ConfirmThem

Is Kethledge still nominated? Will he be confirmed with White?

Overall, I don't object to this deal. Murphy didn't seem stellar, but Kethledge did. White is a mediocrity, so if she's confirmed, whatever -- so long as we get our nominees!

http://www.mlive.com/newsflash/michigan/index.ssf?/base/news-52/12082955...

"In a statement, Levin and Stabenow said they were 'pleased that, after so many years of delay and frustration, a new willingness by the White House to engage in meaningful consultations with us has resulted in nominees who will hopefully have strong bipartisan support in the Senate.'"

"Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, called the agreement 'a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends.'"

http://www.detnews.com/apps/pbcs.dll/article?AID=/20080415/METRO/8041504...

"President George W. Bush has nominated U.S. Attorney Stephen Murphy to be a federal judge in Detroit, the White House announced Tuesday.

Murphy is to fill a vacancy created by the retirement of U.S. District Judge Patrick Duggan, the White House said in a news release.

Murphy, who has been U.S. Attorney for the Eastern District of Michigan since 2005, had earlier been nominated to the U.S. 6th Circuit Court of Appeals, but that appointment had never been ratified. Murphy's earlier nomination to the federal appeals court was withdrawn by the White House on Tuesday."

Kethledge could be confirmed immediately. He has had his ABA rating for a long time. It is a WQ(sm)/Q(min). All he needs is a hearing. It might take longer to get White confirmed. Her previous ABA rating in the 106th Congress was a mediocre Q(sm)/NQ(min). With an extra eight years of experience as a Michigan Court of Appeals judge, I bet she too ends up with a WQ (sm)/Q(min). I just don't want her ABA rating rushed. I DON'T want her confirmed before either Keisler or Kethledge.

http://thehill.com/leading-the-news/specter-asks-08-candidates-for-posit...

"Sen. Arlen Specter (R-Pa.), the ranking member on the Senate Judiciary Committee, asked the three remaining White House candidates to clarify how they would vote on pending judicial nominations.

Specter wrote Sens. Barack Obama (D-Ill.), Hillary Rodham Clinton (D-N.Y.) and John McCain (R-Ariz.), seeking a direct response as to how they would vote on a motion to discharge three pending nominations from the committee. But Specter, rarely one to mince words, said he also wanted to “focus the public’s attention” on the impasse."

"Specter asked the candidates to weigh in on Peter Keisler, nominee to the D.C. Circuit Court of Appeals, and Robert Conrad and Steve Matthews, both nominees to the Fourth Circuit Court of Appeals.

At the bottom of each letter, he added one final note to all three candidates, just below his signature:'Good luck!'"

There is no doubt in my mind that Specter was aware of the Sixth Circuit deal when he sent this letter out today. That implies to me that the three nominees to be confirmed before Memorial Day might indeed be Keisler, Conrad and Matthews. Here's hoping!

Does anyone have a subscription that will allow them to cut and paste the entire article. I want to know what it says about Keisler.

http://www.rollcall.com/issues/1_1/breakingnews/23031-1.html

"Dangling the popular highway funding bill as his hostage, Senate Minority Leader Mitch McConnell (R-Ky.) struck a deal Tuesday night with Majority Leader Harry Reid (D-Nev.) to dislodge a handful of President Bush’s stalled appellate court nominees."

Why would the Dems give up now what they have fought for the past 7 and 1/2 years and almost have won? They just need to win this November to take control of the 4th COA. Why does anyone think they will give up now? I can't imagine they would confirm Mathews and Conrad. I think they would confirm Keisler first.

http://bench.nationalreview.com/post/?q=NDIzOWIzNzkzN2U3NDdlNTIwNzZlMThk...

"As a means of bypassing Senate Judiciary Committee obstruction, Senator Specter is considering filing a motion to discharge from the committee the pending nominations of Peter Keisler (D.C. Circuit), Robert Conrad (4th Circuit), and Steve Matthews (4th Circuit). A successful motion to discharge would move the nominations from the Senate Judiciary Committee to the Senate floor for a final confirmation vote.

It’s not clear, of course, whether a motion to discharge would succeed, and, if so, whether Senate Democrats would then filibuster the final confirmation votes. But Senator Specter’s strategy has the advantage of highlighting—in the midst of the ongoing presidential campaign—the Democrats’ mistreatment of these nominees. Indeed, Specter has already sent separate letters to John McCain, Barack Obama, and Hillary Clinton asking each of his three Senate colleagues running for president that candidate’s position on a prospective motion to discharge these three nominations. Let’s see if Senator McCain seizes the opportunity to distinguish himself from Senators Obama and Clinton."

As I said before, I think this letter indicates that Keisler, Conrad and Matthews will be the ones confirmed before Memorial Day.

http://afjjusticewatch.blogspot.com/2008/04/post-accuses-senators-of-pla...

"Lately it seems that this blog has been laden with entries regarding the status of President Bush’s pending judicial nominees. But conservative senators, media outlets and editorial boards have been pushing the issue hard this month – no doubt because we find ourselves in an election year – and as a result, we find ourselves obliged to set the record straight."

"We find it curious that of all the pending nominees under Senate consideration, the Post chose to highlight only two of the nominees – ignoring highly controversial nominees with troubling records like Steven Matthews and Robert Conrad altogether. The Post also glossed over issues surrounding the nominations of both Mr. Rosenstein and Mr. Keisler – including the fact that the White House has continued to stonewall the Senate over documents that would shed light on Mr. Keisler's record and judicial philosophy. If the Post is going to call on the Senate to evaluate nominees, it should also call on the White House and nominees to provide the Senate with essential materials critical to that evaluation."

the devil is in the details. You would have to assume that confirmation of Kethledge is garranteed by the White nomination (that is implied by Leahy's statement that both 6th Circuit vacancies could be filled by the deal) - it would make no sense to allow White to be confirmed without an ironclad deal that Kethledge goes through as well.

So - here's my worst case take on Reid's statement. They don't bother to wait for White's ABA rating, since she's going through regardless. Thus, she is one of the three. That means Kethledge (who has already had his hearing - right?) would be number 2. Pratter then is number three. Not much to write home about - but at least it finally resolves the 6th Circuit impasse.

Somewhat better - White and Kethledge are still one and two, but instead of Pratter the third judge is Conrad or Matthews. At least we get one more judge on the critical 4th Circuit.

Much better - White isn't one of the three (they wait on the ABA); Pratter is, plus both Conrad and Matthews or one of them along with Kiesler. That would be pretty sweet. Swapping one of the above for Kethledge would be plausible and bring this down a bit.

Best - Conrad, Matthews and Kiesler (White and Kethledge go through together once White gets her rating). This would be awesome! It couldn't possibly be this good, could it?

If we get three, I'll guess Pratter, Kethledge and Conrad (but hope for Matthews and, especially, Kiesler).

http://www.townhall.com/Columnists/MarioDiaz/2008/04/15/isnt_it_time_to_...

"In a more recent editorial, the Washington Post calls it a “travesty” that Peter D. Keisler, who was nominated to the U.S. Court of Appeals for the D.C. Circuit in 2006, has not had a vote yet. They also called Rod J. Rosenstein, nominated for a seat on the Fourth Circuit, an “unquestionably well qualified” nominee. When you have the Washington Post editorial saying that “it is time to stop playing games with judicial nominees,” you know the problem has reached absurd levels.

Isn’t it time to stop the nonsense? Isn’t it time for the well-being of the American people to be at the top of the Senate priority list?

Senate Democrats must consider their ways. They should reexamine their approach to judicial nominations because they too will be facing elections soon enough.

Senate Republicans, on the other hand, must consider how boldly they are willing to stand up and fight for “we the people.” How boldly are they willing to fight for the people of the Fourth Circuit?"

March Nominee Report
As of 3/31/08

As a reference aid for other readers and posters on this site, I compile a monthly summary of progress on Article III federal judicial nominations. Following are the figures for March (mostly a bunch of zeroes):

Circuit Confirmations: 0
District Confirmations: 0
Circuit Nominees Reported by SJC: 0
District Nominees Reported by SJC: 4 (on March 6th)
Circuit Nominees had Hearings: 0
District Nominees had Hearings: 0
No. of Judicial Nomination Hearings: 0
Circuit Nominations: 1 (Agee: 4th Cir.)
District Nominations: 2 (Matsumoto, Seibel)
Total Nominees Pending on 3/31: 34 (11 CCA, 23 DJ)
Nominees in Committee with hearing: 4 (2 CCA: Keisler, Haynes, 2 DJ: Honacker, Puryear)
Nominees on Executive Calendar on 3/31: 4 (DJ: Miller, Hall, Mendez, Anderson)
New Vacancies: 2 (2 DJ: Kansas, Colorado)
Total Vacancies on 3/31: 51 (14 CCA, 37 DJ)
Total Vacancies on 2/29: 49 (14 CCA, 35 DJ)
Change in Vacancies in March: +2

Outlook for April: No further confirmations likely this month. Haynes and 4 District judges already confirmed. Now that Haynes has been voted out of Committee and confirmed, there is absolutely no excuse for Leahy & Co. to further delay Pratter’s hearing. Of course that fact hasn’t deterred them from continuing to delay Pratter: no hearing has been scheduled for this week and none yet for next week. My guess is that they will finally hold a Pratter hearing on the week of April 29-May 1. The 4 District nominees in the hearing on April 3 will probably be voted out of Committee around the end of the month (unless one of the Missouri nominees gets stuck).

OUTLOOK for 2008: 3-4 Circuit confirmations still seem most likely this year. Three nominees already confirmed or very likely to be confirmed: Haynes, Pratter, Agee. 1 or 2 of the following 2 may possibly be confirmed: Keisler, other 4th Cir. Virginia seat (presently no nominee). The rest of the Circuit nominees are “dead” for this year.

[For reference, my February 2008 Nominee Report appeared in the thread “Quote of the Day” on March 3rd. The January 2008 Report appeared as post #3 on the thread “Worthy Nominees” on February 11th.]

P.S. I'll believe any of the Senate politician's talk referenced in this thread, ONLY after seeing the tangible results of same. To put it mildly, we've seen this kind of thing before over the last few years, with predictably barren results.

They've been so successful at blocking judicial nominees that the numbers are looking pretty stark. Maybe the light finally came on and someone asked,"Gosh, how is the GOP going to treat our judicial nominees starting in 2009 if we take the White House?" Perhaps someone finally noticed that being in the minority didn't stop Sen. Levin from preventing confirmations to the Michigan seats on the 6th Circuit. Who's to say the GOP couldn't exact a similar revenge?

Based upon his comments, it seems definite that Kethledge, White and Agee will get confirmed this year. I can't imagine Specter not getting Pratter confirmed. That leaves Keisler, Conrad and Matthews as the ones to look at. It would be wonderful if the Dems let all seven (really six - White is a necessary evil) get confirmed. I think after today's deal, this is a real possibility. If all seven are confirmed, btw, that means Bush's COA confirmation number will be 65, equal to Clinton's. The Dems might be willing to do this now to quarantee the confirmation of some really ultraliberal nominee to the Supreme Court in 2009 to replace Stevens.

I assume the Dems would send Agee through before either of the other 4th Circuit nominees or Keisler.

"Based upon LEAHY'S comments, it seems definite that Kethledge, White and Agee will be confirmed."

As I mentioned before, I think that with today's deals the odds for certain COA nominees have greatly increased.

By date of first confirmation:

1) Kethledge - done deal

2) Keisler - his chances have gone up a great deal today. I think he has better chances than Conrad or Matthews because his confirmation won't harm the Dems in their attempt to take over the Fourth.

3) Conrad - his chances have also gone up, but not as much as Keisler's. A benefit of his confirmation would be the resolution of his seat which has been open since 1994. Also, one Catholic calling another Catholic anti-Catholic doesn't mean a whole lot to most people. Conrad's chances are better than Matthews.

4) Stone - no way

5) Matthews - his chances have gone up a little but not much. Unlike Keisler, his confirmation could really harm the Dems in their attempt to take over the Fourth Circuit. Plus his connections to Fielding, Thomas and Limbaugh could really energize the liberal base. These connections are much more tangible in terms of issues to the Dems than some argument over what is a "real" Catholic.

6) Rosenstein - unfortunately, no way

7) Pratter - close to a done deal

8) Smith - no way

9) Agee - done deal

10) White - done deal.

The way I calculate it :

Four definite confirmations - Kethledge, Pratter, Agee, White

Two probable confirmations - Keisler, Conrad

One iffy confirmation - Matthews

Three no goes - Stone, Rosenstein, Smith.

END RESULT: SEVEN MORE CONFIRMATIONS.

http://opinionjournal.com/columnists/tbray/?id=95001550

The link is to a story written in 2001 that goes into the history of the 6th Circuit dispute. I never knew why the GOP didn't act on Helene White's nomination - I just assumed it was because she was a liberal (and perhaps because of the nepotism issue - she is the wife of Sen. Levin's cousin). It turns out that Michigan democrats wanted White nominated so she wouldn't run as an independent for the Michigan Supreme Court (which would have hurt the chances of the liberal who was already running). But Sen. Spence Abraham (R - MI; remember him?) thought he had a deal that President Clinton would leave the remaining Michigan vacancies on the 6th Circuit open (Spence's part of the deal - already fulfilled - was to sheppard three of Clinton's judicial nominees through the GOP controlled Senate). Feeling betrayed, Spence put a hold on Helene White, and a 2nd nominee that followed. And, to steal a phrase, now you know the rest of the story.

Obviously the comments in my pre-written post #11 were somewhat superseded by events before I came home and dropped it in. But not entirely.

Having now read the posts and associated material, it appears to me that the situation has essentially changed as follows:

Before: Pratter and Agee probable. Keisler and 1 or 2 4th Circuit nominees possible, in varying degrees of unlikelihood.

Now: Same as above, plus "definite" confirmation of White and Kethledge. So the only material difference is the resolution of the Michigan impasse by balanced confirming of Kethledge and White (no small thing, and a salutary one, to be sure).

Am I missing something?

Earlier, I said there are possibly seven more confirmations. My two big doubts are Matthews and Conrad, but Reid promised today on the Senate floor to do everything possible to get those two confirmed by Memorial Day. If he doesn't, that makes him seem to be a big liar. Do you agree that Conrad seems to have a better chance than Matthews? How do you rank Keisler in comparison to those two?

Why is everyone convinced that Agee is a done deal? There will be two Dems from Virginia next year, so a Dem Prez could get a better nominee than Agee (in their eyes). However, they will still have two Repubs from both NC and SC with blue-slips. It might be better for them to give us Conrad, and maybe Mathews, and then they have a clear path with the two VA seats and the MD seat. That will give them the numbers. Also, Niemeyer (already) and Wilkinson will both be eligible for Senior Status, so a Dem Pres can still remake the Circuit

Leahy has gone on record and said he will get Agee confirmed. How can he backtrack now?

I remembered some reasonable sounding comments comming from Leahy regarding Agee, but I couldn't remember how much wiggle room he left for himself. Of course, its hard to believe anything from Leahy until the nominee is sworn in. I still think from a blue slip policy standpoint the Dems are better off letting Conrad or Mathews and not Agee.

http://www.cbsnews.com/stories/2008/04/15/politics/politico/thecrypt/mai...

"Senate Majority Leader Harry Reid (D-Nev.) said Tuesday night he hopes to confirm three of President Bush’s judicial nominees before the Memorial Day recess, at least temporarily quieting rumors that Senate Republicans may try to use procedural tactics to force votes on stalled judicial nominations.

Reid said he met with Senate Minority Leader Mitch McConnell (R-Ky.) Tuesday afternoon and promised McConnell he would try and hold votes on three circuit court judges before the break, although Reid said he could not guarantee that the votes will occur.

Rumors swirled on Tuesday afternoon that Republicans were contemplating bringing floor debate to a halt in order to force votes on the president’s judicial nominees, with several prominent Republican senators voicing their displeasure over the slow pace of the nomination process.

Privately, GOP aides said it was too early to tell if Reid’s offer of three circuit court nominees would be enough to mollify Senate Republicans and avert another showdown.

“This is a step in the right direction…considering a few days ago they weren’t prepared to give us any,” said one senior GOP aide, “but the jury is still out on whether or not that will be enough.”"

I've always felt that Conrad had a better chance of confirmation than Matthews, for reasons we discussed at length last year. But as I wrote here yesterday, Conrad's own prospects are poor. Demorats have gone to great lengths for seven years to obstruct and keep that seat open: why would they surrender now with 3 months to go before Thurmond Rule kicks in? What quid pro quo could we give them--another Motz type in the vacant Maryland seat? Another package solution to an ancient impasse?

I want to believe that Keisler's prospects have materially improved, just as I wanted to believe last year that he would be confirmed under the DC to 9th seat deal. But it didn't seem rationally probable then, nor does it now. Do you have specific tangible reasons underlying your belief that Keisler's chances have significantly improved today? I'd like to hear them.

Between Conrad and Keisler, I think the Democrats would be more likely to confirm Keisler if it had to be one of them. Reasons: their longstanding campaign to take over the 4th, and that N.C. seat has been Ground Zero in the Judicial Confirmation Wars since Helms and even before that. That would be Ok by me, since DC Circuit is so vital and Keisler is such a coming star. And we'd at least get Agee on the 4th.

By the way, Reid IS a big liar, and I give absolutely zero credence to anything that comes out of his mouth. So his promises about confirmations before Memorial Day mean precisely nothing.

I think there will be 4 or 5 more confirmations, but of course hope you are right in predicting 7.

After reading the Politico story: there were more hedges and qualifications in Reid's statement ("hope" to do so, "try" to hold a vote, cannot "guarantee") than there were lies in Bill Clinton's statement last week about Hillary's Bosnia Snipergate adventure.

On its face, Reid's statement is not worth the contents of Vice President John Nance Garner's famous bucket.

The Senate is planning on breaking on Friday, May 23rd, for a week until Monday, June 2nd. That leaves a little over five weeks (28 business days) in order to get three COA nominees confirmed. Based upon the Dems' past record, that could be difficult.

First, let's assume that each nominee will require two weeks in between their hearing and final committe vote (one week to be first marked up on a SJC business meeting agenda and another week for the prerequisite Dem delay). Out of committee, the Dems have usually required a further one week delay before a full Senate vote. So each nominee will require three weeks after their hearing to get confirmed.

Under this set of circumstances, Nominee #1 must have a hearing next week (the week of April 21st), Nominee #2 must have his hearing the week after that (the week of April 28th), and Nominee #3 must have his the following week (the week of May 5th).

This compressed hearing schedule would require the nominees to already have their ABA ratings. Since we can guess that the nominees with blue-slip problems won't be processed, that leaves the possible options right now as Keisler, Kethledge, Conrad, Matthews and Pratter. It is not likely that Agee or White can get an ABA rating in the next three weeks. The ABA would look too partisan by fast-forwarding White's rating. After all, the last time she was rated was TEN years ago at the beginning of the 106th Congress. A lot of water has flowed over the dam since then. New people have to be interviewed, new opinions read, and new FBI checks done.

Since it is likely that the Republicans will demand that Kethledge be confirmed BEFORE or SIMULTANEOUSLY with White. That makes him a likely candidate to be one of the three "confirmees". That leaves two more slots open. Pratter seemed the one most likely to get a hearing before today's deals, so she might be the second "confirmee". That leaves Keisler, Conrad and Matthews fighting for the third opening. As I have mentioned before, I think Matthews is at the bottom of the totem pole. In general, I think the Dems would be smart if they made Keisler the third "confirmee".

If Keisler is confirmed, it makes things a whole easier on the Dems. First, they remove the best ammunition the Republicans have against them in the publicity wars. In fact, it even gives them more cover in later blocking Conrad and Matthews. Because neither Conrad nor Matthews have the same stellar background as Keisler, it will be much more difficult for the Republicans to generate the same amount of outrage in the obstruction of Conrad and Matthews as they were able to create over Keisler. This will be especially true if the Dems confirm Agee next in June. In addition, neither Keisler's nor Agee's confirmations will interfere with the Dems' plan to tilt the Fourth Circuit's jurisprudence to the left.

http://www.politico.com/blogs/thecrypt/0408/Reid_offers_a_compromise_on_...

Reid was certainly hedging. The article seemed to suggest that Reid's conversation with McConnel involving the possibility of three confirmations by Memorial Day was distinct from the deal on the 6th Circuit. I'm not sure if this is in fact the case, but the article is written that way. That would suggest that White and Kethledge are not part of Reid's sort-of-promised three. So who could the three be? Pratter and Agee are obvious choices for first and second. It seems like the most realistic possibility for the 3rd confirmation would be Kiesler. Kiesler is the only pending Circuit Court nominee who has had his hearing. Memorial Day is May 26. Pratter and Agee still need to have their hearings, and then get scheduled for a committee vote. There's barely enough time to do that, much less schedule another hearing for a third nominee. Perhaps all of the editorials in favor of Kiesler are starting to have an effect. At the end of the day, Reid will give us Pratter and Agee, which isn't much of a surprise, and he'll probably keep his finger in the wind until the last minute regarding Kiesler. The senate GOP really needs to keep the pressure on.

I think that the Dems are going to try to match Clinton's 65 COA confirmations. Why? It gives them more bargaining power during the next term if a Dem is elected. The next Dem president won't be as afraid to nominate the real liberals he wants if he knows that the Dems can diffuse any Republican spin against them. If the Dems make sure Bush gets 65 COA confirmations now (even if two of them were originally Clinton nominees), then it will be harder for the Republicans to complain later under a Clinton or Obama. The Republicans won't be able to say, "we're going to block these new nominees because the Dems blocked more Bush nominees than we did Clinton nominees."

BTW, didn't Clinton nominate some Republicans to COA seats? Correct me if I am wrong, but aren't Tallman of the 9th Circuit and Traxler of the 4th Circuit actually moderate Republicans who were nominated as compromise candidates?

We won't have to wait long to find out if Reid is being honest about confirming three COA judges in the next five weeks. As I outlined before, the hearings for those three will have to be scheduled one a week for the next three weeks for it to happen the way Reid describes. Let's see who gets the hearings. If it is Kethledge, Pratter and Agee then the Dems are likely just stringing the Republicans along until June when they can terminate all the "controversial" nominees with the Thurmond Rule. However, if Keisler, Conrad or Matthews show up on a hearing's agenda, we can take it a good faith effort on the Dems' part.

http://blog.heritage.org/2008/04/15/reid-promises-votes-on-three-circuit...

"Three of President Bush’s circuit court nominees will finally get an up-or-down vote in the U.S. Senate after Majority Leader Harry Reid (D-Nev.) promised to end the obstructionism that had stalled action on judicial confirmations.

Just last week the Senate voted for the first time in 2008 on five of Bush’s judicial nominees, including one circuit court judge. It was the latest date in an presidential election years since 1848 when James K. Polk was in the White House.

During colloquy between Reid and Minority Leader Mitch McConnell (R-Ky.) tonight, the two leaders reached a “good faith” agreement. Reid committed to votes on three circuit court nominees before the Memorial Day recess. McConnell said Reid’s promise would bring the total number of confirmations to 10 during this Congress, within reach of the historical average of 15 to 17.

In the past week, Reid felt increasing pressure to act — both internally from Sen. Arlen Specter (R-Pa.) and from the liberal media. His promise is a good first step, but hardly adequate given the little time lawmakers will likely spend in Washington this summer and fall."

How old is White? Trading an older White for a young Kethledge would be a heck of a deal.

Helene White graduated college in 1975, so she must be around 54 or 55. Raymond Kethledge was born in 1966, so he is only 42 at most.

Let them confirm Keisler, Conrad, Matthews, and Agee, then make Leahy work White and Kethledge through during the so called 'Thurmond Rule' summertime.

Withdraw Helene White's nomination after Kethledge is confirmed?

Quite underhanded, to be sure, but its nothing worse than the stunts Reid has pulled.

That would be terrible politics and terrible ethics. That would in fact be much worse than the stunts Reid has pulled. Put it out of your mind.

Courtesy of How Appealing,

http://www.detnews.com/apps/pbcs.dll/article?AID=/20080416/POLITICS/8041...

"Tobias said Tuesday's agreement is a signal that the Bush administration, nearing its end, is eager to seat at least some of the conservatives, such as Kethledge and Murphy, whom Bush has hoped to place on the federal bench.

"In a way, it is a pretty good deal for the White House," Tobias said, because it assures two relatively young conservatives will obtain lifetime judicial appointments."

http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200804/NAT200...

"Senate Republican Leader Mitch McConnell says he has a "good faith commitment" from Sen. Harry Reid to confirm three more federal appeals court nominees by Memorial Day."

"The move to advance three more of President Bush's judicial nominees is part of a deal McConnell struck with Reid Tuesday night: Roll Call reported that McConnell used a popular highway funding bill as leverage to prod Democrat action on the judges."

"Nan Aron, President of the Alliance for Justice, a liberal interest group focusing on judicial issues, issued a statement criticizing Republican obstruction, saying that "Senate Republicans lob quite a few stones from their glass house" when they complain about Senate Democrats "politicizing the process."

"It is not Senate Democrats who have threatened to grind the nation's business to a halt...because they aren't getting their way. It is not Senate Democrats who use the federal bench as red meat for their base. This latest sally is nothing more than sound and fury signifying an election year," Aron said.

Quin Hillyer, an associate editor of the Washington Examiner, said Republicans should insist not just on the number of judges confirmed but also on who will be confirmed.

In a posting on the blog ConfirmThem.com, Hillyer said Republicans should shut down the Senate "if there is no guarantee of a full floor vote this year for Peter Keisler, a nominee to the D.C. Court of Appeals."

Does anyone know what they said? I guess Graham and DeMint talked about Steve Matthews, but I want to know specifically if Keisler was mentioned and/or who the three "confirmees" will be.

http://www.msnbc.msn.com/id/24158627

WASHINGTON - The Supreme Court on Wednesday upheld the most common method of lethal injection executions, likely clearing the way to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states.

"We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts said in an opinion that garnered only three votes. Four other justices, however, agreed with the outcome.

Not surprisingly, there must be quite a lot of turmoil and negotiations going on in the Senate Judiciary Committee today. Both today's full committee hearing and tomorrow's Business Meeting have been postponed. Does anyone here have an inkling of info about what's going on among the SJC Senators today?

I'm sure many sets of eyes aroung here are focused on "next week's hearings" on the SJC website. Who will get the scoop? My money is on Nomination Observer.

http://www.committeeforjustice.org/blog/2008/04/judges-deals-discharge-p...

"It follows that the devil is in the details of which nominees the Reid-McConnell deal will involve. We commend Sen. McConnell for using the highway funding bill as leverage to get a concession on judges from Reid, but we don’t yet know what to make of the deal. If “3 circuit confirmations by Memorial Day” turns out to include at least two of Keisler, Conrad, and Matthews, it’s a good deal. In contrast, Reid should not be allowed to claim credit for circuit court nominees whose selection or likely confirmation are already the result of deals with Democrats. Steven Agee (4th Cir.), Helene White (6th Cir.), and Ray Kethledge fall in that category."

She's 53, according to a Detroit Free Press article I read somewhere.

This was posted by Jonah Goldberg at NRO's The Corner:

Scalia v. Stevens [Jonah Goldberg]

A reader sends this along:

Jonah, I thought you might be interested in this. The Supreme Court decided today that Kentucky's lethal injection procedures don't violate the eighth amendment. Justice Stevens, writing separately, essentially rejected any reliance on any other evidence except for his own opinion on whether the death penalty is constitutional. Justice Scalia called him out as follows:

But actually none of this really matters. As JUSTICE
STEVENS explains, " 'objective evidence, though of great
importance, [does] not wholly determine the controversy,
for the Constitution contemplates that in the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth
Amendment.' " Ante, at 14 (quoting Atkins v. Virginia, 536
U. S. 304, 312 (2002); emphasis added; some internal
quotation marks omitted). "I have relied on my own experience
in reaching the conclusion that the imposition of
the death penalty" is unconstitutional. Ante, at 17 (emphasis
added).

Purer expression cannot be found of the principle of rule
by judicial fiat. In the face of JUSTICE STEVENS' experience,
the experience of all others is, it appears, of little
consequence. The experience of the state legislatures and
the Congress—who retain the death penalty as a form of
punishment—is dismissed as "the product of habit and
inattention rather than an acceptable deliberative process."
Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is
relegated to a footnote. Ante, at 10, n. 13. The experience
of fellow citizens who support the death penalty is described,
with only the most thinly veiled condemnation, as
stemming from a "thirst for vengeance." Ante, at 11. It is
JUSTICE STEVENS' experience that reigns over all.

You're putting way to much pressure on me!

And presuming perhaps that I'm not productively engaged in earning a living, just because I've had some good luck logging into places at an opportune time. ;-)

http://www.supremecourtus.gov/opinions/07pdf/07-5439.pdf
pp 1-5 is the syllabus
pp 6-29 is Roberts's opinion (joined by Alito and Kennedy)
pp 30-38 is Alito's addl comments
pp 39-56 is Stevens's concurrence
pp 57-64 is Scalia's list of shots at Stevens above what Thomas has (there are lots more than listed above)
pp 65-79 is Thomas's concurrence (joined by Scalia) (he has some great general zingers too)
pp 80-86 is Breyer's concurrence
pp 87-97 is Ginsburg's dissent (joined by Souter)

It never entered into my mind to presume that. I've had a couple of "scoops" myself, but they've been very few and far between. You're right, it's all a matter of timing. Like so much else.

And don't worry too much about the pressure. I never (well, hardly ever) bet more than a quarter on anything.

By the way, is it right to assume that Murphy's nomination to the long vacant Michigan East District seat is part of the package with Kethledge and White? Presumably it is, but I haven't seen any references to it. If so, this is a very elegant and on the whole excellent solution to the longstanding Michigan impasse.

You are correct. Murphy's district seat is part of the deal with Kethledge and White.

Agee "has" to get confirmed, as he was on Webb's list. If he doesn't, Obama will get no judges confirmed at all w/out the nuke, unless RepubSens completely lay down in '09 (which they probably will). Plus, Webb would go ballistic on Reid privately.

BoBo, regardless of these latest deals, I can't conceive of any pre-arrangement that an ultraliberal will replace Stevens. Purple Dems would abhor Koh's past writings, and Obama would get whupped w/the chrony stick over Patrick.

LOL at JPS on the death penalty. Recall the NYT interview. JPS was far more shook up over Yamamoto's plane getting shot down than he was over Pearl Harbor. My opinion of JPS did a 180 after that article.

THOSE are the type of questions SCOTUS noms need to answer, not Kabuki tea leaf nonsense over Roe. Far more revealing.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Has anyone heard just how liberal Helena White might be? I was just wondering if she is a moderate Dem or a Rosemary Barkett type liberal? At 54, she is not as young as Kethledge, but she will still be around for a while.

I don't believe she's a raging liberal, tho I could be wrong. But she's prolly not as "conservative" as Callahan or Ikuta either, tho I'm just guessing actually.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

http://blogs.abcnews.com/politicalradar/2008/04/obama-answers-l.html

"'As a former constitution law instructor,' Obama wrote, 'I fully appreciate the important work that our federal judges do and the need to fill judicial vacancies. However, I have great respect for the Senate's constitutional advice and consent role in the confirmation of these judges.'

Obama goes on to say he'll defer to Leahy to schedule hearings and Senate Majority Leader Harry Reid to schedule votes.

On that point, there is some hope for stalled judicial nominees. A deal hatched between Leahy, Michigan Democrats and President George W. Bush to consider one of President Bill Clinton's blocked nominees from eight years ago in exchange for considering one of Bush's nominees right now was announced Tuesday.

Reid has pledged to hold three votes on circuit court nominees before the summer, but none of the three judges Spector wrote about to the presidential candidates is included in the deal.'

Besides giving Obama's take on judges, listen carefully what else it says:

KEISLER, CONRAD AND MATTHEWS WILL NOT BE AMONG THOSE CONFIRMED BEFORE MEMORIAL DAY!

I don't know if this report can be trusted, but I am very disappointed if the information it offers on yesterday's deal is true. Can we only expect Kethledge, Pratter and Agee in the next five weeks?

http://thehill.com/leading-the-news/obama-downplays-concerns-over-judici...

"Obama said both sides were working to confirm President Bush's nominees to fill lifetime seats on appeals courts, pointing to a deal reached Tuesday to fill seats on the U.S. Court of Appeals for the 6th Circuit. Democrats signaled they would confirm a Bush nominee for the 6th Circuit in exchange for his decision to nominate Helene N. White for the Michigan seat on the court.

Republicans have been increasingly critical of the pace of confirmations, saying the seven confirmed this Congress is far fewer than the 15 the Republican-controlled Senate confirmed in the final two years of the Clinton administration. The GOP has signaled that it would tie up the floor to gain leverage in the fight, and Reid said Tuesday he would try to confirm three more Bush judges before Memorial Day if Republicans allowed a pending highway bill to advance.

Still, Obama's statements did not go far enough for Specter, who criticized him for deferring to Leahy and Reid. Leahy is a prominent supporter of Obama's campaign, and Reid is one of the most influential uncommitted superdelegates."

http://afjjusticewatch.blogspot.com/2008/04/senators-play-lets-make-deal...

"It seems there are two tentative deals in the works that would address the question of President Bush’s pending circuit court nominees."

"As of yet, it is unclear how these deals will work together and what aspects will eventually be implemented."

This morning, Graham, DeMint, Sessions, Specter and Hatch talked about judges. What did they say? Does anyone know?

http://www.law.com/jsp/article.jsp?id=1208342629986

"Keisler was nominated by President George Bush to the D.C. Circuit in June 2006. But he doesn't appear to be holding his breath for the Senate's blessing. Last month Keisler rejoined Sidley, where he worked before leaving for the Justice Department in 2002. Sidley doesn't seem to have much confidence in Keisler's nomination, either: It promptly named the D.C. veteran "global coordinator" of its appellate practice.

Keisler did not return a call seeking comment, but Carter Phillips, managing partner of Sidley's Washington, D.C. office, says that Keisler's move to rejoin Sidley was "in no way an act of surrender" on his part. Phillips acknowledges that "time is certainly not on [Keisler's] side," but that the firm is hoping Keisler is confirmed. Phillips also stated that Keisler's situation has not been an impediment to his relationship with clients.

'The truth is, like in most big law firms, you tend to operate in teams here," says Phillips. "All the clients know that Peter has been nominated, and they'll evaluate the risk for themselves.'"

It's not clear to me that we will get the judges we want in this first "round of 3" but it is certainly a start. McConnell will simply need to do this again to get Keisler, Matthews, and Conrad confirmed, if they don't make it this time. This is round 1, a small victory, but still progress. It needs to be followed up, and I suspect it will be, after Memorial Day.

Interesting that next week's SJC Business Meeting does NOT include the four District Court nominees whose hearing was about two weeks ago.

http://judiciary.senate.gov/meeting_notice.cfm?id=3297

Given that they are MO and VA, and therefore have the OK of a home state Democrat Senator, one would think that they would not be controversial, and SHOULD not take forever. But, they probably will.

Yet another example of why I'm not holding my breath regarding Reid's well-hedged "commitment."

"...one would think that they would not be controversial..."

so no one really answered yet...how liberal is she? does anyone know?

Well, she donated $2300 to Hillary Q2/2007. She's a member of some MI arts & homeless charities. Went to Barnard. Google is your friend, unless someone here's argued before the MICOA.

McConnell should shut down the Senate unless White, Kethledge, Murphy, Keisler, Conrad, Matthews, Agee, Short & Livington(?) are all voice-voted on as a package. Of course, he'll do nothng of the kind. Be lucky to get White, Keth & Murph together as a package.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

"As of yet, it is unclear how these deals will work together and what aspects will eventually be implemented."

Based on past history, I'd say it's "White gets confirmed, Kethledge & Murphy do not, Agee only does if Webb screams bloody murder".

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Robert1: There's nothing "simple" about Round 2 (after Memorial Day). In fact, my suspicion is that Round 2 will be a bloody disaster, as Reid, Leahy & Co. renege on virtually all of their "promises".

Therefore it is essential that Round 1 be comprised of the following 3 confirmations: Pratter, Agee, Keisler.

The Michigan group should be saved for June, since likely that's all we'll get. And Kethledge, White, and Murphy must be put through as a package. By "package", I mean simultaneous hearings, simultaneous SJC votes, and simultaneous confirmations (within the same hour).

Do not ever put any trust in the word of Reid and friends. Verify before trusting!

And I still firmly believe Conrad is a no-go with the Dems. Think historically.

I can't believe that Bush didn't make White's confirmation conditional on Kethledge's confirmation first. Otherwise, her nomination would be an open invitation to add another liberal voice to the 6th Circuit without any conservative counter-balance. I may think the Office of the White House Counsel is inefficient, but I don't think they're that stupid.

I agree BoBo, and everything I've read suggests the two nominations and confirmations go together.

There is absolutely no reason, necessity or excuse that White should be confirmed while Kethledge and Murphy are not. That is fundamentally unacceptable and Republicans can easily prevent that result. They must insist that Kethledge, White
and Murphy can only go through as a Package. By "package", I mean simultaneous hearings, simultaneous SJC votes, and simultaneous confirmations (within the same hour). The order of confirmation should be: 1. Kethledge, 2. White, 3. Murphy. All within 15-30 minutes. Period. Or no deal!

I think it will probably go down that way. Now that Levin has what he wants - his cousin-in-law assured a COA seat - he will not jeopardize it by ambiguity re the deal. This one's a no brainer.

But what does it all mean for Keisler, Conrad, and Matthews? They must also be priorities, assuming Agee and Pratter will be confirmed at some point without much fanfare.

The numbers are starting to come into focus. There are 7 COA confirmations so far in this Congress. The Dems need 8 more COA confirmations to match the Clinton total in the last 2 years of his presidency. So, if you factor in Kethledge, White, Keisler, Conrad, Matthews, Agee, and Pratter, you get 14. The Dems would probably say that's good enough. Perhaps if Bush nominated another Webb-Warner VA nominee, 15 confirmations would be possible. I know I'm being a bit optimistic here, assuming Keisler, Conrad, and Matthews will all be confirmed. But since none is truly controversial, perhaps we can be optimistic.

I hate throwing someone as stellar as Rosenstein under the bus, but he seems to be a victim of the venal, amoral scum that represents Maryland in the Senate.

With Catharina Haynes, Bush now has 58 COA confirmations. He only needs 7 more to match Clinton's 65 confirmations. I think the Dems might just give Bush those confirmations in order to clear the air before November when they think a Dem will win. This would reduce tension with the Republicans when and if this prospective Dem president begins making ultraliberal nominations in 2009.

Outsider, I have no illusions about trusting Reid, because I don't. I'd be very happy if your list make up the first 3, but I do think the approach for McConnell is simple - hold up another key bill and insist on Keisler, Matthews and Conrad in return. Reid will scream, but in the end I suspect McConnell wins if he hangs tough.

1. I do not understand the basis of the assumption of several here that Dems in any way feel a need to match Clinton's 15 nominees confirmed in 99-2000. I do not buy it. What is the rational basis for this latest optimistic assunption? I think some here get excited by any good news (Michigan deal) and are letting their hopes overcome their judgement.

2. Where do people keep getting the wildly optimistic idea that Dems will suddenly surrender after 7 years of successful 4th Circuit obstruction by confirming Conrad or Matthews? What is the rational basis for this assumption. I tend to think it's a fond hope, not a realistic expectation. I mean. I Hope (deference to Obama)so too, but I'd give 5-1 odds against Conrad and 10-1 against Matthews. Symbolic stakes, of course. Any takers?

http://judiciary.senate.gov/meeting_notice.cfm?id=3297

Three of the four district court nominees who had a hearing on April 3rd have been added to the agenda of the next SJC business meeting. I wonder what happened to the nomination of David J. Novak for the Eastern District of Virginia:

"III. Nominations

...

Mark S. Davis to be United States District Judge for the Eastern District of Virginia

David Gregory Kays to be United States District Judge for the Western District of Missouri

Stephen N. Limbaugh, Jr. to be United States District Judge for the Eastern District of Missouri"

http://blog.washingtonpost.com/capitol-briefing/2008/04/specter_mukasey_...

"Specter was similarly downcast on another issue close to his heart: The Senate's progress -- or lack thereof -- in confirming judicial nominations.

"We had a little breakthrough, but so far it's only a little breakthrough," Specter said of a recent bipartisan compromise to allow three circuit-court judges to move through the Senate.

"What I'm looking for is really something more than solving the problem for this year," Specter said. "We really ought to have a truce, and we ought to establish a protocol that will survive whoever controls the White House and whoever controls the Senate."

Many Republicans suspect Democrats are deliberately stalling on Bush's nominees to run out the clock until a Democratic administration can come in and send up new court picks. Specter said there would "absolutely" be payback from Republicans if a Democrat wins the White House and tries to move his or her own judges through the Senate. "The guys in the [GOP] caucus are madder than hell. They can barely wait to retaliate," he said."

This makes it sound as if we will get Kethledge, Agee and Pratter in May.

http://blog.thehill.com/2008/04/11/republican-chutzpah-over-judicial-nom...

"Senate Republicans are trying to turn Peter Keisler, a co-founder of the Federalist Society and a former law clerk for Robert Bork, into a poster boy for alleged foot-dragging by Democrats on Bush’s judicial nominees. Keisler has been nominated by Bush to fill the 11th seat on the D.C. Circuit, one of the most important appellate courts in the country. Back when President Clinton tried to fill this very same seat, Senate Republicans blocked those efforts, claiming that the court’s caseload was not heavy enough to justify having 11 judges. Well, that caseload has decreased in the interim, yet Republicans are now stomping their feet, demanding that Keisler be confirmed."

http://leahy.senate.gov/press/200804/041608e.html

"Yesterday, the Michigan Senators and I were able to overcome a long impasse lasting more than a decade over vacancies on the Sixth Circuit. I have long urged the President to work with the Michigan Senators, and, after seven years, he finally has. With his nomination of Judge Helene White of Michigan, we have a significant development that can lead to filling the last two vacancies on the Sixth Circuit before this year ends."

"I plan to consider the Sixth Circuit nominations as quickly as possible."

"We are also poised to make progress to end a long impasse on the Fourth Circuit with the pending nomination of Steve Agee of Virginia."

I am getting the sick feeling that next month may bring about the confirmations of Kethledge, Agee and - UGH! - White.

How conservative is Agee? Is he worth getting excited about if he gets confirmed?

http://afjjusticewatch.blogspot.com/

"With all the controversy surrounding the Senate’s handling of President Bush’s circuit court nominees, we shouldn't forget about district court nominees like Gustavus Puryear .

Mr. Puryear, nominated to the Middle District of Tennessee, has relatively minimal court experience. He has spent the majority of his career serving as the Executive Vice President and General Counsel for Corrections Corporation of America (CCA) and his tenure there raises serious red flags about his suitability to hold a federal judgeship."

Could it be that Specter is "downcast" about judicial nominations because Pratter has been shelved until at least after Memorial Day (and thus Short is shelved also). Maybe we won't get Pratter at all, though I still expect (perhaps naively) that she will be the final CCA confirmation in June or July. Maybe Kiesler too, but I wouldn't count on it. Leahy, Reid and Co. aren't about to start changing their spots now. With Pratter but not Kiesler, that would make 5 for the year, including White. Not so great, after all.

Of course the Dems will put White in the pre-Memorial Day group of three. All the caveats and pessimistic warnings that I made yesterday amidst the general irrational elation are quickly and inexorably coming true. Why would the Dems change now?

Expecting Conrad or Matthews to be confirmed is only slightly less delusional than expecting Rosenstein's confirmation this year.

I believe Rehnquist & Powell were essentially packaged, back in the day.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Any packaging of nominees is essentially by gentlemen's agreement. Constitutionally and by Senate rules, nominees cannot be officially packaged together - say use one vote to confirm more than one nominee.

Unanimous consent agreements that cover more than one nominee in theory represent separate votes on each nominee. Basically, simultaneous confirmations by unanimous consent is the only practical way to really confirm two nominees as a "package." In that sense, Rehnquist and Powell were not a package. Both had separate confirmation votes.

There is no official way to tie the fates of two nominees together. In the case of Kethledge and White, both the Republicans and the Democrats will have to trust that the other side will abide by its part of the agreement. That is why it is absolutely imperative that the Republicans get Kethledge confirmed BEFORE White. The Dems to a certain extent have to place their trust in Bush not to yank her nomination as soon as Kethledge is confirmed.

We apparently have two separate agreements. The first one is between the White House and Levin/Stabenow concerning Kethledge and White. The second was announced later that afternoon between McConnell and Reid to get three circuit court nominees confirmed by the Memorial Day break.

During the McConnell/Reid colloquy on Tuesday evening, McConnell specifically mentioned the names of Conrad and Matthews in the context of which nominees should be in that group of three. Reid promised he would do HIS best (not the majority's best) to include those two in the three to be confirmed. The name of a third nominee was not mentioned. Although Reid was well aware of the deal earlier in the day involving Kethledge and White, he pointedly did NOT mention either one of them as possibilities fot the group of three "confirmables," though he easily could've. That implies to me that at the time he was not planning on those two as part of the plan.

It was Leahy in his written statement on the Kethledge/White deal that mentioned how he would quickly process Kethledge, White and Agee. What this tells me is that Leahy is pressuring Reid to wimp out on his deal with McConnell by confirming only those nominees deals have struck on. I don't get the impression that this is what Reid meant when he was discussing nominees on the floor with McConnell. If he meant to follow Leahy's lead, he would have specifically mentioned the names of Kethledge, White and Agee, but he didn't. He did, however, specifically mention Conrad and Matthews. It may be that Leahy is force Reid to act in a way he doesn't want to.

Does anyone here really believe that Reid was a naive innocent in all this, essentially duped by the evil Leahy? Obviously they plotted this out beforehand and planned this from the start. Only Senate Republicans could have been credulous enough to fall for this even for a few hours.

That said, the Michigan deal in itself is not so bad, but only as long as Pratter gets confirmed in June. Then we'd have what we very probably would have gotten anyway: Agee and Pratter, plus Kethledge. And confirming White is worthwhile to get Kethledge (and Murphy as a DJ) and to finally fill those long-longstanding 6th Circuit vacancies and resolve the 10 year Michigan Judge Wars in a somewhat fair manner. Better than keeping them open and chancing Hussein Obama judges.

Also, Bush will have appointed 7 out of 16 6th Circuit judges (not counting White) and Republicans will have a 9-7 majority on the 6th. Overall, a good deal. But ONLY if Pratter is confirmed. One would think that Specter would see to that, unless Dems decide to stiff and humiliate him. Doesn't seem likely.

And starting NOW, Republicans must go all-out to get Keisler confirmed this summer. This should be the Senate GOP's #1 priority. Probably one reason for Dems offering the Michigan deal was to reduce GOP pressure for Kiesler. GOP Senators and the Administration must not fall for this ploy.