Archive | Judicial Nominations

Selecting a Supreme Court Justice for Ohio

Judges are elected in Ohio. Those seeking judicial office, whether the state supreme court or court of common pleas, must seek party endorsements and run in contested elections. While party affiliation is not displayed on the November ballot, candidates run in partisan primaries and mount serious campaigns, complete with television ads. Because judicial elections are lower profile than many other races, incumbency is an advantage, but reelection is hardly guaranteed. Case in point: Two well-regarded sitting justices – one Republican, one Democrat – were defeated this past November. A third incumbent justice was reelected.

Although elections are the primary means for selecting judges in Ohio, the Ohio Constitution provides for the appointment of judges by the Governor to fill vacancies in between elections. Such appointments occur with some regularity on lower courts, trial courts in particular, but less often on the Ohio Supreme Court. This year, however, Justice Evelyn Lundberg Stratton announced she would step down after 16 years on the High Court. Because there are two years left on Justice Stratton’s term, this gave Ohio Governor John Kasich the opportunity to name a new justice to the Ohio Supreme Court.

Given that judges are elected, and Justice Stratton’s replacement would have to run for reelection in two years, one might have expected politics do dominate the selection process. That was not the case, however, as the governor created a process to elevate merit above politics. After Justice Stratton announced her retirement, the Governor’s office invited applications for the position and named a group of Ohio attorneys, of which I was one, to assist Governor Kasich in making his selection. Our task was to evaluate the candidates and their fitness for the position. Governor’s Kasich’s instructions were clear: He wanted us to identify the best candidate, specifically the person [...]

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The Role of Advocacy Groups in the Judicial Confirmation Process

Imagine there is a vacancy at the U.S. Supreme Court, and the Supreme Court has very recently decided an abortion case 5-4. Although five Justices supported abortion rights, four dissenting Justices made clear that they do not believe the Constitution protects any right to abortion. A Republican President is in office, and he nominates an appeals court judge to fill the vacancy. The nominee doesn’t have much of a record on abortion rights as a circuit judge. At the same time, the nominee’s conservative credentials (and support from a GOP President) suggest that he is probably going to join the dissenters and vote against abortion rights in future cases. Abortion rights advocacy groups decide to oppose the nominee: They run attack ads against the nominee and announce that they will “score” the Supreme Court vote (that is, count that vote in tabulating the group’s official rating of that politician) in order to pressure pro-choice Senators to vote against him.

Now ask yourself, do you think the abortion rights advocacy groups somehow acted improperly by trying to use their political influence to pressure Senators to oppose the nominee? I think most people will say “no.” We expect advocacy groups to try to use their influence on political bodies like the Senate when rights that they see as central to their mission are up for grabs. Of course, the groups might be misguided. Perhaps you will disagree with them on the issues. And it’s fair to criticize a group’s reaction as unfair in its specific claims, perhaps reflecting a single-minded focus and a lot of passion amidst relatively sparse evidence of the nominee’s views. Indeed, maybe the group has misjudged the nominee entirely; remember NARAL’s opposition to the nomination of David Souter. But the basic idea of the effort to [...]

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Greenberg on “Borking” Before Bork

Last week, historian David Greenberg surveyed political fights over Supreme Court confirmations prior to the Senate’s rejection of Robert Bork in 1987 in an NYT op-ed. “Although Mr. Bork’s confirmation certainly represented a major battle of the Reagan years, the campaign to defeat him was neither unprecedented nor illegitimate,” he writes. According to Greenberg: “The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.”

Although Greenberg is certainly correct that Robert Bork was hardly the first Supreme Court nominee rejected by the Senate, or the first opposed on ideological or political grounds, his account leaves out some important context. While noting that the Senate had been more deferential to Supreme Court nominees through much of the 20th century, Greenberg fails to account for the character of the campaign against Bork — the outlandish charges, distortion of his academic work, and character assassination. Insofar as these tactics replicated the scurrilous campaign by some Southern Senators to block confirmation of Thurgood Marshall, they were indeed “precedeented,” but I would not call them legitimate.

As Walter Olson reminds us, Bork’s opponents went so far as to suggest Bork was suspiciously like some of his academic critics, in that he was insufficiently devout and was himself a former academic with an allegedly “strange lifestyle.” Some Democratic Senators actually cited Bork’s failure to discuss his relationship with God and lack of religious commitment to justify their votes against him.

Greenberg also omits the fact that the anti-bork campaign was the culmination of a concerted campaign against Reagan’s judicial nominations that actually began several years earlier and initially focused on [...]

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What if Robert Bork Had Been Nominated in 1986 Instead of Scalia?

At his Balkinization blog, Yale law professor Jack Balkin has a fascinating post on the ways in which legal history might have changed if Robert Bork had been nominated to the Supreme Court in 1986 rather than 1987:

Robert Bork’s passing reminds us of how much the development of constitutional doctrine depends on contingencies. Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger’s retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate. You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork’s remarkable paper trail of opposition to civil rights and civil liberties…..

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years….

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired. Therefore there might have been no “stealth nomination” of David Souter– and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year

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Yet Another Debate that Ignores Judicial Nominations

After the first presidential debate and again after the debate between the VP candidates, I lamented the fact that the candidates and moderators had almost completely ignored judicial nominations. This is one of the areas where presidents have their biggest impact, and there are big differences between the two parties on a variety of major constitutional issues.

Unfortunately, the issue was ignored yet again in tonight’s debate. The only reference to courts that I could find in the transcript was a brief mention by Obama in discussing the Lily Ledbetter case; and he didn’t even say whether the Court had interpreted the law correctly or whether the case had any implications for the kinds of judges he plans to appoint. In any event, the Lily Ledbetter case is hardly even in the top 50 most important Supreme Court decisions of the last decade.

The final presidential debate is going to focus on foreign policy, so it isn’t likely that judges will come up. The courts have much less influence on foreign policy than on domestic issues. However, the moderator should at least ask the candidates about the Supreme Court’s War on Terror decisions and about the role of international law in interpreting the Constitution. These have been and will continue to be important legal issues that divide the two parties and their likely judicial nominees. [...]

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Why the Presidential Debate Should Have Covered the Issue of Judicial Nominations

In this Politico post, I expanded on my recent VC post about dogs that didn’t bark during last night’s presidential debate. It was especially unfortunate that both candidates and the moderator completely ignored the issue of judicial nominations:

[N]either of the candidates or the moderator even mentioned judicial nominations, even though this is one of the areas where a president can have his biggest impact. The next president may well appoint as many as two or three Supreme Court justices, and numerous lower court judges. Those judges will likely serve for decades after he leaves the Oval Office, wielding enormous influence over the constitutional rights of all Americans. And there are big differences between the two parties on overall judicial philosophy, and specific constitutional issues such as federalism, property rights, free speech, and executive power.

For most presidents, the judges they appoint are among their most important and longest-lasting legacies. [...]

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ACS Panel on Nominations, Recess Appointments and the Filibuster

On Saturday morning I also attended an ACS panel on “Congressional Gridlock in the Executive: A Battle Over Nominations, Recess Appointments, and the Use of the Filibuster,” featuring law professors Michael Gerhardt and Michael McConnell, Louis Fisher of the Congressional Research Service, Marge Baker of the People for the American Way and moderated by Professor Neil Kinkopf.  As with yesterday’s post, my summary (and some comments) are below the jump. [...]

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Cloture Vote on the Nomination of Paul Watford to the Ninth Circuit

I was happy to hear that the cloture vote on the nomination of Paul Watford to the Ninth Circuit will be held Monday, and I very much hope that Paul will be confirmed. For those interested, here’s my post praising Paul, whom I know well, Orin’s post praising Paul, my letter to the Senate Judiciary Committee urging that Paul be confirmed, and many Kozinski clerks’ letter urging the same. UPDATE: See also these letters from local prominent conservative lawyers (both former presidents of the L.A. Federalist Society chapter), Henry Weissmann and Jeremy Rosen, plus the General Counsels of CIRCOR, Verizon, Mattel, and Google. [...]

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Obama’s Judicial Restraint

The National Law Journal reports that the White House is largely to blame for the high number of vacancies on the federal bench.

Democrats have held conference calls and hosted activists from around the country to say the reason fewer federal judges have been confirmed during the last three years is clear: Republicans in the Senate have used their powers to stall most of the president’s nominees, even the noncontroversial ones.

But as a window appears to be closing at least temporarily to send any new judicial nominees to Capitol Hill, law professors and advocacy groups say Obama could have had more judges confirmed to the bench had he simply made more nominations over his first three-plus years in office.

Since Obama took office, he’s had a chance to make nominations for 241 federal judgeships. Some of them — 55 — were vacant slots held over from the Bush administration. Obama has nominated 188 judges, and the Senate has approved 147 of them. That leaves a current total of 94 vacancies — 77 vacant slots and 17 held by judges who have said they plan to retire. (The president can nominate a new judge before the position becomes vacant.)

At this point in their presidencies, George W. Bush had nominated 220 judges for 236 positions, and Bill Clinton had nominated 231 out of 260, according to a report by the Alliance for Justice, a left-leaning court advocacy group.

And despite filibuster threats and other behind-the-scenes delaying tactics, senators have confirmed Obama’s judicial picks at the same rate — roughly three out of four — as during the Clinton and Bush terms.

This is not a new observation, but it’s worth repeating. Without question Republicans have made it difficult to move judicial nominees, much as Democrats did when Presidents Bush [...]

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No Obama Nominees on D.C. Circuit

Joan Biskupic reports that President Obama is likely to become the first President “in at least half a century” to complete a term without placing someone on the U.S. Court of Appeals for the D.C. Circuit.  This will happen unless the Senate reverses course and opts to confirm Caitlin Halligan, or the Administration quickly nominates a consensus candidate for one of the other two remaining openings on the court.  There are eleven seats on the D.C. Circuit but only eight active judges, in addition to several judges with senior status who still hear cases.

As I’ve noted before, one sure way to get a judicial nominee confirmed to the D.C. Circuit would have been for President Obama to follow President Bush’s lead and renominate one of his predecessor’s stalled nominees.  The most obvious candidates for such a move were two of Bush’s nominees to the Fourth Circuit, but there was also a strong candidate for the D.C. Circuit: Peter Keisler, who received a unanimous “well-qualified” rating from the ABA and whose confirmation was supported by, among others, the Washington Post and LA Times.  Such a move is unlikely, as are other steps to reduce the partisan conflict over judicial nominations. [...]

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NYT Abandons Nomination Filibuster, Will Senate Follow?

The editorial board of the New York Times has finally decided to abandon its support of filibustering nominees it opposes.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14” deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Now that it has [...]

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A Speedy Nominee

The rule of thumb in judicial nominations is that a circuit court nominee with Supreme-Court-level credentials will have a harder time getting confirmed than a nominee without those credentials. Each side tries to limit the Supreme Court “farm team” of the other side. So if a nominee’s resume includes the kind of elite credentials that Supreme Court nominees often have, the scrutiny goes up. Given that, it seems important to note a recent circuit court confirmation of a nominee with Supreme-Court-like credentials that flew by the Senate (relatively speaking): Stephen Higginson, confirmed last week to the Fifth Circuit.

Higginson is a summa cum laude graduate of Harvard College, former Editor-in-Chief of the Yale Law Journal, a former law clerk to Justice White, and a law professor. He was nominated to the Fifth Circuit on May 9, 2011; he had a Judiciary Committee hearing June 8, and was reported out of the committee July 14th; and he was confirmed by a Senate vote of 88-0 on October 31st. [...]

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Another Hunter on the High Court

CNN reports that in a recent speech Justice Elena Kagan acknowledged that she has gone practice shooting and hunting with Justice Scalia — and that she likes it.  From the story:

She recalled paying a courtesy call on Sen. James Risch (R-Idaho) shortly after her nomination to the court by President Obama in May 2010. Risch asked her about gun rights, and remarked she may not realize how important the issue was to some Americans, especially in his home state.

She admitted never having owned or fired a gun before. “But I told the senator if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia.”

And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.

“You’re Jewish,” deadpanned Rabbi Mitchell Wohlberg.

“Yeah, but it turns out, it’s kind of fun,” said Kagan, laughing.

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