bryanw at tjsl.edu
Thu Jan 29 18:11:40 PST 2004
In fairness, I will look up Carnes's opinions in the Ten Commandments and Duval cases; I have not read them. Maybe there is more to him than I knew of. As Paul Horwitz concedes, "rightwing extremist" is a subjective term. What upset many of us was that Judge Johnson had been a powerful judicial critic of the death penalty, and Carnes's legal career consisted mostly of crafting and defending Alabama's death penalty law.
I stand by my statement about the contrast between Democratic treatment of Carnes's nomination and Republican treatment of dozens of Clinton nominees much closer to the political center (again, admittedly, subjective and arguable terms). Dozens of Clinton nominees were blue-slipped and denied even a committee hearing or vote. Carnes got a committee hearing, and (I think) committee approval (or at least a wave-through to the floor), in a Senate more heavily Democratic (57-43, as I recall) than the post-1994 Senate has been Republican. On the floor, only a liberal core of Democrats led by Levin, less than needed to defeat cloture, tried to filibuster him. If they had succeeded, THEN Carnes's treatment would have been comparable (though much more justified, in my admittedly biased opinion). It is quite routine for controversial nominees in the final months of an outgoing President's term to be blocked by the opposing party in control of the Senate. I actually don't blame Republicans for doing that to Clinton nominees late in 2000. I do blame my fellow Democrats for failing to effectively do so in Carnes's case.
My Republican friends might argue that the treatment of Carnes contrasts not only with Republican treatment of many Clinton nominees, but also with post-2000 Democratic treatment of some Bush Jr nominees, and I would agree. I wish Democrats in 1992 had shown a little more of the (selective) backbone they are showing today about bad circuit court nominees.
As to "filiopiety" to Judge Johnson, I can only plead guilty. I doubt very much, however, whether "most" former law clerks feel (or treat their judges with) anything close to the reverence that almost all of Judge Johnson's clerks feel for him. All I can say is, for those of us who knew him (and as may be apparent to anyone who studies his career closely): He earned it.
Thomas Jefferson School of Law
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Paul Horwitz
Sent: Thursday, January 29, 2004 5:50 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Proctor case
As a former law clerk to Judge Carnes, I hesitate to speak out and so create
or prolong the debate. But it's worth correcting the record: (1) Judge
Carnes was not "waved through" by the Democrats. His nomination was held up
at length in committee and he was subjected to a potential filibuster,
broken by an agreed-upon cloture vote after debate. The "contrast" with
Republican treatment of Democratic judicial nominees is thus less striking
than Prof. Wildenthal's description might suggest. (2) Nor, I would venture
to say, is it accurate to call him a "right-wing extremist." Granted that
the term by its nature is both subjective and not usefully descriptive.
Without quibbling over the term, I readily concede he could be accurately
described -- and criticized, by those so inclined -- as conservative,
particularly on some issues. That does not make him a "right-wing
extremist," however, any more than -- to pick the same circuit -- one could
call Judge Barkett a "left-wing extremist" because she is reliably liberal
on some issues. His opinions in the Ten Commandments case and in the en
banc opinion in the Duval County school prayer case suggest Judge Carnes is
not so easily typed.
I don't intend this as a sweeping defense; I don't much care for the degree
of filiopiety with which most former clerks insist on treating their judges.
Just a mild correction of the record.
Visiting Assistant Professor
University of San Diego School of Law
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