ConfirmThem

A lot depends on the liberal elite in the Senate Judiciary Committee. With the exception of Feinstein, none of them have shown any desire to process Bush's more "controversial" judicial nominees. Although Feinstein might vote such nominees out of committee, and with other Dem senators vote for cloture 60-40, none of that will mean anything if Leahy refuses to schedule hearings and/or committee votes for the nominees in question. Just how helpful will Leahy and his puppet master Reid be in smoothing the way for people like Keisler, Conrad and Matthews? I don't know. I do know, however, they will be no help whatsoever in processing those nominees blocked by blue-slips (Kethledge, Murphy, Stone and Getchell).

Just started reading Originalism: Twenty-Five Years of Debate by Prof. Steven Calabresi of Northwestern Law School (and a founder of the Federalist Society). It's entertaining and informative, and recounts several of the most important speeches and symposiums re originalism over the last 25 years. Worth a look.

I think it's the other way around--Leahy calls the tune for Reid. I don't doubt that others are pulling Leahy's strings....

while the rest of what BoBo says is absolutely true, the image of Reid as a puppet master was hysterical. perhaps BoBo is practicing his standup? :D

In general, I don't think that Leahy has a lot of influence over Reid. Too often, Reid has allowed things to happen in the Senate that Leahy has said he is opposed to. Leahy doesn't come across as a compromiser. Reid, regardless of his liberal rhetoric, does. If Reid had wanted to, he could've forced his party to filibuster Southwick. He didn't. I think Leahy would've. He isn't as wimpy as Reid. Due to this "wimp" factor, Reid is considered by most liberals as being a highly ineffective majority leader.

but that is also why the thought of Reid as a puppetmaster is comical. Chuck Schumer's the only one on that ship of fools that could find his ass with both hands (but in the others' defense, that's only because Chuck is the biggest (and vilest) ass on said ship).

that Feinstein is setting the stage for 2009 and beyond.

The next question is can (and will) McConnell take advantage of it and push Keisler and some others onto the bench.

Oz

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

PLEASE!!!

http://www.redstate.com/stories/elections/2007/election_guide_november_6...

In the last thread, I said that I thought that Bush should withdraw Getchell next year and nominate instead two people off of the Warner/Webb list. In particular, I said the best choices in terms of confirmability are the two Virginia Supreme Court justices because Webb would have an extra incentive to confirm those two in order for the Dem governor of Virginia to appoint more liberal replacements. AC1, however, pointed out that rather than being appointed for a full term by the governor, justices are elected by a majority vote of both houses of the Virginia General Assembly. Well, Redstate is now reporting that the Dems will definitely win one house and could win both houses of the Virginia General Assembly in tomorrow's election. That would re-establish an incentive for Webb to get both Lemons and Agee confirmed to the Fourth Circuit.

Upon reading my previous comment, I think I was too definite in my interpretation of Redstate's analysis of the Virginia elections tomorrow. The actual Redstate quote is, "If NoVa continues it's trend toward Ds, they could pick up the Senate and get in range of the House." I don't think, however, that I overstated the impact of nominating Lemons and Agee on Webb's behavior.

Anyone hear anything on Conrad? A hearing anytime soon, at least? Figure he got the district judgeship only two years ago, not much could have changed since.

October Nominee Report
As of 10/31/07

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 October:

Circuit Confirmations: 2 (Elrod, Southwick)
District Confirmations: 3 (Mauskopf, Aycock, Jones)
*Circuit Nominees Reported by SJC: 0
District Nominees Reported by SJC: 1 (Dow)
Circuit Nominees had Hearings: 0
District Nominees had Hearings: 1 (LaPlante, Schroeder, O’Connor, Thapar)
No. of Judicial Nomination Hearings: 1 (10/24/07)
Circuit Nominations: 0
District Nominations: 1 (Miller)
Total Nominees Pending on 10/31: 24 (9 CCA, 15 DJ)
Nominees in Committee with hearing: 6 (2 CCA: Keisler, Tinder; 4 DJ)
*Nominees on Executive Calendar on 10/31:1 (0 CCA, 1 DJ)
New Vacancies: 3 (3 DJ)
Total Vacancies on 9/30: 48 (17 CCA, 31 DJ)
Total Vacancies on 10/31: 46 (15 CCA, 31 DJ)
Change in Vacancies in September: -2

* Circuit nominee John Tinder (7th Circuit) was reported favorably to the Senate by voice vote of the Senate Judiciary Committee on November 1, 2007. This is not included in the above figures.

OUTLOOK: Present Nominees:

Probable confirmation in November: Tinder
Possible Hearing in November: Haynes
Possible/unlikely Favorable SJC vote this year: Haynes
Possible/unlikely Confirmation this year, probable in Jan/Feb: Haynes
Wild Card. Nomination seems moribund, but could go through quickly at any time as result of an inside Senate deal: Keisler
Nominations long dead: Kethledge (6), Murphy (6)
No hope this year, possibly never: Conrad (4)
No hope this year, probably never: Getchell (4), Matthews (4)

BOTTOM LINE: Tinder will probably be confirmed this month. Observers should focus on the timing of the next CCA hearing, probably Catharina Haynes (5th Circuit). Senate Democrats will try to delay this hearing until late November at least (possibly past adjournment). I think their goal is to get through the year without another hearing, and delay a Haynes confirmation until early February at least. That would make a total of 7 (Seven!). From that point there are only 4 (Four!) months at most left until a Thurmond Rule shutdown of the confirmation process. The calendar is getting very short and relentless, folks.

Those of you here who are still blithely (some might say naively) predicting 12 or more CCA confirmations this Session, look at the calendar and pace of confirmations, and take heed!

Agreed about Lemons & Agee, and I do feel very badly for Getchell. He's been hosed as badly as anyone, right up there with Estrada, Saad, & Pickering.

But for the greater good he has to go. This is much more important than Keisler, as Sutton will never allow Hillary to fill that DCC seat anyway, and the DCC is pretty solid for now, but the 4th is in great peril. If Keisler doesn't get it, it may well go away, right?

Let's ram the DiFi-Kyl thing thru & then work night & day on the 4th.

It's fascinating to see and note that at this ultra-late date, people are finally focusing in that it's time to "work night and day on the 4th". This comes one year after losing control of Congress, less than one year before the next election, 6-7 months before the Thurmond Rule kicks in.

Don't you and naive others get it yet? It's too late for the 4th! It's effectively over. It's too Late. The game was lost in 2005-06. Leahy and the Dems. control the Judiciary Committee gateway. They won't let anyone through. Can you really believe that Webb is likely to deal now? I'll be happy if we get a single 4th Circuit confirmation in '08.

How many times do I have to tell you?? If you don't believe me, try the novel idea of Learning from Experience. Sometimes one thinks one's talking to high school civics students here!

Bottom line: we'll be lucky to get 10 CCA confirmations this Session, maybe including Conrad. It's long past time to get real around here! If you don't believe me, let's ask BoBo what he thinks about 4th Circuit confirmation prospects. Meanwhile, maybe you should read, or hopefully re-read, my post #12 above. No wonder the Dem-Libs find us such easy pickings. At this point, focus on what we can get!

As I have said before, by numbers, I see only 1-2 Fourth Circuit confirmations before the end of Bush's second term. Clinton had a 44% COA confirmation rate in the 106th Congress. I don't anticipate that the Dems will allow Bush a percentage much higher than that. So far in the 110th Congress, there have been 20 COA openings. Six (Smith, Hardiman, Livingston, Elrod, Southwick and Tinder) will have been confirmed by the end of 2007.

For a 50-55% confirmation rate, the Dems will probably allow Bush 4-5 more confirmations. I anticipate that number to include Haynes and Pratter (if she is nominated). That leaves 2-3 other COA confirmations. I think Keisler will be one of those confirmed. That leaves 1-2 slots to be confirmed on the Fourth Circuit.

The Dems will probably leave three of the five open Fourth Circuit seats for President Hillary to fill in 2009. The Maryland seat seems to be a sure save for Hillary. That means 1-2 confirmations for the North Carolina, South Carolina and two Virginia seats. If Bush keeps Getchell in place, I anticipate that either Conrad or Matthews, or maybe both, will be confirmed. However, if Bush nominates someone on the Warner/Webb list for the second Virginia seat or if he withdraws Getchell and nominates two off the Warner/Webb list, then I think the chances for Conrad and Matthews getting confirmed drops dramatically.

Check the the archives. BoBo, myself, & many others have been screaming about the 4th since before Alito was nominated. We were arguing with Andrew about dumping Boyle & Haynes, praisng Saad for his graceful withdrawal, hailing the confirmations of JRB, Owen & Pryor, and bemoaning the losses of Levi & others, long before I can recall YOU posting here.

You can be very arrogant & condescending, with little basis that I can see for it. Get over yourself, sonny. You're hardly the only one here who "gets it".

Speaking of which, I need to include Boyle on my "hosed" list above. Worst case of all, really.

I disagree that the Senate Republicans will block the confirmation of Elena Kagan to the D.C. Circuit.

First, Kagan will undoubtedly be the first person Hillary nominates to an appeals court. Initially, the Republicans (who will likely not control the Senate in the 111th Congress) will not want to challenge Hillary too much in her first six months (the "honeymoon" period). This will be especially true if Hillary wins with more than 52% of the vote.

Second, even if Grassley, Sessions and Kyl wanted to block Kagan's nomination, it would be impossible for them as members of the minority party to do so without a filibuster. Since all three were outspoken against the filibuster of Bush's nominees, they would appear as hypocrites if they encourage a filibuster of Hillary's first nominees. In general, I think the Republicans will refuse to even talk about filibusters unless Hillary nominates someone truly awful to the Supreme Court like Guido Calabresi or Marsha Berzon.

Third, even if the Feinstein/Kyl deal goes through and Keisler is confirmed, D.C. Circuit judge Judith Ann Wilson Rogers (a Clinton appointee) is eligible for senior status in 2009. I anticipate that Rogers will announce her imminent retirement next fall prior to the November election. That opens up a slot for Hillary to immediately fill even if the 12th D.C. Circuit seat is eliminated to get Keisler confirmed.

No worries, folks - Hilliary ain't going to be our president, so we can stop with the "Hilliary will appoint" hypos.

I got Sessions & Sutton confused. Kagan for Rogers is a fairly even trade, w/Kagan being no spring chicken, right? But Sessions would not allow say Koh into the 'Keisler seat', after Kagan gets the Rogers seat, that I can see. And he's not going to allow ANYONE into the 12th seat, right? He's being entirely consistent that way, IIRC, though I probably need a refresher on the whole Sessions-Keisler DiFi-Kyl mess.

Isn't the whole grand design Rogers presumedly retires in '09 (and won't be replaced by anything approaching JRB or Keisler regardless of 11/08), Keisler gets the 11th seat, the 12th seat's eliminated, & Cali gets 2-3 more seats on the 9th immediately? If DiFi also states that the disputed Trott(?) seat on the 9th is legitimately & permanently Idaho's and allows Otter, Maxwell & Craig(sigh) to fill it, that doesn't sound awful to me. But I don't make that deal without resolving the Trott seat.

Are you still in favor of a Kethledge-H. White package on the 6th? It ain't pretty, but what else can you do at this point. Levin & Stabenow are prolly going to wait and hope like you've said, anyway.

:-)

I would suggest that it would be far preferable to advance rational and responsive arguments to posts one disagrees with, rather than immediately resort to personal ad hominen attacks on the writer, or to relive real or imagined past glories. Such attacks are often the refuge of those unwilling or unable to advance coherent counter-arguments. It is the present that matters, which is best addressed by facing realities, however unpleasant, intelligently and making the best of the relatively poor cards we hold.

I believe that next year the optimal strategy would be to concentrate on confirming Haynes, Keisler, Pratter and Conrad. In addition to the presumed 6 this year, that would make 10, which temporal and political factors dictate as about the best outcome possible. If we can somehow get an 11th, that would be an added though unlikely bonus. Another 4th Circuit judge would of course be preferable. Unfortunately, Matthews and Getchell are virtually unconfirmable and I'm quite skeptical that a deal can be made with Webb. Maryland is of course impossible, unless Bush nominates another Motz.

If you wish to address the points I make here (and in #12 and #14 above) impersonally and rationally, instead of with insults and innuendo (better saved for the Dem-Libs), I'd be interested to see your response. Incidentally, I'm getting old enough that "sonny" is now almost but not quite a compliment.

I second that sentiment, or 'third' it after Andrew. But I have to admit to the following frailty: the prospect of Hillary does often worry me. All the more motivation to fight against that dread prospect.

At this point, it looks like the Senate is not going to pass the version of the Court Security Improvement Act that includes the Feinstein/Kyl agreement concerning the exchange of D.C. and Ninth Circuit seats. It is going to pass a version written in the House. That means that there will still be 12 D.C. Circuit seats in 2009.

If the Dems control the Senate in 2009 as seems likely, then it really doesn't matter what Sessions, Grassley and Kyl think. The Dems will be able to confirm anyone they want to the D.C. Circuit. As I said before, I think the Republicans will willingly allow Kagan (who is young, she was born in 1960) to be confirmed, no matter if it's to the 10th, 11th or 12th D.C. Circuit seat. Why? She is greatly respected now because she has integrated Harvard Law School with several conservative professors. Koh, who is disliked because he blatantly discriminates against conservatives at Yale Law School, would be a much harder sell. Yet, it would be almost impossible to stop him unless the Republicans filibuster his nomination. I doubt, though, the Republicans would use that strategy after howling about the Democrats' use of it.

I tend to agree with Outsider, that the best thing the Republicans can do next year is to confirm Haynes, Pratter, Keisler and Conrad. Matthews has an outside chance if Graham pushes really hard. I don't think the Dems will accept any deals now on nominees they are currently blocking with blue slips. That means no deals on Kethledge, Murphy, Stone or Getchell. Levin and Stabenow don't need to make any deals now with Bush in order to get Helene White confirmed. All they have to do is wait for 2009.

BTW, nothing in the proposed Feinstein/Kyl deal would've made Feinstein admit that the Trott seat belongs to Idaho. In addition, it involve only a one seat transfer between the D.C. and Ninth Circuits. The Ninth Circuit is likely to get 3-5 new seats in the 111th Congress if the Dems control it.

I assume that means he'll be confirmed sometime this week, if not tomorrow.

as for Matthews, I still think he's likely to be confirmed, perhaps after a short tantrum from Leahy et al. Admittedly, he's one of the newest nominees so it may be forthcoming, but Alliance for "Justice" doesn't have a rap sheet for him, unlike the silly smears they have for Conrad and Keisler. (none of the other 7 pending nominees have smear sheets that I saw, though they do lament how Bush ignored the thoughtful bipartisan advice of Warner and Webb on Getchell, and they note the horror that Kethledge worked as a lawyer for some corporations, gasp). that means Conrad will be tougher than I expected (though I always thought it'd be a tough battle; still, a tough battle is easier to win than one that the Dems won't even allow to be fought - which they probably won't on Kethledge, Murphy, Getchell, or Stone unless they want to waste time or feel their oats by actually rejecting a nominee (though I think it would be very difficult for them to manage not to lose a single vote from the likes of Ben Nelson)), but Matthews may be easier, especially if Graham fights for him.

Even if they have no chance of confirmation, Bush should nominate people to ALL open COA seats in January. It doesn't make any difference if the seat to which they are nominated is controlled by one or two Democrat senators. To highlight Dem obstructionism in the upcoming election, Bush needs to have statistics behind him. 10 of 20 COA nominees confirmed (50%) looks a whole lot worse than 10 of 14 confirmed (71%).

The nominations need to be done in January because that is when Leahy has said he is starting the Thurmond Rule. He is NOT waiting until June to institue the Rule as is tradition. Republicans may not like the change, but they can do little or nothing to stop it.

Clearly, the WH has missed a lot of opportunities to fill judicial seats, made some very dumb nominations, and has generally had terrible staff support in this area. It will make an excellent case study some day in what not to do if you are serious about winning the judicial wars against some very determined and unscrupulous enemies.

But now, with Leahy and the donks in charge, the focus needs to be the elections. Many here (Matthew is a notable exception) seems to be assuming that we will be stuck with the witch Hillary in 2009. Maybe, but gents she has a lot of baggage. I think the right Rep ticket, like Guilliani-Thompson or Guilliani-Huckebee, will have a great shot, especially if we can create an additional election issue for our team. Like Bobo suggests, fill the judicial pipeline and continue to pound the obstruction drum. This issue wins for us - you only have to look to 2004 for the proof. The one way to prevent the judiciary regressing to the left is to win in 2008, and that is not as implausible as may seem right now.

Not sure I agree with Bobo on a potential deal on the 6th CC. If I were Levin, I'd accept a White/Kethledge package. First, it gets his cousin onto the court immediately, and avoids the risk of a Republican victory in 2008, which in my previous post I argue is a real possibility. Put up the deal, and if they don't take it, use it as further evidence of obstruction.

http://apnews.excite.com/article/20071106/D8SO8O6G0.html

Mukasey today was voted out of committee 11-8. He will probably be confirmed this week. Once Mukasey is in place, I wonder when Keisler will officially resign. Will he stick around awhile to help Mukasey get acquainted, or will he resign effective immediately? He needs to be out of office by adjournment day, Friday, November 16th, in order to be recess-appointed as quickly as possible.

At this point, I don't think adjournment will be delayed because of the appropriation bills. Rather, I think the Senate will just pass continuance motions on the present budget, and then deal with the bills next year.

Dienekes: Being placed on th Executive Calendar doesn't necessarily mean confirmation within days. Southwick was on for over two months before being confirmed, Elrod for 14 days, and current Ill. DJ nominee Dow has been waiting on ExCal for over a month, for no good reason. Maybe the Dems just like to flex their muscles and show who's boss. Clearly Tinder will be confirmed, but it may take a week or two or three. They may do it just before adjournment.

Have to disagree with you about Matthews being confirmed. Hope fervantly that he'll get through. He seems excellent: maybe that's the problem. Plus the Dems are blockading the 4th to gain liberal control. Several of us argued early this year against nominating him when his name first came out. He raises too many easy red flags for Democrats: very conservative, Federalist Society, Reagan Justice Dept, close association with Meese, Iran-Contra, etc. Plus Graham reportedly isn't enthusiastic about him--wanted someone else. A more confirmable moderate-conservative would have been preferable this year. As for ALJ not having a posted 'rap sheet' on him, the operative word is the unsaid "yet". They'll have one ready if he ever gets close to a hearing.

If as you predict the Dems adjourn the Senate on Nov. 16th, that seals it: Dems have succeeded in delaying any consideration of the 7th CCA nominee (probably Haynes) until next year. I outlined the consequences of this in a previous post in last thread: 8th CCA nominee hearing now won't be until February or March.

Once again Senate Democrats have one-upped my seemingly pessimistic early prediction. Here's my new formula for accurate prediction: take one's most pessimistic scenario, then make it one step worse. So if one pessimistically thinks that there won't be a Committee vote on a nominee by a certain date, change that to predicting that there won't be a hearing by then. Applied in retrospect, I've found that this works! Call it Creeping Pessimism.

But I will ignore the foregoing and make the following bold prediction, assuming that the Senate indeed adjourns on Friday the 16th: Tinder will be confirmed within 10 days.

Getting him on there sooner gets rid of Manion faster. He is very conservative and controversial. He almost wasnt confirmed and took a lot of arm twisting back in the day. Tinder - the Olberman lover - is moving the court to the left if ever so slightly (or mayber more so - I dont know for sure). Therefore the Dems will want to get him through quick. As for the 6th CCA. F it. There are more important things to worry about. Finish filling the 5th. Get at least 1 on the 3rd. Get Keisler. And start filling the 4th with any time left. If the GOP can get that done next year I will be happy. Everything else should be secondary.

Hey BoBo, do you anticipate Keisler will be recess appointed? I know a few of us have been advocating it for some time now, but do you have any indication it will happen? Without question it should.

I just noticed Bush has 5 vacancies in the NY district courts without nominees. This is unforgivable. There are SO many qualified, solid people that could be nominated. I'd be happy to discuss it with anyone at OLP or the White House. Please direct all inquiries to my agent, AndrewHyman....

In all seriousness, this is a no brainer. Fill the district court seats - at the very least, NOMINATE people! I could name a dozen NY attys off the top of my head who would make great district court judges. Come on Bush.

Manion was indeed controversial, As I recall, Vice President Bush had to break a tie vote from the Chair to confirm him in 1986. Also think he was affiliated with then-Senator Quayle, but that's a fairly vague memory.

BoBo, I generally agree with you that Bush should make nominations to all CCA vacancies early next year. However, the Administration should be careful to nominate only strong conservatives to the "unfillable" seats on the 1st, 9th and 4th (Maryland). If he nominates squishes or moderate-Libs to those seats, Leahy & Co. may move those ahead of Keisler and the critical 4th Circuit nominees, effectively killing their nominations. Haynes should go through in Jan-Feb and Pratter is likley safe because of Specter. But Dems will likely delay a Pratter confirmation until at least mid-April. That makes a total of 8.

So effectively we're talking about strategy and tactics starting in mid or late April to confirm Keisler, Conrad, and maybe Matthews(?) or a Virginia nominee as the bonus 11th. The Democrats will probably try to string out Keisler and Conrad long enough so that even if they are confirmed, it will be June and there will be no time left to pocess and confirm that 11th nominee. This timeline does not look good for an 11th, and difficult for a 10th.

I have no insider information about a recess-appointment of Keisler. Rather, such a thing appears to me to be the best move in order to keep his name in the forefront of the confirmation wars. I agree with Outsider that the Dems will likely delay his confirmation as long as possible. If they can, they will try to confirm as many "squishy" candidates first. If they can run the clock out on Keisler, they will. That is why he needs to be recess-appointed - to keep the limelight on him.

If you don't think that both "you & naive others" & "...try the novel idea of Learning from Experience. Sometimes one thinks one's talking to high school civics students here!" aren't "personal ad hominen attacks on the writer" (as well as very insulting); and that continually posting things similar to "How many times do I have to tell you??" isn't "reliv(ing) real or imagined past glories", I don't know what to tell you.

However, I will drop the matter now, as this is not kos, and we both want the same things accomplished.

As for the rest of Bush's term, I agree with your's & BoBo's strategy, mainly because Bush will never withdraw Getchell nor nominate anyone on the Webb-Warner (or apparently any other senator's) list, under any circumstances.

I hope it can at least be conceded that were Agee & Lemons somehow magically nominated to the VA seats tomorrow, after Webb picked his jaw up off the floor, he would be in a bit of a spot. After all, it's HIS list, right? And whatever we feel about the issues surrounding the Webb-J. Warner list (and J. Warner-Allen list), we certainly all agree that the two worst names on it are going to be a lot better than the two best names on the Webb-M. Warner list.

I don't see how Getchell can be confirmed or M. Warner can be defeated, but I DO see how Hillary can be defeated, and agree with all who say that's the most critical task of all.

If she does win, and she'd have 52-56 senators, let's hope that Lott & McConnell keep reminding the Repubs what happened the prior eight years (fat chance). And I do think Rudy-Huckabee beats Hillary-Richardson. The Dems best candidate is Gore, but he's not running, and Obama or Edwards on the ticket with Hillary would be a delight to watch self-destruct.

BoBo, couldn't Sessions simply hold Koh for the DCC, like Hillary tried to do with Kavanugh & like he DID do with Keisler? I really don't have a problem with Kagan for Rogers if Hillary wins (elections=consequences), but not for one of the 'open' seats; and Koh of course is even worse than Reid or Schumer.

Robert1, agreed that it's an amazing case study. I'd love for someone to write a book about it all, and ask Bush, Cheney, Ashcroft, Gonzo, Meirs, Card, Specter, Hatch, Grassley, Cornyn, Sessions, Brownback, Coburn, et al what in the world they possibly could've been thinking. Even the great victories came at great cost save Roberts; Alito, JRB, Pryor, Owen, Kavanaugh, Southwick.

Also agreed that a Keth-White deal would still fly, but it's also moot as Bush would never do it unless he thought of it himself or one of his inner circle suggested it. Same deal with "filling the pipeline". Madness, but here we are.

Keisler is really the only logical person to recess-appoint right now. He already has both an ABA rating and a hearing under his belt. In addition, a good case can be made to the American public that the Dems are unnecessarily blocking him because there has been no action in committee on him since his hearing 15 months ago. His situation seems relatively obvious.

The situation with all the others is not so obvious. None of the rest have even had a hearing, and many don't have ABA ratings yet. If any of them were recess-appointed now, it would seem as if Bush is unduly rushing things and not giving the Senate Judiciary Committee enough time to properly process things.

Also, recess-appointing some of the others could result in creating new problems:

1) Haynes looks like an easy confirmation next year. To recess appoint her now would decrease her chances of confirmation considerably and make a "controversial" nominee out of her for no good reason.

2) Recess-appointing Kethledge, Murphy, Stone or Getchell would needlessly infuriate the Dems and unintentionally give them another issue to exploit against the White House. They could successfully spin Bush as a villian for not properly consulting the Dem senators involved.

(BTW, it is interesting to note that ABSOLUTELY NO COA nominee has been confirmed under Bush who was opposed by either of his homestate senators.)

3) Conrad should not be recess-appointed because he is already a federal district court judge and it could ruin his judicial career. If he is not confirmed to the Fourth Circuit, he would've ruined his chances for a government pension.

Any Republican senator could put a hold on Koh's nomination, but the problem with doing so is that the only thing a hold consists of is a threat to filibuster. Would the Republicans really filibuster? It might make them look like hypocrites using a strategy that they so loudly decried under Bush.

Because the Dems are a more cold-blooded group than the Republicans, they would likely call the bluff of any Republican senator putting a hold on Koh and demand a cloture vote. I think that would terrify most of the Republicans and they would vote for cloture. IMHO, they would not want to actually participate in a real filibuster that would expose them as hypocrites.

The reason why Grassley, Sessions and Kyl were able to prevent Bill Clinton from placing Allen Snyder and Elena Kagan on the D.C. Circuit was because the Republicans controlled the Senate. In the 111th Congress, though, Hillary is likely to have a Senate controlled by her same party. The situation will have changed considerably since the 106th Congress. Grassley, Sessions and Kyl would be helpless in the minority unless the filibuster was used.

Do you think the Republicans should use the filibuster against Hillary's nominees?

First, the District Court appointments are indeed important. It is very unfortunate that the Senate Democrats have apparently successfully evaded a hearing for 3-4 DJ nominees this month (along with 5th Circuit nominee Haynes).

Second: I hope you’ll forgive me but I’ve been aware of these New York DJ vacancies for awhile and am not at all concerned. Schumer/Clinton-approved DJ nominees for deep blue New York are about the Lowest priority at this time. Those idiots already knocked out a good DJ nominee (Mary Donohue) earlier this year, and almost defeated another excellent nominee (Mauskopf). At present there are conservative nominees that need processing from North Carolina, Georgia, Louisiana, West Virginia, Tennessee, Arkansas, and Wyoming. There are vacancies requiring conservative nominations in Mississippi, Pennsylvania, Virginia, Missouri, Arizona, Utah, Indiana, and DC. The 2nd Circuit vacancy has been filled with Livingston. We just don’t have more time to waste on New York.

After all these are finished, we can return to filling vacancies in New York, California (where I reside), or Massachusetts. New York and California are currently suffering from acute political and social diseases which appear irreversible. Sorry to say, but limited resources must be directed to areas where they are most effective. If liberal bastions like New York and California can be corrected at the margins, that is all to the good. It's unfortunate, but at root they get what they deserve. This is a form of classic triage, an economic and political necessity.

Bottom Line: Why waste precious time and resources on 2nd Circuit District Judges now, when there are so many more important problems elsewhere?

Do we want a thread on Mukasey and Keisler?

Actually, Koh SHOULD be filibustered, although he should be easy enough to defeat anyway with a proper "Harold Koh's America" presentation. At a bare minimum he's as partisan, confrontational, biased, inflammatory & "strange-looking" as Bork ever supposedly was. He definitely fails the "extraordinary circumstances" test.

As for Steve Breyer types, what do you do? Elections have consequences. A bunch of them are going to get thru to the COA and Districts, if Hillary wins, no matter what anyone tries to do. SCOTUS is an entirely different matter.

You're right of course about Repub timidity vis a vis Dem col-bloodedness. Funny how the THREAT of a filibuster was usually always enough to cow Frist, but an ACTUAL filibuster apparently won't be able to stop Reid.

The greatest fear I think we all have (and I hesitate to even ponder such a thing) is Hillary trying to replace Scalia in 2011 (or 2014) with Koh, Paez or Berzon. Whole ballgame right there, esp. as JPS & RBG will be long gone by then. Be WWIII & IV for sure.

Certainly, that's cart way before the horse, but we have to prepare for the worst. I'm still far more hopeful about Hillary losing to Rudy than you are, tho I can't see any way at least 2 more Senate seats aren't lost in '08.

I'd love to see Lott & Hatch play bad cop-good cop when JPS goes, and force Hillary to accept Prado, Ikuta, Callahan or Mahoney (latter two pre-approved by Reid & Schumer already, recall!) as a "bipartisan-moderate-consensus" nominee, but I'll believe the Repubs have the spine for that when I see it.

Also, as far as the hypocrisy charge if Repubs use the FB, I think Lott and others made clear at the Southwick victory party that they're going to spin it as "payback" & "fighting fire with fire".

I think Bush needs to nominate someone for every district court vacancy that has existed before May 1st of this year by the recess (better yet, by the end of the week!) By my count, there are 12 such vacancies. In addition, I'd like to see him nominate another (perhaps 2) for the appeals courts.

thanks for the correction on the calendar. though I think Tinder is likely to be confirmed sooner rather than later, you are of course correct. I didn't know Dow had been on the agenda for that long, wow. And the whole Southwick situation was so ridiculously slow-walked I had forgotten that he waited a while on the exec. calendar too.