ConfirmThem

Lot of history here. We lost a couple of years on this seat with the debacle that was the Claude Allen nomination. Nominating a former aide to Sen. Helms with a relatively thin resume to a seat claimed by a blue state with two liberal senators was not a recipe for success. The whole fraudulent receipts, resign-in-disgrace criminal conviction follow-on was just icing on the cake of a nomination that had a 0.0% chance of success from the get-go. Actually, wasn't this was the seat that Peter Keisler's name on it, but the nomination never happened because the Maryland senators signaled they would oppose?

Yes, this was originally supposed to have been the seat to which Keisler was nominated, but it was opposed immediately and he was never nominated.

McConnell just used the two-hour rule to cancel/postpone the SJC hearing today on the bill to add new federal judgeships. He said that it wasn't appropriate to talk about adding new judgeships until old judgeships are filled with available nominees.

In response to McConnell's comments that the Dems didn't keep their word about confirming three circuit court judges before Memorial Day, Reid said that it was because of Republicans slow-walking the Kethledge/White nominations. He said that once Kethledge and White are confirmed this month, the Dems will have kept their word.

In response to another McConnell comment about the Republicans no longer wanting to help out the Dem agenda, Leahy stepped into the fray to say that the bill adding judges wasn't just a Dem priority, it was also a Republican priority, implying that the Republicans were cutting off their noses to spite their face. Leahy followed up with quotes from Grassley, Sessions and Coburn in May saying that they wanted the bill considered as quickly as possible.

McConnell didn't respond. This bothers me. Once again, he let the Dems get the last word. He should've told Reid that his remarks were disingenuous because the Dems didn't need to confirm Kethledge and White to honor the deal, they could've confirmed Keisler and others instead. He also should've pointed out that the confirmations of Kethledge and White coming a month late as they are do NOT fulfill Reid's Memorial Day promise. Also, McConnell should told Leahy that the Republican agenda has changed since he and Reid decided not to process other nominees instead of Kethledge and White.

Reid did, however, after defending the imposition of the Thurmond Rule by the Dems, say that there was still the possibility of confirming more circuit court nominees AFTER Kethledge and White. I guess he is referring to Glen Conrad.

I really think this is the only way that Keisler is going to get confirmed. After Kethledge and White are confirmed this month, the Dems will further delay things with the confirmation of Glen Conrad in July. If the Republicans still have any traction on the topic of judges after that, the Dems will next dangle the confirmation of Gene Pratter in front of them during September/October. If successful with this strategy, the Dems will have succeeded in gumming up the Senate calendar until Obama can be elected in November. If that happens, of course, Keisler's nomination will be placed on permanent hold.

I firmly believe Hillary would have mopped the floor with McCain, but Obama is an empty suit who holds nothing but empty rhetoric.

Keisler remains a solid opportunity to recess appoint in December 08 if it comes to that.

There is a huge flaw in your strategy. How can Bush recess appoint Keisler as long as Reid continues to do pro forma sessions of the Senate during breaks? No matter who is elected president in November, the Dems are not going to lose control of the Senate.

http://afjjusticewatch.blogspot.com/2008/06/republicans-halt-senate-busi...

"Republicans on the Senate Judiciary Committee are continuing to hold-up proceedings in an effort to further their radical court-packing agenda. Today, Republican members of the committee have once again invoked the so-called “Two Hour Rule” to halt important hearings on the Federal Judgeship Act of 2008. Their goal: to force Chairman Patrick Leahy (D-VT) and his colleagues to advance President Bush’s most controversial circuit court nominees.

In a statement released today by Sen. Leahy, the chairman of the Judiciary Committee said that “it would appear to an objective observer that Republicans believe they were elected to the United States Senate to thwart the oversight and legislative efforts of this body. This now all too familiar pattern is childish and serves no good purpose.”

While Senate Republicans accuse their Democratic colleagues of playing partisan games on judges, it appears that it is the Republicans who are trying to push an election-year row on the issue. As Sen. Leahy said in his statement, “Instead of turning their attention to issues affecting the daily lives of the people who have sent them to Washington, [committee Republicans] appear more interested in embroiling this chamber in petty, partisan politics.”"

http://leahy.senate.gov/press/200806/061708b.html

"“Today Republicans added addressing the needs of the Federal judiciary to the now long list of hearings they have objected to in the last week. Republicans objected to the Judiciary Committee’s investigation into the use of coercive interrogation techniques. Republicans objected to the impact of Supreme Court decisions on the daily lives of all Americans. And today, the Republican minority has objected to a hearing requested by Judiciary Committee Republicans to examine legislation about the need for additional Federal judgeships.

“It would appear to an objective observer that Republicans believe they were elected to the United States Senate to thwart the oversight and legislative efforts of this body. This now all too familiar pattern is childish and serves no good purpose.

“I wondered last week, as the Republican minority objected to an important hearing on Supreme Court decisions, just whose side our Republican colleagues are on. Instead of turning their attention to issues affecting the daily lives of the people who have sent them to Washington, they appear more interested in embroiling this chamber in petty, partisan politics. This behavior marks another afternoon of silence behind the witness table in the Senate Judiciary Committee, and another lost opportunity to address issues concerning the American people.”"

http://judiciary.senate.gov/member_statement.cfm?id=3417&wit_id=2629

"Historically, new judgeships are authorized when judicial vacancies are at low levels. The last time that a comprehensive judgeship bill was enacted in 1990, Congress authorized 72 new Article III judgeships. At that time, there were only 27 district court vacancies and 7 circuit court vacancies. Today, with Federal district court vacancies at 33, and circuit court vacancies at 11, and poised to drop to even lower numbers, the Federal judiciary is approaching the same low vacancy percentage as 18 years ago.

It has been nearly two decades since the last comprehensive judgeship bill was enacted. Since then, weighted filings in the district and circuit courts have risen well above acceptable standards in the targeted districts and states, and in some cases have approached record caseloads. The need for new judgeships is urgent because Federal courts must have adequate judicial resources in order to ensure that all Americans receive justice in a timely manner. And now is the best time for Congress to authorize new judgeships when no one knows what party will have the power to appoint them.

We will include in the Committee record a letter from 14 Federal judges who serve on the from the Judicial Conference’s Committee on Judicial Resources. This letter urges us to take up and pass this legislation. I hope we can respond to the urgent resource needs of our co-equal branch of government without further delay. I thank the witnesses for providing their testimony to the Committee today, and I am disappointed we will not hear from them directly. The Committee will keep the hearing record open for one week, and I look forward to reading the responses to questions submitted to the witnesses. I regret that partisan politics have preempted the Committee’s hearing on this important and pressing matter."

Courtesy of Volokh.com,

http://volokh.com/posts/1213671895.shtml

"I [Orin Kerr]] was surfing about the Interweb recently and I came across this 2002 article by my colleague Jeffrey Rosen about the failed DC Circuit nominations of Allen Snyder in 1999 and John Roberts in 1992. I remember reading the article when it came out, but it's still pretty interesting to read six years later (in part because Roberts ended up in a relatively high-profile position in the end). Too bad Snyder was never confirmed, though: I thought he would have been an outstanding judge."

http://query.nytimes.com/gst/fullpage.html?res=9C02E5D7133BF932A2575BC0A...

"The confirmation process for federal judges is in something of a meltdown. Appellate nominations are now provoking a level of partisan warfare that used to be reserved for the Supreme Court. In a fit of recriminations, Democrats and Republicans are blaming each other for changing the rules of the game. James Buckley, a former judge on the D.C. Circuit, recently wrote an op-ed column in The Wall Street Journal accusing Senate Democrats of ''obstruction of justice'' for refusing to grant hearings to President Bush's appellate nominees. ''This extraordinary inaction is having a significant effect on the court's ability to handle its workload,'' he wrote. Democrats made identical charges against Republicans during the Clinton years."

NOTE: The more things change, the more they stay the same. If the Dems really want Republican cooperation on Obama judges, they need to change their present tune.

The Dems are gleeful that the Gitmo guys will be able to tie up federal courts, but will they get pushed out on the dockets because there are so many judicial shortages?
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Obama's guiding principle: "I reserve the right to revise and extend my remarks."

If I am not mistaken, this session of Congress has to end sometime, and the next session of Congress has to begin sometime, and that sometime has to occur during 43's term.

I don't think you can pro forma your way across sessions of Congress.

to prevent there being any sort of "Roger Gregory" comparison if Obama wins. "You can't expect President Obama to nominate someone that Bush recess-appointed and we blocked because there aren't any such cases." What other reason could there be? How much "damage" could an appointee do in six months?
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Obama's guiding principle: "I reserve the right to revise and extend my remarks."

As I understand it, based upon Supreme Court precedent, recess-appointments are only considered legal if the break in which they occur is 10 days long. Anything less than 10 days becomes legally problematic for the White House and would require extensive litigation to resolve. That is why Reid does his pro forma sessions every three days during a break. Reid could make the last pro forma session of the 110th Congress on January 1st and during that session formally adjourn it. Then the 111th Congress could be convened on January 3rd just like normal.

Andrew, didn't you do some research on recess appointments several months back which concluded that recess appointments could be made even during these pro forma sessions and that they'd likely be considered legal? I remember something along those lines. Would you be able to point us to it again?

Here ya go:

http://www.confirmthem.com/recess_hardball

http://www.usdoj.gov/olc/schmitz.10.htm

Attorney General Daugherty, however, suggested in 1921 that "an adjournment for 5 or even 10 days" would not be sufficient "to constitute the recess intended by the Constitution.

I don't believe there is any SCOTUS precedent on this matter. In any event, if Obama wins and Reid is still playing his little game even into January, heck, make the appointment even on a 5 minute recess. If Obama really wants to litigate it, let him.

http://fpc.state.gov/documents/organization/50801.pdf

http://www.supremecourtus.gov/opinions/04pdf/04-828.pdf

"it would be a mistake to assume that our disposition
of this petition constitutes a decision on the merits
of whether the President has the constitutional authority
to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession 'recesses.'"

NOTE: If Reid were to do pro forma sessions until the 111th Congress convenes on January 3, 2008, only recess appointments made between the last pro forma session of the old Congress and the first regular session of the new Congress escape litigation as an "intrasession" recess. I think Stevens' message in regards to intrasession appointments like William Pryor's should be viewed as a warning sign that he would do everything in his power to block a recess appointment of less than 10 days. To make matters worse, with Obama taking power on January 20th, the new Solicitor General would probably refuse to prosecute the case much to the recess-appointed nominee's detriment.

Also, Reid could conceivably stop consideration of a recess appointment as "intersession" simply by scheduling the last pro forma session to be immediately prior to the first new session of the next Congress, say by a few minutes. In court, I think that it would be very hard to justify a recess-appointment in an intersession recess of mere minutes, especially like I said if a Dem solicitor general is going to handle the case.

PETER KEISLER!

1) For litigation reasons, Robert Conrad and Steve Matthews would not be good choices for a variety of reasons. First, Robert Conrad would have to leave his job as district court judge and as a result lose his government pension. Second, litigation involving the illegality of their recess-appointments would have to be heard by the Fourth Circuit, which at this point is a moderate court with some real liberals on it. If some combination of Michael, Motz or Gregory were on the three judge panel, you can be sure that the nominee would lose - think Al-Marri.

2) Keisler's recess-appointment, however, would have to be litigated before the much more conservative D.C. Circuit, where the chances of a conservative three judge panel is much greater. In addition, being a Kennedy clerk, Keisler is likely to have Kavanaugh's vote under any condition.

Also, Keisler's recess appointment would probably get a better review at the Supreme Court than either those of Conrad and Matthews due to greater stature in Washington. I think it would be hard for Stevens, Souter, Ginsberg and Breyer to deny a former acting attorney general who has argued cases before them a federal judgeship - especially if Kennedy is privately pressuring them because Keisler is one of his former clerks.

http://www.spectator.org/dsp_article.asp?art_id=13396

"...[the] majority party right now wants to move through the Judiciary Committee creating, out of thin air, new seats for dozens of new federal judges. You argue that these seats are necessary because the federal courts are so overworked. Yet at the same time, you refuse to fill nearly a dozen existing vacancies for which nominees have been submitted. How does that make any sense?"

In the your article I just linked to, you state:

"I would remind the leader that this is the third time our president has, against his clear desires, renominated a Clinton judicial selection in order to create good will..."

Besides Gregory of the 4th Circuit and White of the 6th Circuit, who is the third Clinton nominee renominated for a circuit seat?

BoBo, thanks for your question. At the same time Bush nominated Gregory, he also nominated another Clinton holdover. I forget who it was. Let me check.
Quin Hillyer

Although Bush nominated Clinton appointed district court judge D. Parker Barrington to replace Ralph Winter on the Second Circuit, Barrington should not be grouped together with Gregory and White. He never was a failed Clinton nominee to a circuit court like Gregory and White were. Barrington was never nominated to a circuit court by Clinton, Bush just chose him to appease the Dems. Clinton did the same thing. He nominated several Reagan and G.H.W. Bush appointed district court judges for positions on the circuit courts.

Doing just a quick survey, Clinton nominated Reagan distict court judges Maryanne Trump Barry (Third Circuit) and Stanley Marcus (Eleventh Circuit) to circuit court seats. He also nominated G.H.W. Bush district court judge Sonia Sotomayor to the Second Circuit.

G.H.W. Bush district court judge William Traxler was nominated by Clinton to the Fourth Circuit.

BoBo, you are correct. I was thinking of Parker. I have now asked the web editor to change the word "renominated" to be just "nominated." Thank you for your correction.
As an aside, I still am under the impression that there was somebody ELSE who Clinton recess-appointed who was re-appointed by Bush, but it may have been not a judge but another official. But again, my memory is hazy, so I might just be remembering the clear indication that Parker was a Democratic choice....

Quin Hillyer