ConfirmThem

Integrity and honesty, and the appearance of integrity and honesty, are too important to put at risk.

IMHO, O'Neill and Rosen were nominated just to make sure that as many as possible judicial vacancies are filled with nominees before Bush's presidency ends for statistical reasons. I think the White House is well aware that the Senate Dems have no intention of confirming either.

That said, I agree that with all his flaws it was stupid of Fred Fielding and Arlen Specter to promote O'Neill's nomination. It just gives more political ammunition to the Dems. Unfortunately, the Republicans just can't seem to get their act together as regards judicial nominees.

Harriet Miers was a disaster when it came to making nominations. Anyone remember the ethically challenged James Payne? Fred Fielding is not doing much better. As it turns out, Fielding's nominations of R. Conrad, Stone, Getchell, Matthews, Rosenstein, Pratter and Smith have been disasters. Some well-qualifed people have been hurt by being nominated without the approval of the very people necessary for their confirmation. Fielding should've been more conciliatory. As I have said before, Cornyn got it just right by suggesting the likes of Jennifer Walker Elrod and Catharina Haynes.

The situation has only been exacerbated by the pitiful actions of McConnell and Specter. McConnell has blocked so much Democrat legislation that there isn't much of an incentive for the Dems to cooperate on the topic of judges. The one time he did do something helpful about judges (when he had all of Boxer's bill read aloud), he messed everything up in the end by accepting the confirmation of a mere three district court judges already on the Executive Calendar. As far as Specter goes, I have always been deeply suspicious of him. I don't think his heart has ever really been into confirming conservative judges. Basically, all he is good for is some occasional heated rhetoric to make sure that his seat as the ranking member of the SJC isn't taken away from him.

http://www.uscourts.gov/cfapps/webnovada/CF_FB_301/index.cfm?fuseaction=...

Reagan-appointee Kenneth Ripple of the Seventh Circuit has announced that he will take senior status on 9/1/08. Unless Lugar can work his magic again like he did for John Daniel Tinder, this Republican seat is likely to become Democratic real soon. It takes 2-3 months when the Senate is in session to get a nominee processed, given the need for ABA ratings and FBI checks. Even if the White House nominated a Lugar protegee today, with the annual August recess and a shortened September before the presidential election, I just can't see the Republicans being able to keep this seat.

Due to the time constraints I just listed, I also think it is imperative that the White House hurry up and withdraw Pratter. The longer it takes to get Paul Diamond and the other Specter/Casey consensus nominees in place, the less likely any of them will get confirmed. Unless the White House works quickly on Diamond and the new 7th Circuit opening, both are lost seats.

I also can't help but mention again my anger at Republican-appointed circuit judges taking senior status now. With Randolph and Ripple now taking senior status, Obama will likely be able to appoint two liberal activists in 2009 to replace them.

All Conservative judges are required to serve until a Republican is back in the White House. No exceptions. All conservative judges who die while in office will be propped up on the bench "Weekend-at-Bernie" style until another Republican is elected.

I'm bummed that Obama will fill the 7th Circuit seat, but anger directed at judges who take senior status instead of commiting to hold-on to their seat for the next 4 to 8 years (or 12) is more than a bit misplaced.

Anyone care for a wager that McCain wins?

http://thehill.com/leading-the-news/senate-agrees-to-sept.-26-adjournmen...

"Senate Majority Leader Harry Reid (D-Nev.) has agreed to the House target of adjourning Congress by Sept. 26, giving it only a few weeks to finish an agenda that, Democrats say, has been backed up because of Republican opposition."

NOTE: The Senate will stay in session until Friday, August 8. It will then reconvene on Monday, September 8, for three weeks and then adjourn again on Friday, September 26.

This gives very little time to confirm any more Bush judicial nominees. Only Glen Conrad of Virginia has the necessary paperwork and bipartisan backing to get confirmed before the November election.

If Paul Diamond is to be confirmed, it is likely that it won't happen until the lame duck session of 110th Congress after the November election.

During his testimony today in front of the SJC, Attorney General Mukasey strongly recommended Peter Keisler. He said that Keisler is in a league of his own and compared him to Paul Clement. I like the fact that Leahy and the Dem senators had to sit quietly and listen to someone singing Keisler's praises.

Well, couldnt this guy have put in his notice some time before July? As I understand it, he just turned 65, so this is the earliest he could have actually taken senior status, but if he had mentioned it 5 months ago we might have been able to fill the seat.

http://writ.news.findlaw.com/lazarus/20080703.html

Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable

Political commentators have been quick to denigrate Obama’s responses as a calculated political move, aimed at defusing potentially vexing campaign issues. This is understandable. Democratic presidential candidates routinely attempt to inoculate themselves against the charge of being soft on crime -- and that goes double when the crimes in question are against helpless children. Moreover, no Democratic candidate wants to alienate the nation’s passionate gun owners, who number in the millions and are concentrated in states that may well decide the election.

I am not so naïve as to believe that politics plays no role in Obama’s thinking about these issues. But I also believe, just as strongly, that Obama’s approach to these cases reflects much more than mere political calculation.

Despite what some pundits have suggested, Obama did not suddenly discover his heterodox jurisprudential views as a presidential candidate; he has held them for years, and some even since law school. For example, Obama has long been on record as saying that the Constitution permits capital punishment as a general matter, and that some crimes are so heinous that society may be justified in taking the life of those who commit such crimes. His reservations about the death penalty, which surfaced early on in his Illinois legislative work, have focused on the enormous difficulties in carrying out a system of capital punishment is a fair and accurate way. Similarly, Obama had long ago stated his view that the Second Amendment protects an individual right to bear arms, subject to reasonable regulation – a position often associated with one of his mentors at Harvard Law School, Professor Laurence Tribe.

In light of this record, it seems reasonable to assume that Obama’s reactions to the end-of-term decisions provide a useful guide to his judicial philosophy and his likely approach to judicial appointments.

The apologists for Mr. Flip Flop are in full force.

http://www.roanoke.com/editorials/commentary/wb/168703

"Virginia's senators must work with their colleagues to expedite Conrad's confirmation. They should ask Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, to schedule a July hearing. The panel should fully assess the nominee and vote on him before the August recess. Then, Senate Majority Leader Harry Reid, D-Nev., ought to schedule a prompt floor debate and vote."

has served on SCOTUS several times. He's also been in the White House.

Andrew - I'd say that Obama's position this year is similar in many ways to Carter's position in 1976; the dems almost every advantage, yet Carter almost managed to lose anyway due to his inexperience and Ford's fundamental appeal. Obama is a better politician than Carter, but McCain is also stronger candidate than Ford, so I don't mean to imply that the situation is hopeless. But if I could get even odds, I'd lay my money down on Obama.

Zendari - As for this particular judge, I don't think earlier notice would have mattered too much. Indiana has a democrat senator (Bayh), and it's not like the senate has been confirming Court of Appeals nominees as fast as the seats have been coming open (to put it mildly). As for the timing of the announcement, it's possible he waffled on the timing himself - retirement is a big deal, and he may not have been ready to commit himself earlier.

On the larger issue, I just don't have any issue with a judge that takes senior status or retires when they become eligible. Holding onto the seat until a President of your nominating party is in the White House is not part of the deal, nor should it be. To suggest otherwise is to introduce a degree of politics into the judicial branch that exceeds even our most recent heights of partisanship in that area. I actually have a lot of respect for judges that elect to take senior status at the end of a Presidential term, as Judge Randolph chose to do. In doing so, he can honestly say that he did not know who would nominate his replacement, and thus his decision was not made on that basis. I realize that this may sound a bit pie in the sky given the current climate surrounding judicial nominations, but it's refreshing to me to see that political calculations have not entirely permeated the judicial branch.

In my opinion, many liberal judges tend to view themselves as soldiers, and hang on as long as possible. For example, consider Jimmy Carter's judges on the 3rd, 5th, 6th & 9th CCA. All could have taken senior status years ago, but haven't. Meanwhile, a judge like Ripple takes senior status at 65, and others like Cassell (Utah) leave because they suddenly discover they like money than being a judge.

Say what you will about the Left, their judges are true believers and recognize the power of a lifetime appointment.

Courtesy of Above the Law,

http://abovethelaw.com/2008/07/scotus_post_mortem_ot_2007.php#more

"Justice Anthony M. Kennedy has his clerk reunion every five years.There was a black-tie dinner at the Court on Saturday night, followed by a kid- and family-friendly lunch on Sunday.Turnout was strong, and the attendees included several former AMK clerks who are now judges: Chief Judge Alex Kozinski (9th Cir.), Judge Brett Kavanaugh (D.C. Cir.), Judge Neil Gorsuch (10th Cir.), and the just-confirmed Raymond Kethledge (6th Cir.).

Neal Gorsuch and Peter Keisler each gave beautiful toasts. The reunion committee (or maybe the current clerks, or both) put together two video montages. One was just lots of pictures from the Justice's life and career set to music -- very nostalgic. This marks his 20th year on the bench, by the way. The other video was pretty funny -- it was short remarks by several of the other justices congratulating him on his 20 years on the bench. Roberts's in particular got a lot of laughs -- it made a little bit of good-natured fun at AMK.

Every time there's a reunion, the clerks get the Justice a reunion gift. Last time it was a gorgeous standing globe. This time it was an original edition (3 volumes) of the complete papers of James Madison, plus some bottle of wine (I didn't catch the details) from 1988.

On Sunday there was a reunion lunch, with kids, at Richard Willard's house in McLean. The Justice took pictures with a series of former clerks holding their small children. One sort of odd tidbit: AMK's rule about bringing guests is that clerks can bring spouses or "announced fiances." A bit antiquated, but I gather it's been his policy for all his reunions and that he's somewhat adamant about it."

NOTE: Since Kennedy wrote Romer v. Evans and Lawrence v. Texas, I wonder what Kennedy's policy on inviting any same-sex partners of former clerks is.

Just for clarification:

1) Kozinski was one of Kennedy's clerks when he was a 9th Circuit court of appeals judge, not when he was a Supreme Court justice. Failed Bush nominee Carolyn Kuhl also was one of his clerks when he was just an appellate judge.

2) Gorsuch was shared between retired justice Byron White and Kennedy during his term as a clerk.

3) Miguel Estrada and Peter Keisler were clerks together during Kennedy's first year on the Supreme Court. If I recall correctly, Kennedy voted with Rehnquist over 90% of the time during that period.

Well, you seem to be arguing 2 different things. It's one thing to hang on as long as possible, its another to hang on until you can be replaced by a like minded successor. Those 2 don't necessarily go hand in hand.

Pregerson/Reinhardt and company were mostly eligible for senior status during the Clinton years and didn't take it when they had a chance. Perhaps they just like their job.

Also courtesy of Above the Law,

http://www.law.umn.edu/news/bergquist-clerkship-7-2-08.html

"Amy Bergquist (’07) recently accepted a clerkship for the 2010-11 term with U.S. Supreme Court Justice Ruth Bader Ginsburg."

NOTE: Tom Goldstein of SCOTUSblog has said recently that he doesn't think the next president will get to nominate three new justices in his first term. His prediction is that there will be no new vacancies in 2009 or 2010. He thinks that then Stevens will retire in the summer of 2011. Souter and Ginsburg will wait until AFTER the presidential elections in 2012 to retire. Why? While Souter may dislike Washington D.C., he does not dislike his job. Also, Ginsburg has been impressed with Stevens' professional stamina and has decided to emulate it. She doesn't want to retire now until she reaches 80 (which will be in 2013).

http://thehill.com/leading-the-news/reid-spending-bills-will-likely-wait...

"[Reid] also said that he doesn’t expect Congress to return for a post-election, lame-duck session. Under that scenario, Congress would only be in session for another six weeks this year."

NOTE: As I mentioned before, the Senate will adjourn Friday, August 8. It will reconvene Monday, September 8, and then adjourn again on Friday, September 26. So, as looks likely, the 110th Congress will officially end in September. That is not enough time to confirm anyone else except Glen Conrad. That means, if G. Conrad is confirmed, ELEVEN circuit judgeships are down the tubes for the Republicans:

First Circuit - 1
Second Circuit - 1
Third Circuit - 2
Fourth Circuit - 3
Seventh Circuit - 1
Ninth Circuit - 1
D.C. Circuit - 2.

Add those eleven to the fourteen likely to be added by a Dem-controlled Senate next year, and President Obama will get to start his presidency with TWENTY FIVE appellate judicial nominations.

Obama would get to nominate 26 court of appeals judges. Not bad for a first year, eh?

Justices tend to keep their retirement decisions very close to the vest. If a particular justice didn't hire at their normal time, it would be a dead giveaway that they were going to retire. Justice Rehnquist didn't hire clerks for the October 2006 term, but that didn't tell the public anything it didn't already know.

I've enclosed an email written by Judge Kozinski concerning his clerkship hiring experience that was posted on David Lat's former blog, Underneath Their Robes (Lat was a Kozinski clerk). It provides some evidence that a Justice's decision to hire clerks isn't a great predictor of time left on the bench (the rest of this post is the email):

[T]he reference to my having been picked up by CJ Burger after Justice Douglas retired is true only in the chronological sense. I got the call that Douglas hired me as his clerk one morning about 11 am, then got a call later the same day telling me the justice had just retired. (I don't comment as to cause and effect.) At that point I was out of a job, but still had applications pending with CJ Burger and Justice White. I got interviewed by White, but didn't get the job. I then got interviewed by Burger's selection committee, along with about 3 dozen other people.

The only difference the Douglas clerkship seems to have made is that I got a second interview, with another member of the committee, who spent the better part of an hour exploring the question: "Do you think someone who was picked as a clerk by Justice Douglas can possibly serve CJ Burger?" I answered: "I suspect I would disagree with CJ Burger about as often as with Justice Douglas."

All told, it was a trade up. Justice Douglas was, according to all who knew him, very difficult to work for, while CJ Burger was a prince. In fact, I never heard him speak ill or complain about anybody, ever.

At the end of my clerkship, my wife and I were married in the Justices' conference room -- not one of the large semi-public conference rooms known as the East and West conference rooms, but where the justices meet to decide cases. My wife reminds me occasionally that if either of us ever wants a divorce we'll have to petition for cert. ;-)

Now is the time to completely flood the pipeline with appellate nominees. No vacancy should be without a nominee. It doesn't make any difference if none of the nominees can be confirmed before Bush leaves office. The nominees are needed to establish the correct statistics to prove Dem obstruction in the 110th Congress. If the Republicans need to block Obama nominees in the 111th Congress, they need some good numbers to justify their position.

I worry, though, that Fred Fielding isn't smart enough to see beyond what current problems he may have. He probably will view judicial nominations as the least of his worries and as a consequence totally neglect them, creating a huge public relations nightmare for the Republicans in the 111th Senate. What are the Senate Republicans to do if the Dems start quoting artificially high confirmation rates for Bush nominees as a means to convince Republicans not to block Obama nominees?

FYI, nominations today - three in Colorado (deal with Salazar?) and one in Florida.

http://www.whitehouse.gov/news/releases/2008/07/20080710-4.html

Whoops, my mistake. There are TWO in Florida. A deal with Bill Nelson?

Here are the five nominations:

1) Christine M. Arguello, of Colorado, to be United States District Judge for the District of Colorado, vice Walker D. Miller, retired.

2) Philip A. Brimmer, of Colorado, to be United States District Judge for the District of Colorado, vice Lewis T. Babcock, retired.

3) Gregory E. Goldberg, of Colorado, to be United States District Judge for the District of Colorado, vice Phillip S. Figa, deceased.

4) William Frederic Jung, of Florida, to be United States District Judge for the Middle District of Florida, vice Susan C. Bucklew, retiring.

5) Mary Stenson Scriven, of Florida, to be United States District Judge for the Middle District of Florida, vice Patricia C. Fawsett, retiring.

NOTE: Why will only Arguello be confirmed? Because she is another failed Clinton nominee. She was nominated as a circuit judge to the 10th Circuit on July 27, 2000. Since she was nominated after the beginning of the Thurmond Rule in a presidential year, the Senate Republicans of the 106th Congress didn't process her and her nomination lapsed at the end of Clinton's presidency. The Senate Dems will allow her to be confirmed now in order to compensate her for the "shabby" treatment she received earlier from the Republicans and to get her on the district bench ASAP so that she can start to garner some experience in order to repeat as a circuit nominee later under Obama.

The other four nominations today are probably just filler. I can't see the Dems allowing all these four and the five under the Specter/Casey deal to be confirmed before September 26. First, there is a huge time restraint. Second, the Dems will want an Obama to fill these seats in 2009.

Bobo, don't you think there is some kind of deal between Salazar and Bush? Arguello, Brimmer and Goldberg as one package?

Why would Bush nominate a failed Clinton nominee?

Allard and Salazar agree on Arguello and Goldberg. Salazar does not support Brimmer.

From the Denver Post --

"DENVER—The White House has sent the names of three candidates to a senate committee for confirmation to fill vacancies in Colorado's U.S. District Court.

U.S. Sens. Wayne Allard and Ken Salazar made the announcement Thursday. Salazar, a Democrat, and Allard, a Republican, support two of the candidates but disagree on the third, Philip Brimmer, who is the Special Prosecutions Section Chief at the U.S. Attorney's Office.

The two other candidates are former Colorado Deputy Chief Attorney General Christine Arguello and former assistant U.S. Attorney Gregory Goldberg.

The nominees now go before the Senate Judiciary Committee for consideration.

Salazar said he would not support Brimmer. Brimmer received the endorsement of U.S. Attorney Troy Eid."

Quote from Sean Conway, Allard's Chief of Staff

http://www.chieftain.com/articles/2008/07/06/news/denver_bureau/doc48705...

"The good news is that the White House has been informed by Sen. Patrick) Leahy . . . that if a nominee has no objection from a home state senator the committee will consider nominees in September . . . ."

If I recall, in Bush I's term, split party Senators (1 R 1 D) divided district court seats in a 3:1 ratio (hence the Sotomayor nomination). Now Allard cannot even get a 2:1 split.

According to the article:

"Republican U.S. Sen. Wayne Allard's chief of staff, Sean Conway, said last week there is now new optimism vacancies may be filled by the end of September.

Conway said the optimism stems from a development in which Democrats, who control the Senate, plan to consider judicial nominations in September.

Republican President Bush nominates, but senators must vote to confirm nominees.

Conway said Washington insiders thought until recently it would necessary for the committee to vote on nominees by early August to be confirmed by the full Senate.

"The good news is that the White House has been informed by Sen. (Patrick) Leahy . . . that if a nominee has no objection from a home state senator the committee will consider nominees in September," Conway said. Leahy is the Democratic chairman of the committee.

"Now we probably will have until the end of September to get these vacancies filled," Conway said."

"A spokeswoman for Democrat U.S. Sen. Ken Salazar would not say if he is optimistic or pessimistic about the vacancies being filled this year. Stephanie Valencia said only that Salazar 'is doing everything he can that they are filled this year" and that he "is hopeful they will filled this year.'"

"Valencia would not comment on Conway's statement that the judiciary committee plans to consider in September nominees for judgeships anywhere in the country, including Colorado. 'We're not going to speculate on whether they (nominees) may be considered in September.'"

NOTE: I think the comment that Leahy is willing to process bipartisan nominees in September is highly dubious. Salazar's refusal to agree with it is proof alone.

In addition, there are all sorts of procedural problems associated with such a quick run-through. ABA ratings take 2-3 months. How can Leahy process people without ABA ratings? If he does, he goes against stated Democrat policy. To make matters worse, if the Republicans go along with it, they look like hypocrites for holding up the nomination this spring of Helene White for the lack of an ABA rating.

Also, if the Specter/Casey deal goes through, then Leahy will not only have to process Arguello and Goldberg (he won't process Brimmer) in a short 3 week period, he will also have to process five Pennsylvania judges? Does that give any time to process the Florida judges nominated today or any other judges nominated in the next three weeks?

Based upon ConfirmThemFan's article, which states that Salazar does not support Brimmer (i.e. will blue-slip him), I don't think Arguello, Goldberg and Brimmer are a package deal.

Does anyone know if he is even a Republican?

http://www.persuasionstrategies.com/g_goldberg.shtm

"Prior to joining the firm, Mr. Goldberg served in the U.S. Department of Justice as an Assistant U.S. Attorney for the District of Colorado. As a federal prosecutor, Mr. Goldberg had extensive experience coordinating federal grand jury investigations, serving as lead counsel at trial, and briefing and arguing appellate matters before the U.S. Court of Appeals. His responsibilities included working with federal law enforcement agencies, including the Federal Bureau of Investigation, Office of the Inspector General, Secret Service, and Bureau of Alcohol, Tobacco & Firearms, to pursue investigations, intake cases, present indictments before the grand jury, and prosecute violations of federal law. As an Assistant U.S. Attorney, Mr. Goldberg tried more than 15 jury trials, many in technological or “paperless” format, and argued numerous cases before the U.S. Court of Appeals for the Tenth Circuit. In 2002, the Attorney General of the United States presented Mr. Goldberg the Department of Justice Director’s Award for superior performance as an Assistant U.S. Attorney."

Here is quote I found concerning Goldberg. It pertains to an analysis of John Suthers, the conservative Republican who replaced Salazar as Colorado's Attorney General:

http://www.law.columbia.edu/null/Newsletter+2005-01?exclusive=filemgr.do...

"But two former federal prosecutors who were hired by Suthers' Democratic predecessor, Tom Strickland, and stayed on under Suthers said Lane's criticism was misplaced.

Bob Troyer and Greg Goldberg both left Suthers' office within the past year for private practice, and both said Thursday that they were rooting for Suthers' confirmation as attorney general.

Suthers' decisions as a prosecutor are guided by his "strong moral compass," Goldberg said. "I'm certain he has the dedication to public service that will make him an outstanding attorney general."

In 2004, he gave to both Bush and Kerry and both the DNC and RNC. In 2002, he gave to Dem Tom Strickland. In 2007, he gave to Republican Bob Schaffer.

I don't know Goldberg personally, but he did clerk for Judge Kelly on the Tenth Circuit. Judge Kelly is a Republican. (I don't know how much that's worth, but I thought that I would throw it out there.)

In any case, the Denver Post thinks Goldberg is a Republican.

http://www.denverpost.com/ci_9844800

Also, for those who don't know, Clinton nominated Arguello to the Tenth Circuit.

http://findarticles.com/p/articles/mi_hb5243/is_200007/ai_n19792260

Salazar's opposition to Brimmer is ostensibly based solely on the fact that Brimmer was not among the candidates recommended by his advisory commission.

http://www.rockymountainnews.com/news/2008/jul/11/salazar-ritter-split-o...

http://www.examiner.com/a-1482125~3_candidates_named_for_federal_judge_p...

Whether someone is a Republican or not should have NOTHING to do with whether or not he or she is a good judicial candidate. I'm not a Republican, but I believe very strongly in the rule of law, and nearly never agree with anything that the liberal justices invent. In fairness, I'm not a Democrat either; I'm an independent who happens to believe that the current Republican party is little more than a cariacature of what it used to be. Heck, today's average Republican would fit in very well with the Democratic party of the 1960's.

We need to determine how a judge forms the basis for his or her rulings, instead of examining what party they belong to, or to whom they've contributed. I will accept the belief that a Republican is far more likely to be a good judge than a Democrat, based on how most of the Democrats tend to line up with the judicial activist rulings. But it's not a guarantee of a good or bad judge.