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The Case for Keisler:
Over at Bench Memos, Ed Whelan asks why Peter Keisler's DC Circuit nomination is being blocked. Presumably the answer is that it's a political process, and that's how the politics are working out right now. But whatever the reason, I share Ed's dismay about the situation. I don't know Keisler well, but everyone I have spoken with on both sides of the aisle speaks extremely highly of him. Of all the pending Bush nominations, Keisler's is the one that I would most like to see go through.

Related Posts (on one page):

  1. No More Games:
  2. The Case for Keisler:
Pedant:
So that's your explanation? Just sheer cussedness? This is disappointingly below your usual high standard, and I don't mean that sarcastically. I don't follow these things enough to know the answer, but I expect it's more complicated than that. As a start, you could look at Leahy's statement and say where he is wrong. The statement doesn't address the Keisler nomination per se, but surely if Leahy is delaying it it's because he wants something, and we can't pass judgment on the delay unless we know what he wants and can judge whether it's he that is being unreasonable or the administration. Unless Leahy is refusing to offer any explanation, I think you have to do a little more homework before criticizing the delay, and especially before offering your own reason.
4.10.2008 2:33am
OrinKerr:
Pedant,

Woah, there. I think you've misunderstood the post.

1) My post does not attempt to explain the delay. Rather, it merely laments it.

2) The post is not a criticism of Leahy, or of any other member of the Senate. Politics is politics, and that's the way the game is played. I was merely lamenting the fact that the politics aren't adding up to his confirmation. As for why I posted that, it's because I care a great deal about the judiciary and I think he would be an excellent judge.

I assume that as a self-described "card-carrying ACLU liberal," you tend to conclude that Keisler is not your model of a judge. Perfectly fair perspective to have. But I tend to think he would be excellent, and I just wanted to say that. I hope that's okay; if not, I would be genuinely interested in hearing from you as why you think that is unacceptable for me to say that.
4.10.2008 2:41am
OrinKerr:
Pedant,

Ahhh, I think I get the misunderstanding. My guess is that you seem to be taking the phrase "because it can be" as if it meant, "for an arbitrary reason," or "out of spite." I didn't mean this AT ALL. (What a weird comment it would have been to mean that -- as if we could all agree on a personal accusation of any kind, much less an uniformed accusation of what an unnamed person is doing! That would have indeed been utterly bizarre.) Rather, I just meant to say, "because it's a political process, and these things happen; judicial nominations are chips in a broader political battle, so they are used in the battles accordingly."

I have amended the post accordingly.
4.10.2008 3:12am
Public_Defender (mail):
If Keisler is head-and-shoulders above the rest of W's nominee's, one key question is whether W is specifically pushing Keisler, or whether W is treating Keisler as just one of many stalled nominees. If W doesn't treat Keisler differently, he can't really expect the Senate to either.
4.10.2008 8:04am
Anderson (mail):
I'm glad to hear something positive about Keisler, since the odds are still good that he'll be confirmed (hopefully in a tradeoff that sends Steven Bradbury to the private sector).

Looking at the partisan ALJ report on Keisler, I see that he's possibly involved in the controversial decisions to drop the feds' demands in the RICO tobacco case from $130M to $10M. That is probably something that would raise the Dems' collective eyebrow.

Even the ALJ finds good things to say about him, n.b.
4.10.2008 10:15am
SDProsecutor:
Breaking news- confirmation of 5 Federal Judges to be voted on in the Senate today.
4.10.2008 10:55am
Dave N (mail):
Breaking news- confirmation of 5 Federal Judges to be voted on in the Senate today.
But is one of them Peter Keisler?
4.10.2008 12:00pm
SDProsecutor:
Just checked, and no.
4.10.2008 12:28pm
cboldt (mail):
Scheduled for votes this afternoon or evening:
.
Calendar No. 476 - Brian Stacy Miller - ED Arkansas
Calendar No. 477 - James Randall Hall - SD Georgia
Calendar No. 478 - John A Mendez - ED California
Calendar No. 479 - Stanley Thomas Anderson - WD Tennessee
Calendar No. 515 - Catharina Haynes - 5th Circuit
.
That clears the Executive Calendar of judicial nominees. All other judicial nominees are pending before the Judiciary Committee.
.
Keisler: First nominated on June 29, 2006, returned to President September 29, renominated November 15, returned to President December 9, 2006, renominated January 9, 2007.
4.10.2008 12:54pm
Fearless:
Why is there a discrepancy here:

Whelan says that Keisler was nominated in June 2006.

The DOJ website that Orin links to says he was nominated on 1/9/07. Is the latter date when he was renominated?

All I have to say is that if Ed Whelan likes Mr. Keisler, that makes me more suspicious of him. Mr. Whelan himself is quite extreme.
4.10.2008 1:34pm
PLR:
Payback is a bitch.

Fearless: Keisler was renominated for the second time on 1/9/07. The Senate has sent back his nomination twice.
4.10.2008 1:41pm
Matthew Friendly (mail):
PLR:

The Democrats have done plenty of their own obstructing over the last 8 years, so childish references to what may have occurred a decade ago with Clinton are silly and unproductive. The Democrats have destroyed numerous nominations during Bush's presidency. At some point, it must end, right? I suppose your response would be sure - it should end as soon as Bush is out of office and a Democrat is president. Unfortunately, because of the Democrats' outrageous behavior with regard to many qualified nominees, this tit-for-tat behavior regarding nominees is not likely to end the next time a Democrat is president. Once the Democrats grow up and stop their temper tantrums over what happened ten years ago, then perhaps the process will improve.
4.10.2008 2:16pm
DrGrishka (mail):
Keisler would be a wonderful addition to the DC Circuit, but if push came to shove, I would rather see Robert Conrad and Steven Agee confirmed to the 4th Circuit. That Court is really hurting with one third of its seats empty. And leaving all those seats empty makes it vulnerable to a complete ideological flip.
4.10.2008 2:53pm
dll111:

Matthew Friendly (mail):
PLR:

The Democrats have done plenty of their own obstructing over the last 8 years, so childish references to what may have occurred a decade ago with Clinton are silly and unproductive. The Democrats have destroyed numerous nominations during Bush's presidency. At some point, it must end, right? I suppose your response would be sure - it should end as soon as Bush is out of office and a Democrat is president. Unfortunately, because of the Democrats' outrageous behavior with regard to many qualified nominees, this tit-for-tat behavior regarding nominees is not likely to end the next time a Democrat is president. Once the Democrats grow up and stop their temper tantrums over what happened ten years ago, then perhaps the process will improve.


Will you say the exact same thing about the Republicans if Obama wins the Presidency? Quit harping on what happened years ago, it has to end sometime, stop acting so childish, etc., etc.?

And if the Democrats' behavior is going to be the cause of this tit for tat continuing, by that logic, isn't it the Republicans fault for their behavior as to Clinton's nominees?

If you really want all of this to end, how about you call for your own party to do something about it, instead of demanding from your opponents.
4.10.2008 2:58pm
Dave N (mail):
If you really want all of this to end, how about you call for your own party to do something about it, instead of demanding from your opponents.
Ah, I see, dll wants unconditional surrender on the issue (or perhaps just for the Republicans to be the one to act like grownups).

I have made the following suggestion before and I will make it again and I sincerely hope that all three Presidential candidates agree to it:

Jointly propose a Senate rule to take effect January 1, 2009 (yes, I know that one Congress cannot bind another on rules but a change now would put terrific pressure for the incoming Senate to agree to the rule lest the the returning members look like hypocrites)) saying, in effect, that the Senate Judiciary Committee shall send a judicial nominee for full Senate review within 120 days of nomination; that other than "blueslipping" by home state Senators, no filibusters be allowed on any judicial nominee, and that all nominees be scheduled for a vote by the full Senate within 30 days of the Judiciary Committee report.

It is a modest proposal. No one can say with any certainty who the next President will be--other than that the probability is approaching 100% that the next President is currently a member of the United States Senate.

Except for the most rabidly partisan, what is wrong with my proposal?
4.10.2008 3:23pm
Oren:
I know that one Congress cannot bind another on rules
It certainly can (and historically) does! The Senate is a continuing body and the rules are carried over from one session to the next unless objection is made as the first order of business in the new session. Otherwise, the rules stand and any rule change must be accomplished under the current rules.

Except for the most rabidly partisan, what is wrong with my proposal?
While I cannot say for certain how this would play out, I suspect that it would lead to presidents nominating more extreme judges since the threshold for support would be considerably lessened.

I say this now, I will hold to it if Obama is President - 60 votes is a phenomenally good idea because I want judges with the widest possible ideological support. It is unfortunate that this has lead to huge vacancies, something I think the President and the Senate need to work, together, to remedy.
4.10.2008 4:05pm
PLR:
The Democrats have done plenty of their own obstructing over the last 8 years, so childish references to what may have occurred a decade ago with Clinton are silly and unproductive.

Childish, silly and unproductive? I thought it was perfectly explanatory. Whelan and Kerr asked why Keisler hasn't been confirmed, and I suggested the obvious. It is hardly my fault that the cycle of lame duck presidents has an eight year interval.

I don't support political obstructionism by either party, nor do I wish to prevent either party from using whatever tools are available to it to accomplish its political objectives. I'm just an amused (and not bemused) bystander here.
4.10.2008 4:35pm
Dave N (mail):
Oren,

I respectfully disagree that we would end up with a more ideological judiciary if fillibusters were disallowed for judicial appointments.

I can name a host of judges with whom I disagree and would never have voted to confirm if I had been a United States Senator at the time of their confirmation: William O. Douglas, Abe Fortas (either time), Stephen Reinhardt, Harry Pregerson, Richard Paez (to name a handful off the top of my head), who certainly are not "centrist" under any description and might even be described by some as "extreme" (and I realize that my liberal friends could name a similar list of judges they disagree with) but I do not lament the fact that they were actually voted upon and confirmed.

Elections have consequences. The Constitution gives the Senate the power to advise and consent. It does not give a minority in the Senate the constructive right to thwart the Senate majority.

My proposal is designed to cut the Gordian knot--otherwise the same politics of personal destruction will continue unabated and fewer good people, liberal or conservative, will want to put themselves through the torture of the confirmation process.
4.10.2008 5:47pm
dll111:

Dave N (mail):
If you really want all of this to end, how about you call for your own party to do something about it, instead of demanding from your opponents.
Ah, I see, dll wants unconditional surrender on the issue (or perhaps just for the Republicans to be the one to act like grownups).

I have made the following suggestion before and I will make it again and I sincerely hope that all three Presidential candidates agree to it:

Jointly propose a Senate rule to take effect January 1, 2009 (yes, I know that one Congress cannot bind another on rules but a change now would put terrific pressure for the incoming Senate to agree to the rule lest the the returning members look like hypocrites)) saying, in effect, that the Senate Judiciary Committee shall send a judicial nominee for full Senate review within 120 days of nomination; that other than "blueslipping" by home state Senators, no filibusters be allowed on any judicial nominee, and that all nominees be scheduled for a vote by the full Senate within 30 days of the Judiciary Committee report.

It is a modest proposal. No one can say with any certainty who the next President will be--other than that the probability is approaching 100% that the next President is currently a member of the United States Senate.

Except for the most rabidly partisan, what is wrong with my proposal?


It has nothing to do with unconditional surrender. I just found it funny that both parties did the same thing to each other, but that someone blames the Democrats for doing it most recently, and then blames them for the Republicans doing it in the future. And then calls for the Democrats to stop the cycle.

I am all for your proposal. I too believe that to the victor goes the spoils. But there isn't any way it happens. Each party want votes on their nominees when they are in power, and each party wants the filibuster when they aren't.
4.10.2008 6:02pm
OrinKerr:
Whelan and Kerr asked why Keisler hasn't been confirmed, and I suggested the obvious.

Actually, I thought I was pretty clear that I wasn't asking that. Oh well.
4.10.2008 6:49pm
OrinKerr:
Whelan and Kerr asked why Keisler hasn't been confirmed, and I suggested the obvious.

Actually, I thought I was pretty clear that I wasn't asking that. Oh well.
4.10.2008 6:49pm
Oren:
I respectfully disagree that we would end up with a more ideological judiciary if fillibusters were disallowed for judicial appointments.
Please elaborate on your reasoning - I really don't understand how that could possibly be.

The Constitution gives the Senate the power to advise and consent. It does not give a minority in the Senate the constructive right to thwart the Senate majority.
We've had this argument before - the Constitution vests this power in the Senate as a body without saying peep on that internal distribution of that power among the members. The Constitution certainly makes no mention of the relationship between the Senate majority and minority.

At any rate, your proposed solution does quite a bit more since it prevent the Senate majority from holding a nominee in committee or just refusing to vote. Such a restraint on the power of the majority of the Senate (as expressed through the SML or Judiciary Chair) is well beyond the scope of your Constitutional argument.
4.10.2008 8:39pm
Pedant:
Orin, you have misinterpreted my response. Even more unfairly, you have edited your original post so that my comment now makes no sense. In your original post, you did indeed attempt to explain the delay. You said the nomination was being delayed "because it can be." I posted a polite criticism of what I felt must be an inadequate explanation. You have now removed the explanation and say that you weren't trying to explain it. I don't think this is quite cricket.

Second, your assumption that I am against Keisler's nomination is quite wrong and not supported by anything in my post. You have previously very properly advocated assuming good faith in these discussions, and I wish you would do it now. I don't know anything about him, but I read the various endorsements and am quite willing to believe that he would be a fine judge. Possibly you should rethink your views about what kind of people become card-carrying ACLU liberals and not be so quick to make assumptions.

All I am complaining about is your original explanation of Keisler's nomination being blocked as being "because it can be". I thought, and still think, that that is inadequate. Surely there is more to it than that.
4.11.2008 12:25am
Pedant:
Orin, I have just noticed your follow-up comment. Yes, that was how I interpreted your statement "because it can be": that it was out of spite or cussedness. (I'm afraid I can't respond to your parenthetical, because I don't understand it.) If you meant to say, "It's too bad that this deserving nomination has gotten held up because of political battles over something else," I don't object to that. It would be nice to know what those political battles are, but it would not be fair to ask that every sub-issue raised by a blog post be thoroughly researched, and I don't fault you for not doing that.
4.11.2008 12:38am