and ability to "follow the law" that were asked during voir dire in this case were inadequate. Justice Scalia filed a dissenting opinion, which Chief Justice Rehnquist and Justice Thomas joined.

In Herrera v. Collins, 506 U. S. 390 (1993), Justice Thomas, along with Justices O'Connor, Scalia, and Kennedy, joined in Chief Justice Rehnquist's opinion for the Court, which held that (1) even in a death sentence case it was not a violation of due process for Texas to require that motions for a new trial based on newly discovered evidence be filed within 30 days of sentencing, and (2) a claim of actual innocence based on newly discovered evidence is not grounds for federal habeas corpus relief, even where the habeas petitioner has been sentenced to death.

In Graham v. Collins, 506 U. S. 461 (1993), Justice Thomas, along with Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, joined in Justice White's opinion for the Court, which denied federal habeas corpus relief to a Texas death row inmate based on one of the numerous obstacles to habeas relief invented by the Supreme Court in recent years to curtail the scope of the writ of habeas corpus. Justice Thomas also filed a concurring opinion which he hostilely described the NAACP Legal Defense and Educational Fund's concerted national litigative campaign against the constitutionality of the death penalty in the 1960's and early 1970's as a campaign "waged by a small number of ambitious lawyers and academics on the Fund's behalf." 506 U. S. at 480. These callous, insensitive comments were issued the day after the death of Justice Thurgood Marshall.

In Brecht v. Abrahamson, 507 U. S. 619 (1993), Justice Thomas, along with Justices Stevens, Scalia, and Kennedy, joined in Chief Justice Rehnquist's opinion for the Court, which changed the standard of harmless error in federal habeas corpus proceedings to a less onerous one, i.e., one which makes it more likely that a violation of a habeas petitioner's constitutional rights will be deemed harmless error and that therefore habeas relief will be denied. The new standard adopted by the Court previously had been limited to claims of nonconstitutional error in federal criminal cases.

In Withrow v.Williams, 507 U. S. 680 (1993), the Court held that a claim that a confession obtained in violation of Miranda v. United States, 384 U. S. 436 (1966), was admitted at the petitioner's state criminal trial may be raised in a federal habeas corpus proceeding. Justice O'Connor filed opinion concurring in part and dissenting in part
in which Chief Justice Rehnquist joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined, arguing that Miranda claims should be cognizable in federal habeas proceedings brought by state prisoners only in the event the state courts had denied the petitioner an opportunity for full and fair litigation of the Miranda claim (which would make it nearly impossible to ever obtain federal habeas relief based on a Miranda claim).

In J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), the Court held that the equal protection clause of the fourteenth amendment forbids intentional discrimination on the basis of gender in the trial jury selection process, just as it prohibits discrimination on the basis of race. Chief Justice Rehnquist filed a dissenting opinion. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Simmons v. South Carolina, 512 U. S. 154 (1994), the Court held that (1) the state, which had raised the specter of the defendant's future dangerousness, violated the defendant's due process rights by refusing to instruct the jury that, as alternative to a death sentence, a sentence of life imprisonment carried with it no possibility of parole, and (2) the trial court's jury instruction that life imprisonment was to be given its ordinary meaning and that jury was not to consider parole did not satisfy in substance defendant's request for a jury charge on parole ineligibility. Justice Scalia filed a dissenting opinion in which Justice Thomas joined.

In McFarland v. Scott, 512 U. S. 849 (1994), the Court held that (1) the 1988 Act of Congress creating a statutory right to qualified legal representation in federal habeas corpus proceedings for state death row inmates includes a right to legal assistance in the preparation of a habeas corpus petition, and that therefore the right to appointed counsel created by the statute adheres prior to filing of a formal, legally sufficient habeas petition, and (2) the federal district court has jurisdiction to enter a stay of execution where necessary to give effect to the state death row inmate's statutory right to appointment of habeas corpus counsel. Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined. In his dissenting opinion, Justice Thomas argued that (1) a district court lacks jurisdiction to grant a stay until an application for a stay has been filed, and (2) a district court cannot appoint counsel under the statute until the death row inmate has actually filed a federal habeas corpus petition.

In Holder v. Hall, 512 U. S. 874 (1994), the Court held that the plaintiff black voters could not maintain a vote dilution challenge to a government body, such as county commission, under § 2 of Voting Rights Act of 1965. Justice Thomas filed an opinion, joined in by Justice Scalia, concurring in the judgment. In his opinion Justice Thomas asserted that "a systematic reassessment of our interpretation of § 2 is required in this case," complained that "the broad reach" which prior Supreme Court decisions had given to the Act "has produced such a disastrous misadventure in judicial policymaking," and urged the overruling of Thornburg v. Gingles, 478 U. S. 30 (1986), which had held that proof of vote dilution could establish a violation of § 2. 512 U. S. at 892, 893, 943. In criticizing numerous previous Supreme Court interpretations of the Act, Justice Thomas waxed hyperbolic: "We would be mighty Platonic guardians indeed if Congress had granted us the authority to determine the best form of local government for every county, city, village, and town in America. But under our constitutional system, this Court is not a centralized politburo appointed for life to dictate to the provinces the ‘correct' theories of democratic representation, the ‘best' electoral systems for securing truly ‘representative' government, the ‘fairest' proportions of minority political influence, or, as respondents would have us hold today, the ‘proper' sizes for local governing bodies." 512 U. S. at 912.

In Schlup v. Delo, 513 U. S. 298 (1995), involving a state death row inmate seeking to proceed on a second federal habeas corpus petition raising claims either raised in or omitted from his initial federal habeas petition, the Court held that the standard of Murray v. Carrier, 477 U. S. 478 (1986), which requires a procedurally defaulted habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent, rather than the more stringent standard of Sawyer v. Whitley, 505 U. S. 333 (1992), under which a petitioner must demonstrate by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him guilty, governs the miscarriage of justice inquiry when a petitioner who has been sentenced to death raises a claim of actual innocence to avoid a procedural bar to consideration of merits of constitutional claims in a second or subsequent federal habeas petition. Chief Justice Rehnquist filed a dissenting opinion in which Justices Kennedy and Thomas joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined.

In O'Neal v. McAninch, 513 U. S. 432 (1995), in which the federal habeas corpus petitioner was a state prisoner convicted of murder, the Court held that where in a federal habeas corpus proceeding the federal district judge determines that there has been a violation of the petitioner's federal constitutional rights in the state court criminal proceedings but the federal district judge is in grave doubt about whether or not that error is harmless, the judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a "substantial and injurious effect or influence in determining the jury's verdict"). Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined.

In Kyles v. Whitney, 514 U. S. 419 (1995), the Court granted federal habeas corpus relief to a state death row inmate on grounds the prosecution had, in violation of due process, suppressed exculpatory evidence. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justices Kennedy and Thomas joined.

In M. L. B. v. S. L. J., 519 U. S. 102 (1996), the Court held, based in part on the landmark decision in Griffin v. Illinois, 351 U. S. 12 (1956) (fourteenth amendment due process and equal protection clauses require that indigents be provided a free transcript when they appeal), and other precedents building on Griffin, that the due process and equal protection clauses were violated when the state denied an indigent mother the right to appeal the termination of her parental rights unless she prepaid record preparation fees of over $2,300. Justice Thomas filed a dissenting opinion in which Justice Scalia joined, and in which Chief Justice Rehnquist joined in part. In Part II of his dissenting opinion Justice Thomas wrote that "if this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny." 519 U. S. at 139. Chief Justice Rehnquist declined to join in Part II of Justice Thomas's dissent.

In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that the provisions of the Title I of the Antiterrorism and Effective Death Penalty Act of 1996, which greatly curtailed the availability of federal postconviction habeas corpus relief, did not apply in noncapital cases to habeas petitioners whose habeas petitions had been filed before enactment of Title I. Chief Justice Rehnquist filed dissenting opinion in which Justices Scalia, Kennedy, and Thomas joined.

In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357 (1998), Justice Thomas delivered the opinion of the Court, in which Chief Justice Rehnquist and Justices O'Connor, Scalia, and Kennedy joined, holding that evidence obtained in violation of the fourth amendment is admissible in a parole revocation proceeding, even if the officer conducting the illegal search or seizure is aware or has reason to be aware of the suspect's parole status.

In Mitchell v. United States, 526 U. S. 314 (1999), the Court held that (1) neither the defendant's guilty plea nor her statements at the plea colloquy functioned as a waiver of her right to remain silent at sentencing, and (2) the sentencing court could not draw adverse inferences from the defendant's silence in determining facts relating to circumstances and details of the crime. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist, Justice O'Connor, and Justice Thomas joined. Justice Thomas also filed his own dissenting opinion in which he attacked two landmark fifth amendment self-incrimination privilege decisions, Griffin v. California, 380 U. S. 609 (1965) (jury charge authorizing jury to infer guilt from a defendant's failure to testify violates self-incrimination privilege), and Carter v. Kentucky, 450 U. S. 288 (1981) (self-incrimination privilege secures a defendant right to have jury instructed that his failure to testify must be disregarded), argued that these two decisions "should be reexamined," and added: "Given their indefensible foundations, I would be willing to reconsider Griffin and Carter in the appropriate case." 526 U. S. at 342, 343.

In City of Chicago v. Morales, 527 U. S. 41 (1999), the Court held unconstitutionally vague a 1992 municipal ordinance which required a police officer, on observing a person whom he reasonably believed to be a criminal street gang member loitering in any public place with one or more other persons, to order all such persons to disperse, and made failure to obey such an order a crime. Under this ordinance 42,000 persons had been arrested during the three years it was enforced. Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist and Justice Scalia joined.

In Dickerson v. United States, 530 U. S. 428 (2000), the Court held that the landmark decision in Miranda v. Arizona, 384 U. S. 436 (1966), was a constitutional decision that could not be overturned by an Act of Congress and that therefore 18 U. S. C. § 3501, which was enacted in 1968 and purported to made admissible in federal court confessions obtained in violation of Miranda, was unconstitutional. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. At the end of that dissenting opinion Justice Scalia announced that "until § 3501 is repealed, [I] will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary [even it was obtained in violation of Miranda]." 530 U. S. at 465.

In City of Indianapolis v. Edmond, 531 U. S. 32 (2000), the Court held that a highway motor vehicle checkpoint (i.e., roadblock) program which was unaccompanied by individualized suspicion of the vehicles stopped, and whose primary purpose was to detect evidence of ordinary criminal wrongdoing (i.e., drug offenses), violated the fourth
amendment. Chief Justice Rehnquist filed dissenting opinion in which Justice Thomas joined and in which Justice Scalia joined in part. Justice Thomas also filed his own dissenting opinion.

In Shafer v. South Carolina, 532 U. S. 36 (2001), a follow-up to Simmons v. South Carolina, 512 U. S. 154 (1994), the Court held that (1) whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's amended sentencing scheme, due process requires that the jury must be informed that a life sentence carries no possibility of parole, and (2) neither the trial court's instruction nor defense counsel's closing argument was sufficient to inform the jurors of the defendant's parole ineligibility. Justice Thomas and Justice Scalia each filed a dissenting opinion.

In Ferguson v. City of Charleston, 532 U. S. 67 (2001), which involved the drug testing by a public hospital of unsuspecting pregnant women suspected of cocaine use and the forwarding of positive test results to the police so the women could be arrested on criminal charges, the Court held that (1) a state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure, and (2) the interest in using the threat of criminal sanctions to deter pregnant women from drug abuse does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid search warrant. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Atwater v. City of Lago Vista, 532 U. S. 318 (2001), the "soccer mom" case, Justice Thomas, along with Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, joined in the Justice Souter's majority opinion, which held that police do not violate the Fourth Amendment when they make a warrantless arrest for a minor criminal offense not involving a breach of the peace, such as a misdemeanor seatbelt violation punishable only by a fine.

In INS v. St. Cyr, 533 U. S. 289 (2001), the Court held that: (1) the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not deprive the federal courts of jurisdiction to review a permanent resident alien's habeas corpus petition, and (2) the provisions of AEDPA and IIRIRA repealing discretionary relief from deportation did not apply retroactively to the alien, who had pleaded guilty to a sale of controlled substances prior to statutes' enactment. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined. In that dissenting opinion Justice Scalia "made the unprecedented argument that the [Habeas Corpus] Suspension Clause [of the U. S. Constitution] places no restriction whatsoever on the permanent abrogation or redefinition of the writ of habeas corpus, but rather prohibits only temporary suspensions," and which "maintained that the inquiry into the discretionary powers of the executive to release a prisoner lay outside the scope of the writ as it existed in 1789, and therefore, outside the reach of the Suspension Clause." Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum Rts. Rev. 555, 559-60 (2002).

In Lee v. Kemna, 534 U. S. 362 (2002), the Court held that the federal courts were not procedurally barred from considering the federal habeas corpus petitioner's due process claim that he should have been granted an overnight continuance at his state murder trial so that he could locate subpoenaed, previously present, but suddenly missing alibi witnesses key to his defense, where the petitioner had substantially, if imperfectly, made to the trial court the basic showing required under state law to obtain a continuance. Justice Kennedy filed a dissenting opinion, in which Justices Scalia and Thomas joined.

In Alabama v. Shelton, 535 U. S. 654 (2002), the Court held that the sixth amendment right to counsel extends to a criminal defendant sentenced to a suspended or probated term of imprisonment. Justice Scalia filed a dissenting opinion, in which Chief Justice Rehnquist, Justice Kennedy, and Justice Thomas joined.

In Atkins v. Virginia, 536 U. S. 304 (2002), the Court held that the execution of mentally retarded criminal offenders violates the cruel and unusual punishments clause of the eighth amendment. Chief Justice Rehnquist filed a dissenting opinion in which Justices Scalia and Thomas joined. Justice Scalia filed a dissenting opinion in which Chief Justice Rehnquist and Justice Thomas joined.

In Hope v. Pelzer, 536 U. S. 730 (2002), the Court held that (1) under the circumstances, the alleged handcuffing of the plaintiff prison inmates to a hitching post was a gratuitous infliction of wanton and unnecessary pain which violated the eighth amendment cruel and unusual punishments clause, and (2) the defense of qualified immunity was precluded at the summary judgment stage of this civil rights action. Justice Thomas filed a dissenting opinion, joined in by Chief Justice Rehnquist and Justice Scalia, claiming that the majority opinion was "based . . . on [the majority's] own subjective views on appropriate methods of prison discipline." 536 U. S. at —, 122 S. Ct. at 2519-20. He also maintained that the device to which the inmates had allegedly been affixed was a "restraining bar," not a "hitching post." 536 U. S. at — n. 1, 122 S. Ct. at 2520 n. 1.

In Board of Education v. Earls, 536 U. S. 822 (2002), Justice Thomas wrote the opinion for the Court, joined in by Chief Justice Rehnquist, Justices Scalia, Kennedy, and Breyer, upholding the constitutionality of mandatory suspicionless drug testing of all students in a public school district participating in competitive extracurricular activities.

There are, of course, in comparison with his numerous pro-government votes, a relatively small number of cases where Justice Thomas's vote in a case in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus has been in favor of an individual rights claim. See, e.g., Ring v. Arizona, 536 U. S. 584 (2002); Kyllo v. United States, 533 U. S. 27 (2001); Apprendi v. New Jersey, 530 U. S. 466 (2000); Bond v. United States, 529 U. S. 334 (2000); Florida v. J. L., 529 U. S. 266 (2000); Knowles v. Iowa, 525 U. S. 113 (1998); United States v. Bajakajian, 524 U. S. 321 (1998) (opinion for the Court by Thomas, J.); Chandler v. Miller, 520 U. S. 305 (1997); Lynce v. Mathis, 519 U. S. 433 (1997); Wilson v. Arkansas, 514 U. S. 927 (1995) (opinion for the Court by Thomas, J.); United States v. Williams, 504 U. S. 36 (1992); Jacobson v. United States, 503 U. S. 540 (1992). These surprising cases are, however, merely the exceptions which prove the rule.

Furthermore, to crown all, in Bush v. Gore, 531 U. S. 98 (2000), Justice Thomas, along with Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, and Justice Kennedy, all of whom are Republicans appointed by Republican presidents, joined in the per curiam opinion for the Court which delivered the presidency to Republican candidate George W. Bush. Justice Thomas was one of the five justices who voted to hear the case in the first place, then to grant the infamous stay of the Florida presidential vote recounting, and finally to forbid any further recounting. Bush v. Gore, as I have noted elsewhere, "is the most egregiously partisan ruling in the Supreme Court's history," in which "the court's majority let its desire for a particular partisan outcome have priority over legal principles." Wilkes, A President by Judicial Fiat, Flagpole Magazine, at 8 (Dec. 11, 2002). In Bush v. Gore, as I have noted in my Flagpole article, "the majority justices, in order to rule in Bush's favor, endorsed legal arguments or embraced legal principles which contradicted views they have long espoused and which they would have scorned if proffered by Gore's lawyers." As University of Virginia law professor Michael J. Klarman has written: "Had all the other facts in the Florida election imbroglio remained the same, but the situation of the two presidential candidates been reversed, does anyone seriously believe that the conservative Justices would have reached the same result? Thus, the result in Bush v. Gore depended on the order in which the parties' names appeared on the case caption. . . . I cannot think of another Supreme Court decision about which one can say with equal confidence that reversing the parties, and nothing else, would have changed the result." As I also observed in my article: "For several decades the Supreme Court has been notably unreceptive to claims that a person's rights secured by the equal protection clause of the Fourteenth Amendment were violated, and the Court currently almost always rejects such claims. The Court has insisted that unequal treatment cannot constitute a violation of the equal protection clause unless it is done purposefully, and the five justices who joined in Bush v. Gore regularly vote to deny equal protection claims. Yet in Bush v. Gore these same five justices based their decision in favor of Bush on a novel, expansive interpretation of the equal protection clause, and did so despite the absence of any allegation or proof that the unequal treatment complained of was purposeful." In my article I also stated: "Why, according to Bush v. Gore, was the Florida Supreme Court's decision to recount the presidential votes, based on the state's traditional standard that the clear intent of the voter governs, violative of the equal protection clause? Because, the five-justice majority strangely held, the general standard of voter intent was subject to different interpretations by different vote counters! But why would this be more harmful to Bush than to Gore? And don't the same or similar disparities in vote counting equally exist when the votes are counted the first time? And why this sudden concern with uniformity at the state level by justices who, in the name of federalism, ordinarily insist that state governments be given room for ‘play in the joints'?" In Bush v. Gore, Justice Thomas and the other four right-wing justices "acted suspiciously out-of-character," Niles, Clarence Thomas: The First Ten Years Looking For Consistency, 10 Am. U. J. Gender Soc. Pol'y & L. 327, 341 n. 14 (2002). Thus, Justice Thomas's vote was not only politically partisan, but also hypocritical. Curiously missing in Bush v. Gore are sarcastic comments by Justice Thomas to the effect that the decision to deliver the presidency to Bush amounted to a "National Code of Vote Recounting," or that the decision was "another manifestation of the pervasive view that the Federal Constitution must address all ills in our society." Also notably absent are ironical statements by Justice Thomas about judges acting as "mighty Platonic guardians" of Florida election recount practices, or about how the Supreme "Court is not a centralized politburo appointed for life to dictate to the provinces the ‘correct' theories of democratic representation, the ‘best' electoral systems for securing truly ‘representative' government, [and] the ‘fairest' proportions of minority political influence."

Because Bush v. Gore prohibited any further vote recounts, thousands of Florida voters who had cast legal ballots for President were deprived of the right to have their votes counted. Bush v. Gore is therefore a case where in reality basic rights were denied, not upheld, even though the decision purports to vindicate equal protection rights. As I wrote in my Flagpole article: "The Court's remedy for the equal protection violation it had strained to concoct was bizarre. It barred any more recounting, even though this meant that perhaps thousands of voters whose clear intention would have been evident to anyone doing the recount would be denied their legal right to have their votes counted. The Court evidently thought it was better that a significant number of legal votes be ignored than that some questionable votes should be counted. ‘The end result,' [law professor Alan] Dershowitz tells us, ‘was that a large number of voters who cast proper votes under Florida law but whose votes were not counted were denied their . . . right to vote for president in order to ensure that the votes of others would not be diluted by the improper inclusion of ballots that might be invalid . . . . This is the most perverse misuse of the equal protection clause I have seen in my forty years as a lawyer.'"

Justice Thomas's participation in the scandalous Bush v. Gore decision is, without more, sufficient to render him unworthy of being invited to give the graduation speech.

I urge readers of this letter to personally check out the votes Justice Thomas has cast on individual rights issues while he has been a member of the Supreme Court.

There are two Annexures to this letter. Annexure A is a bibliography of suggested helpful writings on Justice Thomas's voting record in individual rights cases. Annexure B is my Flagpole article on the Bush v. Gore decision.

[Annexures omitted.]