ConfirmThem

Although theoretically the Constitution gives the president the sole responsibility of nominating judges and executive officers, the Senate's ability to deny confirmation gives it practical control of the process. If a president is facing a hostile congress, it would make a lot of practical sense for him to find someone who isn't too divisive.

That's true, and in politics practical considerations almost always trump facts. Still, Andrew and Andy are correct about advise and consent.

has been schedule for 11/15. The four district court nominess that were put over from last week's meeting are on the agenda.

Andrew, I found it interesting - and perhaps probative - seeing how the term "advise and consent was construed by early Senate. Acting on the first President's first nominations, the journal of the first Senate records that the Senate "consider[ed] the nominations of Governor, &c. of the Western Territory, as contained in the message from the President of the United States of the 18th of August and the Senate did advise and consent to the appoint of [the nominees]." 1 Annals of cong. 66 (Aug. 20th, 1789) (emphasis added). Likewise, when the President made his first truly executive branch nominations, inter alios Hamilton as Secretary of the Treasury and Knox as Secretary of War, the Senate, having gone into executive session to receive the message, remained in like state and immediately considered and resolved the question of Hamilton (and a few others), the journal recording that "[o]n the question to advise and consent to the appointment of ... [Hamilton], it passed in the affirmative." Id. at 81 (Sept. 11, 1789). The same pattern attended the confirmation of the others nominated with Hamilton, ibid., and when Washington sent up his nominations for the Supreme Court, the journal records only that "[a]ll the appointments proposed by the President in his message of the 24th instant were confirmed."

Doesn't early practice suggest that the first Senate understood the discharge of its responsibilities vis-a-vis the nominations process - that is, the act of "advice and consent" - to be atomic, rather than two discreet events?

~Simon

"Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, dissenting)

Even after a nominee is confirmed by the Senate, the President still has discretion to not appoint the nominee. Thus, the Senate can consent to a nominee while simultaneously advising against appointment.

However, if the Senate wants to consent to a nominee as well as advise that the nominee be appointed, then the Senate could do exactly what it did in the cases of Hamilton and Knox. Just because advice and consent usually coincide does not mean that they necessarily must in all instances.

Can anyone explain why the President doesnt nominate people for every open slot now? It takes months to go through the process and he is running out of time. The only reason I have heard is that they dont want the Dems to cherry pick. My response to that is "so what?" At this point, its time to let them pick cherrys and get as many good judges in as possible. The only other reason I have possibly heard is the justice department is distracted or incompetent in this area? Is there any chance the new AG will turn this around and quickly?

Off topic question:

Was Southwick the only Circuit Judge to receive a cloture vote under this presidency?

Here's why: Because virtually the only ones who would be confirmed are Clinton/Schumer moderate-liberal squishes in New York, Boxer/Feinstein approved moderate squishes in California, Whitehouse/Reed approved moderate-liberals in Rhode Island, and maybe a Levin/Stabenow squish liberal in Michigan. Meanwhile, all conservative nominees and all 4th Circuit nominees would lanquish forever.

That's why. It would lead to ultimate "cherry-picking" by Leahy & Co. and would be a total DISASTER.

That said, Bush should make the following nominations pronto, before adjournment this month: 4th Circuit-Virginia, 3rd Circuit-Penn., District PA-W, District VA-E (2), District Miss-S, District MO-E, District Arizona, District Utah, District DC.

That's 2 additional Circuit nominations and 8 additional District nominations. More than enough to keep the pipeline filled until the Thurmand Rule gate clangs down next June at the latest.

No, Southwick isn't the only one. Circuit nominees Priscilla Owen, Janice Rogers Brown and William Pryor won cloture votes under the Gang of 14 deal in May-June of '05. Cloture was invoked on Brett Kavanaugh by 67-30 on May 25, 2006. And of course S.C. nominee Samuel Alito also won cloture by 72-25 on January 30, 2006.

But what if Bush nominated conservative and moderate- conservative judges to all the open slots? And why does not nominating more judges make the Dems fill the 4th CCA slots? Couldnt they just sit on them and fill no slots at all since there arent other nominees?

Nevertheless I am glad you agree that there are at least 10 spots the White House should fill. My orginal questions still remain. Why hasnt the WH moved ahead at least on those? Has the Justice Department become non-functional in this area with everything else on its plate?

I think you are way off base. By your thinking NO circuit judge would be confirmed for the remainder of the Bush Presidency. While I'm sure that may be used as a election issue, is it really worth it? Think about it. The President could get 4 more republican judges confirmed (eg, Cali, Pa, Va, Mich, even if moderate conservatives) or have none at all if he decides to take the "I only want the most conservative person I could find approach." Putting up such nominees gives the Dems an excuse for why they will not confirm Bush's nominees. He would be giving the Dems fodder on the whole election issue on judges. Just imagine the ads they would run should the Republicans even try to raise the failure to confirm as an issue: "Look at so and so nominated by Bush with such and such positions on such and such issues). On the other hand, if Bush followed the moderate conservative approach, then one of two things will happen. Either the Dems will confirm them (which is a good thing, especially if a Dem becomes President in '09 to fill the slots Bush tried to stuff with very conservative judges per your plan) or if they do not, then the Republicans can effectively use the non-confirmation as an issue (Bush nominated so and so, who holds positions on issues to which a lot of people agree with and the Dems controlled by their liberal base stopped such reasonable people from being confirmed, time to tell the left wing liberal cow towing Dems to go home).

http://www.usatoday.com/printedition/news/20071113/1a_offlede13_dom.art....

"Retired Justice Sandra Day O'Connor's husband, who suffers from Alzheimer's, has found a new romance, and his happiness is a relief to his wife, an Arizona TV report reveals."

O'Connor must really feel useless now. She has neither her old job or husband to keep her busy. If Toobin is to be believed, she is angry that Alito replaced her. If true, she must really feel galled to see him every time she visits the court. To make matters worse, now every time she visits her husband she has to see his new girlfriend!

I agree that Bush might as well nominate conservatives to all the open slots. But he should wait until March or April to do so. That would allow the 10 or so confirmable conservative nominees (moderate to mod/conservative for the 4th Cir. Virginia seat if an improbable deal can be made with Webb) he should make this month to get a 3-4 month head start in the pre-hearing processing (ABA, FBI, SJC staff, etc.). It may be impossible to nominate conservatives for District Judgeships in California and other states with liberal-dominated nominating commission systems.

Unfortunately, I agree with you that Democrats will probably sit on 4th Circuit nominees (perhaps excepting Conrad) in any case. But the 4th is so important that the utmost effort should be made. It's far more vital than filling the 28th seat on the 9th with a moderate or mod-Lib.

Article 3: you miscontrue my position. It is incorrect that "NO Circuit judge " would be confirmed under the plan I advanced. The following would or could be: 3rd Cir. Pennsylvania (Pratter?), 5th Circuit Texas (Haynes), DC Circuit Keisler, 4th Circuit N.C. (Conrad), and perhaps another 4th Circuit nominee. That would total 11 for this Session, which is the very most we can expect. Plus many conservative District judges.

And if you want to count failed cloture votes, I believe, if memory serves, we had 10 of those in 2003 for seven COA nominees.

Outsider the problem I have with going after the most conservative judges to fill the remaining slots is that it gives the Dems a good excuse not to confirm any of Bush's nominees, not just the recent flood the zone ones but the existing ones as well. The Dems will make hay over the Bush thumbing his nose on the remaining slots to the exclusion of talking about or acting on the existing nominees. They will spend the remainder of his term jibber jabbering about the "recent" nominees and their supposed "out of mainstream" philospohy, leaving the ones Bush already has nominated out to dry. Why jeopardize Haynes or Pratter so that Bush can nominate people that will antagonzie the Dems and will never be confirmed? Isn't it best to nominate people we can get confirmed? They will be much better judges than anything a new Dem President would nominate to fill the same spot.

Did he get confirmed today?

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm...

Yes, Dow was confirmed 86-0.

Even if Bush was to fill all open COA seats with nominations today, I do not think that it would be possible to keep COA confirmations flowing into next summer. Presently, there is little incentive for the Democrats to move any nominee, current or future.

With the exception of Haynes, the Dems have problems with all of the current nominees. In addition to opposing their legal ideologies, the Dems probably will block the current Fourth Circuit Court nominees just in order to keep those seats available for Hillary to fill in 2009.

Concerning future nominees, the situation is also very precarious. I doubt that a person who is nominated this week, especially if he is a documented conservative, can procedurally make it considering that Leahy has repeatedly said he is instituting the Thurmond Rule in January of next year and NOT June. My assumption is that after Haynes, and possibly Pratter, are confirmed, the Dems will just stop the process altogether unless they are otherwise forced to a la Trott, Cochran and Southwick.

For those who wish for consensus moderate candidates that the Dems can quickly process, I don't see this president nominating people like that.

I just think that nominating moderate conservatives has all the upside with none of the down side of going forward with a plan to fill the remaining seats with very conservative nominees. If the Dems plan to block all nominees no matter what their ideology this plays into Republicans hands. At that point, the Republicans can not only complain about the lack of confirmations but then be able to point to specific individuals who have consensus credentials. This point would be much harder to make (vis a vis as a election issue) if the President nominates very conservative nominees for the remaining spots. At that point whenever the Republicans complain about the lack of confirmations, the Dems will have ammunition to use --- "Well, we would confirm judges if the President had nominated within the judicial mainstream, but look at Mr or Mrs X and his or her views on this, that, and the other."

If, however, the President nominated moderate conservatives then, if the Dems plan to block all nominees no matter what, it bolsters the Republicans hand on the lack of confirmations. The Republicans could then say, "Hey, the Dems and their liberal cronies have blocked such mainstream judges as Mr. X or Mrs Y who have positions on this that and the other that most Americans share."

If, on the other hand, the Dems do not plan to shut down the entire process, by moving forward with very conservative nominees for the remaining spots, such action virtually guarantees that no judge will get confirmed. Leahy will then have been handed an excuse to stop the process altogether. With moderate conservative nominees, however, the President will at least be able to get more than perhaps Haynes and Pratter through before his term ends. Isn't that the point? Get at least some judges (who will be much better than what a Dem President in 2009 will nominate) through.

In general, I do think that Bush could get more COA nominees confirmed if he nominated less divisive candidates. I have already suggested that he withdraw the nomination of Getchell and fill the two Virginia Fourth Circuit seats with Lemons and Agee, the two Virginia Supreme Court justices on the Warner/Webb list. In addition, I would not be opposed to a Kethledge/White deal. Unfortunately, though, I think the battle lines have been drawn, and neither Bush nor the Dems will compromise. I would like Bush to constructively work to fill the Maryland, California, Rhode Island, New Jersey and Michigan seats, but will he? Not to mention, would the Dems work with Bush at this point? I doubt it. They see a Hillary victory in their future. They would rather let her fill those positions than Bush.

I am watching C-SPAN2 now, Reid is bewailing Republican obstructionism on a farm bill. In order to go through hundreds of nongermane Republican amendments to the bill, he is saying that the Senate will be in session after Thanksgiving for three weeks. While I still don't think that means Haynes can get confirmed in December, it does open up the possibility that she can get a hearing.

Yes,that is very very good. Make those sleazy jackasses stay in session into December instead of going home to extort and money-grub (er... I mean, hold constituent-interaction meetings). This is what I've been hoping for, as the only way to get another hearing this year. Another hearing is vital. Play the only trumps we've been dealt!

The GOP Senate leadership should make clear to the donkey/jackasses that they won't get any of their wretched extra billions in pork unless they hold hearings for at least one CCA nominee and 4 DJ nominees. This can be done in one hearing. And vote them favorably out of Committee to the Floor before adjourning! And Confirm Them before adjourning!

As I've said here several times: Most Democrat Senators (including red state Kennedy slaves like Conrad, Dorgin, Lincoln, Johnson and Bill Nelson) cannot be reasoned with. But many (enough) of them can be bought! Let's buy them and get at least 5 more nominees to the Floor before adjournment.

I said it in a previous thread, but I think Bush should make nominations for every district seat that has been vacant since at least May 1st of this year by the end of the week. There are 12 such vacancies by my count:

Circuit. District. Vacant since
1. DRI. 12/1/06
2. NDNY. 3/13/06
2. SDNY. 3/22/07
3. DDE. 12/13/06
3. WDPA. 3/15/07
4. EDVA. 4/1/07
5. SDMS. 2/4/06
6. EDMI. 9/29/00
6. EDMI. 1/1/07
8. EDMO. 12/31/06
8. WDMO. 4/30/07
DC. DC. 1/22/07

In addition he should make nominations to one or two of the six outstanding CCA vacancies (agree with Outsider that the two most logical are the 3rd circuit PA seat and the 4th circuit VA seat, though waiting until January to hopefully get movement on either Conrad or Matthews might make since in the latter case).

Article I Section 5 trumps pretty much anything else in the Constitution. "Each House may determine the rules of its proceedings..." Doesn't matter what is listed as requiring a majority, supernajority, advice and consent, etc. - the House and Senate get to make up the rules as they go along and they (esp the Senate) obviously couldn't care less how the rest of the Constitution reads.

When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, "Will the Senate advise and consent to this nomination?" which question shall not be put on the same day on which the nomination is received, nor on the day on which it may be reported by a committee, unless by unanimous consent.

This is from Senate Rule 31. So, according to Senate rules, "advice" occurs after a nomination is made. That's also what the Constitution says, notwithstanding Instapundit and the New York Times and the Gang of 14. Whatever "advice" means in the Constitution, it comes afer a nomination is made.

Blah, blah, blah. :)

that while it seems clear that presidential nominations should be confirmed (or rejected) by a simple majority, Senate rules put up numerous blockades before it ever gets to that point. SC nominees are an exception in many cases, but all other judicial (and administrative) nominees have the full gauntlet to run.
- Nearly endless delays in Committee (scheduling hearings, scheduling a vote, etc).
- Requirement for all but SC nominees to get Committee approval (or at least a tie perhaps) or else they are rejected.
- Holds of various types: blue slip or other "secret" holds. A single home state Senator can indefinitely block a nominee other than for the SC for any reason. In fact, it seems any single Senator can block any such nominee regardless of state in some circumstances, e.g. Brownback with Neff of MI and Feingold with a NY nominee whose name escapes me.
- Nearly endless delays in the full Senate (scheduling hearings, scheduling a vote, etc).
- Requirement for 60 votes for cloture before "real" vote is taken.
- (Did I miss any?)
Only if ALL those creations from of Article I Section 5 are met do we ever get to the "consent" requirement of Article II Section 2. Republicans did some of the same shenanigans for Clinton, but it's been taken to a whole new level under Bush.

Here's a very good, honest op-ed by Mary Jo White on Mukasey and the waterboarding issue:

http://blogs.usatoday.com/oped/2007/11/no-easy-answers.html

Law.com has the latest story.

http://www.law.com/jsp/article.jsp?id=1194948243737

What kind of swap is that??? Bush swaps not naming someone to the 12th DC seat in exchange for not naming someone to the 29th seat on the 9th???

How about Keisler gets confirmed for DC and in excange DiFi can pick the nominee for the relocated 9th seat? THAT would be a swap!

Presumably the real inside Senate deals would not be included in the version put out for public consumption. Let's hope fervantly that the deal you outline in paragraph 2 of #29 is still there behind the scenes. I remember BoBo described this deal as long ago as last February or March, and I've hung my slender hopes for a Keisler confirmation on this ever since.

Such inside deals are probably the only way that any CCA nominee besides Haynes and Pratter(?)can get confirmed in the next year, or even make it out of Committee for that matter.

This article states that Bush promised Justice Dept nominees will be named tomorrow:

http://news.yahoo.com/s/ap/20071114/ap_on_go_pr_wh/attorney_general

I'm hoping he will at the same time nominate some judges, and recess appoint Keisler. It doesn't hurt to hope....

Keisler can't be recess appointed tomorrow, since the Senate will be in session until Friday at least. Bush should wait on a Keisler R.A. until the Senate calls it quits for the year next month. Then, Keisler should be recess appointed to the D.C. Circuit as soon as possible.

More nominations this week would be excellent. Suggestions: 3rd Circuit-Penn., District Pennsylvania-W, District-Delaware, District Virginia-E (2), District Mississippi-S, District Missouri-E, District Missouri-W, District Arizona, District Utah, District DC, District Indiana-N.

is going on with the Federal Judgeship Act of 2007? Where is it in the process on the House and Senate side?

What I really was asking about is does anyone here remember a senate bill introduced this year creating three new 9th circuit seats all designated for California (but which could not be filled until 2009)?

Outsider is probably right. The real deal on Keisler is being buried under a lot legalistic jargon in the Court Security Improvement Act. Upon closer examination, the law.com article only says that, "the current draft language would delay creation of the new seat until 2009 -- after Bush leaves office." It says nothing about whether or not the elimination of the 12th D.C. Circuit seat will also be delayed until 2009, or that Bush could not name a person to the 11th seat. My assumption is that the 12th seat would indeed be immediately dissolved, and that Keisler could be confirmed soon after that.

At the present time, there are no Democrat-sponsored bills in either the Senate or House which address extra judgeships. The reason is clear: the Dems do not want to enter into a debate now about whether or not Bush should be entitled to name nominees to the new judgeships that would be created. The Dems would rather wait until a Democrat takes office in 2009 before taking up such legislation. That ensures that any new nominees would be ideologically acceptable to them.

The only reason why I ask is because I vaguely recall sometime earlier this year the Dems (perhaps DiFi) talking about putting in additional California seats to the Ninth but they would not open up for a nomination until 2009. I was just wondering whether anything came of that talk (assuming of course the Dems did say such things earlier this year).

http://www.whitehouse.gov/news/releases/2007/11/20071114-4.html

"I also thank Peter Keisler, who has served as Acting Attorney General during Judge Mukasey's confirmation process. Peter delayed his plans to leave the Justice Department in order to ensure that the Department had strong leadership during these past months. I appreciate the job you've done. With his departure, many of the most senior positions at the Department of Justice will now be vacant. In a time of war, it's vital that these positions be filled quickly. So in consultation with the Attorney General, I will announce tomorrow my nominations for several of these senior leadership positions. And I look forward to working with the Senate to fill these important positions at the Justice Department, so that America has the strongest, most capable national security team in place."

Unfortunately, the statement does not say exactly when Keisler will be departing, but it makes it seem as if it will be immediately or within days.

http://legaltimes.typepad.com/blt/2007/11/bush-praises-mu.html

"Justice Department employees applauded just as loudly after Bush recognized Gonzales' work and that of former acting Attorney General Peter Keisler, who is leaving the department unsure of his immediate future. His nomination to the U.S. Court of Appeals for the D.C. Circuit has stalled in the Senate."

Again, no exact date for Keisler's resignation.

then Bush can't recess-appoint him right? Wouldn't the Dems say, "Bush jumped the gun and decided to appoint him for a limited term instead of letting us do our job, so it's out of our hands now."?

I just called the Department of Justice, and they said that no official announcement has been made yet about when Keisler might actually leave.

It all depends. Since most Senate deals involve smoke and mirrors so that everyone has plausible deniability, it is possible that the Dems and the White House already have a deal in place that permits a Keisler recess-appointment as the beginning step in a gradual process by which the Dems will be able to convince their ultraliberal constituents to eventually let them confirm Keisler without too much drama. A little CYA can go a long way in politics.

I know Keisler can't be recess appointed tomorrow - there's no present recess. I was simply saying he should then be recess appointed - immediately at the next recess. Forgive the confusion.

Leahy, when he has talked about the "Thurmond Rule" has said that it would apply, in general, to controversial appointments.

Generally speaking, this does not apply to District Court nominations. If the Dems are planning on stalling CCA nominations, then the GOP might as well push through as many district court appointments at this stage in the game as they can.

Oz

Read my most recent story, "Immigration may be Hillary's undoing" on First Cut Politics

Does anyone know if the four District Court nominees were voted out at today's Committee meeting?

That's not much, but they and Judge Tinder are probably the extent of the potential confirmations for the balance of the year. It shouldn't be that way, but I'm assuming that it probably is...

Phoned the SJC majority and minority staffs about 15 minutes ago. Th majority staffer said that the Committee has been doing FISA all morning and will probably vote on the District nominees later today. The minority staffer told me that the Committee had just reconvened "5 minutes ago" after doing FISA all morning, and is likely to vote on the nominees when they finish with FISA.

I also asked if they were planning another Judicial nominee hearing in December, and strongly urged that they hold one for Conrad or Haynes, and at least 4 District nominees. They were somewhat evasive, but both said that the Committee would "try to" do so. The minority staffer said that Senator Specter made a statement along those lines at the meeting this morning. I hope everyone here will call the Committee (202 224-7703 and 202 224-5225) to push for another hearing next month.