ConfirmThem

http://news.yahoo.com/s/afp/20080630/pl_afp/usvotejustice;_ylt=Agr2Y0Ss7...

2008 is our moment - Our chance - our opportunity.

from the legal intelligencer (www.law.com/pa)

Senators Agree on Judicial Package: Pratter Nomination to be Withdrawn, Replaced by Diamond

Sources say the White House has tentatively signed off on a package of five judicial nominees proposed by Pennsylvania Sens. Arlen Specter and Robert Casey that would fill all of the vacancies on the Eastern District of Pennsylvania bench and one of two openings on the 3rd U.S. Circuit Court of Appeals.

http://www.fjc.gov/servlet/tGetInfo?jid=3064

"Diamond, Paul Steven
Born 1953 in Brooklyn, NY

Federal Judicial Service:
Judge, U. S. District Court, Eastern District of Pennsylvania
Nominated by George W. Bush on January 20, 2004, to a seat vacated by Herbert J. Hutton; Confirmed by the Senate on June 16, 2004, and received commission on June 22, 2004.

Education:
Columbia University, B.A., 1974

University of Pennsylvania School of Law, J.D., 1977

Professional Career:
Assistant district attorney, Philadelphia District Attorney's Office, Pennsylvania, 1977-1979
Law clerk, Hon. Bruce W. Kauffman, Pennsylvania Supreme Court, 1980
Assistant district attorney, Philadelphia District Attorney's Office, Pennsylvania, 1981-1983
Private practice, Philadelphia, Pennsylvania, 1983-2004
Adjunct professor, Temple University School of Law, 1990-1992

Race or Ethnicity: White

Gender: Male"

Initially, I thought that Specter would be able to get anyone he wanted confirmed to the Third Circuit because of his good relationship with Specter. As it turns out, I was wrong.

I first started to have doubts about Pratter's chances when the LCCR came out against her:

http://saveourcourts.civilrights.org/the_facts/remote-page.jsp?itemID=33...

"On behalf of the Leadership Conference on Civil Rights (LCCR), the nation's oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the nomination of Judge Gene E. K. Pratter to the United States Court of Appeals for the Third Circuit. In her short tenure as a district court judge on the Eastern District of Pennsylvania, Judge Pratter has exhibited a willingness to prematurely dismiss the claims of civil rights plaintiffs and to inhibit advocacy by their counsel, thus denying these plaintiffs access to a full and fair legal process."

When Leahy announced that Casey was refusing to submit a blue slip on her, I realized that her nomination was dead. I now recognize that the reason that Specter this spring joined the call to shut down the Senate in order to get Keisler, Robert Conrad and Matthews confirmed was because Leahy had told him that there wasn't any way he would allow Pratter's confirmation.

I wonder how Carolyn Short will fit into this new mix.

While I think this new deal is good news for Specter and the Third Circuit, I think it is bad news for the confirmation of Michael O'Neill as a D.C. district court judge. The one thing O'Neill had going for him was Specter's support. I don't think Specter will be as willing to go out on a limb for O'Neill now if the Dems have promised him Diamond and Short.

"Initially, I thought that Specter would be able to get anyone he wanted confirmed to the Third Circuit because of his good relationship with SPECTER."

should read:

"Initially, I thought that Specter would be able to get anyone he wanted confirmed to the Third Circuit because of his good relationship with LEAHY."

I certainly hope Specter has a good relationship with himself! LOL

Whacker 77 and MF-- by Classic
Your pessimism is disappointing.

I'm not pollyannish, but what makes you think Obama won't keep injuring his campaign big time.

Plus the NRA announced today that it will pour 40 million dollars into defeating Obama, incl 15 mill. on the 2nd amendment.

Remember Obama's comment in SF about people "clinging," etc.? That's not forgotten in WV and elsewhere. When was the last time a Dem won the presidency and lost WV. A looooooong time.

I'm also of the view that unless Obama picks Rendell (whom I understand has a major negative area) then McCain is going to win PA. If he picks Romney for veep candidate (see Mike Allen Politico), there is a strong likelihood McCain wins Mich and holds such places as Nev. and Colorado.

I could go on and on, but I think you get the idea.

PS Yes, Dukakis was 18 points ahead after the Dem convention. Also, Newsweek and LA Times polls are not to be trusted--registered rather than likely voters, as well as over weighted Dems. Zogby's not to be trusted many times. Rasmussen seems pretty reliable, but remember how fluid the situation is. I doubt most people will start focusing until after the Olympics are over.

Try reading this full link for more details. Although the link that BoBo provided was subscription only, this one here is the entire link for free:

http://www.law.com/jsp/article.jsp?id=1202422708639&rss=newswire

Does anyone know anything else about Diamond that might help us read between the lines? The opposition against Pratter gave me a sense of comfort. Part of me believes that any Bush nominee is better than an Obama nominee, but then again maybe another Souter type appointment isn't something to celebrate. It probably kills any lingering hopes for Conrad-NC, Matthews, or Keisler. I'm afraid Conrad-VA and Diamond would give the Dems the ability to say they've confirmed 12 nominees and vacancies are relatively low.

Recaping:

Diamond was nominated by Bush for the Eastern District as noted above and I think he's a bit older than Pratter.

Jones is a Democrat .. that's the pay to get the other four through.

Short we know.

Goldberg is in the middle of a case which may cause trouble: http://www.phillyburbs.com/pb-dyn/news/113-05212008-1537112.html . So don't hold your breath for him to get through an angry senate this year.

Shlomsky donated heavily to Santorum, Greenleaf for Congress, and the Republican Federal Committee of Pennsylvania ( http://www.campaignmoney.com/political/contributions/joel-slomsky.asp?cy... ). To quote Star Wars, our kind of scum :-)

Of course, I'm hoping none of them make it through because of the SCOTUS hearings for Diane Sykes :-)

Diamond is younger than Pratter, though since she's a woman, her life expectancy is still better.

I admit I have been quite pessimistic regarding McCain's chances of winning in November.

But today I looked at:
http://www.electoral-vote.com/evp2008/Pres/ec_graph-2008.html

showing the electoral college graph changes based upon public opinion polls. Four years ago, Kerry was way ahead of Bush.

Lets work our tails off, like we did four years ago, get McCain elected, and replace Stevens, Souter and Ginsburg with Sykes, Estrada, and Brown!

I for one, am stopping being pessimistic about an inevitable Obama presidency. It can be stopped - and must be stopped!

Following the deal on the 6th Circuit, I read a fairly convincing post on the Volokh Conspiracy which argued that this kind of "log-rolling" was likely to set the standard for judicial nominations going forward. This potential deal on the 3rd Circuit makes that argument look even more convincing. The fact is that in an environment where 60 votes are needed to confirm nominees, the two alternatives are basically deal-making or impasse. I'm not particularly happy about this (I don't think the Founders ever envisioned that the advise and consent role of the Senate would metastasize in this way), but it's not an entirely bad thing, either. Over the long run, a deal-making model should produce similar results to a model that has each party getting its picks when it controls the White House. It also produces results that are in line with election results - states with two Dem senators will tend to have more liberal judges, and vice versa. The GOP just needs to make sure that this isn't a situation where the Dems get deals when they are out of power, and then get all their nominees if and when a Democratic President is making the nominations. For instance, I don't think that the GOP should allow any Obama nominees to be confirmed to the DC Circuit unless it's as part of a deal that includes Kiesler - this should not be negotiable. I just hope the Dems don't take so many seats in the Senate that the GOP doesn't have any leverage left.

As for the deal itself, it doesn't seem too bad as these things go.

Good for you! That's the spirit. You also point out some basic facts re comparing to 04. There are some new variables, but you're right re the state by polls at this time.

Mose, you make an interesting comment on "log rolling" nomination deals, but it's not something completely new. Back when Moynihan (Dem.) and D'Amato (Rep.) were Senators for New York, they had a deal on District Judges where the Senator in the President's party would recommend the candidates for 3/4 of the New York district court vacancies, while the Senator in the opposing party would recommend candidates for the remaining 1/4. (This may be why Schumer was so high on Mukasey for AG even though he was a Bush 41 judicial appointee; although Mukasey was appointed by Bush 41, it's possible that he was actually one of Moynihan's recommendations.)

I say Bush nominate Elena Kagan now as part of deal with Keisler. If the Republicans wait until Obama is president to press Keisler, the Dems could just ignore them and name TWO Dems to the D.C. Circuit. I am still somewhat astounded that Raymond Randolph was willing to give his seat away to a liberal. For a Republican appointee to take senior status now is just like begging the Dems to fill the position with a liberal! I can see a Dem appointee retiring now in the hope that the Senate Dems would keep their seat open until Obama is president, but a Republican appointee?

I don't think it is necessary for all of the nominees in the Specter/Casey deal to get confirmed for the deal to work. I think Specter cares just about Diamond and Short, while Casey cares just about Jones. As long as those three are processed, I think everyone will be happy.

Yes, it's quite disheartening that Randolph has thrown in the towel now. He's only 65, and should be able to stay on considerably longer. Yes, yes, we all know he's put in his time and had earned the right to less work and more play with his grandkids, blah, blah, blah. If he didn't want to put in the proper commitment - whatever it might entail - he should have said no to being nominated back in 1990.

As we've been saying for a while now, and as is amply clear, such a deal is a no-brainer! Now let's see the no-brains get it done....

Courtesy of How Appealing,

http://www.law.com/jsp/article.jsp?id=1202422690814

"Efforts to pass judgeship expansions rarely succeed. Cuellar gives this bill a 10 percent shot at success in the two business months left for Congress before the election."

NOTE: That said, next Congress, with a President Obama and a Dem-controlled Senate, there no doubt will be an expansion of the federal judiciary.

They should add 20 every four years for 12 years (total of 60) and they would have a much better chance of passing it.

http://afjjusticewatch.blogspot.com/2008/07/agreement-struck-on-new-3rd-...

"The motivation behind Sen. Casey’s alleged discussions with Sen. Specter is not immediately clear, especially considering the timing. The Senate does not usually take up new nominees this late in an election year. In fact, the last circuit court judge confirmed in 2000 – the end of President Clinton’s term – had been nominated in February of that year. It is still unclear from the article whether any potential agreement would have the support of either the White House or Senate Democratic Leadership, including Majority Leader Harry Reid (D-NV) and Senate Judiciary Chair Patrick Leahy (D-VT)."

NOTE: If the previous Legal Intelligencer is to be believed, this AFJ article is lying. Supposedly, Leahy has already signed off on the deal:

"Several lawyers said they believe the package has a good chance of winning Senate approval, noting that the most significant hurdles have already been cleared because both of Pennsylvania's senators have signed off on the deal and have secured the support of Senate Judiciary Committee Chairman Patrick Leahy."

I can't believe that Reid would go against Leahy on judges. In addition, if Pratter is withdrawn, then it is another sign of Bush bipartisanship. Both Leahy and Reid have praised the president for working with Democrat senators to get Agee, Kethledge and White confirmed. In addition, Glen Conrad is likely to be confirmed in July. I think the Dems will be forced to confirm Diamond as a reward for Bush/Specter working with Casey.

As I said before, though, Glen Conrad and Paul Diamond will mean the end of any hope for Keisler, Robert Conrad, Matthews and O'Neill.

Don't give up on him. If anyone deserves to be fairly treated in these things, it's Keisler. If he can't be considered, much less confirmed, how can the Democrats expect the Republicans ever to take their nominees seriously when the shoe is on the other foot?

The five PA nominees should be a voice-voted package deal. Goldberg & Shlomsky are orders of magnitude better than who Obama would pick, or who McCain could likely get through.

The Keisler-Kagan deal is so pitifully obvious, it will certainly never happen.

Hatch should be holding press conferences every day contrasting Breyer '80 to Roberts '92, and screaming how all this "Thurmond Rule" & "too late in an election year" BS is just that.

Stevens needs to realize that all the time & energy he'll invest in following the Cubs' pennant drive this fall will leave him with nothing to give to SCOTUS, so for the good of the nation his replacement must be in place for the start of the next term.

Every person who cares about the courts, conservative, Evangelical or otherwise, better do all they can to help get John McCain elected POTUS, else pray daily for Nino & Tony's health.

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

One really has to fault the White House for not doing ANYTHING AT ALL to help Keisler. Criminey, you have completely objective, bipartisan reports praising the guy, and his qualifications are off the charts. He should be poster boy #1. And Ted Olson needs to be bending McCain's ear about this too.

Pitiful, just pitiful. Be like Federer playing left-handed because he somehow expects Nadal to play right-handed. Republicans have never lost an election where judges were an issue. It's like a poker player turning down money.

Every Republican complains about "activist judges" but no one does anything about them...

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

It's one thing to demand such treatment on a 2 Dem seat on the Michigan circuit; its another when blue slipping should be a non issue.

Flash back to 2005; 2 SCOTUS vacancies are present. Imagine if Bush was pushed into a Roberts/Sotomayor package to appease the Democrats.

We'd be screaming bloody murder.

Zendari, I'm sympathetic to your argument, but the reality is this - it's the end of the term and a deal is possible to get Keisler onto the DC circuit, and lock in a strong majority. I think McCain has a great shot in November, especially as Obama continues to show what a lying dirtbag he really is. So let's look at the glass as half-full, assume WE will win in November, and starting grooming Keisler for the SC.

Go McCain!

Tom Goldstein was on an ACS SC panel the other day and when asked to predict the future of the Court said that the only Justice to retire in Obama's 1st term if he wins would be Stevens in 2011(presumably after he breaks Douglas's record for longest service and Holmes' record for oldest Justice). He further predicted Obama would nominate SOtomayor of the 2nd circuit to replace him.

If that actually happens, that doesn't really change the court at all and leaves us in a fairly good position to win in 2012 and still be able to replace one of the liberals or Kennedy.

Hopefully his prediction is borne out

I agree with you guys most of the time, but I must disagree with you guys 100% on Judge Randolph. He made his decision without any consideration for the current political climate, and that is how it should be. We dont know the reasons why he took senior status... It could be a health issue we dont know about, or perhaps a relative's health, or just a genuine desire to spend more time with his family after serving his country tirelessly for years. To expect him to continue serving so that the party can hold on to a majority on a circuit court is shameful.

We should thank him for his service, and hold the obstructionists feet to the fire. That is the correct way to rectify the situation.

Also, I agree 100% with Bill M's comment on Keisler. It is absurd that the Republicans havent pushed his case harder and with more vigor. Here is a SCOTUS material candidate with no objectively disqualifying attribute being thrown under the bus, and no Senator has till date done something worthwhile to help him. Where are the press conferences... where are the filibusters... where are the threats to shut down the Senate... where are the deals to get this home run pick onto the bench... I dont know what the Republican senators are smoking to not see his potential, but I want some of that.

What a bunch of pansies.
------------------------
Is it because I is black? - Ali G

Here is an interesting link about potential Dem SCOTUS picks. Sounds like Sotomayor was a protege of Moynihan under the 3/4 rule NY senators have, mentioned above. LOL at a former Blackmun clerk having trouble with "linear thinking".

http://bench.nationalreview.com/post/?q=N2Y5MTY2NzcwYjU1N2JiMDIxZTE2Nzc0...

Frankly, I just took a peek over at Judiciary, and I think Callahan's resume is clearly more impressive than Sotomayor's.

Zendari, another plus to a proposed K/K deal (as well as these recent 4th, 6th & proposed 2nd deals) is that if JPS & RBG croak at the same time, or one at the same time DHS finally gets lost in the woods, then there can be two proposals made.

If Obama is POTUS, we can go with a Kagan/Sotomayor-Callahan/Mahoney package (both pre-approved already by Reid & Schumer for SCOTUS, which will need to be shouted from the rooftops), i.e. liberal-moderate. If McCain is POTUS, then we can go JRB(w/Eid replacing her on the DCC)/Sykes-Callahan/Mahoney, i.e. conservative-moderate.

Either would be an enormous win, considering who they'd be replacing & what the makeup of the Senate will almost certainly be the next few years.

All fairly far-fetched of course, and hardly ideal. And I do love speculating about SCOTUS vacancies and have always loved horse-trading & poker/chess playing scenarios.

But until the last vestiges of "big-government/safe-seat/K Street conservatism" are flushed away and Goldwatery Reaganism returns, it's probably the best we can do.

The 6th & 4th(VA) deals were pretty good, as is the proposed 2nd(PA), all things considered. Getting Keisler confirmed has to be a top priority.

Much like the VA thing, this K/K package to the DCC is infinitely superior to the K(oh)/K package Obama will ram through. If McCain wins, the seats will likely be vacant indefinitely.

Speaking of McCain & horse-trading, is he spending a lot of time in Michigan's Middle-Eastern communities talking about how Reid slandered Henry Saad?

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

If the NY District Court nominees are confimed, as expected, and the new 3rd Circuit/PA deal goes through as expected, there will be no pending female judicial nominees whatsoever. Apparently, the Dems have a double standard here with female nominees. With the exception of Pratter, I predicted that the Senate would give all the female nominees an up or down vote. Too bad the Senate [Good Old Boys' Club?] can't treat men equally as they treat women. Apparently, the Senate requires ladies first.

For 2007-08, and excluding Pratter, all female nominees have been or are expected to be confirmed, but one. Name that one and why.

If he wants them confimed yet this year, Bush should nominate only women for any and all current judicial vacancies. History shows that over 95% of female nominees for 2007-08 got or will get a hearing and an up or down vote. Is there an anti-male bias in the Senate?

Mary Donahue, ND New York, was also withdrawn.

Why - NY politics, of course. She was Pataki's Lt. Governor, and Chuckie doesn't like her.

You're right about Randolph, of course. I'm just being petulant....

Bush has renominated 2 Clinton judges. If the GoP cannot force a renomination of a single Bush judge, what makes you think they can force a liberal/moderate Callahan compromise to the SCOTUS?

We are horse trading for nothing in return. When Jesse Helms refused to sign off on Clinton nominees, Slick Bill never put up these compromise packages ala White/Kethledge.

Don't deal with someone who's 50 years old like Kagan. Helene White is 12 years older than Kethledge

Your own article posted describes how the Democrat 'farm team' is rather short. Who knows, maybe Sotomayor smoked some illegal substance in her 20s, or hired an illegal immigrant as a nanny.

If Obama wants to put Kagan on the SCOTUS in 2009/2010, make him elevate her directly and take the chance she is an anti-Souter.

Okay, go with Keisler/Snyder instead. He's older and less liberal anyway. Just make some sort of deal and get Keisler confirmed.

Snyder is retired now and has said he is no longer interested in being a judge.

I think you are missing the forest for a single tree. The purpose of a Keisler/Kagan deal has more to do with Keisler and the D.C. Circuit than it does with Kagan. Without it, the Dems will never allow Keisler to be confirmed. If you force the Dems to wait until Obama is president in 2009 to confirm Kagan to the D.C. Circuit, then Keisler is totally out of the mix. I don't think Obama will renominate Keisler or any other failed Bush nominees while the Dems have a solid majority in the Senate. It seems pretty likely at the moment that the Dems will pick up more Senate seats this fall. Without a Keisler/Kagan deal now, there will never be a Keisler confirmation.

In addition, with Keisler and Kagan on the D.C. Circuit, the Circuit will be more securely in conservative hands. If Kagan and some other liberal are confirmed in 2009, since like I said before Obama will not renominate Keisler, then the court will be much less secure. Ginsburg, Sentelle and Henderson all could take senior status under the next president. Since Randolph didn't care about giving up his seat to a liberal, there is nothing to guarantee D. Ginsburg or Henderson wouldn't care either. Sentelle might stay just because he is now the Chief Judge.

The way I see it then is that the Keisler/Kagan deal has two pros (getting Keisler on the court, solidifying the court's conservative majority) to only one con (processing Kagan faster than most would desire).

I do agree with most of your points, and would never consider horse-trading unless it was a superstar (Keisler, JRB, Pryor), hopeless deadlock (6th (MI)), or looming disaster (4th (VA)).

I think we all agree it's insanity that Keisler is not one of the top priorities for the WH's remaining months.

Of course, as BoBo intimates, if McCain wins he can directly elevate Keisler to replace Stevens... :D

Happy 4th everyone!

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

http://www.nytimes.com/2008/07/04/washington/04judges.html?hp

"Last year, a peer-reviewed legal journal, the Supreme Court Economic Review, issued a retraction of an article by Mr. O’Neill in 2004. “Substantial portions” of the article, the editors wrote, were “appropriated without attribution” from a book review by another law professor. In addition, at least four articles by Mr. O’Neill in other publications contain passages that appear to have been lifted from other scholars’ works without quotation marks or attribution.

Long passages in the 2004 article are virtually identical to the book review, which was published in 2000 in the Virginia Law Review and was written by Anne C. Dailey, a law professor at the University of Connecticut."

is dead at 86. My condolences to his family and friends.

He did many great things including standing up for having the right kind of federal judges. You will recall that third time not the charm A. Kennedy he characterized as a "Vanilla Conservative."

I must disagree with McCain's reasoning. It is incumbant on Senators to make a judgement on how a Supreme Court nominee will vote. How were Breyer and Ginsberg qualified for the Court? Ginsberg was a radical ideologue and Breyer little better. Ginsberg was an activist for the ACLU. Her public statements and policies were contrary to what the Constitituion and the laws actually were. She was and is still an anti-white racist, anti-male sexist, and claimed that our Founding Fathers wrote the Constitution and the 14th Amendment to protect abortion. Abortion was illegal before, during and after our founding. On that issue alone she was unqualified for the Court. Now some will say that give the Democrats room to vote against Republican nominees. Well, they did do that and most nominees are confirmed with few votes to spare and usually the majority of Democrats voting against the nominee, as Baraka Hussein Obama did. If the Senate Democrats decline to confirm a nominee, it then becomes the responsibility of the President to make the case to the country using the bully pulpit. Make it an issue. It works.

Things have fundamentally changed regarding the confirmation of judges. In the past, as McCain said, Presidents were given a great amount of latitude in selecting judges. That was then, but now is now. The Democrats filibustering Bush’s nominees, and Republicans objecting to Miers has fundamentally changed the nomination process. No more will the president be able to appoint who he wants, but will be required to not only seek the advice of the Senate, but also take it into consideration when making the nomination.

Mose you expressed the idea perfectly. It was not the intended purpose or plan, but it is the new reality, and if implemented fairly and equally, may even be a good thing. It will require though, for the GOP senators to stand up and block any nominees such as Paez if and when a Democrat returns to the White House.