Judicial Nominations: President, Senate Must Reach Consensus on Potential Nominees

The Washington Post wrote another editorial concerning judicial nominations.

The reasoning of the editorial board of the Post is regardless how a nomination is decided, once a name is submitted, the process should go forward (presumably towards confirming the nominee).

I reject this reasoning. If the Presidential nominee selection process is flawed, yet the President still submits a nominee to the Senate, then the nomination process in the Senate should not start at all.

The people of the United States must always remember that judges have lifetime terms. Thus, the Senate has an obligation to consider carefully every judicial nomination. This includes the decision to refuse to consider Presidential judicial nominees.

The Post’s editorial summarized the circumstances surrounding President Bush’s Fourth Circuit nominees for Virginia and Maryland.


Senators John Warner (R) and Jim Webb (D) evaluated nominees and presented President Bush with five people that they would both support for nomination to the Fourth Circuit (for the Virginia seat). President Bush nominated Richmond lawyer E. Duncan Getchell Jr., who was not on their list. This decision did not please the Senators from Virginia. [Note: Mr. Getchell was on the list of Senators John Warner (R) and former Senator George Allen (R). According to the Virginian Pilot, since Allen lost to Webb, Getchell’s name was removed from the list.]

The Post’s editorial board wisely stated that the Senate would not give the nominees a confirmation hearing.


I wrote about the nomination of Rod Rosenstein in this post. In summary, President Bush nominated Rod Rosenstein, U.S. Attorney for Maryland, for a judicial post on the Fourth Circuit, despite the objections of Maryland’s Senators.

For a smooth judicial nomination process consensus between the President and the Senate must occur before the President submits a nominee to the Senate.

Moreover, I do not consider it a priority to fill the five vacancies. Ten of fifteen seats (66%) are filled, balanced between Democratic and Republican appointees.

There is no need to upset the balance, especially since President Bush is entering his final year in office.


Ward Connerly: Suspicious Use of Deep South to Justify Injustice

I have noticed a pattern in Ward Connerly’s experience of discrimination. Distressingly, Connerly uses terms connected with the continuing Black struggle for true equality in his arguments. But his true intention is to remove the context of words so that he can use the terms to defend the status quo–retention of majority (White) institutional hegemony.

However, his arguments contradict the experience of Blacks who suffered and continue to suffer rampant anti-Black discrimination. It is irrational to assert that the experience of anti-Black discrimination leads the sufferer to support anti-Black legislation. Yet that is what Connerly is doing.

I will analyze a paragraph of Connerly’s letter to Gov. Jennifer Granholm during the time Proposal 2 was on the ballot to demonstrate my point.

I was born in the Deep South, at a time when racial discrimination was rampant. I know first-hand the meaning of the term “racial discrimination.” I doubt that you can say the same. Your knowledge about discrimination was probably gleaned from history books. In days of my youth, as a brown-skinned man, I rarely heard the term, “diversity.” But, I sure as hell heard and experienced “discrimination.” And, I can tell you that the pursuit of diversity should never be an excuse for our government to sanction or practice discrimination based on an individual’s race, color, gender, ethnicity or national ancestry. That principle should be guaranteed to Jennifer Gratz, a white woman, equally as it is guaranteed to me, a black man. One should not have to be an “outsider from California” to convince you of the importance of the fundamental principle of equal treatment before the law without regard to the color of a person’s skin. This principle is deeply etched in the character of most Americans. Had you been born in America, perhaps you would have a better appreciation of this fact.

In the red sentence, Connerly begins by stating that he experienced racial discrimination in the Deep South (he was born in Louisiana). His use of the term Deep South suggests that only the South was against Black people. However, the practice of anti-Black discrimination was and is practiced nationwide.

Another error in the red sentence is that Connerly suggests that only Black people can know what racial discrimination is. Any human can understand the wrongness of preventing a person from participating in social institutions merely on account of a person’s skin color.

Regarding the dark blue sentence, diversity–the practice of seeking the inclusion of Blacks in societal institutions–is not discrimination against Whites. Watch that Connerly now mentions discrimination in general and not as anti-Black discrimination.

With the removal of the context of the word discrimination, Connerly implicitly argues that the inclusion of Black people in societal institutions (as a remedy for past exclusion of Blacks) is as discriminatory against Whites as Jim Crow (the target of the 1964 Civil Rights Act) was against Blacks. This could only be true if the races had equal numbers of people in the population of the United States. This is not the case as Whites outnumber Black people 6 to 1.

United States (population: 281,421,906 (2000 Census)

Race Percentage of population Number
White 75.1% 211,460,626
Black 12.3 34,658,190
Native American 0.9 2,475,956
Asian 3.6 10,242,998


In the green sentence, Connerly’s claim of equality between Blacks and Whites sounds good in theory but it does not exist in reality. The fact is that Jennifer Gratz is White in a 80.2% White state (Michigan). She never experienced societal exclusion based on her White skin. Every part of Michigan’s societal institutions are dominated by White people.

However, Black people, who are a distinct social minority, need assurances that Black people can participate fully in societal institutions.

Connerly’s persistent reference to Granholm’s birth in Canada was insulting and irrelevant. Connerly was born in the United States but he fails to comprehend the ill effects of anti-Black discrimination in the United States.

In addition, in an interview with the Dartmouth Review, Connerly uses a similar story to justify his ballot initiative drive (similar to Michigan’s Proposal 2) in five states (note: for my posts on this issue, click the Ward Connerly category tag in the right column).

I was born in the Deep South in Louisiana in 1939, and I have seen and experienced racial discrimination in my lifetime. I think it is wrong, and that it denies our country the greatest potential from every person. When I was serving on the Board of Regents of the University of California, it was déjà vu all over again because I saw the discrimination that was visited upon Asian students at Berkeley and UCLA. As the number of Asians, the Chinese and Japanese at Berkeley especially, began to increase, the administration expressed its concern that Berkeley would become “Asian” and all that. My own view is that, I don’t care if an Asian takes every seat if he or she earned the right to be there, and so I moved to get rid of racial discrimination and preferential treatment in the UC System. One thing led to another, and so I expanded to California’s Proposition 209 and before Iknew it, I had a second activity in my life that concerned me. I really believe that everybody is entitled to be treated equally under the law by any government agency in the state. You and I don’t have a choice about whether or not we belong to the government. We’re required to pay our taxes and to be members of society, to support the government. Therefore, the government should not pick and choose who among us gets favored treatment. And all my initiatives that I’ve supported have been confined to the public sector, to the government. I don’t think private entities should discriminate, but that’s their business. But the government certainly should not.

The structure of Connerly’s response in the Dartmouth Review is the same as Connerly’s response to Granholm. It starts with Connerly’s reference to the Deep South. Then, Connerly discovers a mission to save another group from perceived discrimination. Finally, Connerly insists on his belief in equality (in spite of the reality of an overwhelmingly White population in California).

California (population: 33,871,648 (2000 Census) [NOTE: high number of “some other race”])


Percentage of population








Native American







In order to place Connerly’s statements in the green portion in context, consider Justice John Marshall Harlan’s dissent, in Plessy v. Ferguson, 163 U.S. 537 (1896). Harlan explained that Whites believed in White supremacy, but the Constitution prohibited the law from enforcing it and, most significantly, from protecting Blacks from the effects of White supremacy doctrines. (Note: this point is covered in this post.)

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.

The reader should realize Connerly’s unseemly tactics in his mentioning of the Deep South to justify the imposition of ballot initiatives that inhibit the fight against anti-Black discrimination.

Related link

For discussion of the opinions of Ward Connerly’s family (dissenting from his views), see the 1997 New York Times article, “Questions of race run deep for foe of preferences.”

Fed. Govt: Senate Confirms Nomination of Julie Myers as Asst. Sec’y of Homeland Security

The Senate, by unanimous consent motion, confirmed the nomination of Julie Myers to be Assistant Secretary of Homeland Security (Immigration and Customs Enforcement).

Note: For a post about Julie Myers and her interaction with an employee in a Halloween blackface costume, click on the DC tag category in the right column.

U.S. Judiciary: House Passes Consolidated Appropriations Bill; Bill Includes 2008 COLA for Judges

[Update 12/19/07: The Senate has also approved H.R. 2764. Click here for the roll call vote.]

The U.S. House of Representatives passed its consolidated appropriations bill (H.R. 2764). Included in the measure is a cost of living adjustment for Justices and Judges in 2008.

SEC. 305. Pursuant to section 140 of Public Law 97-92, and from funds appropriated in this Act, Justices and judges of the United States are authorized during fiscal
year 2008, to receive a salary adjustment in accordance with 28 U.S.C. 461.

There is no provision for a judicial base pay increase (there is no language from H.R.3753 or S.1638). [Note: See my previous post for more information on these bills.]

ACRI Ballot Initiative (Oklahoma): Editorial Opposes Ballot Initiative for Public Employment

An editorial in the Muskogee Phoenix opposes the ballot initiative proposal from the American Civil Rights Institute (ACRI).

The editorial explains that the state government employees should reflect the population of the state.

Public employment should be balanced, and the balance should reflect the greater community at large. That balance always has been attained best by legal protections, and there is no reason to remove those programs in this state.

The editorial also states that public contracts should not be subject to affirmative action but given to those who provide the best service at the best price.

ACRI Ballot Initiative (Oklahoma): Initiative Supporters Submit 145,000 Signatures to the OK Secretary of State

According to the Tulsa World, the American Civil Rights Institute (ACRI), Oklahoma branch (OKCRI) submitted 145,000 signatures to the Oklahoma Secretary of State’s office.

The Tulsa World explained that initiative supporters need to collect 138,970 signatures for the initiative process to continue.

Should OKCRI collect enough signatures, there is a protest period before the Oklahoma Supreme Court, the Tulsa World reported.

U.S. Judiciary: Congress Must Maintain Its Power Over Judicial Pay Increases


I disagree with the editorial of The Washington Post concerning federal judicial pay. The bill being considered in the House of Representatives, in particular, contains an unjustified squandering of Congressional power over the federal treasury.

I feel the Congress must jealously guard its power of the purse (U.S. Constitution, Article I, section 8). There are two bills being considered in the Congress: one in the House or Representatives (H.R. 3753) and the other in the Senate (S.1638). Both bills propose a substantial increase in judicial pay.

However, H.R. 3753, section 4, proposes to repeal the law requiring a specific authorization from Congress to increase judicial pay (Public Law 97-92, section 140). [Note: For more information on P.L. 97-92 and other laws regarding judicial pay, see a Congressional Research Service report on the issue.]

Federal judges must not compare their salaries with highly paid corporate lawyers. The fact is relatively few lawyers earn that income. The Empirical Legal Studies blog explains this point for the Juris Doctor class of 2006.

The sample includes–in order of size–private practice (55.8%), business (14.2%), government (10.6%), judicial clerks (9.6%), public interest (5.4%), and other (2.8%). Half of the graduates make less than the $62,000 per year median–but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.



If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right–i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

Moreover, highly paid corporate lawyers must be on call 24 hours a day to attend to the needs of their clients. Judges have the power to set their own schedule. Furthermore, as I wrote in a previous post,

Judge Richard Posner of the Seventh Circuit Court of Appeals argued that a salary increase for judges is not necessary as other perquisites are not included in the base salary (the value of the federal pension, health insurance benefits, ability to earn outside income).

Given the distribution of salaries provided by the Empirical Legal Studies blog, contrary to the argument of Chief Justice John Roberts, many good judges can come from lawyers who are not paid extraordinarily large salaries.

While both bills being considered in Congress are unacceptably expensive, the House bill unjustifiably cedes its power over the spending of federal taxpayer-provided funds.