Peter Keisler

Terrence Boyle Terry Boyle Terence Boyle Terrence W Boyle Judge.jpgHere is some late-breaking judicial nomination news:
1. An update to our prior coverage of the withdrawal of the “Radioactive Four.” As one of you points out, it seems that Judge Terrence Boyle (E.D.N.C.), nominated to the Fourth Circuit, wanted to continue fighting.
From the latest version of the AP story:

William Haynes, William G. Myers III and Michael Wallace all asked to have their appointments withdrawn, these officials said. Judge Terrence Boyle was informed of the White House’s decision, according to an ally….

Lars H. Liebeler, a Washington lawyer, said in a telephone interview that Boyle, unlike Wallace, Haynes and Myers, did not submitted a letter asking to be withdrawn but was told of the president’s intentions.

This makes some sense. Considering that Judge Boyle (above right) is (1) 61 years old and (2) already a sitting federal judge, he’s not really going anywhere — and he doesn’t have much to lose from further fighting. But the White House apparently decided that continuing to push his nomination, in a Senate controlled by the Democrats, wasn’t worth the possible loss of face (or expenditure of political capital).
2. The White House released two more slates of judicial nominees today. See here and here.
The most notable and/or controversial nominees:

(a) Judge Thomas Hardiman (W.D. Pa.), renominated to the Third Circuit, who is the subject of a tempest in a teapot (item #3);

(b) Peter Keisler (OT 1988/Kennedy), renominated to the D.C. Circuit, who isn’t problematic personally, but has a “seat issue” (for years Republicans were saying that the last seat on the D.C. Circuit is unnecessary);

(c) Judge Vanessa Lynne Bryant, renominated to the District of Connecticut, who received an “unqualified” rating from the ABA; and

(d) James Rogan, renominated to the Central District of California, who once served as a floor manager in the Clinton impeachment fight, back when he was in the House of Representatives.

These nominees aren’t THAT controversial, at least compared to the Radioactive Four. We think that they ultimately can (and should) make it through the Senate Judiciary Committee, then win confirmation by the full Senate.
But the ascendant Democrats may want to flex their muscles. And one way to do so would be by delaying, or defeating, one of these nominations.
3. Here’s an AP article about Leslie Southwick, nominated to the Fifth Circuit seat formerly held by Judge Charles Pickering Sr. (the seat that Michael Wallace was up for, before he withdrew).
Southwick is a former state appellate judge in Mississippi. As Howard Bashman notes, maybe the third time will be the charm for this hard-to-fill seat.
Bush Judicial Nominees Ask to Withdraw [Associated Press]
Senators say Bush nominating Southwick for 5th Circuit [Associated Press]
Nominations Sent to the Senate for the Judiciary [White House via How Appealing]
Nominations Sent to the Senate [White House via How Appealing]
Earlier: And They Will Back Down

chuck schumer senator charles schumer Above the Law.jpgNot literally — but he might as well have. From the Washington Post:

President Bush renominated six previously blocked candidates for federal appeals court yesterday, triggering the first real battle with ascendant Democrats since the midterm elections and signaling what could be the start of a fierce two-year struggle over the shape of the federal judiciary.

The move heartened conservatives who worried that Bush would scale back his ambition to move courts to the right and outraged liberals, who called it a violation of the spirit of bipartisanship promised since Democrats captured Congress. Both sides saw it as a possible harbinger for the remainder of Bush’s presidency, particularly if a Supreme Court vacancy opens.

Senator Schumer’s predictable reaction: he squealed like a stuck pig. “It’s a real slap in the face,” he said.
(C’mon, Senator Leahy, you’re the incoming Senate Judiciary Chairman. Why is Senator Schumer getting quoted in these articles instead of you? Tell your press people to get on the ball — or tell Chuck to back off a little. Don’t let him steal your thunder!)
The six resubmitted nominees included the four so-called “radioactive” nominees: William J. Haynes II (Fourth Circuit), William G. Myers III (Ninth Circuit), Terrence W. Boyle (Fourth Circuit), and Michael B. Wallace (Fifth Circuit). The other two nominees, Norman Randy Smith (Ninth Circuit) and Peter D. Keisler (D.C. Circuit), are far less controversial.
Our take: President Bush is trying to bargain with the Democrats, and resubmitting the six nominees is the equivalent of making a lowball offer. He knows the Dems won’t take it; but he’s left ample room for negotation.
By starting off the negotations at this price point, President Bush is hoping to get at least Smith and Keisler confirmed. If the Democrats refuse to move on all six resubmitted nominees, they can be branded as obstructionist. Whereas if President Bush sent over only two nominees (Smith and Keisler), and the Senate did nothing, it wouldn’t look as bad as stalling on six — yes, six — judicial picks.
In addition, President Bush submitted four new judicial nominations to the Senate. But they’re nominees to district courts and the U.S. Court of Appeals for the Armed Forces — not so sexy. (In case you’re curious, their names are in the White House press release.)
Bush Renominates Judicial Picks [Washington Post]
Bush to Put Nominations Back on Table [New York Times]
Don’t Despair: Strong Justices Can Still Be Confirmed [National Review]
Nominations Sent to the Senate [WhiteHouse.gov]
Earlier: Some Ruminations on Nominations

pioneer courthouse portland oregon.jpgIn 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.

double red triangle arrows Continue reading “Some Ruminations on Nominations”


Justice John Paul Stevens Above the Law.jpgRumors that Justice John Paul Stevens is about to step down from the Supreme Court are a recurring feature of the legal gossip landscape. As we previously observed, JPS retirement rumors “return each spring, with the birds and the flowers.”
But hey, we’re good sports, so we’ll blog about them. ‘Cause one of these days, they might actually turn out to be true — and we wouldn’t want to be caught flat-footed. (Our personal view, though, is that Justice Stevens will leave the Court as the late Chief Justice Rehnquist did — through death, not retirement.)
Anyway, here’s the latest gossip. Per Sean Rushton, executive director of the Committee for Justice, and an active participant in judicial confirmation battles:

For the past several weeks, there has been a rumor circulating among high-level officials in Washington, D.C., that a member of the U.S. Supreme Court has received grave medical news and will announce his or her retirement by year’s end. While such rumors are not unusual in the nation’s capital, this one comes from credible sources. Additionally, a less credible but still noteworthy post last week at the liberal Democratic Underground blog says, “Send your good vibes to Justice Stevens. I just got off the phone with a friend of his family and right now he is very ill and at 86 years old that is not good.”

Rushton’s rumor was picked up over at Confirm Them.
If Justice Stevens does resign from the Court, who might fill his robes? U.S. News’s Washington Whispers column offers this intelligence:

President Bush isn’t looking very far for his next conservative pick to the U.S. Supreme Court: His top two candidates work just 12 blocks away in the U.S. Court of Appeals for the District of Columbia Circuit. Insiders say Judge Janice Rogers Brown, appointed in June 2005, tops the list, followed by Judge Brett M. Kavanaugh, appointed in May.

Also up: Peter Keisler, whose nomination to the D.C. court is pending. So there’s no vacancy, you say? With apologies to Justice John Paul Stevens, 86, it’s his seat they hope to fill.

As ATL readers know, we love ourselves some Janice Rogers Brown. But would this outspoken, conservative judicial diva be able to make it through a Democrat-controlled Senate? The same goes for Brett Kavanaugh, whom Senator Chuck Schumer once described as “the Zelig of young Republican lawyers.”
Maureen Mahoney Maureen E Mahoney Above the Law Supreme Court.jpgSo we’d be interested in your views on a question that a (clearly conservative) reader sent to us earlier today:

How about a piece on SCOTUS candidates Bush could get through the Senate now that it’s controlled by Communists?

(Now now, dear reader, conservatives are trying to play NICE with Nancy Pelosi and her pals. No name calling.)
One obvious response: Maureen Mahoney (above right). We previously wrote about Mahoney in great detail over here. We expressed concerns over whether she would be perceived as conservative enough to secure the nomination. But in a Senate controlled by Democrats, being a moderate conservative — as opposed to a hardline one — would be a plus.
Thoughts?
Update: Lots of interesting names in the comments.
The Rumor About John Paul Stevens [Human Events]
Talking About Judge Brown [Confirm Them]
Another Reason to Go GOP [Confirm Them]
Washington Whispers [U.S. News and World Report]
Maureen Mahoney: “The Female John Roberts”? [Underneath Their Robes]