ConfirmThem

I'm virtually popping champagne corks right now. Let's get to work.

I want to thank the powers that be! Obama's judicial picks need strict scrutiny, and this is just the site to do it!

Great news. The new mission should be scrutinizing and defeating Obama's nominees, but the "Confirm Them" name should be maintained. It would be nicely ironic.

About the site continuing in operation! Thanks.

I also like keeping the name "Confirm Them" but would add the question mark to go beyond pure irony. Otherwise, it would be stylisticly too close to "MoveOn" - an organization that has done everything EXCEPT move on - for my tastes.

http://www.trib.com/articles/2008/11/13/news/wyoming/f7482b92678e1315872...

"Nearly two years after his nomination as a U.S. District Court judge in Wyoming, Richard Honaker said he doesn't need federal notification that his nomination isn't going anywhere.

"I haven't taken new cases for nearly two years," the 57-year-old Rock Springs attorney said Thursday in an interview. "I essentially closed my practice. I need to put a few groceries on the table."

Honaker's nomination was stymied by opposition from abortion-rights organizations.

One letter to senators was signed by 22 different groups, including the Wyoming chapters of the National Organization for Women and NARAL.

He received a hearing before the Senate Judiciary Committee, but the chairman, Sen. Patrick Leahy, D-Vt., never scheduled a vote.

"I think if I had not sponsored pro-life legislation nearly 20 years ago, my nomination would have been uncontroversial. I think it's about that simple," Honaker said."

and all the ships at sea!

Seriously, I appreciate Red State's willingness to keep this site--for all the reasons several people have already shared.

Will the name stay the same?

See Bobo, above.

I think Erick in consultation with Quin and whomever else he choses should make the call re the name--same/tweaked/fully changed.

http://www.washingtontimes.com/news/2008/nov/18/obamas-picks-may-shift-4...

"One of the country's most traditionally conservative appellate courts offers President-elect Barack Obama a prime opportunity to begin reshaping the federal bench."

"Four vacancies on the 15-member court based in Richmond have created a 6-5 split between judges appointed by Republican and Democratic presidents. Mr. Obama, a Democrat, can remake the bench with members who hold to his preferred ideology."

"Members of Mr. Obama's transition team declined to comment on what types of nominees the president-elect is likely to pick for the 4th Circuit and whether he will work more with local lawmakers on the appointments.

Maryland Sen. Benjamin L. Cardin said that it's too early to know what kind of people will be nominated, but that he hopes for a better relationship with the incoming administration.

"We did not have a very good relationship with the Bush administration on this," said Mr. Cardin, a Democrat. "There's not been a good process between the senators and the Department of Justice and administration."

Webb spokeswoman Kimberly Hunter said she anticipates that having a Democratic president will lead to more consultation with Mr. Webb and the state's new senator, Mark Warner, also a Democrat.

"Senator Webb looks forward to working closely with the White House, Senator Mark Warner, and the Virginia legal community to identify outstanding, qualified jurists to fill the 4th Circuit Court and other judicial vacancies in the upcoming 111th Congress," she said."

"As a judicial nominee, Honaker said he was not allowed to make public statements while the nomination was pending."

Huh? 1st Amendment? Oh, wait, lemme guess, the WH & Specter told him not to say anything. Note in the article how Honaker by omission states that no one outside Wyoming did a thing for him.

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

http://newsinfo.iu.edu/news/page/normal/9285.html

"With the predicted retirements of Judges John Paul Stevens and Ruth Bader Ginsburg looming within the next four years, President-elect Barack Obama could have the rare opportunity to appoint two new judges to the U.S. Supreme Court during his first term in office.

Curt Levey, director of the Committee for Justice, will discuss Obama's potential federal court appointees on Tuesday (Nov. 18) at the Indiana University School of Law--Bloomington.

"Who Will Obama Appoint to Our Courts?" will take place at noon in room 121. The event is free and open to the public, and is being presented by the Federalist Society."

for keeping this site. I do agree that the filibuster is dead for us.

http://www.rasmussenreports.com/public_content/politics/obama_administra...

Courtesy of How Appealing,

http://www.washingtonpost.com/wp-dyn/content/article/2008/11/17/AR200811...

"For all the speculation about how President-elect Barack Obama's nominees may change the Supreme Court, there is one irrefutable fact: He can't make an appointment until there is a vacancy.

Eighty-eight-year-old Justice John Paul Stevens, the court's longest-serving member, is considered most likely to provide that opening. But in a question-and-answer session Monday at an event sponsored by the University of Florida's Fredric G. Levin College of Law, Stevens gave no indication he is ready to retire to his part-time home in Fort Lauderdale."

http://www.gainesville.com/article/20081117/NEWS/811170946/1014/ENTERTAI...

"Because of his age, Stevens is viewed as the justice most likely to next leave the court, but no one asked and he didn't volunteer any hints in his hour-long question and answer session."

http://www.nytimes.com/2008/11/18/washington/18rehnquist.html?hp

"Justice Rehnquist’s files contain mostly un-illuminating draft opinions and perfunctory communications between the justices. What emerges from the fragile documents is as dry as the pages themselves, the sterile, courteous notes from one justice to another — “Please join me,” voicing support for a particular opinion.

In his more than 30 years on the court, Justice Rehnquist gained a reputation for workmanlike opinions with a minimum of fuss or flash. The new files are consistent with that reputation."

BoBo, love the article on WHR and some of the dry excerpts from his journals. Won't hold my breath for anything from 1975 on, as Stevens looks healthy as a horse from that pic from the recent thing in FL. What a freak of nature. He obv IS old and does look it, but he just does not have the aura or carriage of someone even 68, let alone 88.

A GOP POTUS replaces the longest tenured & one of the most liberal J's ever with someone almost as liberal (and far more collegial and persuasive) who will likely serve almost as long if not longer. Same deal with Souter. It's just mind-blowing, no matter how often you think about it. Like the Detroit Lions draft picks.

AC1, agreed about the filibuster. Guess ol' Frist should've really tried to kill it. Between him, McConnell (unreal comments as reported by Quin in the prev thread), and the history in my prev paragraph, one despairs of the GOP ever "getting" judges.

Hopefully, the Sanford/Huntsman Administration will have Olson as a fully embedded advisor on the subject in four years, and JPS & RBG's Golluming will blow up in their faces. Interesting comments from JPS about the workload. They prolly did hear too many cases back in the Burger days, but JGR should IMO pick it up 20 -30%.

Everyone, great job the last fortnight. Let's keep it up.

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

Newsweek is reporting that Obama has offered Eric Holder the job of Attorney General. Obama's team also is debating whether to make the Deputy Attorney General be Elena Kagan or David Ogden.

http://www.blog.newsweek.com/blogs/poweringup/archive/2008/11/18/obama-s...

If she indeed is tapped to be Deputy Attorney General (and accepts), I think it would far lessen the likelihood of Kagan being Obama's first Supreme Court pick (and it would obviously eliminate the likelihood of her being one of Obama's early picks for the DC Circuit). Not because she wouldn't want or accept either judicial position, but because his team presumably wouldn't make her Deputy Attorney General only to have her possibly turn around and leave that job for one of those other positions within the first year. That suggests that Obama and his team view Kagan as a later Supreme Court nominee rather than an earlier one.

http://www.abanet.org/scfedjud/ratings/ratings110.pdf

The ABA rated Simon as WQ. Too bad he won't even get a chance to be confirmed.

I am not so sure that Kagan's appointment as Deputy Attorney General would slow her rise to the Supreme Court. Remember, William Rehnquist was an assistant attorney general with no previous judicial experience when he was nominated and confirmed to the Supreme Court.

The fact that Kagan is being considered for the position, however, is odd to me. There is no doubt in my mind that Kagan could be easily confirmed to one of the two open seats on the D.C. Circuit. With such an opportunity, why would she want to re-enter the politics of the Justice Department? It's not like she would make any more money doing so.

My guess is that Obama may be offering Kagan the job of Deputy Attorney General because he has other candidates in mind for the D.C. Circuit. This could be real bad news for both Kagan and the Republicans. Kagan is reasonably well-regarded by Republicans. Most other equally liberal people wouldn't be as acceptable. Without Kagan, there is the real possibility that someone really partisan like Harold Koh might replace her as a D.C. nominee. Ugh! Can you imagine both Cass Sunstein AND Harold Koh as D.C. Circuit nominess? Sunstein is almost unbearable, Koh is worse. I very much hope Kagan does not accept the role of Deputy Attorney General. If she is dumped in order to place some really partisan liberal on the D.C. Circuit, God help us all!

Bork.com
Borkthem.com
Rehnquist.com
Originalist.com
StrictConstructionist.com

Does anyone know why Michael O'Neill, one of the June nominees to a District Court seat in DC, hasn't received an ABA rating?

O'Neill is in the middle of a plagiarism scandal:

http://www.washingtonpost.com/wp-dyn/content/article/2008/07/07/AR200807...

"A nominee for a federal judgeship who has been accused of plagiarism said yesterday that he will not withdraw his nomination because he fully disclosed the controversy to both White House officials and the FBI during interviews for the job.

Michael E. O'Neill, a former Senate aide nominated by the Bush White House to a seat on the U.S. District Court, said he acknowledged that he had inadvertently lifted material from another writer in a law review article."

The ABA is probably undecided yet on whether or not to give O'Neill a unanimous NQ rating like it gave Michael Wallace earlier.

Given Obama's penchant for the "grand gesture," one can envision him trying to nominate a non-judge to the Supreme Court (as Clinton and Bush 43 tried, both with disastrous results!). Nominating a Deputy AG Kagan to the Supreme Court instead of a DC Circuit Judge Kagan would give her opponents one more piece of ammunition by being able to argue correctly that she's never been a judge. And Obama's people know that. The whole thing would be a moot point, though, since Kagan still would be confirmed easily to the SCOTUS, regardless of the job she was holding at the time of nomination. Even so, I still think Obama's team has an unwritten expectation of a Deputy AG holding that job for a reasonable amount of time (say, two years minimum), while there's historically been less of an expectation of how long a COA judge should serve before being nominated for the Supreme Court (e.g., both Souter and Thomas served for very short times as COA judges before being nominated for the SCOTUS). Given all this and given Kagan's young age, I now suspect Obama views her as a later nominee, rather than an earlier one. That's just my opinion, though, (worth exactly what everyone here paid for it!).

Either way, I very much agree that Obama has other DC Circuit candidates in mind. (Of course, besides the DC Circuit's two current vacancies, he'll get a few more vacancies in the next four years like possibly Karen Henderson, David Tatel, or Judith Wilson Rogers.) For the current two vacancies, I wouldn't necessarily assume he's considering Koh. I have a feeling he wants to diversify the DC Circuit differently, by adding a Hispanic and/or another African-American, and/or another woman. One could see Cass Sunstein and Teresa Roseborough, for instance, as Obama's first two nominees. (I don't automatically assume that Teresa's headed for the 11th Circuit; I could see Obama nominating her for the DC Circuit with the understanding that he eventually wants her on the SCOTUS so she may as well come to Washington now.) Or, he could pick Cass and Joseph Greenaway (DC is not far to relocate from NJ), or Cass and Leah Ward Sears (her husband has lived outside of GA before), or Cass and Martha Vazquez (less likely given her geography, but possible), or Cass and Adalberto Jordan (ditto). If Obama gives Cass a different job (say, running the OLC), one could even envision other white female DC Circuit nominees in the mix like Kathleen Sullivan or Beth Brinkmann.

I think Roseborough would most likely be nominated to the Second Circuit rather than either the 11th Circuit or the D.C. Circuit.

As regards the 11th, Roseborough no longer lives in Atlanta like she used to. She lives in New York City as a corporate lawyer. If nominated to the 11th, she would very likely be blue-slipped by Republican Georgia senator Johnny Isakson even if Saxby Chambliss loses his seat (which I don't think he will). On the other hand, I don't think Leah Ward Sears would have any problem being confirmed to the 11th. Sears probably would prefer the 11th anyway because she wouldn't have to move.

As regards the D.C. Circuit, I think Roseborough is much more likely to run into Republican opposition if nominated to the D.C. Circuit rather than if she was nominated to the 2nd. In the 2nd Circuit, she would be one of several really liberal judges and would be easily approved by New York's two Democrat senators. In the D.C. Circuit, she would be by far the most liberal judge. Although the Republicans might allow one raving liberal on the D.C. Circuit (i.e. Sunstein), hopefully they wouldn't allow two! After all, Roseborough is a founding member of the American Constitution Society.

That seems to be one of my roles at this site. In this case it seems appropriate since we've worked through the joyful news that the site will continue.

Also, one item could be talking about the possible implications/outcomes of the Cal. Supreme Court receiving three anti Prop 8 suits.

My opinion is that it would be outrageous (though not ultimately surprising?) to have that court overturn the will of the people re an amendment to the constitution as allowed under the same constitution!

A question: if one or more suits is/are upheld, would the SCOTUS accept an appeal?

If the California Supreme Court invalidates Prop 8 on grounds solely related to the California constitution, then the case cannot be appealed to the Supreme Court of the United States. The California justices are well aware of this fact, and therefore will be very careful about the grounds they use to overturn the proposition.

Before we all shove off to an open thread, I'd offer a few more thoughts on Roseborough, who clearly will get a COA nomination of some kind in 2009 or 2010:

--First, Roseborough only nominally lives in New York; it's true that her current job is there, but she doesn't actually own a home in NY (and I highly doubt she even votes there). She still owns her house in Atlanta, where her husband practices law, and I assume (although I don't know this for sure) that she commutes home on weekends. So it's my assumption that she's poised to either go back to Georgia for an 11th Circuit nomination or proceed (with her husband relocating) to DC for the SCOTUS (or a DC Circuit stint followed by the SCOTUS). As such, I'd guess that a 2nd Circuit nomination is far less likely; I'd have to believe that NY's senators would far prefer nominating someone who actually is a permanent resident and has lived New York for quite some time. You just don't hear a lot about carpet-bagging judges.

--Second, we still have no idea if Leahy will even follow the senatorial courtesy of honoring blue slips once Obama is president. Hatch really blew it by being inconsistent; he rigidly enforced blue slips under Clinton, but then he didn't always enforce them under Bush 43. As a result, Leahy has the perfect precedent to ignore blue slips whenever he wants (or all the time), including those in states with two Republican senators, and particularly if it's someone who Obama really wants (which I assume would be the case with Roseborough).

--Third, I agree with you that Sears probably would get less opposition from GA's senators than Roseborough. Of course, we should prepare for the possibility that Obama would nominate both Roseborough and Sears if 11th Circuit judge Stanley Birch takes senior status when he becomes eligible in 21 months.

--Fourth, while there's no doubt that Roseborough is liberal, was she really one of the ACS' founders? I know Roseborough is on the board of (and the former board chair of) the ACS, and I know you've mentioned that before in the comments of another post. However, my understanding was that the ACS was founded by Peter Rubin and David Halperin.

Thanks, BoBo!!

I wonder what Obama's "support" for Lieberman and footsie with Hillary for a Cabinet post signify for the courts, specifically SCOTUS and the higher profile COA's (4th, DC)?

I'm guessing he & Emanuel counted noses in the Dem caucus and didn't see a majority to strip Joe of his chair of HS (Senators do care more about each other than their own constituents 90% of the time), and decided a carefully worded leaked message that he wanted Joe to "caucus with the Dems" while not saying boo about the chair was the best play. Pretty smart.

Hillary as SoS is a huge gamble for Obama, IMO. It would, in theory, neutralize his two most dangerous (by far) internal foes (Hill & Bill). But I wonder if he truly knows how arrogant, ruthless & ambitious they both really are, not to mention they've been in this game a lot longer than he has, tho they did badly underestimate him early on.

I can't imagine Hillary accepting a major cabinet post without being granted wide latitude over policy & esp. staffing. She'd fill Foggy Bottom with PUMAs and old 90s relics. And I don't care what Willie says, he's not staying on message for long for anyone but himself.

Plus, Hill will never forgive Obama for winning the nomination, and Bill thinks he's a total lightweight. Very risky, but Obama will have to 'manage' the Clintons somehow (they sure ain't going anywhere anytime soon, and Chelsea's debut race can't be far off), esp. if Iraq drags on and the economy doesn't improve.

So, altogether I thinks this means Obama does not want Bork/Thomas/Estrada redux bloodbaths. He knows more about the Judiciary than any recent POTUS; maybe any POTUS, and all but a handful of recent WH officials. He certainly saw that RBG & Breyer delivered everything Cuomo & Babbitt would've, with none of the drama. He's also already shown that he's more than willing to ignore the kossacks when it suits him (kinda like the GOP and Evangelicals!).

And above all else, he wants to get re-elected, and he won't have W to kick around in '12 and the GOP can't run a worse campaign that this one, so he can't afford to alienate moderate & independents who are meritocrats & minimalists regarding judges. Plus, the most likely scenario is replacing Stevens in '11, which should be a drama free liberal-liberal swap, if he's smart.

My guess is this hopefully means no Koh or Patrick for SCOTUS. He's certainly going to do everything he can to get those new seats approved, and then get them all filled pronto. He'll give wide leeway to the homestate Sens in most cases, diversity will be paramount, and a fair number of Paez-Berzon types will get thru, esp on the district level. The GOP is really going to have to choose their battles carefully, and have a "In Harold Koh's America" speech ready.

But then again, if out of the blue the pelican flies off with Scalia or Kennedy, Obama may well decide it's worth it to use up a lot of capital to try and put a young Reinhardt up there.

But no use whistling through the graveyard, Obama will be a disaster for the Judiciary in any case, a simple point McCain stupidly failed to emphasize, tho W fatige & the economy likely made victory impossible regardless.

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

When I say "founders", I mean "initial members". My research indicates that Roseborough was one of the first members of the American Constitution Society, which was founded in the spring of 2001.

During October and November of 2001, she was speaking to new chapters of the ACS at the UNC and George Washington law schools:

http://apps.atlantaga.gov/citycouncil/2004/Images/Adopted/0301/04C0348.p...

At least by January 2002, she was on its Board of Directors. I would not be surprised if she was not on the original founding board of directors:

http://capitalresearch.org/pubs/pdf/x3759744771.pdf

After thinking about this overnight, I tend to agree with you that Roseborough might be nominated to the D.C. Circuit. After reviewing her resume, she does seem to have a lot of Washington D.C. connections. Besides serving in the Clinton Department of Justice, she was one of Al Gore's lawyers during the Florida recount in 2000.

I now wonder if Obama wants to name her and Cass Sunstein to the two open D.C. Circuit seats. His problem is that most Democrats feel that Elena Kagan deserves one of those seats because of the way she was treated by Senate Republicans when she was nominated during the Clinton years. That may be the reason why Obama is considering Kagan to be the Deputy Attorney General. Obama probably feels that he needs to compensate Kagan with a different government position.

If I was Kagan, I would refuse any offer to be in the Justice Department. I think there is enough liberal support for her out there that she could indirectly force Obama to name her to the D.C. Circuit even if he doesn't initially want to.

What I don't get is why Obama would want to abandon Kagan in the first place. I assume that it must be out of some sort of personal loyalty to Sunstein and whoever the other D.C. nominee might be. Sunstein was after all very helpful to Obama during his campaign. I don't know what personal or political hold a Roseborough or Koh might have over him.

I personally feel Obama would be foolish to overlook Kagan. I think she could be immediately confirmed to the D.C. Circuit without any uproar. Roseborough and Koh would both engender a lot more Republican opposition. In addition, since Kagan seems to be one of the "chosen" as a Supreme Court nominee, why not let her get some experience as a federal appeals court judge for a year or two first? Both Roseborough or Koh could easily wait for a third opening on the D.C. Circuit (after Kagan and Sunstein) to open up. Judith Rogers is eligible to take senior status next year and David Tatel soon after. Roseborough would demographically be a perfect replacement for Rogers. Both are African-American females. That might reduce Republican opposition to Roseborough to a certain degree. If Obama nominates her now, I think he is just picking a fight.

http://www.washingtonpost.com/wp-dyn/content/article/2008/11/20/AR200811...

"How contentious a role Republican senators and legal activists want in opposing Obama nominees, though, is itself controversial. Republicans have sharply criticized the way Democratic senators have treated Bush nominees, while Democrats contend that Republican senators started it when Clinton was president.

William K. Kelley, an associate professor of law at Notre Dame and a former deputy counsel to Bush, recommended detente to society members. "My own view is that Republicans ought not to escalate," he said.

But he had sobering words for the group that has recently seen its own elevated to the Supreme Court. If and when Obama has a chance to make an appointment, Kelley said, he will be able to place there "whomever he wants."

"That's what 58 or 59 votes in the Senate does for you," said Kelley, referring to the size of the Democratic caucus in the 100-member body."

If we are going to get them, my guess is that it's going to come sooner rather than later while Obama has the press and popularity on his side.

Obama is no FDR or Reagan. Economic conditions of the country will slowly dethrone him, and he'll lose his political power.

Nobody is going to open the 14th amendment can of worms regarding gay marraige. Kennedy definitely won't go for it, and frankly, I don't think anyone other than Ginsberg would.