Don't Let Me Stop You: Extraordinary Circumstances

Sen. Barabara "Shorts" Boxer was on Fox this afternoon. She's arguing that Justice O'Connor's retirement is ipso facto "extraordinary circumstances," since O'Connor was a swing voter. That sets the bar mighty low.

Sen. Ben Nelson, one of the seven Democrats who were actually involved with the agreement to Save the Filibuster, has a different view according to his letter to the Lincoln Journal Star on Sunday:

Bench Memos on National Review Online: "In a July 12 letter Robert A. Wolff of Sterling said I owe it to the people to say what I consider extraordinary circumstances when it comes to filibustering a nominee for the U.S. Supreme Court.

I have repeatedly made my position clear in numerous interviews with reporters since our group of seven moderate Republicans and seven moderate Democrats brokered a compromise to break the logjam on judicial nominations.

On the retirement of Justice Sandra Day O'Connor, the Los Angeles Times quoted me as saying 'If someone was committed to being a judicial activist that would raise the question of extraordinary circumstances.' There was a similar quote in the Washington Post. On Fox News Sunday another member of the 'Gang of 14,' Republican Sen. Lindsey Graham and I concurred that 'Based on what we've done in the past, ideological attacks are not an extraordinary circumstance.' That position was restated at a news conference in Omaha the day O'Connor announced her retirement.

I will say it once again for Wolff's benefit as he seems to have missed it in the past; philosophical views do not constitute extraordinary circumstances. I would hope Wolff would agree that the Supreme Court is no place for an activist judge."

Now the only question is: what's the meaning of "activist?"

We got a letter on this topic from Sen. Chuck Hagel today that was pleasing. He speaks strongly for the right of all the nominees to an up or down vote in the Senate. Speaking of the Save the Filibuster movement, he says:

"I did not support this compromise. It was unjust and not right. Fourteen Senators should not have the right to determine which of the President's judicial nominees get votes and which do not get votes. All nominees deserve up-or-down votes and that should have been the principle that anchored any agreement."