ConfirmThem

*Curt, for the article; and
*Quin, for the analysis.

Let's see what happens....

*Curt, for the article; and
*Quin, for the analysis.

Let's see what happens....

duplicate post and this post. Thanks.

Courtesy of How Appealing,

http://www.nytimes.com/2009/02/01/weekinreview/01liptak.html?partner=per...

"The vacancies that are likely to open up in the early years of the Obama presidency will, if the conventional wisdom holds, arise from the retirements of one or more of the court’s liberals — Justice Stevens, Justice Ginsburg or Justice David H. Souter.

If that is so, Mr. Obama will not be able to put a new liberal vote on the court. But he can, if he wants to, add a big liberal voice.

“A really powerful, articulate, moral, passionate voice on the left,” said Geoffrey Stone, a law professor at the University of Chicago, “would really change the dynamic on the court. It would pull the other justices who are inclined to be sympathetic to that voice in that direction. It would shift the center of the discussion — about what’s the middle.”"

Judiciary to Test Post-Partisanship

http://www.rollcall.com/issues/54_81/news/31930-1.html

"President Barack Obama’s stated goal of changing Washington’s partisan ways is likely to face its biggest test once the new Democratic chief executive gets around to nominating judges for the federal bench."

Does anyone have the full article?

http://legaltimes.typepad.com/blt/2009/02/kagan-joins-supreme-court-bar....

"When Elena Kagan was named Jan. 5 as the new administration's pick as solicitor general, we and others noted she was not a member of the Supreme Court bar -- a reminder that she has never argued before the high court, or any appellate court for that matter. When she submitted her questionnaire to the Senate Judiciary Committee late last week, however, she indicated she is a member of the Supreme Court bar -- as of 2009.

Court officials today confirmed that Kagan was admitted Jan. 12 on a written motion by Thomas Goldstein, co-head of litigation and Supreme Court practice at Akin Gump Strauss Hauer & Feld in D.C. Goldstein declined comment."

http://www.law.com/jsp/scm/PubArticleSCM.jsp?id=1202427976528

"But why can't an administration show a different face to the Court when the White House changes parties?

Retired Deputy Solicitor General Lawrence Wallace, a modern-day custodian of the office's traditions, harrumphs at the question. "You don't file a brief that says, 'There's been an election, and there's a change in jurisprudence!' " says Wallace, who lived through transitions since arguing his first case in 1968. "The Court is very reluctant in its approach to the law to blatantly follow the election results back and forth."

The Court relies on the solicitor general, Wallace says, for an honest assessment of the meaning of laws and the impact of cases on government programs and on society -- an assessment that does not depend on who won the election and who appoints the solicitor general.

Yet even Wallace acknowledges that there are ways a new solicitor general can change course -- slightly. The SG makes hundreds of strategic decisions about which lower-court decisions the government should or should not appeal to the Supreme Court, which can accelerate -- or derail -- an issue and help shape the Court's docket to an administration's taste.

But when a case is granted and the Court looks to the solicitor general's office for its measured views, says Wallace, "The dialogue is with the Court. And the Court has traditions that have to be honored.""

http://legaltimes.typepad.com/blt/2009/02/judiciary-committee-to-host-ka...

Kagan and Perrelli hearings scheduled for Tuesday, February 10.

Also, the SJC has posted completed questionnaires from Kagan and Perrelli here:

http://judiciary.senate.gov/nominations/SolicitorGeneral-ElenaKagan.cfm

If you get a moment, read the letter supporting her from Miguel Estrada. It's a good read.

http://www.slate.com/id/2210361/

"My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing."

http://writ.news.findlaw.com/commentary/20090204_tobias.html

"First, Obama should embrace bipartisanship and reject the counterproductive dynamics that have troubled the selection process. In particular, the President should solicit guidance on candidates from North Carolina's Senate members, Kay Hagan (D) and Robert Burr (R), prior to formal nomination. The senators have privately discussed the empty judgeship and have agreed that the deadlock must end. Both have promised to cooperate with the new President and each other. Burr expressed hope that there would be a fair process for analyzing candidates and described judicial selection as a field in which Democrats can reach across the aisle. A nominee acceptable to both Hagan and Burr will enjoy a powerful advantage.

To fill this vacancy and others, the administration ought to submit consensus nominees, who are smart, industrious, ethical, and independent, in addition to possessing balanced judicial temperaments. And, as with the Fourth Circuit spot, bipartisanship should always be part of the process. The story of how this seat remained empty under both Clinton and Bush is a cautionary tale about partisan judicial selection."

http://www.rollcall.com/news/32027-1.html

"President Barack Obama assured Senate Judiciary Committee ranking member Arlen Specter (R-Pa.) that he does not want the looming judicial nominations process to become bogged down in the kind of partisan fighting that marked most of former President George W. Bush’s nominees and will tap individuals who he hopes can garner GOP support."

Does anyone have the full article?

http://blogs.cqpolitics.com/legal_beat/2009/02/leahy-coy-on-blue-slip-po...

"Senate Judiciary Committee Chairman Patrick J. Leahy is being coy about whether he will keep honoring an informal committee tradition that would allow Republican senators to block some of President Obama's judicial nominees quietly, without resorting to a filibuster. At issue is the committee's "blue slip" policy, whereby nominees for appellate and district courts do not advance without the approval of both home state senators. The practice, named for the color of the paper that senators use to signal their approval or disapproval of nominees dates back to at least 1917.

But it is up to the committee chairman to decide whether and how to observe the practice, and different chairmen have done it differently. Leahy honored the tradition during the last Congress, when a Republican was in the White House. But he might be having a change of heart now. "I intend to look very carefully at it," Leahy said in an interview Tuesday.

There are 27 with at least one Republican senator, and 14 of those states have two GOP senators.

If Leahy decides not to observe the blue slip practice as scrupulously as he did for the last two years, there could be a dramatic impact, particularly on appellate courts. For example, of the four vacancies on the conservative 15-member 4th Circuit, President Obama ostensibly will nominate one candidate from North Carolina (one Republican senator) and one from South Carolina (two Republican senators). Then again, Leahy did not move a South Carolina nominee to the 4th Circuit in the 110th Congress either, even though both of South Carolina's Republican senators supported the nominee.

Republicans can always use Leahy's own rhetoric against him, if he backs away from the blue slip policy now.

In 2003, Leahy railed against the practice of the then-chairman of the Judiciary Committee, Utah Republican Orrin G. Hatch, of moving President Bush's appellate nominees without the approval of both home state senators. That was a change of pace for Hatch, who had observed the blue slip tradition while leading the committee during the Clinton administration.

"The Republican majority has shown a corrosive and raw-edged willingness to change, bend and even break the rules that they themselves followed before when the judicial nominees involved were a Democratic president's choices, instead of a Republican president's choices," Leahy said in a prepared statement for a Judiciary nominations heearing in 2003."

http://blogs.cqpolitics.com/legal_beat/2009/02/leahy-cool-to-bush-holdov...

"Sen. Patrick J. Leahy, D-Vt. sounded unenthusiastic Tuesday about recycling any of the last administration's judicial nominees.

"President Bush was taken very good care of," said Leahy, the chairman of the Senate Judiciary Committee.

That's not how conservatives see it. They blame Leahy for slow-walking many Bush nominees who never got confirmed and have suggested President Obama should resubmit a couple of President Bush's nominees as a gesture of bipartisanship.

Arlen Specter, R-Pa., the Judiciary Committee's ranking member took up the cause last week in a letter to Obama.

Supporters of the idea have cited the precedent they say President Bush set at the beginning of his first term when he resubmitted his predecessor's nomination of Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit.

But Leahy says that it was Virginia's two Republican senators, John Warner and George Allen, rather than President Bush who pressed Gregory's nomination."

http://blogs.cqpolitics.com/legal_beat/2009/02/leahy-cool-to-bush-holdov...

"Sen. Patrick J. Leahy, D-Vt. sounded unenthusiastic Tuesday about recycling any of the last administration's judicial nominees.

"President Bush was taken very good care of," said Leahy, the chairman of the Senate Judiciary Committee.

That's not how conservatives see it. They blame Leahy for slow-walking many Bush nominees who never got confirmed and have suggested President Obama should resubmit a couple of President Bush's nominees as a gesture of bipartisanship.

Arlen Specter, R-Pa., the Judiciary Committee's ranking member took up the cause last week in a letter to Obama.

Supporters of the idea have cited the precedent they say President Bush set at the beginning of his first term when he resubmitted his predecessor's nomination of Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit.

But Leahy says that it was Virginia's two Republican senators, John Warner and George Allen, rather than President Bush who pressed Gregory's nomination."

Judiciary to Test Post-Partisanship

By David M. Drucker
Roll Call Staff

February 2, 2009

President Barack Obama's stated goal of changing Washington's partisan ways is likely to face its biggest test once the new Democratic chief executive gets around to nominating judges for the federal bench.

Judicial nominations — a flash point between Senate Democrats and the Bush administration that brought the chamber to a near-standstill more than once — remain contentious. Unlike the principled and respectful disagreement over Obama’s economic stimulus package, Senate Republicans acknowledge that the battle over Obama’s court picks could go nuclear.

Sen. Lindsey Graham (R-S.C.), a member of the bipartisan "Gang of 14" that worked during then-President George W. Bush’s tenure to find compromise on stalled judicial nominees, said Obama's court selections will be approved as long as the Republicans don’t follow the example Obama set as a Senator.

"If we follow his lead, he'll be in trouble, because he participated in the filibuster and was not very forthcoming with his vote when it came to judicial nominations," Graham said in an interview. "I hope, because I was part of the Gang of 14, we can find a process that will get mainstream people through the system — obviously it wouldn't be people I would pick — that are qualified, not idealogues.

"However, if they go hard left, there will be a problem."

The reason some Republican Senators are girding for a fight stems from their perception of how Senate Democrats — whether in the minority or majority — treated Bush’s judicial nominees during his eight years in office. That battle included repeated Democratic filibusters of particular nominees, to the point where Republicans considered eliminating the parliamentary tool from the Senate rules altogether.

The Gang of 14 intervened, however, and negotiated a compromise whereby the filibuster remained intact in exchange for up-or-down votes on a series of Bush’s court picks.

Republicans believe the Democrats often blocked well-qualified, mainstream nominees, falsely labeling them as idealogues, simply to prevent Bush from filling court vacancies with philosophically center-right judges who believe in interpreting the Constitution as opposed to legislating from the bench.

Democrats reject that characterization, contending they were far more generous to Bush then the Republican Senate majority was to then-President Bill Clinton from 1995 to 2000. Based on conversations he's had with the president and administration officials, Senate Judiciary Chairman Patrick Leahy (D-Vt.) said he doesn’t expect major problems in confirming Obama's judicial nominees.

"What [Obama] wants to do is get away from what the Bush administration did. They wanted to politicize the federal bench," Leahy said. The Obama administration "wants to have the best federal bench possible, and get it out of being a political bench, like it was with Bush."

Republicans recognize that with just 42 Members at best, depending on the outcome of the delayed Minnesota Senate race, they do not have the numbers to regularly sustain filibusters of Obama's judicial nominees. GOP leaders are not inclined to pick a fight with Obama or draw some sort of line in the sand before the president has made his first nomination or revealed his approach to confirmations.

One senior Republican Senate aide said Obama could help pave the way for a friction-free process by offering an olive branch to the Senate GOP Conference, such as re-nominating a few of Bush's court nominees who failed to win approval before the Republican's second term ended last month.

Among the nominations that could smooth things over with Republicans are Glen Conrad, who Bush picked to serve on the 4th Circuit Court of Appeals, Paul Diamond, nominated to the 3rd Circuit, and Peter Keisler, nominated to the influential D.C. Circuit. Bush, this senior GOP aide said, re-nominated previous Clinton picks after he took office in 2000.

But it's Obama and his approach to judicial nominations and the confirmation process that will ultimately determine whether the president's hope for a less partisan Washington materializes, argue the Republicans. The White House did not respond to a request for comment on Friday.

"We're looking forward to working with the White House," said Sen. John Cornyn (Texas), who is chairman of the National Republican Senatorial Committee, a member of the Judiciary Committee and often at the forefront of judicial issues. "We're going to expect a negotiated procedure with the White House because we can stop nominees by not returning a blue slip," an opinion on a nominee from his home-state Senator.

If Obama consults with Republicans before dropping a nomination on the Senate — and if he selects judges with a history of "interpreting" the Constitution — the GOP Conference is likely to back the president's picks, even if they are philosophically center-left, GOP Senators say.

Republicans argued that should Obama nominate individuals whom the Republicans deem as having a record of "legislating from the bench" and treating the Constitution as a "living, breathing" document, parliamentary tools such as blue slip holds could be employed to block confirmation.

Sen. Arlen Specter (R-Pa.), ranking member on the Judiciary Committee, said he does not believe in filibustering nominees and plans to keep an open mind, but he indicated a certain type of judge could cause him to hold things up.

"We're going to closely examine the nominees — intend to ask pointed questions and do our best to determine qualification," Specter said. "Qualified means you interpret the law, you don't act as a super legislature."

Republicans interviewed, including Sen. Orrin Hatch (Utah), acknowledged the desire for payback among some GOP Senators for how Democrats, in their view, treated Bush's nominees during his two terms, although they insist those sentiments are unlikely to drive how the Conference treats Obama's picks.

However, a few Republican Senators, not to mention the GOP-aligned activist groups, are not the only potential problems that Obama faces as he begins to consider his nominations to the federal bench.

Democratic Senators who hail from conservative-leaning states — which there are considerably more of after the Democrats picked up 13 Senate seats over two election cycles — might also present a problem for the new president.

Sen. Ben Nelson (Neb.), a moderate from a decidedly Republican state who was often one of the few Democrats to support Bush's nominees even as his Conference was almost universally opposed, said what he looks for in a judge hasn't changed simply because he now shares the same political party as the president.

"I don't want activist judges," Nelson said. "Maybe you provide some deference for the Cabinet members. I don't think you provide deference for judicial appointments. They're lifetime appointments."

Specter: Obama Wants to Avoid Partisan Fights on Judges

By John Stanton
Roll Call Staff

February 3, 2009, 7:05 p.m.

President Barack Obama assured Senate Judiciary Committee ranking member Arlen Specter (R-Pa.) that he does not want the looming judicial nominations process to become bogged down in the kind of partisan fighting that marked most of former President George W. Bush's nominees and will tap individuals who he hopes can garner GOP support.

During a private meeting at the White House on Tuesday morning, Specter raised the issue of judicial nominations with Obama, urging the new president to take a bipartisan approach.

The first of Obama's judicial picks could be months away — new administrations have historically waited until mid-spring before beginning the lengthy and politically charged process of confirming judges. But after nearly eight years of often-bitter partisan wrangling over Bush's nominees, Specter has already begun pressing Obama to take a bipartisan approach.

Specter said he and Obama had a brief discussion on the topic of judges during which they "talked about bipartisanship and getting judges that would be acceptable to all sides."

Although Specter said he did not ask Obama to float potential picks to Senate Republicans before formally nominating them, Obama did tell Specter that he would look to pick candidates that will be acceptable to Republicans and Democrats alike.

"He's looking for judges that can get Republican support. He's not looking to ram through his judges," Specter said.

The meeting came on the heels of a letter that Specter sent Obama last week urging the new White House to avoid overly partisan judicial picks and to tap at least some of Bush's nominees who did not make it through the confirmation process.

http://www.connpost.com/ci_11599098?source=most_viewed

"'Congress voted themselves a raise this year, but they continue to treat federal judges as if they were second-class citizens," said Nevas, who turns 81 in March. "What they are doing is unfair and unrealistic.'

So, late Friday afternoon, Nevas hung up his black judicial robe for good."

Folks, what's this I'm hearing?

I wish RBG well. It is a small tumor at the center of her pancreas.

I meant to post this yesterday. It is from a very reliable source who received it from very reliable sources.

Just learned about this. Elena Kagan is openly gay and is
> being> nominated for Solicitor General as a run up to appointing> her to replace> Ginsberg on the Supreme Court when Ginsberg retires.
> >
> One thing they are saying about her is that she has never
> litigated a case and she is being nominated for Solicitor General (the person who represents the United States before the U.S. Supreme> Court). They are going to nominate her for Solicitor General so that they> can say she was
> already vetted when Obama appoints her to replace Ginsberg.
>
She is now dean of Harvard Law School. Since she is openly gay, they want to slide her through now and then say she was fully vetted so no one asks too many questions about her when she is appointed to the Supreme Court later.

That's what the Yale Daily News is reporting:

http://yaledailynews.com/articles/view/27504

"Yale Law School Dean Harold Hongju Koh is a leading contender to be appointed legal adviser to the Department of State, two people familiar with the selection process told the News.

In that position, Koh — a former assistant secretary of state and a leading expert on international law — would serve as principal counselor on all legal matters to Secretary of State Hillary Rodham Clinton LAW ’73.

Rumors have swirled for months around the Law School and in Washington, D.C., that Koh, whose five-year term as dean ends in June, might leave Yale to serve again in government. Koh, however, has repeatedly dismissed talk about a possible appointment as pure speculation.

When asked to confirm Wednesday that he was being considered for a post in the Obama administration, Koh initially declined to comment through a spokeswoman. Koh also declined to comment when asked if he would say, unequivocally, that he would not leave the Law School this year for a government appointment."

[Notes: Oncology doctor on Fox News confirmed it was early stage. This would put her, I guess, within the 5% of those who live for at least 5 more years. The doctor further said she thinks RBG will receive chemo, but not radiation. The article suggests that both will happen. Again, I wish her well.]

Ginsburg is hospitalized with pancreatic cancer

Feb 5 01:42 PM US/Eastern

Cancer Caught In Early Stages

WASHINGTON (AP) - Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.
Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.

The court announcement said the cancer is apparently in the early stages.

In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment. The only woman on the court, she has been a justice since 1993.

The pancreatic cancer was discovered during a routine, annual exam late last month at the National Institutes of Health in Bethesda, Md.

A CAT scan revealed a tumor measuring about 1 centimeter across the center of the pancreas, the court said.

Pancreatic cancer is one of the most deadly cancers: Nearly 38,000 cases a year are diagnosed and overall, fewer than 5 percent survive five years.

The reason: Fewer than one in 10 cases are diagnosed at an early stage—like Ginsburg's appears to be—before the cancer has begun spreading through the abdomen and beyond. That's because early pancreatic cancer produces few symptoms other than vague indigestion.

Even when caught early, surgery for pancreatic cancer is arduous. Doctors typically remove parts of the pancreas, stomach and intestines. Radiation and chemotherapy are common after surgery.

Ginsburg has recently told her former law clerks and others that she envisioned serving on the court into her 80s, although those comments were made before the latest diagnosis.

Ginsburg is one of only two female justices ever. The other is Sandra Day O'Connor, who retired in 2006.

In her previous bout with cancer, Ginsburg received treatment throughout the court's term and never missed a day on the bench.

The justices, in the midst of a winter break, hold their next private conference on Feb. 20 and return to the bench on Feb. 23.

The court's announcement offered few details about the surgery. Brennan is a renowned surgeon whose expertise is treatment of pancreatic cancers and tumors on other soft tissues, like the adrenal and thyroid glands. He was chair of Memorial Sloan-Kettering's surgery department from 1985 until June 2006.
Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

With Specter — the top Republican on the Senate Judiciary Committee — Obama apparently aimed to establish his bipartisan bona fides by talking about judicial nominees. It’s an area of keen interest for both men; Specter wants Obama to renominate some of Bush’s nominees, while Obama is interested in toning down the partisan rhetoric surrounding presidential picks for the federal bench.

http://www.politico.com/news/stories/0209/18569_Page2.html