Terrence Boyle

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William Haynes, William G. Myers III and Michael Wallace all asked to have their appointments withdrawn, these officials said.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said in a telephone interview that Boyle, unlike Wallace, Haynes and Myers, did not submitted a letter asking to be withdrawn but was told of the president’s intentions.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

Tom Petty Won't Back Down.jpg“You can stand them up at the gates of hell,
And they will back down.”

A new Senate. A new White House counsel. And new hope for judicial nominees who might actually get confirmed. In our lifetimes.
The Bush Administration’s four most controversial judicial nominees, referred to in some Senate Judiciary Committee circles as “the Radioactive Ones,” are withdrawing (or have already pulled out, in the case of Michael Wallace). White House lawyers breathe sighs of relief, delighted by the prospect of saving some face.
From the AP:

In a concession to the Senate’s new Democratic majority, four of President Bush’s appeals court appointees have asked to have their nominations withdrawn, Republican officials said Tuesday.

These officials said that William Haynes, William Myers and Terrence Boyle had all decided to abandon their quest for confirmation. Another nominee, Michael Wallace, let it be known last month that he, too, had asked Bush to withdraw his nomination.

One has to wonder: Did all four willingly withdraw their names from consideration, or did they do so under some combination of pressure or pleading from the White House?
(Also, what will the ConfirmThem crew have to say about this?)
Bush Judicial Nominees Ask to Withdraw [Associated Press via How Appealing]
Breaking Judge News [NRO / The Corner]

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”

anthony m kennedy justice.gif* Justice Anthony M. Kennedy was hospitalized and underwent surgery over the Labor Day weekend. Surgeons inserted a new stent to clear a blocked coronary artery. AMK is doing fine and is back to work. [New York Times, Washington Post; Los Angeles Times]
* The brilliant Judge Gerard E. Lynch (S.D.N.Y.) — a member of the Elect, former AUSA in the Southern District, and former Columbia Law School professor (he still teaches there part-time) — heard arguments over the legality of the NSA warrantless wiretapping program. We suspect his opinion will turn out better than Judge Anna Diggs Taylor’s effort, which was not so well-received. [New York Times]
* High-profile L.A entertainment lawyers Pierce O’Donnell and Ann Marie Mortimer, founders of O’Donnell & Mortimer, are parting ways. Mortimer will be the managing partner of Hunton & Williams’s new Los Angeles office; O’Donnell is starting a new boutique law firm that will focus on public-interest work. [Hollywood Reporter via WSJ Law Blog]
* The White House officially renominated the federal judicial nominees that were returned to it by the Senate — including a few controversial candidates, such as Terrence Boyle, William Haynes, and Michael Wallace — and also put up some new nominees. Judge Kent A. Jordan (D. Del.), nominated to the Third Circuit, will be in Washington today for his confirmation hearing before the Senate Judiciary Committee. [WhiteHouse.gov and Wilmington News Journal, via How Appealing]