ConfirmThem

This site is primarily to support confirmations. So, if no one here particularly supports confirmation of the President's nominees, there's not much point in writing blog posts.

to be able to air thoughts on a nominee and, if some feel so incline, to provide opposition to the nomination(s)--in a civil sort of way.

Has anyone else noticed that Sotomayor was a leader in La Raza for a number of years in the not too distant past?

Any thoughts on RBG's stay on the Chrysler-Fiat deal?

Agreed. I really wish we could get some of the posters from RedState over here. Judicial matters often get "lost" over there.

As for RBG's stay, almost certainly too little to late. W should've let the whole damn mess collapse starting with Fannie Mae. Sure, the short-term consequences would've been horrifics, but nothing compared to the long-term disaster this'll be. No one to blame but ourselves, tho.

Oh, and best wishes to Soto too, of course.

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

ORLY. Maybe they mean Ginsburg a Souter clone?

http://www.dailykos.com/comments/2009/6/8/104258/2386/129#c129

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

http://legaltimes.typepad.com/blt/2009/06/two-federal-judges-nominated-f...

"President Barack Obama today nominated two federal district judges for elevation to appeals courts.

Judge Joseph Greenaway Jr., who sits on the U.S. District Court in New Jersey, was tapped for a slot on the U.S. Court of Appeals for the 3rd Circuit. For a seat on the 11th Circuit, Obama nominated Judge Beverly Martin of the U.S. District Court for the Northern District of Georgia."

...is why Obama didn't pick Leah Ward Sears or Teresa Wynn Roseborough for the 11th Circuit opening. Unless he *did* ask one or both of them, and they declined. Or, he's saving one or both of them for the DC Circuit. Or, he's planning to "save" more controversial COA nominees (which Roseborough surely would be) for later in his administration (maybe after Franken is seated?). He may get another COA pick from GA before his first term is up, particularly if Stanley Birch takes senior status next year.

One thing's for sure: Obama isn't really taking many risks with these COA picks. All are district judges who were confirmed easily under Clinton, and all will be confirmed easily by the Senate. It's interesting that he hasn't chosen any "out-of-the-box"-type picks (i.e., law professors, private lawyers, past executive branch officials, etc.).

I also think that this will instantly elevate Greenaway to a SCOTUS shortlist, particularly if something happens to Thomas.

http://www.law.com/jsp/article.jsp?id=1202431669617

"Don't look for a 180-degree swing between Samuel Alito Jr. and Joseph Greenaway Jr., President Barack Obama's nominee to fill Alito's seat on the 3rd U.S. Circuit Court of Appeals.

Greenaway is a centrist who was a prosecutor and corporate lawyer before he began 13 years of service on the federal district court in Newark, N.J.

The 36 published decisions by the 3rd Circuit on appeals taken from Greenaway rulings since 1996 depict a trial judge who appears to have no ideological sharp elbows when it comes to issues such as sentencing, employee rights and deference to government."

Weren't the same tales told about how Bob Bork and Ruth Ginsberg agreed 90% of the time on the appeals courts?

I had a dream that he resigned to become President of Yale. I woke up in a cold sweat.

Doesn't it seem that centrist D nominees vote with their side 90% of the time while centrist R nominees are more like 60/40. Why is that?

The 4th Ct today upheld the VA Partial Birth Abortion ban through an en banc reversal of an earlier 2-1 panel decision that struck it down.

The vote was 6-5 with all 6 being GOP appointees, 3 of them W appointees. Steve Agee, his last appt in May of 2008 was the deciding vote.

It's a pretty big decision and pro life victory.

It's up to the losers to decide to appeal to the SC but I doubt they do so. There's clearly 5 votes against partial birth abortion right now and and appeal would result in a certain defeat for them. I say they let it slide and don't give the SC a further chance to build a prolife foundation by making a 2nd major opinion in 3 yrs. I think they wait it out and hope that Obama gets to replace one of the conservatives.

But a big win nonetheless. Bush's appts did make a difference, especially Agee.

Also note that Karen Williams voted for reversal. I remember there were some when she was mentioned for the SC who worried about her and abortion. So much for that.

5-4, as everyone predicted. Kennedy majority opinion.

Won't derail the Sotomayor nomination, by any means, but hopefully someone brings it up.

1) Some in the GOP ranks are saying that even Ginsberg and her comrades said that Sotomayor's team screwed up. Can you explain what it is in Ginberg's dissent that says SS had some sort of procedural or whatever error, even though her side didn't want to overturn it? And if she did have some sort of error, why would they want to let it stand?

2) Do you think the ruling was very narrow because:
a) that's how Roberts in particular likes to do it
b) that was needed to get Kennedy's vote
c) it just seemed the right way to do this one
(maybe more than one of those is possible)

3) Did the ruling indicate that this particular case was now protected from a later disparate impact-type lawsuit or that it was fair game for that to happen later once the test results were certified?

4) Is the fact that Kennedy wrote the opinion of particular significance, i.e. it's sort of a smack at Sotomayor to have the most moderate Justice write it? Or was it just his turn or his "area" or some other innocent explanation?

5) The conflict Scalia noted is between the 14th Amendment and Title VII correct? And is the general idea is that the former says everyone's equal while the latter says some are more equal than others? Was he hinting that he wished the Court would have been more general to resolve whether discrimination in the name of non-discrimination is ever justified? And wouldn't it seemingly always be possible to rule narrowly enough so that you never answer it as a constitutional issue?

Thanks! (I hope I managed to explain these in a way that made sense.)

6) Maybe this is related to #3, but if the decision was to reverse and remand, what does that mean? (I'm showing my ignorance here no doubt.) I thought remanding meant sending it back for reconsideration, but it sounds like this is a done deal. If they're reversing it and not asking for reconsideration, why does the lower Court or COA have to do anything?

7) As one might expect, Schumer and other lefties are jumping on Sototmayor's side. He claims that she did the only thing she could by following precedent. Is there even some remote basis in fact for what he says?

Roberts and Alito have now been on the Court for 4 terms, well Alito came halfway through 2005 but still.

Usually 4 terms is enough to form an opinion as to one's performance. I remember there were those who were a tad worried about them or unsure or whatever.

So far in the four terms, in all of the important and controversial cases, they have taken the conservative side in all of the. They have voted with Scalia and Thomas in all of them. Their rate of agreement is around 90%.

They've issued two rulings striking down aff action policies and I have no doubt they'll overturn Grutter/Bakke and outlaw it for good if the right case presents itself.

They've upheld an abortion ban for the 1st time ever and I'm pretty sur ethey'll be on the pro-life side in any future aboriton case

They've struck Campaign finance laws and are about to overrule Austin v MI and a major part of McCain-Feingold.

They've upheld every death penalty and tough on crime law they've seen.

They've upheld every war on terror law.

They recognized the 2nd amendment and again I have no doubt they'll incorporate it, possibly in the cases from IL and CA on appeal now.

They haven't always been as aggressive and ready to overrule immediately as Scalia and Thomas, but on the essential issue they're in full agreement for the most part.

So, all in all, given we've just completed their first term in the presidential sense, I think any conservative would have to say that Bush got both selections right. He did a lot wrong, totally screwed up a bunch of things, and really ruined the republican Party for a long time to come, but he did get the Supreme Court appts right and for that he deserves credit.

Any overall thoughts on Roberts and Alito?

They should serve as a model for future conservative administrations. We should choose people who have worked for our cause in Washington before they are selected. These people have already been subjected to the Washington culture and not likely to move left because of it once on the SC. How many GOP appointees were from outside Washington and moved left once they arrived?

Anyone think Kennedy could be persuaded to move right by Roberts? Esp. if Obama's numbers drop? I think Kennedy is influenced by that stuff.

http://www.abanet.org/scfedjud/ratings/ratings111.pdf

Nothing unusual about this. Despite her politics, Sotomayor has been both a district court and appeals court judge for 17 years.

http://blogs.wsj.com/capitaljournal/2009/07/08/sotomayor-a-lack-of-inter...

She is a spender, not a saver.

Either Ms. Sotomayor is not very savvy about money, or just doesn’t care about it.

Her net worth of $740,000 is a third of what the last new Supreme Court justice, Samuel Alito, brought to the bench, and he had only worked previously in government or as a judge.

That’s not much of a nest egg, given her salary and opportunities.

Certainly, had she used her position to accumulate wealth through questionable behavior it would be a matter for public consideration. But she has done nothing of the sort. In fact, she has treated her personal finances as almost an afterthought.

Still, Ms. Sotomayor has been a federal judge for 17 years, earning almost $200,000 a year. Before that, she was a partner in a major New York law firm where attorneys can make millions annually, although she did not.

She owns no stocks or bonds. Most Americans do either directly or indirectly, and it’s a safe bet that virtually everyone her age with her salary does as well.

In other words, she apparently does not believe in investing her money.

I wonder if she would leave the bench at 65 if/when the money opportunities start pouring in.

Judge Williams (4th Circuit) is stepping down efefctive immediately due to health issues. I don't know if I am at liberty yet to disclose more, so I will leave it at that for now. But it is a very sad day for all of us who know Judge Williams.

http://legaltimes.typepad.com/blt/2009/07/4th-circuit-chief-judge-karen-...

"Chief Judge Karen Williams of the U.S. Court of Appeals for the 4th Circuit announced her retirement yesterday in a letter to the White House, the clerk of the court confirmed this morning. Williams is stepping down due to illness."

"The retirement opens up another seat on the historically conservative 15-judge court, which now has five vacancies. So far, President Barack Obama has nominated one judge to the bench, Andre Davis, whose nomination is pending in the Senate. The Senate Judiciary Committee voted 16-3 in support of Davis.

A longtime colleague on the 4th Circuit, Judge J. Harvie Wilkinson III, said Williams’ retirement announcement was a surprise. Wilkinson declined to identify Williams’ illness but said: 'This disease will have a very tough opponent.'"

http://blogs.wsj.com/law/2009/07/09/chief-judge-of-4th-circuit-williams-...

"Karen J. Williams, chief judge of the U.S. Court of Appeals for the 4th Circuit, has announced her resignation after being diagnosed to be in the early stages of Alzheimer’s, according to a letter she sent to colleagues yesterday. (It was not the same letter sent to the White House, her office said.)

'…[A]lthough no one knows how quickly the disease will progress, I want to leave the court while I still have my faculties and know that I have made all my decisions with a sound mind,' Williams wrote, saying that she was announcing her step down from the bench 'with great sadness and a heavy heart.'...

Her office issued an official statement that says while Judge Williams 'is presently able to perform her judicial duties, because of the nature of the disease she has elected to retire so any future decisions would not be called into question.'"

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/09/AR200907...

"The 4th Circuit, which oversees Maryland, Virginia and other mid-Atlantic states, is an influential voice on national security issues. Earlier vacancies have whittled away its strong Republican majority, and the court now has six judges appointed by Republican presidents and five Democrats, with four vacancies. Williams's departure creates a fifth vacancy, meaning the court will likely gain a 10-5 Democratic majority during Obama's term."

I remember that in all the discussion of nominees to replace Sandra Day O'Connor in the fall of 2005, Williams was a huge favorite. I remember especially debate on whether Diane Sykes or Karen Williams would be preferable. This site even announced Williams as the nominee the evening before the announcement by Bush. Then, of course, Bush shocked us all with Harriet Miers.

Imagine what would be happening now if Williams had been nominated and confirmed instead of Alito. The 5-4 conservative majority of the Supreme Court that has started to dismantle abortion rights, affirmative action, McCain-Feingold, as well as giving us Heller, would now be on the brink of dissolution with Obama getting to replace a conservative (Williams) with another liberal (Wood, Karlan, Granholm ?). The victory of selecting two conservatives (Roberts and Williams) would be nothing but a pile of ashes.

I guess in retrospect the selection of Miers over Williams was a blessing in disguise. Without Miers, Bush would not have been able to nominate a male conservative like Alito.

http://www.mddailyrecord.com/article.cfm?id=11909&type=UTTM

"Virginia Sens. Jim Webb and Mark Warner have recommended Virginia Supreme Court Justice Barbara Milano Keenan for another [seat on the Fourth Circuit]."

Anyone know about Keenan?

http://www.valawyersweekly.com/vlwblog/2009/06/02/senators-recommend-jus...

"Keenan, 59, has been a judge since age 29 and has been a member of the Supreme Court since 1991. She was the first justice to sit at all four levels of the Virginia court system. If nominated and confirmed, Keenan would be the first woman on the 4th Circuit from Virginia."

http://en.wikipedia.org/wiki/Barbara_Milano_Keenan

"Barbara Milano Keenan received her bachelor's degree from Cornell University and her law degree from George Washington University. From 1974 to 1976 she was an assistant commonwealth's attorney for Fairfax County, Virginia before entering private practice. In 1980, she was made a judge of the General District Court of Fairfax County, and two years later became the first woman to be elected to a Circuit Court judgeship by the Virginia General Assembly. In 1985, she was elected as one of the first ten judges of the newly created Court of Appeals of Virginia, making her the first woman to serve as a state appellate court judge in Virginia. In 1991, she was elected to be a Justice of the Supreme Court of Virginia, succeeding Justice Charles S. Russell."

"The Virginia Bar Association included her name on the list of candidates it submitted to Virginia's two senators on February 24, 2009."

All the best to Judge Williams and her family. Terrible news, but she's handling it the best way possible by putting country first. Let's see if she gets any credit for that publicly.

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

My thoughts exactly on "what if". So many things had to fall just right to get Alito in SDO's seat, starting with the Chief's determination to go out on his shield. What an unimaginable disaster avoided, tho we're hardly home free.

A tragic reminder that GWB, Frist & McConnell might possibly have done less than a perfect job in filling vacancies on the 4th Circuit. Can anyone give us the current status of things there?

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

Here's what I know:

--MD seat is the only one with a nominee officially pending. Andre Davis (whom Clinton nominated to the seat in late '00) will be confirmed to that seat, before 2009 is out. GWB really screwed up by monkeying around with Keisler (never officially nominated but saw significant objections from MD's senators before he being nominated), Claude Allen (who, we later learned, had severe integrity issues), and Rod Rosenstein (impeccable credentials, but was nominated too late; the tide was starting to turn, and the Democrats well knew it, so they ran out the clock on Rod). I'm not sure *any* Bush 43 nominee would have been palatable to MD's senators (the Dems always have seen that as "their" seat since the predecessor, Murnaghan, was a Carter appointee), but Bush and his staff didn't even bother trying; as a result, he missed an opportunity to try to find someone conciliatory but still conservative.

--VA seat is a weird one. Bush's first pick William J. "Jim" Haynes II, ran into years of opposition from Dems plus even some GOP senators (Lindsey Graham), which reaffirms BillM's assertion that GWB, Frist and McConnell did "less than a perfect job" filling 4th Circuit vacancies (I'd go so far as to say they did a crappy job). Haynes eventually withdrew, and Bush picked another lawyer, Duncan Getchell, without consulting VA's senators. Getchell eventually withdrew, and then Bush picked Glen Conrad in sort of a Hail Mary pass. Glen Conrad never got confirmed and now, as BoBo correctly notes, VA Sens. Warner and Webb announced back in early June that they were recommending this woman Barbara Milano Keenan for the seat. Who knows if Obama will go along with that (I imagine he will), but again, another disastrous series of nominations by Bush; had he just picked Glen Conrad from the outset (or even just in place of Getchell), Glen probably would be sitting on the Fourth Circuit to this day and Obama wouldn't have a VA seat that he is now going to get to fill.

--NC seat obviously is the one where Terrence Boyle lingered for six long years without getting confirmed, and I think it's the longest single vacancy (15 years) among all US courts of appeals. After Bush withdrew Boyle (whom he frankly should have dumped much earlier; Boyle couldn't even get included in the Gang of 14), Bush picked another district judge, Robert Conrad (note that a lot of Bush's failed late-term COA picks ended up being district judges in obviously quixotic, last-minute acts of desperation to get the seats filled). Conrad obviously never got confirmed. So far, there has been little to no informed chatter about who Obama will pick for the seat. Options -- many of whose names have been floated in NC newspapers with little actual proof from anyone in the know -- include anybody from failed Clinton 4th COA/NC nominees (J. Rich Leonard, James Wynn, James A. Beaty, Jr., S. Elizabeth Gibson) to local lawyers (James Cooney, Douglas Kingsbery) to state/local judges (Pat Timmons-Goodson, Martha Geer). But, no nominee yet.

--SC seat (Wilkins vacancy) is the most recent of the four pre-Karen Williams vacancies; it's only been open since '07. Bush picked Steve Matthews for this seat, and he also got waylaid by Dems as the tide started to turn. There's been some chatter over whether SC has had too many seats (for the record, of course it does -- until '07, SC had four of the 4th COA's 15 seats; that was obviously a legacy of Strom Thurmond's influence, but it completely stiffs NC, which has only two seats "dedicated" to it). It's highly likely that at least one of the SC seats (either this one or the Karen Williams vacancy -- or both) will be "transferred" to NC (none of this is constitutional, of course). Obama's people likely will push for this as well, since 1) they then won't have to deal with DeMint and Graham to fill at least one of the seats that heretofore have been thought to be SC seats; and 2) Clinton appointed just three district judges in SC, none all that young. So, the Dems' "bench" in SC is fairly thin. So, it's likely that at least one of the SC seats will become an NC seat, and will be filled by some of the aforementioned names. How Obama will get an SC seat filled at all with DeMint in the Senate, I have no idea. One thought would be for him to nominate Margaret Seymour, a Clinton district judge in SC; she's in her early 60s, but she's also African-American, and that might make it harder for SC's senators to object to her.

So the bottom line: one nominee headed for confirmation, one nominee has been publicly announced by senators but not endorsed by WH yet (both of these first two nominees are rather old), and now three other seats with no announced nominees yet. I think it's safe to say that the Fourth COA is going to flip to Democratic control for a long, long time to come; the papers are saying a 10-5 Dem-GOP majority is likely if Obama fills all five current vacancies. However, two other Republican appointees, Harvie Wilkinson and Paul Niemeyer, aren't exactly young and could take senior status at any time. Obama could end his term with the Democratic majority on the Fourth being something like 11-4, I suspect.

Does that answer your question, BillM?

Yes it does, brother, yes it does. What an unmitigated disaster. The VA seat is esp. inexcusable, as Bush prolly could've gotten Getchell in back after the GO14 deal but before the '06 elections; he was on the JWarner-Macaca "list"; assuming Haynes was withdrawn in time. Or he could've nominated Stephen Lemons at the same time he nom'd Bill Agee for the other VA seat (who was confirmed); both were on the JWarner-Webb "list".

You, me, BoBo and others here screamed non-stop about the 4th and warned of what could happen for almost four years. Shame no one listened.

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

I was reading Jeffrey Toobin's book 'The Nine'. According to Toobin, O'connor was quite impressed with George W in 2000, but detested his guts by 2005.

I can imagine that being the truth, but does anyone else have any confirmation of this?

If so, a lot of things did go right to get Alito up there.

a new thread starting some time Sun. 7/12--to run the course of Sotomayor's public hearings.

I don't think it was W, as much as Rove, Cheney, Rummy, Rush, Coulter, Falwell etc that Sandy grew to loathe. To be fair to her, I'm sure she had little time for the Michael Moores & Jeremiah Wrights of the world either.

And as much as she despised his crew, Sandy had always planned to retire under W, and all accounts indicate she would have simply waited a year, had Rehnquist not (craftily?) held on. Of course, her husband's health had badly deteriorated by then, so who knows how that would've affected her.

IMO SDO was very poorly 'handled' by the far Right (of course, she was very poorly vetted as well). They completely misunderstood how much she hated stark either/or choices; what a bad idea it was to privately pressure or publicly criticize her; and how much she realized the power of & enjoyed about being both THE FIRST FEMALE & THE SWING VOTE.

Remember, she actually swung to the right after early criticism from Brennan (which she never forgave him for), before Nino sent her off the other way. She would never have been "solid", but I think she could've been nudged far more often in the "hollowing out" direction on various issues than she ever was. See how Roberts is handling Kennedy.

And of course nominating Jones instead of Souter would've helped. Another country girl (never mind just simply being another woman) to pal around with, who was far more conservative & Constitutionally-based, My God. Recall the numerous times Sandy has waxed euphoric about RBG's nomination simply because she was a woman.

Every living person involved in L'Affaire Souter needs to be hauled before a Truth Commission, even after all this time. What could they have possibly been thinking? When did Warren Rudman become the go-to guy on SCOTUS noms? I guess they were crossing their fingers that stealth would work, as Poppy had no desire, ability or rooting interest in leading a fight over conservative judicial principles.

Then again, who knows how Jones joining WHR-White-Scalia-Thomas in overturning Roe in '92 would've spun Sandy's head, tho having a woman in the majority would've been good on numerous levels.

I'll never understand how Luttig esp, of all people, could've let Souter happen. He should've thrown himself in front of the microphone at the press conference.

And yes, I second a new open thread for Soto's hearings.

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

one day before the hearings open. My thanks if there is a plan to start a new thread on that subject soon. I would ask that it start no later than 8:30 a.m. ET on Mon. (a half hour before the proceedings start). Preferably sometime today.