ConfirmThem

http://www.law.com/jsp/article.jsp?id=1202433630111

"A soon-to-be-published memoir by a friend of the late Chief Justice William Rehnquist offers a revealing personal glimpse of the justice's later years, including his handling of the impeachment trial of President Bill Clinton in 1999, the Bush v. Gore case of 2000 and Rehnquist's own unsuccessful battle with cancer in 2004 and 2005.

The author is former newspaper publisher Herman Obermayer, who lived with his wife near Rehnquist in Arlington, Va., and either played tennis, dined or watched a movie with Rehnquist nearly every weekend in the years after Rehnquist's wife died in 1991."

"That narrative casts Rehnquist in a more favorable light than some Court historians who have suggested that, in June 2005, he knew how bad his cancer was but still tried to persuade his colleague and longtime friend O'Connor to retire first by implying he would stay on the Court another term. Both wanted to avoid leaving the Court at the same time.

As it turned out, O'Connor announced on July 1 that she would retire, and then Rehnquist's thyroid cancer worsened and he died on Sept. 3.

"I absolutely believe he thought he would beat the cancer" until a negative report came from his doctor on July 30, said Obermayer. "Why would he con me or Justice O'Connor?""

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/05/AR200909...

"THE CASE of former Supreme Court justice David H. Souter shows why the country needs a sensible and formal policy on how justices preserve and disseminate material they produce while performing their public duties.

Justice Souter agreed last month to donate his personal and professional papers to the New Hampshire Historical Society in his home state. But he ordered that they be off-limits to the public, including academic researchers, historians and journalists, for 50 years from the date of his retirement -- or until 2059. This restriction is excessive and puts Justice Souter's records out of reach for two generations, making it that much harder to fully and accurately assess his work and impact on the court."

"It's reasonable to allow a grace period between a justice's retirement and the public release of papers. Such a lag should help ensure against disclosures about pending matters and lawyers' use of very recent information that could tip them off to the thinking of justices still on the court. The Brownell Commission, which studied the issue in the 1970s, recommended that justices' working papers be deemed public property and made available to the public 15 years after a justice's retirement. Congress took up the matter in 1993, after the controversial release of the papers of the late Justice Thurgood Marshall. Then-Chief Justice William H. Rehnquist, in response to an invitation to address lawmakers, wrote that legislation was "not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." Nothing ever came out of the hearings.

The best way to avoid concerns is for the Judicial Conference of the United States, the policymaking body for the federal judiciary chaired by Chief Justice John G. Roberts Jr., to take the lead in establishing guidelines for justices and all federal judges. But if the judiciary cannot or will not act, Congress should."

This week there will be a hearing for Joseph Greenaway (3rd circuit) and 3 district judges.

Check:
http://judiciary.senate.gov/hearings/hearing.cfm?id=4039

And the Judiciary Committee might vote on Beverly Baldwin (11th circuit) and 1 district judge.

I think it is the first time that these names appear on the agenda, so they might be held over for a week.

http://judiciary.senate.gov/hearings/hearing.cfm?id=4041

http://legaltimes.typepad.com/blt/2009/09/without-gop-support-leahy-push...

"The partisanship surrounding the federal judiciary briefly melted away last Congress when Democrats and Republicans supported a bill to increase the number of judgeships. This year, the polarization is back.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced legislation Tuesday that would add nine permanent seats to the circuit courts and 38 to the district courts. It would also add some temporary judgeships on both levels, make five temporary judgeships permanent, and extend a temporary judgeship in the Northern District of Ohio.

The bill has 17 cosponsors — all Democrats. Last year, a similar bill from Leahy drew 21 cosponsors, including six Republicans. Sen. Orrin Hatch (R-Utah), a former Judiciary Committee chairman, was among the earlier supporters.

A major reason for the change is the new bill’s effective date. It would become law immediately after passage, giving President Barack Obama more opportunities to influence the next generation of the judiciary. The previous bill, introduced in March 2008 well before the November election, would have taken effect Jan. 21, 2009, the day after the new president’s inauguration.

Hatch, for one, would consider cosponsoring the bill again if the effective date were changed to Jan. 21, 2013, a Republican aide said today.

But Democrats contend that a postponed effective date has been the exception, not the rule, for proposals of this kind. The last comprehensive bill was in 1990, when a Democratic Congress and a Republican president agreed on an immediate increase. Other bills since then also would have been effective immediately — including bills that Hatch sponsored in 2000 and 2003.

“These additional judgeships would help to alleviate the significant increase in caseloads that the federal courts have seen over the nearly two decades since the last comprehensive judgeship bill was enacted,” Leahy said in prepared remarks Tuesday.

Another obstacle facing Leahy’s bill: the fact that there are 93 current vacancies. Republicans are likely to demand that Obama fill those before they agree to create more judgeships, though that task will of course be made more difficult because GOP senators are opposing some of Obama’s nominees."

http://blogs.cqpolitics.com/legal_beat/2009/09/leahy-introduces-bill-to-...

"Senate Judiciary Chairman Patrick J. Leahy dropped a bill today that would create dozens of new appellate and district court judgeships.

"After years of debate and federal courts struggling to adjudicate cases despite the overwhelming burden of heavy caseloads, the time to enact a comprehensive federal judgeship bill is long overdue," Leahy said.

The legislation would establish four new judgeships on the 9th Circuit; two on the 2nd Circuit; and one judgeship each in the 1st, 3rd and 6th Circuit courts. It would create one temporary slot on the 3rd, 8th and 9th Circuit benches. The bill also would establish 38 permanent new district court seats across the country.

The last major legislation on federal judgeships was enacted in 1990. And it could be a while longer before the next one is signed into law. Senate Republicans are not likely to allow legislation giving President Obama a whole bunch of new federal court seats to fill to get through the chamber without a fight."

The motion for cloture on Cass Sunstein's nomination to be Administrator of the Office of Regulatory Affairs at the Office of Management and Budget passed late today, 63-35:

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm...

As banal and mundane (and obscure) as Cass' future title sounds, it's actually a powerful role in the Obama administration, as most of you know (and obviously Cass is one of Obama's pals). A couple of things worth noting about today's vote, particularly as they relate to the judicial world:

--The Senate right now only has 98 members, until Mel Martinez's replacement, George LeMieux, is sworn in. As a result, for the moment, actually only 59 votes are needed for cloture. That said, I'd be surprised if one vote were the difference between passing cloture motions for any of Obama's pending COA (or district judge) nominees; David Hamilton is the most controversial of the three, and even he probably has 63 or 64 Senate votes for cloture awaiting him.

--There weren't that many Republican surprises in crossing the aisle to vote for cloture (probably the biggest surprise would be Sen. Bennett of Utah -- also, Hatch voted for it as well, further proving his bona fides in desiring up-or-down votes on nominees). Some of the more notable "Nays" on both sides of the aisle were Sens. Webb, Pryor, Lincoln, Graham and Alexander.

--Cass probably will be confirmed tomorrow or the next day by a similar margin (assuming there's a roll call vote, and there might not be; there wasn't one after the cloture vote on the nomination of now-Census Director Robert Groves). I predict Cass will be confirmed 61-37.

--Today's vote was a good proxy for a Sunstein nomination to the SCOTUS. And, it's an interesting test of the Senate's reaction in general to "czars," particularly post-Van Jones.

--Partway through this comment, I see that Politico just uploaded an article about the Sunstein cloture vote. It's here:

http://www.politico.com/news/stories/0909/26930.html

That's what Sen. Charles Schumer told reporters in a statement:

http://www.google.com/hostednews/ap/article/ALeqM5jq0aGogELI-cbjtqhPAuDe...

Most everyone knows Chin as the Bernie Madoff trial judge. Clinton appointed him to the trial court in '94. Based in Manhattan, he'd replace Sotomayor or Parker or Sack.

For the record, back on August 7, I predicted Chin as a likely 2nd circuit COA nomination:

http://www.confirmthem.com/sotomayor_confirmation_vote_will_probably_be_...

Here's Chin's bio:

http://www.fjc.gov/servlet/tGetInfo?jid=421

If Chin is nominated, and he probably will be, that will be another Clinton district court judge that Obama has selected for a COA slot. He obviously doesn't want to rock the boat with any of his choices. The only non-district judge he has chosen is Stranch for the 6th Circuit, and she could conceivably be his most controversial.

http://www.nytimes.com/2009/09/10/nyregion/10chin.html

"Denny Chin, a federal district judge in Manhattan who has been involved in a number of prominent decisions, including the sentencing of Bernard L. Madoff to 150 years in prison for his huge Ponzi scheme, is expected to be nominated by the White House for a prestigious appellate judgeship in New York, according to the office of Senator Charles E. Schumer.

Mr. Schumer’s office said that the nomination is expected in the coming months, in time to be confirmed by the Senate before it recesses later in the year."

"Judge Chin, 55, would become the sole Asian-American to fill an active judgeship on a United States Circuit Court of Appeals. (Judge A. Wallace Tashima of the Ninth Circuit has taken senior status, a sort of semi-retirement.)"

Today the Judiciary Committee reported the following nominations:

Beverly Baldwin Martin to be United States Circuit Judge for the Eleventh Circuit
Jeffrey L. Viken to be United States District Judge for the District of South Dakota

This afternoon the new senator from Florida will be sworn. So the number of senators needed for cloture (see post #7) will be 60 again.

I was off by a few votes! I think this is easily the lowest confirmation vote total of anyone in any position whom Obama has nominated so far. Can anyone think of anyone else who has garnered less than 60 votes for anything? I can't.

That's what the Baltimore Sun is saying:

http://www.baltimoresun.com/news/maryland/politics/bal-md.davis11sep11,0...

"New talks are under way that should finally clear the way for the confirmation of federal Judge Andre M. Davis of Baltimore to the long-vacant " Maryland seat" on a federal appeals court, Senate sources said Thursday.

Democratic and Republican Senate leaders have been negotiating the exact timing of confirmation votes on several of President Barack Obama's judicial nominees, including Davis. A deal could be reached by early next week, clearing the way for quick confirmation by the full Senate, a Senate staffer said.

Davis' confirmation is a foregone conclusion, once his nomination makes it to the Senate floor. The 60-year-old Baltimore native was approved by a bipartisan majority of the Senate Judiciary Committee in early June.

For months, Republicans stalled action on Obama's judicial picks, saying they needed to devote their attention to the nomination of Supreme Court Justice Sonia Sotomayor.

Obama nominated Davis, 60, more than five months ago to a seat on the 4th U.S. Circuit Court of Appeals in Richmond, Va. President Bill Clinton picked Davis for the seat in late 2000, but the nomination died as Clinton's term ended.

The vacancy that Davis was twice picked to fill is now in its 10th year. Judge Francis D. Murnaghan Jr., for whom Davis once clerked, died in August 2000, and politics has prevented his seat, traditionally held by a Marylander, from being occupied ever since.

Senate Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, said this week that the Senate needed to do a better job of moving Obama's judicial nominees to courts around the country, including Davis.

Obama has made 17 lifetime nominations to the federal bench, and the Senate has not confirmed a single one other than Sotomayor, Leahy pointed out.

"Judge Andre Davis' nomination to the 4th Circuit was reported by the [Judiciary] Committee on June 4 by a vote of 16-3," said Leahy. "We should not further delay Senate consideration of [this] well-respected, mainstream" judge.""

I think 60 votes are required for cloture even if some seats are vacant. Didn't Byrd get it changed from 2/3 to a fixed 60 a generation ago when the Dems had around 2/3 and appeared to be the party that would dominate forever?

Perhaps the approval vote for Sunstein was more a barometer of a future SC vote for him than the cloture vote was. We can only hope...

What is the truth about this hunting ban and 'animals need legal representation' thing?

I cannot believe he would be a serious candidate for the SCOTUS if there is any reality there.

Yet another George H. W. Bush-appointed COA judge is taking senior status. This time, it's Judge Stanley F. Birch, Jr. on the 11th Circuit, based in Atlanta. Judge Birch plans to take senior status on his 65th birthday -- 8/29/2010. That's a long way off! Still and all, it will give Obama the weird distinction of getting to fill two seats on the 11th Circuit in less than two years, when Bush 43 only had one 11th Circuit vacancy to fill during his entire eight years as president!

A few possible names to fill this vacancy (which, admittedly, is one that the White House probably won't be focusing on for a long, long time, given all the other judicial vacancies out there right now): Georgia-based US District Judges Thomas Thrash and Richard W. Story, Leah Ward Sears (of course), and Teresa Wynn Roseborough. My money, though, is on Judge Story.

Here is the latest update on total COA vacancies for Obama, including both current vacancies and announced vacancies:

1st Circuit - 1 (no formal nominee; one expected nominee)
2nd Circuit - 5 (1 formal nominee; one expected nominee)
3rd Circuit - 2 (2 formal nominees)
4th Circuit - 5 (1 formal nominee; one expected nominee)
5th Circuit - 1 (no formal nominee)
6th Circuit - 1 (1 formal nominee)
7th Circuit - 2 (1 formal nominee)
8th Circuit - 0
9th Circuit - 3 (no formal nominees)
10th Circuit - 1 (no formal nominee)
11th Circuit - 2 (1 formal nominee)
Federal Circuit - 1 (no formal nominee)
DC Circuit - 2 (no formal nominees)

Total current and announced COA vacancies - 26, with 7 formal nominees and 3 expected nominees.

COA judges clearly are taking (or announcing) senior status (and in the case of Williams, resigning) a lot faster than Obama is replacing them (I guess technically, by an infinitesimal amount, since he hasn't had ANY COA judges confirmed yet!). Since Obama was sworn in, fully 10 COA judges, I believe, have resigned or taken (or announced) senior status: Schall, Birch, McConnell, Hawkins, Evans, Karen Williams, Barrington Parker, Sotomayor, Sack, and Calabrese. That's 10 current or upcoming vacancies announced in less than eight months.