In the wake of the Democratic victories in the midterm elections, people are wondering:
How will federal judicial nominations be affected?
The answer is unclear. On the one hand:
“It’s going to be much harder to get hardline conservatives through,” says Michael Seidman, a professor at Georgetown University Law Center. Mr. Bush’s “history isn’t to move to the center much, but, then again, he’s never been in this situation.”
Outgoing Senate Judiciary Chairman Arlen Specter (R-PA) agrees:
“It could mean that the president would have to select a more moderate nominee,” Specter said.
On the other hand:
[S]ome political analysts and others don’t see the new crop of senators, many with reasonably conservative bents, significantly changing Senate voting patterns. Columbia University law professor Michael Dorf points to the Senate race in Rhode Island where moderate Republican Lincoln Chafee was ousted, and to the Pennsylvania and Virginia races, in which relatively conservative Democrats were voted in.
“These are really marginal changes,” says Mr. Dorf. In his opinion, the power-shift will be most visible at the committee level. “The Democrats will now be able to steer the process,” he says.
We’re somewhere in the middle. Our thoughts on the process, after the jump.
We haven’t given this a great deal of thought, but here’s our quick take:
1. At the circuit court level, on a general level, the process won’t change THAT much. Just because Republicans no longer have a Senate majority doesn’t mean that President Bush and the White House Counsel’s office will start selecting true moderates (as opposed to conservatives who can be made to look fairly moderate).
2. The process WILL change at the margins. The White House should probably give up, at least for now, on the four so-called “radioactive” appeals court nominees:
(a) William J. Haynes II (Fourth Circuit), general counsel to the Department of Defense, criticized for war-on-terror related issues;
(b) William G. Myers III (Ninth Circuit), attacked for his ties to mining and ranching interests;
(c) Judge Terrence W. Boyle (Fourth Circuit), currently a district court judge in North Carolina (E.D.N.C.), with conflict-of-interest issues; and
(d) Michael B. Wallace (Fifth Circuit), a former Rehnquist clerk and former counsel to Senator Trent Lott, whom the ABA dislikes intensely.
But someone like D.C. Circuit nominee Peter Keisler — conservative, but not “radioactive” — should be able to get confirmed, if the White House is patient enough.
3. At the Supreme Court level, obviously, it’s a whole new ball game. If Chief Justice Roberts and Justice Alito’s nominations had come up before the incoming Senate, we guess that the Chief would have made it through (by a narrower margin), and that Justice Alito might not have — or might have made it in a Thomas-esque squeaker. (Alito was confirmed by a margin of 58-42, while Thomas was confirmed by a margin of 52-48.)
If you have any insights or gossip about the subject of federal judicial nominations, we’d like to hear from you. We’re currently working on a post about possible nominees to the Fifth Circuit, and we’d be especially interested in gossip relating to potential additions to that court. Thanks.
Specter: Bush nominees may be more moderate [Philadelphia Inquirer]
Election Brings New Landscape For Federal Judicial Nominees [Wall Street Journal via WSJ Law Blog]