Good Start Shouldn't be the End
By Curt Levey Posted in Circuit Courts — Comments (2) / Email this page » / Leave a comment »
The Senate is expected to get off to a good start today by confirming Kimberly Ann Moore to the Federal Circuit. Given the short duration of the Senate's pre-election session and Republicans' plan to focus the session on national security issues, there are fears that Moore's confirmation will be the last of the judicial good news on the Senate floor before the election. However, this needn't be the case, particular because the issues of national security and judges are closely related. And Republican senators have ample opportunity to remind the public of the link.
For example, the confirmation of Peter Keisler to the D.C. Circuit seems virtually assured, and the Senate should not wait until after the election to make it happen. The D.C. Circuit has hundreds of Gitmo cases on its docket, but only ten active judges. Confirming Keisler swiftly would aid national security by helping the court to efficiently handle its Gitmo caseload.
Fourth Circuit nominee Jim Haynes is another example. As general counsel of the Defense Department for the last five years, Haynes has helped to keep this nation safe since 9-11. If confirmed, he can continue to do so for decades to come. Senators concerned with national security could advance the cause both practically and symbolically by confirming Jim Haynes. There has been talk that, if Haynes is not confirmed during this session, the President will put him on the 4th Circuit with a recess appointment. Given his importance to national security, that sounds like a great idea.
Moore confirmed
by BoBo
Moore was just confirmed 92-0.
It appears that the Senate will adjourn September 29. That leaves three weeks for more judicial confirmations.
As for positives, in addition to Moore, I think that Keisler, Livingston, Jordan, Murphy and Kethledge should have no problems getting confirmed before November if the judiciary committee is willing to work fast and furious. The Democrats may try to hold off confirming Murphy and Kethledge until after November if it turns out that the 6th Circuit will hear the NSA case en banc before then. Regardless, under any circumstances, Murphy and Kethledge should be confirmed before the end of the lame duck session of the 109th Congress that will meet at the end of November.
As for negatives, I see little or no action on the five controversial nominees - Boyle, Myers, Haynes, Smith and Wallace - before November. If the Democrats pick up several Senate seats in the midterm election, the chances are that all five nominations will be put on permanent hold. Bush may want to recess appoint them all in December, but to do so would destroy their chances of being confirmed in the 110th Congress - especially if the Democrats are in a much stronger position. Haynes will have more problems than the others if recess appointed since McCain and Graham will have a fit if Bush tries to circumvent them.