The Volokh Conspiracy

No possible way. The D.C. Circuit is closely divided and Obama can make it into a liberal court. If Obama appoints two liberals, then, of the active judges, there will be four solid liberals (Rogers, Tatel, and the Obama appointees); three solid conservatives (Sentelle, Henderson, Kavanaugh); and four moderates (Garland, Ginsburg, Griffith, and Brown). If any two of Sentelle, Henderson, and Ginsburg go senior while Obama is in power, then Obama can give the court a liberal majority of active judges. He won't want to pass that up.

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I guess I'd like to see some representative decisions if someone really feels like discussing the point. I mean, there are subject areas where you can often find Justice Scalia on the so-called "liberal" side, but I don't think anyone is going to lump him in with the moderates overall.

By the measure of her voting. In several cases, Judge Brown has sided with the court's liberals. Among them:

1. Whole Foods v. FTC. Big antitrust case. Brown and Tatel in majority; Kavanaugh in dissent.

2. Free Enterprise v. PCAOB. Big appointments clause case. Brown and Rogers in majority; Kavanaugh in dissent.

3. USA v. Askew -- En banc case on the reasonableness of searches and seizures. Brown joined Edwards, Rogers, Tatel, and Griffith in the plurality opinion.

4. There was a sealed case last year involving the reasonableness of a sentence. Brown voted to vacate the sentence, Kavanaugh dissented.

5. In Bismullah v. Gates, Judge Brown did not join the opinion of Randolph, Henderson, Sentelle, and Kavanaugh.

6. In the recent case involving the Uighurs, Judge Brown, along with Judge Rogers, were the only judges to vote for rehearing en banc of the denial of the stay.

Judge Brown has voted in a conservative direction as well. She is not monolithically liberal or conservative; she is more of an independent thinker whose vote is available in every case

I think the chances of it happening are about the same as the stars realigning and spelling out "KEISLER" on the night of Obama's inauguration.

Obama could make either of those things happen if he wanted.

I don't know whetehr Keisler is the one Obama will renominate, but I think it would be a good thing if Obama renominated a couple of the Bush nominees.

If the DC Circuit is too politically important, then perhaps another court that sorely needs the vacancy filled.

Colm Connolly was nominated to be a District of Delaware judge last February. That court is so overworked with the vacancy that the Chief Judge of the CA3 has designated several EDPa and DNJ judges to act as visting judges down there.

Or perhaps Rod Rosenstein or at least one of the five Bush CA4 nominees for open seats... (though I'm vaguely aware that Jesse Helms's history might make that difficult).

Maybe the stars won't spell out "Keisler" on inauguration day, but it would be cool if they spelled out someone's name who's been waiting for a confirmation hearing.

I guess the argument is that if Obama renominates Keisler, the Republicans will finally "play nice" on judicial nominations.

Let us look at this argument from a Democratic perspective.

1.) Do you really believe that Republicans will "play nice" on judicial nominations if Obama threw them a bone? I don't believe it.

2.) Does it really matter if Republicans "play nice" on judicial nominations in a Senate that is controlled by Democrats 59 to 41? I don't think so. What are Republicans going to do exactly? Filibuster?? It is one thing for Republicans to filibuster regular legislation, another for them to filibuster judicial nominees after they argued until they were red in the face that judicial nominees are different. I just don't see them sustaining such a tactic after all that huffing and puffing about the "nuclear option." Also, I think the "Gang of 14" compromise makes a filibuster on judicial nominees pretty difficult. How are you going to convince Republican senators who signed onto that agreement to join your filibuster?

The bottom-line is that it doesn't make sense to nominate Keisler to the DC Circuit from a Democratic perspective based on the argument that this will make Republicans "play nice" on judicial nominees. Like it or not, elections matter and the Republicans just don't have a lot of cards to play when it comes to judicial nominees right at the moment. Welcome to life in the minority.

Are Republicans willing to trade a Keisler nomination for something big, like votes for universal health care in the Senate? Now you would be talking about a nomination that makes sense from a Democratic perspective. I very much doubt that Republicans, at the end of the day, care enough about this nomination to trade something that really matters for it. Talk about "playing nice" is cheap.

I don't recall Bush re-nominating Elena Kagan. Everyone knows that the DC Circuit is different. Obama should renominate some of Bush's people, but calling for Keisler is too much. I hope Republicans don't carry on with too much false indignance when Hillyer's request goes unsatisfied.

The Dems started this whole thing. The GOP did right by Carter; the Dems started screwing Reagan nominees and Bush 41 nominees. Clinton nominees were repaid, and Clinton, of course, didn't help matters by nominating unqualified clowns like Richard Paez and Ronnie White.

Clinton, of course, didn't help matters by nominating unqualified clowns like Richard Paez and Ronnie White.

Harriet Miers.

Ronnie White failed the bar the first time around; had to be doggedly pursued to comply with child support obligations and equated opposition to race-based preferences to affirmative action. Even WaPo's editorial board concluded that Paez was a judicial activist--his proclivity for blowing off the law is shown by some of his AEDPA decisions on the Ninth. Paez is Reinhardt without the brains.

Miers was a spectacularly bad choice, but not on the level of these clowns. I should also have been more specific--the GOP was presented with Paez and White and then called racist for voting against them. A cute little Dem tactic.

The reality is that both sides in this battle use what power they have to push the judiciary in the direction they want and to stop the other side from pushing the judiciary in the other direction. Neither side is significantly more pure than the other. It's all about power and politics.

David Welker has a really good point. The Republicans disarmed themselves when they argued that it was unconstitutional to filibuster judicial nominees.

It will take about ten seconds for the Republicans to forget they said any such thing. And as soon as they do, the Dems will instantly remember that an up-or-down vote on all nominees is vital to preserving our democracy. Or something like that.

It's looking like "filibuster everything" will be the new GOP Senate tactic. Judges will be no different.

One way to avoid the "DC Circuit is too politically important point" would be to renominate Keisler for the 4th Circuit.

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compare how Carter's nominees were treated and how Reagan's and Bush's were treated. It's not even close. Plus, there's Bork.

Reagan openly and aggressively made a goal of changing the judiciary by appointing young judges who would leave an imprint for as long as possible. He had the power, he was using it. Democrats responded with the power they had.

As to Bork, given his descent into the lunatic fringes of the Republican Right, opposing was extraordinarily wise. Plus, the Democrats gave him an up-or-down vote. He just lost.

It will take about ten seconds for the Republicans to forget they said any such thing.

Are you saying that the Republican senators were lying when they claimed it was unconstitutional to filibuster judicial nominees? I'm shocked, shocked that you doubt their integrity.