Summer officially started last week, which typically means things inside the beltway slow down as the heat rises.  Not so this year.  Among hot items on Congress' plate are a constitutional amendment on flag burning, a line-item veto bill and summer hearings on illegal immigration.  Judicial Nominations and a Possible Supreme Court Retirement

Summer officially started last week, which typically means things inside the beltway slow down as the heat rises.  Not so this year.  Among hot items on Congress' plate are a constitutional amendment on flag burning, a line-item veto bill and summer hearings on illegal immigration.  The Supreme Court just released its opinions on some of its most contentious cases this term.  And, the War on Terror continues.

Unfortunately, it appears the summer season will pass without much activity on President Bush's nominees for federal court appointments, some of whom continue to wait for hearings by the Senate Judiciary Committee or an up-or-down vote on the Senate floor.  And there are some court watchers who believe that the politics of Supreme Court Justice-picking may move to the front burner before summer is over.

Recently, Third Branch Conference Chairman Manny Miranda joined CFIF Corporate Counsel & Senior Vice President Renee Giachino to discuss judicial nominations and speculation on a retirement announcement by yet another Supreme Court Justice.  What follows are excerpts from the interview that aired on "Your Turn – Meeting Nonsense With Common Sense" on WEBY 1330AM, Northwest Florida's Talk Radio.   

GIACHINO:  Undoubtedly we have some major national issues on our minds and we have talked about a lot of these on this program – including energy, immigration and the

War in Iraq.  And we can add to that the fact that we are now in the midst of hurricane season so it is no wonder that we don't read or hear or even talk enough about this first issue that I want to discuss on the program today.  But we need to because it could impact all of the above-mentioned items.

The issue is the battle over judicial nominees.  To date, George Bush's confirmation rate for circuit judges is the lowest for any president at about 70%.  The circuit courts stand at a 9.5% vacancy rate and yet the Senate walks slowly.  Majority Leader Frist must end the silent filibusters in June and July. If not, then the vote that matters is the one that we get to decide in November.

According to Jan LaRue of Concerned Women for America, she said this about the recent judicial appointment situation, which I think ties in very well, "Time is running out for the Senate to move remaining nominees.  Judge Terry Boyle, William Haynes and William Myers are just a few who are being denied a hearing or a vote.  Judge Boyle has been waiting more than five years just for a vote.  Under the Senate's immigration bill, millions of illegals will become citizens in shorter time."

Joining me this afternoon to discuss the issue is Manny Miranda.  Manny is a former aide to Senate Majority Leader Bill Frist and he is chairman of the Third Branch Conference, which is a coalition of grassroots groups that support conservative judicial nominees.

Thank you for joining us this afternoon on "Your Turn."

MIRANDA:  Thank you and hello to all of your listeners.

GIACHINO:  Manny I would like to start by asking you to give us a little lay of the land so to speak of what is commonly referred to as this battle over the judiciary.

MIRANDA:  Well the battle over the judiciary is really a battle over the future of the country and a battle over the future of our children's lives.  The third branch of government is as important as the presidency and the legislature, the Congress, that we elect and very often they get to determine how we live our lives just as powerfully, they get to determine whether we say "under God" in the Pledge of Allegiance, or whether a third grader can do a book report on the Book of Job or have to be suspended for even mentioning the bible or drawing a picture of Jesus.  They get to determine our taxes and whether we get to keep our home; they get to determine whether our country supports things like abortion or all kinds of moral issues.  So the issue of the third branch is a vital one for our future and the way we live our lives. Yet, very often people ignore its importance and ignore that when we elect the president we are electing the nominator and chief for the judiciary.  And when we elect senators, we are electing people who get to confirm or to deny confirmation to good judges and maybe vote in favor of bad judges.

GIACHINO:  I think you have pretty much answered my next question but I am going to ask you to restate it again for the listeners who are not familiar with the process.  Can you lay out very briefly the role that each of the other two branches – the president and Congress (or rather the Senate) plays in the judicial confirmation process?

MIRANDA:  Sure thing.  The Constitution requires the president to make judicial appointments.  He appoints judges – Supreme Court judges, circuit court judges at the appellate court level, and the district court judges at the trial level.  And he gets to appoint, and then they are confirmed by and with the "advice and consent" of the Senate.  Not the House, but the Senate, plays a very unique role in the constitutional system to make sure that the president – originally the fear was that the president might appoint cronies and family and friends or people of low character who could be bought as judges, like the English king used to do.  So the Senate was required to vet and approve the president's appointments.  It is not a veto power but it is a positive obligation that they have to vote.  They have to consider and then they vote whether or not to approve or reject a nominee.  They can reject a nominee and they should if they feel strongly about it. 

But the controversy in the last few years is that Democrats chiefly have obstructed the president's nominees by blocking consideration at all; by not allowing votes and blocking them for reasons that are abase and wrong and scurrilous and sometimes based on people's religion and people's ethnicity.  And that has been going on in the last few years and a growing number of people are aware of it, and a growing number of people are affected by it when they go and vote.

GIACHINO:  This made national headlines and should not be news to anyone unless they have lived under a rock.  President Bush got two Supreme Court justices appointed to the highest court in our land.  Now it seems the Senate Judiciary Committee, other than the most recent action when Frist finally delivered on his promise to get Brett Kavanaugh his vote which he did around Memorial Day, but now it seems the Senate Judiciary Committee and perhaps most of America seems to be ignoring the other lower court nominees who are either waiting for hearings or are in limbo waiting for a floor vote.  And I have even read where some people think the lower court appointments may actually be more important and worth more of a fight than the president and the administration put in for the Supreme Court justices.  Would you agree with that?

MIRANDA:  In many ways that is right.  Ultimately the Supreme Court hears only about 2% of all the cases that are raised or brought to the Court.  That is to say 8,000 cases are appealed every year to the Supreme Court and they only hear anywhere from 80 to 160 cases.  So it is a real phenomenal number. 

What does that mean?  It means most decisions of a federal nature are left as they are decided by the lower appellate courts.  So these appellate court nominations are very, very significant as to how people from Georgia to Montana to California live their lives because the Supreme Court will not always be involved in every controversial issue.

GIACHINO:  We have a caller on the line.  Can we take the call?

MIRANDA:  Sure thing.

GIACHINO:  Go ahead caller, it's your turn.

CALLER:  Yes, I have a question.  You worked for Senator Frist, right?

MIRANDA:  Yes I did.

CALLER:  I have a question on this whole Congress thing.  It seems like they are just out of touch with the American people.  Last year they were doing hearings on steroids in baseball and you have a war going on.  This year they are talking about gay marriage and millions of jobs are being sent out of the country and there is illegal immigration and they just don't seem to want to get anything done with it.

MIRANDA:  Part of me agrees and part of me disagrees.  The Senate and Congress actually does a great deal of work.  The real criticism is whether they are listening to what the American people want them to do or are they spending time on things that really no one cares too much about.  That is a valid point.

But I will quibble with you because I do think those people work hard and they do accomplish a great deal throughout the year that no one ever realizes.  But it is these other issues that get a lot of attention, and for good or for bad, they get a lot of attention.

CALLER:  It just does not seem that they care about what the taxpaying people want to see done in this country.  I mean, I don't know anybody who cared about steroids in baseball to be quite honest with you and they spent a couple of weeks on that.

GIACHINO:  Do you think we are doing a good enough job as the general public of letting them know what we want them to deal with or are we giving them free rein?  I hate to throw a question back at the listener, but I pose this question just about every week.

CALLER:  Right, I agree with you.  I don't think people are engaged enough about these issues.  I think people wonder what it is going to matter whether they write their congressman or call the office or something like that.  Overwhelmingly people want things fixed and these guys go about their business day in and day out making whatever money they can get and seeing whatever special interest group or lobbyists come in their office.  And the folks who are out here working and paying their taxes it seems to me are the last people on their minds.

GIACHINO:  Manny, I bet as a former aide to Senator Frist you can tell us stories of where the senator did listen to his constituents.

MIRANDA:  Oh sure.  There are so many.  Every day in the Senate you have to choose between ten matters that have to be done.  You have to choose between whom you meet with and who you listen to and what you act on and what goes on the agenda.

You know the most valuable thing in the Senate is Senate floor time, because at the end of the day there is only so much time that can be debated on the Senate floor.  There are only a short number of hours that can be had in a week.  And then senators have to go back home because their constituents expect them to go to some rally or take some meeting or event or go to some high school graduation to give a speech.  So they are expected to be home as well.

So because I have that unique perspective and I have been there I don't complain about the fact that these people work very hard and their staffs work very hard.

CALLER:  Okay, I agree that they work very hard but it is their priorities.  I can say I work hard all day but if I don't get done what I need to get done and prioritize, and then it is not that important.

MIRANDA:  I agree with you.  Let me give you this example.  I hope that I don't make anyone angry with this because I don't want to be taken out of context too much.  They are about to debate the flag burning amendment and make it unconstitutional to burn the flag.  Now in principle I support that.  I don't think anyone should go around and burn our flag.  But do I think they should spend 2 days of Senate floor time debating that when so many other things have to get Senate floor time, well no. I would rather that they be debating judges or debating taxes or debating any number of other things.

CALLER:  What I would like to say is trillions of dollars in debt, millions of illegal aliens, all kinds of drugs coming across that border, and every day we hear about the War on Terror and the most rank and file people are not stupid, they know that this is just not connecting.  How these folks can go up on the Hill and not get things passed and not get things taken care of is infuriating to the average American.  And I know that I have said enough.

GIACHINO:  Your point blends in very nicely with what we are discussing today and that is judicial nominations.  The less they get done at the legislative level, the more important it is that we have the right judges.  Wouldn't you agree Manny?

MIRANDA:  The downside of what I know about how Congress does business is that very often legislation is worked out at 2:00 a.m. by some bleary-eyed staffer who turns to their Democratic or Republican counterpart and says "let's let the courts decide this."  And that is how legislation is made and that is why the courts matter more and more.

You know they complain that the courts are declaring a law unconstitutional or overturning a law that Congress adopted, you know why?  That's because Congress did a bad job.

GIACHINO:  What amazes me is time and time again these people who take office take an oath to uphold the Constitution.  Yet, I wonder how often any of them actually pull out the Constitution and refer to it when they are looking at legislation that they are considering.

MIRANDA:  You bet.  Look at John McCain just recently.  He pushed for legislation to require immigrants to pay back taxes and ironically they would also be entitled to tax credits, even though they have been here illegally for four or five years.  He didn't read the Constitution because only the House of Representatives can pass legislation to raise taxes or raise revenue.  Not the Senate.  So that is a classic example of John McCain once again not reading the Constitution.

GIACHINO:  I want to get back again to the issue of judges.  But before I do that, I want to give you an opportunity to give out website information so that the listeners can learn more about you and the hard work that you are doing in the judicial nominations battle.

MIRANDA:  To learn about me you can go to Mirandafund.com.  To learn about the issue you can go to committeeforjustice.org. 

GIACHINO:  I would like to turn to some news of late and pick your brain about what is going on with South Carolina Republican Senator Lindsey Graham.  Why does it seem that he is personally holding up the nomination of Jim Haynes to the U.S. Court of Appeals for the Fourth Circuit?

MIRANDA:  That's two questions there.  What is going on with him?  Who knows?  I think he wants to be John McCain's running mate.  He is not representing South Carolina.  You would think he is more from Arizona than South Carolina in some of the things that he does.

Now it turns out that he is the first Republican on record to be obstructing the president's nominees.  First we had Democrats, now we have Lindsey Graham.  And he is blocking Jim Haynes, who is perhaps the most qualified nominee waiting in the Senate, and he has waited for three years now.  He had a hearing in 2003 and so his hearing was three years ago.  And the reason is that Lindsey Graham has disagreed with some of the decisions he made when he was a lawyer, has been a lawyer, in the Department of Defense.  And Lindsey Graham has been a judge advocate general judge; he is a military judge and still serving even though it is unconstitutional.  At any rate, he is serving and he is simply taking the side of the judge advocates against Jim Haynes, even though it is a policy dispute that should have nothing to do with the confirmation.  He is just angry with Jim Haynes for his role in the Bush Administration and he is blocking him and denying him a vote, just like the Democrats.

GIACHINO:  And I agree that he is working hard to get on the ticket with McCain in 2008.  Let's look at the 2006 mid-term elections.  What effect, if any, do you think the judges' situation is going to have on those elections?

MIRANDA:  It is going to have an enormous effect in some states and it will be very surprising for some of us.  You know Tom Kean is running against Bob Menendez in New Jersey and he is six points ahead of a sitting senator.  And that is Tom Kean, the son of the former New Jersey governor.  And Bob Menendez has been one of the biggest thorns in the president's side on judicial nominations.  He was the guy who said Miguel Estrada, who was debated forever in the Senate; he was the guy who said Miguel Estrada was not Hispanic enough.  Bob Menendez, who does not even speak Spanish.

You have a race in Maryland where Michael Steele, an African American, is likely to be running against Quasi Enfume, who was the head of the NAACP, and Enfume was again one of the thorns in the president's side in blocking even African American nominees.  So you have Michael Steele who could bring this up in Maryland and we could get Maryland and New Jersey which are blue states in the Senate this year.

Of course there are races throughout the country in which senators will be well served and nominees who are brand new candidates who are going to be well served by bringing it up and reminding the American people that the Senator from West Virginia and the senators throughout the south and Midwest have been blocking the president's nominees.  And people have been more and more aware of what that means and why it matters.

It mattered in 2002.  It was the issue that made the Republicans get the majority back when you do the study on the polling.  It mattered in 2004.  The issue on the judges and the Massachusetts gay marriage decision, all these things have to do with judges and that is why people elected George Bush in many states and a large number of Republican senators and that is why we want to make sure that the Republicans in the Senate continue to press this issue.  They need to continue to debate it and confirm the president's nominees.  And the last thing we want is for a Republican senator, like Lindsay Graham, to be the guy who is causing the obstruction.

GIACHINO:  That's right.

Well you mention Miguel Estrada.  I guess his comrade would be the Honorable Charles Pickering who has joined us on this program.  We all know the long battle that he fought, as did Miguel Estrada.  Recently the White House announced that the president had received a letter March 22 from Judge Saad from Michigan, announcing his withdrawal of his nomination from the U.S. Court of Appeals for the Sixth Circuit – one that has been pending way, way too long.

From what I understand, Judge Saad was born in Detroit, he is a life-long resident of my birthplace, Michigan, and he was the first Arab American appointee to the Court of Appeals for the Sixth Circuit.  Do you think his appointment would have done anything to improve Arab American relations?

MIRANDA:  My lord, here you have a president with all the issues at stake who names the first Arab American to the circuit court with the most Arab Americans living in it – the Sixth Circuit because Michigan and Ohio have the greatest number of Arab Americans.  And what do the Democrats do?  They block the nomination of this eminently qualified gentleman who has been elected by the people of Michigan three times.

Henry Saad, I'm glad you raised that, because Michigan, another blue state, is a state where this could be a serious issue in knocking out Debbie Stabenow who is probably out of her league to begin with.  You are going to have a very serious nomination in Michigan against her and he would be well put to bring up what happened to Henry Saad because it was Debbie Stabenow's petulance that blocked Henry Saad from getting a vote.  In essence, he withdrew and he was defeated.  The president's nomination was defeated by his withdrawal.  Republican Senators allowed it to happen and they are at fault.  But the bottom line is that Debbie Stabenow made it happen so Michigan is another state where this could be a very big deal.

GIACHINO:  Okay, we have about one minute left.  If you will pull out your crystal ball I would like to ask you whether the president will get another bite of the Supreme Court apple.

MIRANDA:  I think he will.  I think it is inevitable.  You know it may even be as early as July 1 because John Paul Stevens has said that he wants to retire with a Republican president.  You know he is a Republican and an old-fashioned sort of Nixon Republican.  But he wants to retire and his wife wants to retire.  In essence he has already retired.  You know he lives in Florida most of the time and goes up to Washington only for oral arguments.  So it is very likely that it could happen very soon.  If not, it is almost certain that it will happen within the next few years before this president leaves office.

GIACHINO:  Okay.  We have been talking with Manny Miranda, who is a former aide to Senate Majority Leader Bill Frist and who is now Chairman of the Third Branch Conference.  Manny, if you will please give people your website address again.

MIRANDA:  Sure.  www.Mirandafund.com or www.committeeforjustice.org.

GIACHINO:  Thanks so much for joining us on the program and we will be in touch soon.  Certainly we are going to put you down as the first to say it here – that there may in fact be some announcement from the Supreme Court around July 1st.  We will be sure to give you credit for that.

MIRANDA:  Okay, good.  Thanks so much.

GIACHINO:  Thank you.  We will talk with you again soon.

June 29, 2006
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