ConfirmThem

he will renominate Keisler. My sneaking suspicion, however, is that if there are any failed Bush nominees renominated they will be consensus picks like Glen Conrad or Paul Diamond. In reality, with the numbers the way they are in the Senate, there is no reason for Obama to be bipartisan at all.

....he'll also renominate Henry Saad, Terrence Boyle, William J. Haynes, Michael Wallace, Gene Pratter, Charles Pickering, Duncan Getchell, and William Steele, *plus* all 10 of the currently pending COA nominees. Aw, what the heck, as long as we're playing "let's-use-Obama's-words-against-him-for-the-most-favorable-conservative-outcome-possible-even-though-in-reality-there's-not-a-prayer-that-he'll-do-this," maybe Obama will also renominate Condi Rice, Donald Rumsfeld, Alberto Gonzales (or better yet, John Ashcroft!), Gale Norton, Ann Veneman, Elaine Chao and Michael Chertoff to his Cabinet! And maybe he can even swap out Joe Biden for Dick Cheney, too! Sheeesh.

Quin, Jonathan Adler (http://bench.nationalreview.com/post/?q=YWVlMzc2NmFkYzIwMzBkNzhmM2Y2MzVi...) and Ed Whelan (http://bench.nationalreview.com/post/?q=N2Y3YzU3Y2Q5NzJjYjU3NjU0MGNjOTVl...) are great writers, but they're all inhabiting a weird fantasyland right now, where if they wish really, really hard, the outcome that they want will happen. And while it's an enjoyable diversion from reality, it isn't reality at all, any more than it was a realistic expectation that Bush 43 would renominate either of Clinton's slow-walked nominees to the DC Circuit. I already posted a far too lengthy response to Quin's article on the open thread, but I think it's far safer to say that if Obama really wants to be bipartisan (and I'm not sure that he does), he'll renominate -- at most -- Glen Conrad and Paul Diamond. It'll be just enough for him to be able to say that he was bipartisan (since it'll basically match what Bush 43 did; the much later Helene White renomination was made only from a position of weakness). And, such a move will allow Obama, like Bush, to have placed a predecessor's nominee on the Fourth Circuit.

At this point, it's clear that the only way Keisler will get onto the DC Circuit will be through an appointment by a President Romney (or Jindal, or whoever wins the 2012 or 2016 primary), with the agreement of a GOP-controlled Senate. As BoBo noted, Republican senators really have very little leverage on judicial nominations at this moment. It's cold, hard reality, but it's reality all the same.

http://foxforum.blogs.foxnews.com/2009/01/05/davis_obama/

"Will there be some Republican senators and conservative talk-show hosts who flip-flop and suddenly insist that no Obama judicial nominee who is too liberal has a right to an “up or down” vote? Don’t be shocked if that happens. But I trust that the now-”Gang of 10″ will increase its numbers based on the same principle of trust and faith, and thus, most if not all of Mr. Obama’s nominees will get a Senate vote.

More importantly, the new president can use this example as a model to create a broad center-left and center-right bipartisan governing coalition in both the Senate and the House. To do so he must do the unthinkable for a majority party controlling both chambers of Congress and the presidency: He must consult with Republicans and conservative leaders, not just the Democratic congressional leadership, before he makes his legislative proposals, not after. He must broaden the bipartisan coalition in both chambers of Congress so that solutions are developed and legislation is passed not by 51-49 margins, but by 60-40 or greater margins.

Therefore, he must be open to compromise, open to getting less than 100 percent and, most important, be ready to take the heat from ideological purists from both sides. He will likely take a lot of heat from some Senate and House Democratic leaders who might prefer to exclude Republicans from the early bargaining tables, just as Democrats were excluded when the Republicans controlled Congress."

http://legaltimes.typepad.com/blt/2009/01/the-kagan-file.html

"The praise coming from Harvard Law School colleagues of Elena Kagan, who was named this week to be the next solicitor general, is effusive -- and, it turns out, longstanding.

In a folder in Box 571 of the Thurgood Marshall papers at the Library of Congress, one can find Kagan's 1986 application to be Marshall's law clerk, along with recommendations from five Harvard Law professors -- no one else -- as well as her resume and even her law school transcript. That transcript indicates, interestingly, that Kagan got something of a slow start at the law school, with no A's in her first semester 1L courses."

http://www.thecrimson.com/article.aspx?ref=526054

"Media reports mentioned Kathleen M. Sullivan, dean of Stanford Law School from 1999 to 2004, as one of Kagan’s main competitors for the post. Unlike Kagan, Sullivan has appeared several times before the Supreme Court, and she is also known in some legal circles as a highly skilled litigator.

Despite Sullivan’s greater experience litigating, Kagan has a longer history with Obama, stretching back to their shared time on the faculty of the University of Chicago Law School in the early and mid-1990s. Kagan has supported Obama, a Law School graduate, in the past as well.

But Kagan’s relationship with Obama may not have been a deciding factor.

'Sullivan took herself out of consideration well over a month ago,' Tribe said. 'Her name was bandied about in the media, but she was never a serious contender.'"

this thread has already developed something of an open thread feel, could we please have a new "Weekend Open Thread" by this Friday?

http://online.wsj.com/article/SB123138051682263203.html

"Cass Sunstein, a Harvard Law School professor who pioneered efforts to design regulation around the ways people behave, will be named the Obama administration's regulatory czar, a transition official said Wednesday.

Mr. Sunstein, a friend of President-elect Barack Obama from their faculty days at the University of Chicago law school, will mark a sharp departure for the White House Office of Information and Regulatory Affairs. Although obscure, the post wields outsize power. It oversees regulations throughout the government, from the Environmental Protection Agency to the Occupational Safety and Health Administration. Obama aides have said the job will be crucial as the new administration overhauls financial-services regulations, attempts to pass universal health care and tries to forge a new approach to controlling emissions of greenhouse gases."

Well, I certainly did with the D.C. Circuit. When Obama won in November, I was sure that the two new D.C. Circuit nominees would be Elena Kagan and Cass Sunstein. With both now accepting executive branch nominations instead, I certainly have egg on my face. But that begs a new question, with the favorites out of the running, who will be the new Obama nominees to such a strategic court? Koh, Sears, Roseborough, Sullivan, Seitz?

http://bench.nationalreview.com/

"As dean of Harvard law school, Elena Kagan has received a healthy dollop of goodwill from conservatives, partly for her early hiring of three conservative faculty members, partly for the genuine decency and grace with which she has treated conservatives on campus generally (including, as I discussed in this post, in the law school’s celebration of Justice Scalia’s 20th anniversary on the Supreme Court). She has earned that goodwill, and she ought to benefit from it in her confirmation hearing to be the next Solicitor General. Even beyond that, of course, and notwithstanding the sorry performance of many on the Left over the past eight years, every nominee deserves to be treated fairly, and fair treatment entails, at a minimum, a good-faith effort to depict accurately any alleged deficiencies in the nominee’s record.

But the spirit of goodwill and fair treatment shouldn’t lead Republicans to roll over and play dead, especially because Kagan is a serious contender for a Supreme Court appointment and her upcoming confirmation hearing provides an excellent opportunity to explore her legal views.

Among the many matters that deserve exploration is Kagan’s opposition to the Solomon Amendment..."

http://legaltimes.typepad.com/blt/2009/01/specter-says-obama-did-not-con...

"Key members of the Senate Intelligence Committee complained this week that they had no advance notice of President-elect Barack Obama’s choice to lead the Central Intelligence Agency. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, says Obama was equally tight-lipped with him about nominees for the Department of Justice.

Specter said in prepared remarks Tuesday that Obama did not consult with him before choosing Eric Holder Jr. to be attorney general, and he tells Legal Times that Obama also did not consult with him or notify him before announcing four other Justice Department nominees Monday.

“History demonstrates that presidents who seek the advice of members of the Senate prior to submitting a nomination frequently see their nominees confirmed more quickly and with less controversy than those who do not,” Specter (R-Pa.) said. “A recent example is that of President Clinton who consulted with then-Chairman [Orrin] Hatch prior to nominating Justice Ruth Bader Ginsburg and Justice Stephen Breyer to the Supreme Court. Both nominees were confirmed with minimal controversy.

“In contrast, on the nomination of Mr. Holder, President-elect Obama chose not to seek my advice or even to give me advance notice in my capacity as Ranking Republican on the Judiciary Committee, which is his prerogative.”

Specter skipped over that part of his remarks when speaking on the Senate floor Tuesday, but the full remarks are included on his Web site. In an interview, he added that the nominations announced Monday also took him by surprise.

“You ought to seek the ranking member’s advice,” Specter said in the interview. He added, “If he had, I had quite a number of things that I could have told Obama that could have been helpful to him.”"

http://volokh.com/posts/1231420422.shtml

"The WaPo reports this morning that Cass Sunstein is going to be the OIRA Administrator. This is really terrific news and continues the remarkable tradition of the extraordinarily high talent level that has occupied that position over the past many years (Dudley, Graham, Katzen, etc.).

Given Sunstein's apparently close connections to Obama, this also suggests that President Obama anticipates a muscular role for OIRA in his administration. And the appointment of Susntein presumably also reflects commitment to cost-benefit analysis in regulation, which is exceedingly good news and may provide a brake on some more extravagant regulatory initiatives. Given Sunstein's long record of scholarship on many of these issues, it will be interesting to see how he translates his ideas into practice, especially CBA, behavioral law & economics, and discounting. For now though, the obvious point is congratulations to Cass and Obama both."

I don't blame Specter for feeling blindsided by Obama re: the nominations of Holder and then of Kagan, Perrelli, et al. And it was useful that he gave a good example of Clinton running his SCOTUS nominees past Orrin Hatch (although in fairness, those were the first SCOTUS nominations by a *Dem* president since the Bork disaster, so Clinton needed to tread carefully with the Senate).

At the same time, Specter notably didn't mention George W. Bush ever having consulted with the SJC at all over the last eight years before making nominations.

Are there any good examples of George W. Bush having run his DOJ, COA or SCOTUS nominees past the Senate Judiciary Committee? I don't remember any (and I highly doubt that he ever did so), but I'd love to hear if anyone else recalls him doing such a thing.

http://www.committeeforjustice.com/blog/2009/01/will-obama-renominate-bu...

"Assuming Obama wants to match his predecessor’s numbers, he’ll need to chose a second Bush nominee – in addition to Keisler – for the circuit courts. Rod Rosenstein, U.S. Attorney in Maryland and a Bush nominee for the vacancy-plagued Fourth Circuit, would be the perfect pick."

One thing we're all learning is that Obama's pretty unpredictable in his choices. I don't think anyone would have thought -- early on -- that he'd pick Biden as his veep (remember calls for Obama-Strickland, to win OH?), and some of his Cabinet picks have been shockingly unfamiliar (on a personal level, at least) to him. Apart from Arne Duncan and Valerie Jarrett, he definitely hasn't gone much for members of his personal "club," and he's frequently passed over his closest friends for people less known to him.

Also, everyone talks about how well Obama knows judges (and potential judges). I'm not so sure that's really true; he's been pretty immersed in an entirely different sort of world for at least the last four years, and probably longer. It has to have been hard for him to really be intimate with issues relating to the federal judiciary in the last few years; he's just had so much else on his mind ("57 states"?).

I'll make a few bold and not-so-bold predictions:

--Cass will advise him heavily on judicial selections

--Eric Holder also will advise him a lot on judicial picks

--Cass will still end up getting an Article III "gift" before Obama's presidency is over

--Obama's going to go younger. Of the remaining DC Circuit names that have been thrown about (Brinkmann, Koh, Roseborough, Sears, Seitz, Sullivan), all are in their 50s. That's meaningfully older than Clinton's final confirmed DC Circuit judge (Garland), one of Clinton's two final nominees (Kagan), and many of Bush's nominees (Kavanaugh, Roberts, Estrada and Keisler; JRB and Griffith both were in their 50s when nominated -- well, Griffith was a few months shy of 50, but you get the idea). Obama undoubtedly wants diversity here, but I increasingly think that he wants youth as well. So the names he selects may be ones harder to conceive of right now.

Which in many regards, makes sense; when Bush was elected, it would have been easy to expect John Roberts to be renominated to the DC Circuit. Peter Keisler and Brett Kavanaugh, not surprising. Maybe even Janice Rogers Brown. But Miguel Estrada? (a former *Clinton* administration official, no less??!!) Not so much. And Thomas Griffith wouldn't ever have been on anyone's radar screens. So if not all of Bush's eventual DC Circuit picks were obvious to observers in early 2001, it makes sense that some of Obama's DC Circuit picks -- both this year and in the future -- might be harder to conceive of right now than we think.

We shall see....

I have to imagine Sullivan would be in line for the DC Circuit, and an inch behind Kagan for SCOTUS. Of course, Sotomayor, Sears, and Wood have to be considered serious contenders as well (perhaps even Karen Nelson Moore, who though 60, has stellar leftist bona fides). And you never know - even though Obama has not demonstrated a penchant for rewarding his buddies, he might still throw Deval Patrick on to SCOTUS.

I would not be surprised. The guy is having tons of problems in MA as governor; SCOTUS or a CCA seat would be a nice escape hatch for him to dump those problems elsewhere.

We are given our own minds in order to decide for ourselves. In the same manner, conscience is also there for us to weigh the right and the other way around. Bart Ehrman has been getting a lot of flak. He is the author of the book, "Jesus Interrupted," which is about Biblical inaccuracy, and gives a critical look at the core of Christianity through logical research of history, and more importantly, the historiography (the study of the writing of history and how it was compiled) of the Bible. A lot of people would give unsecured loans to quiet him. The upcoming release of Angels and Demons, sequel to the DaVinci Code, has brought up a lot of debate over the accuracy of the Bible and the development of the Christian faith. Controversy, even if it's backed by accurate research brings sales, which means Bart Ehrman might never need payday loans again.