Archive | Judicial Nominations

Jockeying Over the Next Nominee

The WSJ‘s Jess Bravin has an interesting article on a debate within Democratic circles over President Obama’s next Supreme Court pick.

Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican opposition.

One thing found interesting about the story was its characterization of various prospective nominees.  Specifically, Bravin reports that the President’s lagging approval ratings could prompt a “less-controversial” nominee, such as D.C. Ciruict Judge Merrick Garland or Solicitor General Elena Kagan.  I certainly agree that Judge Garland would be a relatively uncontroversial choice, as Garland has a well-deserved reputation as an exceptionally intelligent, moderate judge.

SG Kagan also commands wide respect, and is highly qualified even if she lacks judicial experience, but I wonder whether she would be a “less-controversial” choice than some prospective alternatives.  As Ed Whelan notes, 31 Republicans voted against her confirmation to SG, suggesting she her nomination would start with a significant base of GOP opposition.  Given the prevailing political winds, I also wonder whether some Republicans will be more willing to fight against a nominee picked from within the administration.

I was also struck by the article’s suggestion that Judge Diane Wood would spark greater opposition than Kagan, largely due to her opinions in abortion cases.  As I’ve noted before, I’ve long thought Judge Wood was an obvious Democratic choice, and is so well-qualified that she would be safely confirmed.  I would also think that, right now, it would be easier to confirm a highly regarded appellate judge from the midwest than an administration insider.  But what do I know, I’m just a midwestern academic who’s old-fashioned enough to believe the Senate [...]

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Senate Set to Confirm Schroeder

It looks as if the Senate will finally confirm Duke Law School professor Christopher Schroeder to head the Office of Legal Policy in the Department of Justice.  The Senate Judiciary Committee approved his nomination for the second time yesterday with substantial Republican support.  The Committee vote was 16-3, and both Senators Sessions and Hatch voiced their support for his confirmation.

Schroeder’s confirmation will be good news for the Obama Administration.  He is a tremendously intelligent and accomplished scholar who also has significant executive branch experience.  His confirmation should also help with the vetting of potential judicial nominees, a task traditionally delegated to OLP within the Justice Department, and may help the Administration pick up the pace of judicial nominations.

The news does not appear as good for two other Justice Department nominees.  The committee approved Mary Smith’s nomination to head the tax division by a party line vote and consideration of Dawn Johnsen for the Office of Legal Counsel was postponed.  Johnsen’s confirmation could continue to face particular difficulty, in part because she does not have universal support within the Democratic caucus.  At least one Democratic Senator, Ben Nelson, has said he opposes her for the job. I previously blogged on the Johnsen nomination here. [...]

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Ending Judicial Nomination Fights

“Tit-for-tat” has produced a downward spiral of increased politicization and obstruction of judicial nominations.  Now that Senate Democrats have lost their super-majority in the Senate — and have learned that even a super-majority does not guarantee quick confirmation — perhaps there is an opportunity for Republicans and Democrats to reach an accommodation over judicial nominations.

The key stumbling block to any deal over judicial nominations is the underlying “tit-for-tat” dynamic.  Just as Senate Democrats were reluctant to agree to any deescalation when a Republican was in the White House, Republicans are reluctant now.  Neither side wants to accept a deal for which the opposition is the primary near-term beneficiary.  I see two ways to deal with this problem.  One possibility is to agree to a set of rules that will apply at some future date when there is some uncertainty about which party will be in control due to an intervening election.  If each side is somewhat unsure about whether they or their opposition will benefit from a rule, it should be easier to agree upon a more neutral standard. As the next Presidential election is still more than two years away, such a deal might be premature, but it is the sort of thing I would hope some Senators would consider.  Perhaps in early 2012 Senators could make such a deal to apply beginning in 2013.

A second possibility would be to adopt a more deferential rule today while compensating the opposition party for giving up the same obstructionist tools the other party previously enjoyed.  So, for example, I would propose a deal whereby both parties would agree to apply a more deferential standard (and, ideally,forswear the use of filibusters), and,in return for agreeing to such a deal while there is a Democrat in the White House, President Obama [...]

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Judge Goodwin Liu?

The Daily Journal reports that President Obama is “poised” to nominate Professor Goodwin Liu, Associate Dean at the University of California at Berkeley’s Boalt Hall School of Law, to the U.S. Court of Appeals for the Ninth Circuit.  Prof. Liu is an accomplished scholar with an impressive background.  But I also suspect his nomination could face a chilly reception from Senate Republicans, and not simply because he is a liberal academic.

I believe Senate Republicans are likely to oppose Prof. Liu for multiple reasons.  First, Prof. Liu Chairs the Board of Directors the American Constitution Society for Law and Policy.  This is not the sort of thing that should be disqualifying for a federal judgship, to be sure. Yet Senate Democrats firecely opposed, and ultimately blocked, confirmation of Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit, largely because he was a co-founder of the Federalist Society for Law and Public Policy Studies (where he is also now Chairman of the Board).

Second, Prof. Liu was an outspoken critic of President Bush’s nomination of Samuel Alito to the Supreme Court.  He co-authored an ACS report critical of Judge Alito’s record on death penalty cases and, more importantly, testified against then-Judge Alito’s confirmation to the Supreme Court.  In his testimony, Prof. Liu argued that Senators should consider a nominee’s “judicial philosophy” and suggested that Judge Alito should fail such a test.  According to Prof. Liu, then-Judge Alito was “at the margin, not the mainstream,” and that the America envisioned by his record on the bench “is not the America we know. Nor is it the America we aspire to be.”  I suspect Senate Republicans will remember this testimony when considering Prof. Liu’s nomination.

I have long deplored the politicization and obstruciton of judicial nominations.  [...]

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In Defense of Supreme Court Law Clerk Polarization

Adam Liptak’s New York Times article on Supreme Court law clerks suggests that there is something troubling about the fact that the career paths of conservative and liberal Supreme Court justices’ clerks have diverged over the last 20 years. Liptak is a knowledgeable and generally fair-minded legal reporter. In this case, however, I think he is portraying a positive as a negative.

Justices have always tended to hire clerks who reflect their own ideological leanings. Prior to the 1980s, the ideologies of different judges’ clerks didn’t differ much because there was little ideological diversity among the justices themselves. Until the appointment of several conservative justices by Ronald Reagan and George H.W. Bush, William Rehnquist was the only clearly conservative justice on the Court; Chief Justice Warren Burger was also conservative on some issues, but far from consistently so. Richard Nixon and Gerald Ford did appoint some justices that were more pro-prosecution on criminal law than the Warren Court was. But most of the Nixon and Ford appointees stayed well within the liberal post-New Deal consensus on other big issues before the court, such as race, gender, property rights, federalism, regulatory law, and the like. Two of the five Nixon-Ford appointees (Blackmun and Stevens) actually ended up voting with the Court’s liberal bloc on nearly all the important cases that came up in the 80s and early 90s. It isn’t surprising that these Republican justices ended up hiring clerks with views that didn’t differ much from those of the Court’s most liberal members. Scalia, Thomas, and – to some extent – O’Connor and Kennedy, were much more willing to challenge liberal judicial orthodoxies, and tended to hire more genuinely conservative clerks. Thus, the divergence between those clerks’ later careers and the ones pursued by clerks for liberal justices.

In my view, [...]

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Filibustering Judge Hamilton

Several news reports indicate that some Republican Senators are going to try to filibuster the confirmation of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit.  This effort is futile and unfortunate.  Even if I believed that Judge Hamilton’s record justified opposition to his confirmation (and I do not, as I believe the Senate should be relatively deferential to a President’s judicial nominees), I would oppose a filibuster. Even if Senate Republicans had the votes to block Judge Hamilton’s confirmation, I would still feel the same way.

The strongest argument in favor of a filibuster is that Republican Senators are unwilling to engage in unilateral disarmament in fights over judicial nominations.  Under this reasoning, the attempted use of the filibuster would be justified as a retaliatory measure until such time as both parties could agree to forswear future reliance upon it.  I have yet to read of any Republican Senator justifying an attempted filibuster on this basis, however.

Last fall, I suggested a GOP filibuster attempt might end the filibuster of judicial nominations once and for all:

While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all. Indeed, I would feel better about any GOP filibuster threats if filibustering GOP senators would commit to voting to support the nuclear option if it were invoked. In this way, GOP Senators could maintain a principled opposition to the filibuster of judicial nominations without

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Where Are the Judges?

The Obama Administration has announced nominees to the federal bench at relatively slow pace thus far, as I noted here and here.  Now the lag is beginning to get more attention.  As the NYT reported over the weekend:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts. . . .

The White House contends that the number of confirmations, not nominations, is what matters. They argue that they were proceeding more methodically than Mr. Bush’s team — in ways like making a greater effort to consult with home-state senators — and so a higher percentage of Mr. Obama’s nominees would ultimately become judges. . . .

By this point in 2001, the Senate had confirmed five of Mr. Bush’s appellate judges — although one was a Clinton pick whom Mr. Bush had renominated — and 13 of his district judges. By contrast, Mr. Obama has received Senate approval of just two appellate and four district judges.

Those numbers could rise rapidly. Four appellate and four district court nominees have cleared the Senate Judiciary Committee and are waiting for floor votes. Democrats have accused Republicans of stalling them by raising obstacles to votes on uncontroversial nominees. Republicans counter that Democrats, too, used procedural tactics to slow or

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Where Are Obama’s Judicial Nominees?

The Washington Post reports that liberal activists are upset that President Obama has yet to place his stamp on the federal courts.  The Administration has been very slow to make judicial nominations and has not spent much political capital to get its nominees confirmed.

As of last week, President Obama had only made 26 nominations to the federal courts, only three of which had been confirmed (including Justice Sonia Sotomayor).  By comparison, President Bush had made nearly 100 60 judicial nominations by this point in his first year.  As noted before, President Obama’s appellate nominees have also been somewhat older than those of his predecessors, and despite much talk of the need for nominees from “outside the box” nearly all of his appellate nominees are sitting judges.  [For lists and data on Obama’s nominees see here and here.]

Why have there been so few nominees? One possibility is that those responsible for identifying and vetting nominees have been occupied with other things, including the Sotomayor nomination.  The Administration is pushing numerous major initiatives which necessarily consumes staff time and attention.  Further, key posts in the Justice Department remain unfilled, which could further stretch political appointees.  Some veterans of previous administrations with whom I’ve spoken, also believe that the Administration’s decision to centralize so much decision-making in the White House Counsel’s office (which is also preoccupied with issues of its own) could contribute to a bottleneck.

Another possibility is that the Administration is showing more deference to individual Senators, and that this has further slowed the nomination process.  The article quotes an Administration representative saying they are “working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences.”  It’s also possible that judicial nominations are just not much of a [...]

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