The Lichfield Group

This article appeared in the June 13, 2006 issue of the Washington Times.

Supreme Court Justice Samuel Alito is unlike his vacillating predecessor Justice Sandra Day O’Connor. Everything in her constitutional universe was opaque. Justice Alito’s philosophy is made of sterner stuff.

This article appeared in the December 18, 2005 issue of The Washington Post.

Misreading Robert H. Bork’s 1987 shipwreck, President George W. Bush is bizarrely instructing his Supreme Court nominees to disown their prior attacks on wayward constitutional thinking that he was elected to restrict or overturn. During his confirmation hearing, Chief Justice John Roberts dismissed tomes of his brilliant and caustic critiques of constitutional capers that he had authored under President Ronald Reagan as merely an attorney’s advice to a client. According to Roberts, his intellectual sneers at a generalized right to privacy summoned into being by the due process clause of the Fourteenth Amendment or the expulsion of religious shadows from public life by distorting the Establishment Clauses did not represent his views as an independent thinker. He joined the Reagan administration not because he was a Reaganite eager to alter the course of constitutional thought, but as an opportunist who would have been equally inclined to serve under President Jimmy Carter.

This article appeared in the December 2, 2005 issue of the Washington Times.

President George W. Bush is winning the battle to appoint federal circuit judge Samuel A. Alito to the United States Supreme Court. His credentials are impeccable. Senate Democrats are shying from a filibuster. The 55-45 Republican majority is solid. And the alarmist “sky is falling” sound track of liberal extremist detractors rings hollow.. They have sounded the same false alarm for every Republican Supreme Court nominee over the past twenty years.
But the President is losing the intellectual war over constitutional interpretation, a clash enormously more important than filling the O’Connor vacancy with Alito. The White House and the nominee are refusing to denounce the homonymic school of interpretation regularly embraced by O’Connor or to celebrate the original intent standard saluted by Associate Justices Antonin Scalia and Clarence Thomas.
The homonymic school insists that the Constitution sounds the same as the original document but means something different, i.e., whatever a majority of Justices believe is socially or morally enlightened. The originalist school maintains that the Justices are confined to interpretations consistent with the intent and purposes of the Founding Fathers. Constitutional shortcomings or oversights are to be cured by amendments ratified by popular consensus, for example, the Bill of Rights, the Civil War Amendments, and the Women’s Suffrage Amendment.

This article appeared in the November 8, 2005 issue of the Washington Times.

Judge Samuel A. Alito’s confirmation as an Associate Justice to replace Sandra Day O’Connor would mark a genuine turning point in the decisions of the United States Supreme Court. With Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas, Judge Alito would make the fourth of a band of philosophical brothers schooled to interpreting the Constitution and statutes in accord with their original meaning as the Founding Fathers intended. James Madison, Alexander Hamilton, and companion architects of the Constitution described the judiciary as the least dangerous branch, in part because the Supreme Court’s power to interpret was intended to be circumscribed by the text and manifest purposes.

This article appeared in the October 25, 2005 issue of the Washington Times.

Harriet Miers apes former liberal Supreme Court Justice Harry Blackmun in saluting racial and gender quotas and set-asides. She disputes the equal opportunity North star of Associate Justices Antonin Scalia and Clarence Thomas. But President George W. Bush says Ms. Miers is a philosophical clone of Scalia and Thomas, and Mr. Bush says conservatives should trust him.

This article appeared in the October 21, 2005 issue of the Washington Times.

Supreme Court nominee Harriet Miers flunked her first Kodak moment with the Senate Judiciary Committee. In a 57-page response to a questionnaire, Ms. Miers exhibited a shocking misunderstanding of constitutional principles. With nine Harriet Miers on the High Court, the Constitution would be lacerated.

This article appeared in the October 18, 2005 issue of the Washington Times.

Ms. Harriet Miers is ill-equipped to interpret the Constitution’s separation of powers, a chief task of the United States Supreme Court. She may be summoned against herself to prove the point.

This article appeared in the October 11, 2005 issue of the Washington Times.

The patently lame arguments of defenders of Harriet Miers’ O Henry-like surprise nomination to the United States Supreme Court confirm her unsuitability. She should graciously withdraw and spare the Supreme Court and herself embarrassment.

This article appeared in the October 6, 2005 issue of the Washington Times.

Cronyism is the signature of the Bush administration. Ms. Harriet Miers’ nomination to the United States Supreme Court is the high water mark. The Senate should reject the nomination to honor the original meaning of the Constitution. As Alexander Hamilton amplified in Federalist 76, the Senate confirmation role was intended to “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

This article appeared in the September 12, 2005 issue of the Washington Times.

Robert H. Bork should be asked by President George W. Bush to testify as the premier public witness before the Senate Judiciary Committee in favor John G. Roberts, Jr., his nominee as Chief Justice of the United States. To borrow from the Gettysburg Address, it is altogether fitting and proper that President Bush should do this.

This article appeared in the July 12, 2005 issue of the Washington Times.

The U.S. Supreme Court is too important for mediocrities. The justices chronically write ill-reasoned opinions that sow rather than dispel confusion. Insipid minds incline toward major constitutional blunders.

This article appeared in the June 28, 2005 issue of the Washington Times.

Amidst the gathering storm over who will become the next chief justice of the United States, one candidate stands forth like an obelisk: Judge J. Harvie Wilkinson of the U.S. 4th Circuit Court of Appeals.

This article appeared in the June 1, 2005 issue of the Washington Times.

Senate Majority Leader Bill Frist, Tennessee Republican, encountered more a Dunkirk than a defeat last week over the judicial filibuster. The issue will soon return to the forefront. Champions of the minority tactic advance reasons that are both dangerous to democracy and constitutionally indefensible. Those wayward ideas should be openly attacked and firmly repudiated by a Senate majority and the American people.

This article appeared in the May 24, 2005 issue of the Washington Times.

Senate Democrats gripe that Texas Supreme Court Justice Priscilla Owen and California Supreme Court Justice Janice Rogers Brown have authored dissents. According to their detractors, the dissenting views prove them outside the mainstream and unfit for appointment as federal appellate judges. To accept the argument as a general standard for judicial selection would transform constitutional law into a petrified forest. As with the physical sciences, progress in the law begins with challenges to orthodoxy.

This article appeared in the May 16, 2005 issue of Roll Call.

Contrary to what Nan Aron writes in “What’s Wrong With President Bush’s Gang of Seven” (Guest Observer, May 10), the controversy over judicial filibusters is not about President Bush’s nominees. Senate Democrats and private groups are constitutionally entitled to assail them as unfit. Under the First Amendment and the Speech or Debate Clause, Democrats may seek to persuade a Senate majority to reject a candidate, as they did with Supreme Court nominee Robert H. Bork. Indeed, Senate Majority Leader Bill Frist (R. Tenn.) offered them on April 28, 2005, a minimum of 100 hours of debate for each of Bush’s judges. Minority Leader Harry Reid (D. Nev.) summarily scorned the offer. Neither the Constitution nor democratic theory, however, empowers a political minority to thwart a Senate confirmation vote to avenge its inability to convince a majority. Tolerating rule by the minority turns government by consent of the governed on its head.

This article appeared in the May 3, 2005 issue of the Washington Times.

If the radical arguments defending judicial filibusters are accepted, the Constitution will be imperiled. The three branches will chronically clash and urgent unwritten constitutional rules will wither. The stakes thus transcend Senate confirmation of judicial nominees.

This article appeared in the April 26, 2005 issue of the Washington Times.

Senate Democrats would eagerly vote to confirm a second edition of Supreme Court Justice Harry A. Blackmun. The opportunity may arise if Senate Republicans shy from ending Democrat filibusters of judicial nominees. By requiring 60 votes for confirmation, a filibuster would force President George W. Bush to compromise his pledge to appoint Justices in the image of Antonin Scalia and Clarence Thomas. (Judicial filibusters also contradict the understanding of Article II, section 2 of the Constitution, which enshrines a simple majority yardstick for judicial confirmations; the practice rests on the alarming principle that the Senate may destroy the judicial branch by refusing to vote on any nominee).

This article appeared in the April 18, 2005 issue of the Florida Daily Business Review

Senator Bill Nelson (D. Fla.) confronts a choice between courage and cravenness over judicial filibusters. The Constitution, political custom, and prudence clamor for the courage to oppose obstructing judicial confirmations for the sake obstruction. . Revolutionary doctrines, partisan loyalty, and recklessness beckon for a craven submission to Senate Democrat insistence on frustrating confirmation of President George W. Bush’s judicial nominees. During the last Congress, Senate Democrats filibustered 10 appellate nominees to prevent confirmation votes on the Senate floor. They have threatened the same wretchedness in the 109th Congress, including nominees to the Supreme Court.

This column appeared in the April 5, 2005 edition of Roll Call. (subscription required)

As Paris was worth a mass for protestant King Henry IV of France, clubby relations with fellow Democrats was worth apostatizing on judicial appointments for Colorado Senator Ken Salazar.

Senate Minority Leader, Harry Reid (D. Nev.), is ocular evidence of the Democratic Party’s brain death.

Standing on the U.S. Capitol Steps last week like Horatio at the Bridge in 360 A.D., the wizened Senator fretted that a funeral for the Republic impended. According to Mr. Reid, the Constitution would come to an end and absolute power would stalk the nation if a majority of Senators vote to guarantee the President’s judicial nominees a floor vote on confirmation. The Minority Leader’s alarmist fulmination responded to Majority Leader Bill Frist’s (R. Tenn.) vow to end the Democrat filibustering of judges. The practice unconstitutionally encroaches on the President’s power to appoint under Article II by raising the confirmation threshold to 60.

President George W. Bush and Republican Senators should learn from Justice Anthony Kennedy’s preposterous opinion last week in Roper v. Simmons (March 1, 2005) holding unconstitutional the death penalty for loathsome murders perpetrated by juveniles younger than 18. Transforming the Supreme Court from airbrush artistry to principled reasoning in constitutional interpretation—from the rule of whim to the rule of law—will require appointments modeled after Bork, Scalia, or Thomas. Pastel versions will accomplish little or nothing.

President George W. Bush’s judicial agenda is sinking because of his refusal to expend political capital and to risk legislative crumbs to crush the Democrat filibustering of his intellectually gifted nominees.

Chief Justice William H. Rehnquist’s probable retirement in June makes the President’s persistent inactivity over judicial filibusters alarming. His pledge to appoint Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas will be thwarted if 60 votes are required to obtain a floor vote on Supreme Court nominees. Democrats successfully employed the filibuster during Bush’s first term to stymie confirmation votes on ten talented appellate court nominees without provoking the President to twist arms in the Senate to overcome the obstructionist tactic. That same unmasterly inactivity has marked the beginning of Bush’s second term.

This op-ed column appeared in the February 8, 2005 edition of The Hill.

Filibustering federal judicial nominees to thwart a Senate floor vote on confirmation violates the Appointments Clause of the Constitution.

The power to appoint “judges of the supreme court,” with the advice and consent of a simple Senate majority, is entrusted to the president under Article 2, Section 2, Clause 2. A filibuster that hikes that threshold to a supermajority of 60 encroaches on that executive prerogative in violation of separation of powers. In contrast, filibusters against legislation, an Article 1 power of Congress, honors both that separation and the Founding Fathers’ fear of mutable lawmaking.

This column appeared in the January 31, 2005 edition of Roll Call. (subscription required)

Senator Harry Reid (D. Nev.) should apologize for his ill-informed denigration of Associate Justice Clarence Thomas, a potential successor to Chief Justice William H. Rehnquist. His counterfactual and polemical indictments stain the Founding Father’s vision of the Senate as a cool and statesmanlike body as elaborated in Federalist 63.

Unwritten customs are as pivotal as textual declarations to making the Constitution flourish. As Saint Paul sermonized, the letter killeth, but the spirit givith life.

This article appeared in the February 2005 issue of Washington Lawyer Magazine.

President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Judge Robert H. Bork as seemingly inescapable vacancies arise in his second term. Senate Republicans should vote the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable. Both measures are necessary to vindicate the Constitution according to its original meaning and to overcome an airbrush artist approach to interpretation embraced by a majority of sitting Justices. Neither gambit would impair either judicial independence, the separation of powers, or appointment traditions. Furthermore, President Bush would betray his popular mandate of last November if he neglects to nominate strong philosophical conservatives to the Supreme Court, such as Chief Judge Jay Harvey Wilkinson of the United States Court of Appeals for the Fourth Circuit or Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit.

This article appeared in the January 11, 2005 issue of the Washington Times.

Slated to lead the Senate Democrats in the 109th Congress, Senator Harry Reid (D. Nevada) epitomizes the Democrat Party descent from debate to deceit in criticizing conservative Justices of the Supreme Court and distorting Supreme Court rulings. That vertical plunge in intellectual honesty thwarts constructive exchanges over the Constitution and Supreme Court appointments. Senator Reid and his colleagues should either do their judicial homework or remain silent. Nothing is as dangerous as ignorance or propaganda in action.

James Taranto (OpinionJournal, January 3, 2005) has highlighted Senator Reid’s continued assault on Justice Clarence Thomas’ credentials in Reid’s December 26, 2004 interview on CNN’s “Inside Politics.” He owlishly pointed to the Hillside Dairy case as exemplary of Thomas’ unfitness. According to Senator Reid, Justice Antonin Scalia had penned a “well reasoned” dissent in Hillside Dairy dazzling with the earmarks of a Harvard graduate, as contrasted with Thomas’ “poorly written” counterpart smacking of an “eighth-grade” composition. Moreover, the Senator sermonized, Thomas’ dissent had sinned by questioning the Supreme Court’s employment of the Commerce Clause to invalidate state laws that burdened interstate commerce, whereas Scalia had respected constitutional precedents.

Senator Arlen Specter (R. Pa.) has not earned elevation to the chairmanship of the Senate Judiciary Committee. It will stand at the commanding heights of the Republican Party agenda during President George W. Bush’s second term. Three major tasks will confront the chairman: confirming Supreme Court nominees; ending unconstitutional filibusters that thwart judicial confirmations by simple majorities; and, passing legislation to strengthen the President’s power to wage war against global terrorism. In all these respects, Mr. Specter is not the superior choice. The chairmanship should crown a Senator whose loyalties to the Republican Party mainstream are unwavering and enthusiastic.

If you covet fossilized constitutional law and orchestrated Supreme Court decisions, then cast a ballot for presidential candidate John Kerry.

In appointing Supreme Court Justices, Mr. Kerry avowed during the third presidential campaign debate to insist that nominees affirm the Roe v. Wade (1973) abortion decree and button their ears to any overruling. Indeed, the White House aspirant maintained that his High Court appointees would oppose reconsideration of any precedent that recognized a constitutional right, and Kerry amplified: “I’m not going to appoint a judge to the Court who’s going to undo a constitutional right, whether it’s the First Amendment, or the Fifth Amendment, or some other right that’s given under our courts today—under the Constitution. And I believe that the right of choice is a constitutional right. So I don’t intend to see [Roe v. Wade] undone.”