Balkinization: What About Bush's Judicial Nominees?

What About Bush's Judicial Nominees?

David Stras

In response to my previous post on judicial appointments, see here, I have received some inquiries about whether I think that President-Elect Obama should renominate some of the pending (and less controversial) Bush 43 judicial nominees, including Peter Keisler. It should come as no surprise that my normative answer is yes because I believe that nominees such as Keisler have been unfairly held by the Senate. (In the interest of full disclosure, I worked with Peter while practicing law at Sidley, Austin, Brown & Wood from 2001-2002 and think quite highly of him.) I would also encourage President-Elect Obama to renominate one of Bush's Fourth Circuit nominees, such as Judge Robert Conrad of the Western District of North Carolina, because of the record number of vacancies on that court. Both Keisler and Conrad have been unanimously deemed "highly qualified" by the ABA Standing Committee on the Federal Judiciary.

Do I think that Obama will renominate any of Bush's judicial nominees? No, though it would be an incredible gesture of bipartisanship, one that Bush himself made when he renominated Roger Gregory, originally a Clinton nominee, to the Fourth Circuit in 2001. As Jonathan Adler points out in this post, however, Obama has not shown bipartisan tendencies with respect to judges as he voted to filibuster the Alito nomination and did not participate in the "Gang of 14."

But far more fundamentally, there is very little political incentive for Obama to renominate any of Bush's judicial nominees. If Roland Burris and Al Franken are seated, Democrats will control 59 of 100 Senate seats, just one short of a filibuster-proof majority. Unless Obama makes some outrageous judicial selections (such as corrupt, biased, or unqualified nominees), I cannot imagine that Republicans will be able to hold together a coalition to filibuster or block any nominees, particularly with moderate senators such as Olympia Snowe, Susan Collins, and Arlen Spector among the ranks of Republicans. (I suspect, in fact, that if any of Obama's judicial nominees fail to come up for a vote in Obama's first two years in office, it will be because one or more Democratic senators oppose the nomination.) If there were ever a situation where it might be prudent to renominate judicial nominees of a prior president, it would be when the Senate is virtually equally divided or even tilted toward the opposition party. Indeed, when President Bush renominated Roger Gregory to the Fourth Circuit and then nominated Clinton district court appointee Barrington Parker to the Second Circuit, the Senate was equally divided between Republican and Democratic senators. In such a case, the hope is that the gesture of bipartisanship by the president will encourage recalcitrant senators of the opposition party to confirm the entire slate of judicial nominees.

But even with an equally divided Senate, Bush's bipartisan strategy was unsuccessful. Of the eleven nominees initially advanced by President Bush including Parker and Gregory, two never received a vote (Terrence Boyle and Miguel Estrada) and another (Priscilla Owen) was confirmed by the Senate about four years after her nomination as a result of the compromise reached by the Gang of 14. Other nominees in that group, such as Jeffrey Sutton and Deborah Cook, also encountered some delay after their nominations were submitted to the Senate. Thus, based on recent history and the reality of the political situation, I cannot imagine that Obama would feel pressure to renominate any of Bush's judicial nominees unless he is trying to curry political favor with a particular set of senators, such as with respect to the North Carolina senators by renominating Judge Conrad.

Posted 1:45 PM by David Stras [link]

Comments:

History didn't start with Bush's generous renomination of Gregory, though. The Democrats of that period clearly were looking to retaliate against Republican obstruction of Clinton nominees during the last several years of his presidency, including attempted filibusters by the party which swears that filibustering judicial nominees is against the norms and traditions of the Senate. The renomination of Gregory represented a legitimate effort to end the cycle of retaliation and regain some goodwill, but it was still only part of the equation, not the full picture. I assume the Democratic perspective would be that you don't get to block dozens and dozens of nominees, renominate a single one of them, and then claim that everything is suddenly okay.

I certainly don't think there's any harm in asking Obama to renominate a Bush appointee or two and he may well do it. Peter Keisler is a bit of a toughie just because the DC Circuit is so important, but hey, it never hurts to ask.

# posted by

Steve M : 3:44 PM

I expect much more of a fight from Republicans on judicial nominees than you seem to. First, I think you underestimate the extent to which Republicans have demonstrated party discipline. If they choose to block a nominee, I expect they will follow that course unanimously. Second, judicial nominations are one of the few areas in which Republicans can exercise power which benefits them -- their base cares a lot, while most Americans don't care much at all. Third, I think you overestimate the party unity of Democrats. Even in the best cases I expect a dissent or two. Combine these three factors with Harry Reid's weakness as Majority Leader and I think the Republicans will pose major obstacles to any effort to redeem the judiciary.

# posted by

Mark Field : 3:52 PM

So Obama opposing Alito demonstrates that he doesn't have "bipartisan tendencies," huh? Because only some radical, raving partisan could have possibly opposed his elevation? Gotcha.

# posted by

Anonymous : 6:10 PM

You really think after all its huffing and puffing about how filibustering judicial nominations is improper and its attempt to pass the nuclear option, the GOP will really filibuster any of Obama's nominees?

# posted by

Marc : 6:34 PM

Yes. Well actually, the Republicans will threaten to fillibuster and the Democrats will cave in immediately. Like always.

# posted by

Miriam Kniaz : 7:00 PM

Prof. StrasL

In response to my previous post on judicial appointments, see here, I have received some inquiries about whether I think that President-Elect Obama should renominate some of the pending (and less controversial) Bush 43 judicial nominees, including Peter Keisler....

Why? And just because you think so doesn't mean it's a good idea, much less required by "bipartisan civility" let alone law or even customary practise.

It should come as no surprise that my normative answer is yes because I believe that nominees such as Keisler have been unfairly held by the Senate....

You might have though about that in 2000.

... I would also encourage President-Elect Obama to renominate one of Bush's Fourth Circuit nominees, such as Judge Robert Conrad of the Western District of North Carolina, because of the record number of vacancies on that court. Both Keisler and Conrad have been unanimously deemed "highly qualified" by the ABA Standing Committee on the Federal Judiciary.

There's no shortage of ABA "highly qualified" candidates (not to mention Dubya decided to ignore that classification in lieu of FedSoc vetting long ago).

You want your nominees, go win an election. THe people want something other than Dubya's raft of RW conservatives (of which he got plenty of his share in that last eight years). Your time is up. Toodeloo.

Cheers,

# posted by

Arne Langsetmo : 7:25 PM

Obama has not shown bipartisan tendencies with respect to judges as he voted to filibuster the Alito nomination and did not participate in the "Gang of 14."

Opposition to Alito is no sign of lack of bipartisanship.

Cheers,

# posted by

Arne Langsetmo : 7:28 PM

GlennNYC-

He didn't just oppose Alito, but he also voted to filibuster him (which is a further step toward partisan behavior).

# posted by

David Stras : 8:16 PM

Marc-
I hope not, but my guess is that Republicans will be attempts to filibuster judicial nominees.

# posted by

David Stras : 8:18 PM

Prof. Stras:

He didn't just oppose Alito, but he also voted to filibuster him (which is a further step toward partisan behavior).

So if the Republicans filibuster any Obama appointees, that would be "partisan behaviour"?

That's what they were doing when they filibustered Democratic bills these last two years?

Hate to say it, but the Republicans have no leg to stand on that will allow them to scream "partisanship" at full volume intelligibly.

Cheers,

# posted by

Arne Langsetmo : 8:26 PM

He didn't just oppose Alito, but he also voted to filibuster him (which is a further step toward partisan behavior).

Maybe he thought that Alito was too conservative to serve on the Supreme Court?

Look, I'd be in favor of a "grand bargain" (and I said this years ago anticipating the Bush presidency as well as now anticipating Obama) where every President gets their nominees on the courts.

But short of that, each party is going to block the other's nominees, and whatever spin they put on it, it's because they are opposed to them ideologically. It isn't mere partisanship, it's substance. Alito replaced O'Connor and moved the Court to the right. Clinton nominees who were held up by anonymous holds would have moved the courts to the left. That's all this is.

Either we are going to have a principle about confirming the President's nominees or we aren't. But if we aren't, then let's just be honest and admit that we are all trying to move the courts in one direction or another.

# posted by

Dilan : 9:18 PM

The Founding Fathers provided for the "advice and consent" procedure for key appointments in circumstances where the British monarch would only have acted on advice of the Privy Council. Indeed at the time there was discussion whether the new head of the executive should govern with a council of advisers. The role of the senate was considered to be the best solution with the senators as the "great and good greybeards" having an input in the national interest.

Given their constitutional role, it seems to me that it would be an abdication of constitutional duty to have any compact whereby the senators agreed simply to let through nominations.

There is much merit in having a judiciary which is slightly what in the UK we call "small c - conservative" running slightly behind the extreme positions of the legal theorists. A balance of activists and strict constructionists - of liberals and conservatives - a bench where there is debate and an interplay of ideas - but where no faction dominates.

The problem is that from Bork onwards there was a deliberate attempt to shift the judiciary to the right - in particular towards the "originalist heresy". Small wonder that there is a wish in some quarters to rebalance the mix. But, while the constitutional appointment power should probably stay as is, there might be a great deal of merit in having for the future some kind of permanent bipartisan advisory commission to draw up lists of recommended candidates for appointment to the president and the senate.

# posted by

Mourad : 5:49 AM

I find most of the comments here far too generous. Cries for "bi-partisanship" from a losing party really don't merit serious attention absent that party's demonstration of legitimate bi-partisanship prior to their loss. In the current case the GOP has been as poisonously divisive and partisan as anyone could imagine, and thus really has no grounds, other than the loser's cry for mercy, to suggest bi-partisanship at this moment in history. Let the GOP manifest and demonstrate it's own commitment to bi-partisan action for a term or two, that is, let the GOP first remove the polarized partisan plank from its own eye. Until then their cries deservedly fall on deaf ears.

# posted by

Robert Link : 8:06 AM

Let the GOP manifest and demonstrate it's own commitment to bi-partisan action for a term or two, that is, let the GOP first remove the polarized partisan plank from its own eye.

Agreed. Do unto others and all that--you'd think the so-called "party of the Christian right" would be familiar with the "casting bread upon the waters" meme.

# posted by

PMS_CC : 12:32 PM

PMS_Chicago: Are you talking about them guys trying to pull their camels through needle eyes instead of feeding the Master's lambs? I think the translation that actually dominates is still "Do unto others, then split."

# posted by

Robert Link : 1:05 PM

I wouldn't be surprised if Obama found at least one or two pending nominees he deems acceptable. It might not be for the more important 4th Circuit, but he has the mindset to try to throw the other side a few bones. This can help is a logrolling way too.

And, if a pretty firm Republican caucus makes a stink about someone, he might decide to not press the issue. Block voting, as Mark Field notes, is consistently characteristic of only one side here. 59 votes might help, but so would Obama tossing a few choices the way of Republicans.

[Taking the NRO link to heart, this apparently can mean finding some Bush appointee that is safe enough to elevate. See Barrington Daniels Parker. Since they all weren't BAD, this is likely possible.]

But, this is a lame example of parity:

"Bush himself made when he renominated Roger Gregory, originally a Clinton nominee, to the Fourth Circuit in 2001"

Look at the Wikipedia entry, but I recall this matter quite well w/o it. This was the seat that was vacant for about a decade, in large part because of a certain conservative senator holding up the works, Clinton repeatedly trying to fill it.

Gregory was the first black to serve on the circuit. Given the history, Bush would have looked rather bad blocking things yet again. He was confirmed 93-1.

Using his opposition to Alito as proof he was not "bipartisan" is rather lame. Others have said enough on that pt.

Not supporting the Gang of 14 (which you previously suggested -- when I brought it up -- was just an example of horse trading anyway) is bit more useful in this respect. But, not by much, since it wasn't much of a compromise (the result was seating the most controversial judges at issue and time showed the "extreme circumstances" language was rather meaningless.

It also is of little value to cite Estrada etc. without facing up to the fact that many of the problems were problems for significant reasons. Not just partisan nastiness.

# posted by

Joe : 11:38 PM

John Dean here links up to some writings of OLC pick Dawn E. Johnsen, including a useful (and short) piece entitled "Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate."

# posted by

Joe : 8:16 AM

It seems that every time Stras makes an entry, I have the strange feeling that he is living in an alternate universe, or else is a graduate of the Karl Rove Orwell School of Communications.

His definition of "bipartisanship" is a case in point. Since when is a vote against Alito any indication of a lack of true bipartisanship?

And even stranger, exactly when did Bush pursue any type of bipartisanship in appointment of federal judges? Stras points to a grand total of two, out of hundreds of appointments. That's about as bipartisan as the rest of Bush's record.

Ms. Stras's politics appear to be so far to the right -- as evidenced by his clerkship for Thomas -- that he considers Alito to be a moderate of some sort -- instead of being one or the two or three most right-wing Supreme Court justices of the last 70 years.

Further, Stras apparently overlooks Alito's at-best questionable truthfulness during the confirmation hearings about his membership in the nationally infamous "Concerned Alumni of Princeton," a group aimed at keeping women and minorities out of Princeton. His claim was that he joined the group only because they supported having ROTC on campus, and that he had utterly no idea about everything else this rancid group stood for.

And that must be the reason as well that he was careful to list it on his resume when applying to get in the Reagan Justice Department -- he wanted to let them know he was an avid ROTC supporter, of course.

And then we were treated to the kubuki theater of his wife weeping behind him, at the mere thought that her husband might be even suspected of being racist and misogynist -- all just because he belonged to a group famously espousing that philosophy.

That explanation demonstrated one of two things -- either that Alito was not telling the truth, or else was perhaps the most selective information parser history. In an almost mystical way, he DID know somehow where this group stood on ROTC -- a program to which Alito did not belong -- but somehow missed everything else this group was saying.

And though listing his membership in his 1985 job application, he was, of course, also totally ignorant of this comment, in a 1983 issue of the group's magazine:

""People nowadays just don't seem to know their place," author H.W. Crocker III wrote in a 1983 issue of the magazine. "Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."

The only reasonable conclusion was that Alito in fact was deliberately prevaricating. I live in the State of Washington, and attended the University of Washington for undergrad and law school, finishing in 1977. I have no friends from Princeton. Yet I was very well aware of this nefarious group, because it received a lot of attention in the natonal news, and especially in legal circles.

So how come I and millions of others were somehow able to learn about this group, but a man attending Princeton, where it had an even higher profile, claimed he was ignorant.

This doesn't even pass the giggle test, let alone the smell test.

So I find it shocking that Stras would even attempt to argue that a vote against Alito was a vote against bipartisanship. And the "gang of 14" as such a measure? Please. That was seven official republicans; Lieberman, all but Republican; and seven "blue dog", conservative Democrats lacking any spine.

Ross Taylor

# posted by

JohnMark : 3:26 PM

The last comment noted the seven Dems were blue dogs w/o any spine. This might be fair, but as to Sen. Byrd at least, it seems less so.

Also, note how Justice Alito, for some reason, was the only one who didn't show up when Obama/Biden came to visit. Perhaps, it was because they were so partisan?

# posted by

Joe : 2:00 PM