ConfirmThem

Courtesy of How Appealing:

http://online.wsj.com/article/SB122835767216478251.html

"Seventy-five years ago Friday, voters ratified the 21st Amendment to the U.S. Constitution and officially ended Prohibition -- a 13-year experiment as a "dry" country.

What does that mean today -- other than the legal distribution, manufacture and sale of alcoholic beverages? The introduction of Prohibition and its eventual repeal show that the Constitution is, as it was intended to be, a malleable document that can be modified when the public demands it."

Thanks for the answer re clerks in the previous thread. While it's interesting, hasn't it been shown that they aren't necessarily indications of possible retirements or continuing on the court?

I think Fox News did a report on SCOTUS having a conference on this matter. CNN had a slanted report (against the suit), but at least they reported it.

Using the number of hired law clerks as an indicator of imminent retirement as far as I know originated with Sandra Day O'Connor's retirement. Several accurately predicted her retirement because she only hired three instead of four clerks for the 2005-2006 term. See the following blog post from May 2005 as an example:

http://bluemassgroup.typepad.com/blue_mass_group/2005/05/another_indicat...

Didn't I read somewhere that justices will continue to hire clerks even when they know they're going to retire because (a) they never know for sure and don't want to be caught unprepared in case they change their mind; and (b) their clerks don't mind because of the prestige associated with being selected, and the new justice might retain them (as Alito did). I'll bet Souter hires some clerks before long, even if he intends to retire. We'll probably still be guessing by the time the end of June rolls around.

Classic

I hope you don't mind if I piggyback on BoBo's fine comment. I think in Souter's case in particular, not hiring clerks yet for 2009-2010 is a very leading indicator. Based on what has been written about Souter, he seems like the kind of incredibly practical fellow who wouldn't want to lead on future clerks with false pretenses of him remaining on the court for a time period in which he wouldn't be working (full-time, at least). And if you couple his clear lack of interest in D.C. with Souter's practical personality, I think it's a pretty high likelihood that, with what we know now, Souter will step down next year.

Let's just see if it happens. If nothing else, it'll keep us limbered up in the hot stove SCOTUS retirement league at least through the end of June and into July!

From How Appealing:

http://www.boston.com/news/politics/politicalintelligence/2008/12/source...

"Senator Edward M. Kennedy said today he will step down from his post as a senior and powerful member of the Senate Judiciary Committee when the new Congress convenes so he can concentrate on healthcare reform.

Kennedy, who is battling an aggressive brain tumor, said he is determined to return to the Senate in January to work for passage of universal healthcare coverage, which he has been advocating for most of his 46-year career in the Senate."

"Kennedy is also honoring a request by Senate Majority Leader Harry Reid of Nevada, who asked Democratic caucus members last month to give up some of their committee assignments to make room for the eight new Democrats elected to the Senate in November."

http://www.cqpolitics.com/wmspage.cfm?parm1=5&docID=news-000002993896

"In the 110th Congress, the committee had 10 Democrats and nine Republicans. That ratio may change, given the increased size of the Senate Democratic majority. [Besides Kennedy,] Vice President-elect Joseph R. Biden, Jr., D-Del., was another senior Democrat on the panel.

Leadership aides have said negotiations between Reid and Minority Leader Mitch McConnell over how many more seats Democrats get on committees than Republicans might not be complete until after all the outstanding Senate races are decided. With this week’s Georgia runoff keeping one contested seat in Republican hands, the only outstanding race is Minnesota, where incumbent Republican Norm Coleman continues to hold an edge over Democrat Al Franken.

Despite speculation that Democrats, who now have a one-seat edge on most committees, might strike a deal before the Minnesota race is resolved, Reid’s office said no agreement on ratios was imminent.

“Negotiations have started in earnest, and we hope to have an organizing resolution in the coming weeks,” Reid spokesman Rodell Mollineau said, hinting that such a measure would be unlikely to come to the floor next week when the chamber is in session.

Both parties need to agree on ratios before committee assignments can be completed."

1) The ratio of Democrats vs. Republicans will change from 10 vs. 9 to 11 vs. 8.

2) Because of this, with the departures of Kennedy and Biden, the Dems will get to add three new members to the committee. The Republicans will have to lose one member.

Who should the Republicans lose? Personally, I'd love it to be Specter, but given his seniority, I doubt it. Grassley would be next on my list, but he too has seniority. I fear it will be either Brownback or Coburn. Coburn has made a lot of enemies with his ear-mark comments, especially McConnell.

that it'll probably be 11-8 on the SJC. Elections mean things, inc. this--however painful it may be. I also hope Coburn doesn't get axed from that committee.

http://www.postchronicle.com/commentary/article_212191302.shtml

"'How would soon-to-be-President Obama like it if the courts were to order the Navy -- his Navy -- to cripple its training in Southern California coastal waters in the use of sonar to detect enemy submarines, and thereby perhaps endanger the Pacific Fleet?

That's what four Democratic-appointed federal judges in California and two liberal Supreme Court justices voted to do in a recent case, to avoid any possibility of harming marine mammals, not one of which has suffered a documented injury in 40 years of sonar training off the California coast.

And that's the sort of thing that liberal groups want done by the judges that President-elect Obama will soon be appointing.'"

"'Justice Stephen Breyer, joined by Justice John Paul Stevens, concurred separately, except on a technical point. Breyer's opinion demonstrated in detail that the Clinton-appointed District judge (Florence-Marie Cooper) and Carter-appointed Appeals Court judges (Betty Fletcher, Dorothy Nelson, and Stephen Reinhardt) had offered no good reason 'why we should reject the Navy's assertions that it cannot effectively conduct its training exercises' under the lower courts' order.

BUT: Justices Ginsburg and Souter would have affirmed the Ninth Circuit's extremist decision. In Justice Ginsburg's words, 'the District Court conscientiously balanced the equities and did not abuse its discretion.''"

"'Justices Ruth Bader Ginsburg and David Souter....blew off in a single sentence the government's hundreds of pages of evidence that the lower courts' injunction could place at risk the lives of thousands of sailors and marines.'"

"Mr. Taylor's considered judgment: 'Barack Obama and his advisers should now reflect on scary things that the judges demanded by his liberal base might do.'"

http://www.baltimoresun.com/news/nation/bal-te.courts07dec07,0,5494769.s...

"Barack Obama's presidency and his party's dominance in Congress could mean sweeping changes to the federal court system, which handles thousands of cases annually on issues ranging from civil rights to securities and banking regulation.

And the most drastic changes are likely to come in the nation's most conservative appeals court - the 4th Circuit, which oversees cases from Maryland and four other Mid-Atlantic states. Republican nominees hold a narrow 6-5 edge on the Richmond-based court, but there are already four vacancies and several others could open up during Obama's term."

"'This is the circuit where Obama will have the fastest chance to have the greatest impact,' Shapiro said.

Obama's impact on the federal courts in Maryland will be far-reaching, especially if he wins a second term, scholars said. By January 2016, all of the state's sitting U.S. District judges will become eligible for senior status - a sort of active retirement that requires them to vacate their seats if they accept it."

"Maryland's senators and Obama's transition team are already discussing how the open seats might be filled. Mikulski has created a committee to oversee recommendations, Sachs said. In a prepared statement, Mikulski stressed that she wanted Judge Murnaghan's empty seat filled by someone with 'strong ties to Maryland and its legal community.'"

"Speculation is already swirling in the legal community about who might get the Maryland spot. Among the names is U.S. District Judge Andre M. Davis, who was nominated to the 4th Circuit in 2000 by President Bill Clinton, but never confirmed. He would have been the court's first African-American judge; two African-Americans have since been confirmed to the court. Maryland Appeals Court Judge Lynne A. Battaglia is also mentioned as a contender, along with U.S. District Court Judge Catherine C. Blake."

Catherine C. Blake:

http://www.fjc.gov/servlet/tGetInfo?jid=190

Andre M. Davis:

http://www.fjc.gov/servlet/tGetInfo?jid=570

Lynne A. Battaglia:

http://www.msa.md.gov/msa/mdmanual/29ap/html/msa13543.html

It appears to me that Blake has the best resume, but Davis and Battaglia appear to have insider connections. I suspect that it will be hard for Mikulski and Cardin to deny Davis a renomination considering the fact that he is a failed Clinton nominee, one that Mikulski once backed with open arms. However, Battaglia has close ties to Mikulski. She was Mikulski's chief-of-staff from 1991 to 1993.

http://www.macon.com/198/story/549024.html

"While it will likely be months before President-elect Barack Obama makes an appointment to fill a vacancy on Middle Georgia’s federal bench, several Macon lawyers and a judge have expressed early interest in the post.

Macon lawyers Bill Clifton, Marc Treadwell, Stephen Dillard and Floyd Buford, as well as Macon Judicial Circuit Superior Court Judge Tripp Self, have expressed interest in the post or are considering filing applications."

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/06/AR200812...

"The American Constitution Society for Law and Policy was founded seven years ago to counter a growing right-leaning legal philosophy that has reshaped the American legal landscape on issues from the reach of federal regulation to the separation of church and state. Now, as President-elect Barack Obama assembles his administration, the little-known legal organization stands on the brink of influence it once could only imagine.

Eric H. Holder Jr., an ACS board member, has been nominated to be attorney general. Executive Director Lisa Brown has been tapped to be White House staff secretary, a key slot that involves reviewing all documents that go before the president. Board member Teresa Wynn Roseborough has been prominently mentioned as a possibility for several jobs in the Obama administration, including solicitor general."

"ACS members agree. And they would like nothing more than to duplicate the Federalist Society's influence. Last month, the organization published a series of policy briefs designed to be a legal road map for the next administration. Among its suggestions are that the Justice Department re-energize civil rights enforcement, try terrorism suspects in civilian courts and appoint federal judges who have a broader range of life experiences .

Cyrus Mehri, a partner in the District law firm Mehri & Skalet who has been supportive of ACS, pointed to a survey his firm conducted showing that no one with a background in public interest law has been appointed to the federal appeals courts since 1981. Also, the survey found, not one federal appeals court judge has substantial experience as an in-house counsel for a labor union. Meanwhile, 45 percent have previously worked as state or federal prosecutors or attorneys general.

Mehri, who specializes in labor law, argued that disparity skews what happens at trial: A study by two Cornell University Law School professors found that plaintiffs who brought job discrimination cases to district court won 15 percent of the time, compared with 51 percent for non-job-related cases. Even when they win, plaintiffs in employment discrimination cases are reversed on appeal 41 percent of the time, the study found, five times the rate of employer victories.

'That's not blind justice,' Mehri said. 'That is hostility toward the little guy.'"

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/07/AR200812...

"In June 2005, two federal appellate judges here ordered Joseph Arnold released from a 21-year prison sentence after ruling that there was no credible evidence he had threatened to shoot his girlfriend's daughter with a pistol.

But Arnold's relief was fleeting. Prosecutors appealed to all of the judges on the U.S. Court of Appeals for the 6th Circuit. And the full court, dominated by appointees of President Bush and other Republican presidents, reversed the initial appellate ruling, saying the evidence presented by prosecutors was sufficient to merit Arnold's conviction.

Other criminal defendants, including some on death row, remain in federal prisons for the same reason: After initial appellate verdicts that their convictions or sentences were unjust, the last word came from Bush's judicial picks on the 6th Circuit. Acting in cooperation with other Republican appointees on the court, they have repeatedly organized full-court rehearings to overturn rulings by panels dominated by Democratic appointees."

"Ideological trench warfare is frequently on display in the 6th Circuit's austere fourth-floor hearing room in the Potter Stewart Courthouse here, which shifted to Republican-appointee control in mid-2005. Rulings sling around words such as "absurd," "rash," "meritless," "Pollyannaish," "unconscionable," "careless," "overwrought" and "alarming" -- from jurists on each side, directed at the judgments of their colleagues appointed by the other political party. Tensions between Democratic and Republican appointees have become so intense that they no longer regularly lunch together at the city's University Club."

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/07/AR200812...

"The federal judiciary is on the verge of a major shift when President-elect Barack Obama's nominees take control of several of the nation's most important appellate courts, legal scholars and political activists say. With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts -- which dispense almost all federal justice -- where Obama can assert his greatest influence.

The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey."

"The smaller 1st Circuit, which mainly covers New Engand, will gain a narrow Democratic majority if the judgeship bill passes, and the Southern-based 11th Circuit stands to become even more narrowly divided. In the short term, Republicans are expected to keep control of six other circuits, with Democrats slightly expanding their dominance of the one circuit they now control, the California-based 9th Circuit."

"But scholars and activists are paying close attention to the U.S. Court of Appeals [for the District of Columbia], which hears appeals of key executive branch rulings and prominent criminal cases, such as the recent corruption trial of Sen. Ted Stevens (R-Alaska).

The court has six Republican nominees, compared with three Democrats, and two vacancies. 'The D.C. Circuit is so influential,' said one Democratic Senate aide. 'It's out of whack now, and we can restore the balance.'"

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/07/AR200812...

"As a result of Bush's 311 appointments to federal district courts and the appellate bench, judges across the country are more male, more white and slightly more Hispanic than those in place at the end of Bill Clinton's presidency. A third of the nominees during Bush's first term had "a history of working as lawyers and lobbyists on behalf of the oil, gas and energy industries," according to a study by the Center for Investigative Reporting.

A University of Houston study of rulings by Bush's district court appointees through 2004 found that 27 percent of the judges supported what might be considered "liberal" outcomes in litigation related to the Bill of Rights or civil rights -- "giving the President the lowest score of any modern chief executive," according to the author, Robert A. Carp. Bush's judges also were much less likely to express support for privacy rights.

There is, Carp said, "a noticeable and measurable shift in a conservative direction, in favor of business [and] to favor the prosecution in a criminal case."

A University of Chicago study in 2006 similarly found that judges appointed by Bush and other Republican presidents were much more likely to uphold "conservative" federal regulations -- those that favor industry -- than their Democratic counterparts."

http://www.washingtonpost.com/wp-dyn/content/graphic/2008/12/08/GR200812...

"The federal courts of appeals are the intermediate appellate courts between the trial courts and the U.S. Supreme Court. Appellate courts are the last resort for most litigants, deciding more than 31,700 cases a year, compared with just 75 or so decided annually by the Supreme Court. The impact of President Bush's judicial appointments is most often noticed at the Supreme Court, but it has played out more frequently and importantly in the nation's 13 Circuit Courts of Appeals, where his choices have created Republican- appointed majorities in three more courts."

Good riddance to this one:

http://hosted.ap.org/dynamic/stories/S/SCOTUS_OBAMA?SITE=AP&SECTION=HOME...

Berg emergency appeal rejection is next.....

http://thehill.com/leading-the-news/leahy-to-bring-holder-confirmation-u...

"Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on Monday said confirmation hearings on Attorney General nominee Eric Holder would begin immediately once Congress reconvenes in January.

Speaking after a private meeting with Holder and before escorting him for a three-way visit with the committee’s ranking Republican, Arlen Specter (Pa.), Leahy said he wants to tee up Holder for a confirmation vote immediately after President-elect Obama takes office on Jan. 20. Other Justice Department nominees would then be confirmed quickly afterward, Leahy said."

"Turning to domestic matters, on the Supreme Court, the president expressed happiness with his picks of John Roberts and Samuel Alito. 'My regret is I didn’t get to name a third judge,' he told us. Still, he said, the two he did name to the Court 'will have an impact way beyond my presidency.'

Asked whether he believes Harriet Miers 'would have been excellent on the court,' the president quickly responded, 'Absolutely. Absolutely, no question in my mind . . . and there’s no doubt in my mind that my dear friend, Harriet Miers, would have had the same judicial philosophy 20 years after I went home, and had the intellectual firepower to do the job.' Bush said he felt it was important to pick a judicial candidate who was 'not part of the judicial-nominee club — she went to SMU Law School' and who was a pioneer in her own law firm. His regret about the Miers case, he told us, was that 'this really, really good person got chucked out there and, man, the lions tore her up.'

Beyond that, the president expressed unhappiness with the way some of his judicial nominees were treated by the Senate. 'For the first time, the filibuster became a part of the judicial confirmation process,' he told us. 'That’s a terrible precedent for the concept of advise and consent.' As he spoke, Bush seemed frustrated but resigned. Senators, he added, 'can be meddlesome at times, but that’s the history of the Senate. . . . I understand that; that’s just part of the process.'"

http://thinkprogress.org/2008/12/08/bush-miers-excellent-justice/

"As the clock winds down on his presidency, President Bush has begun sitting for valedictory interviews. He refused to reexamine his most controversial decision — to go to war in Iraq — during last week’s interview with Charlie Gibson, saying, 'That is a do-over that I can’t do.' In a new interview with editors and writers for conservative magazine National Review, Bush similarly refused to rethink his choices, 'saying only that a president doesn’t ‘get an opportunity to redo a decision.’

Though Bush wouldn’t reexamine Iraq, he happily defended other failures from his presidency, including his short-lived nomination of then-White House counsel Harriet Miers to the Supreme Court, whom he said 'absolutely' would have made an “excellent” justice:

Asked whether he believes Harriet Miers 'would have been excellent on the court,' the president quickly responded, 'Absolutely. Absolutely, no question in my mind . . . and there’s no doubt in my mind that my dear friend, Harriet Miers, would have had the same judicial philosophy 20 years after I went home, and had the intellectual firepower to do the job.' […] His regret about the Miers case, he told us, was that 'this really, really good person got chucked out there and, man, the lions tore her up.'

National Review, of course, was one of those groups who 'tore up' Miers’ nomination. Only 11 days after Bush nominated her, National Review demanded Miers withdraw her name, calling her 'a practically unknown quality, a gamble for incredibly high stakes.'"

Daniel M. Sullivan to Scalia, Marah Stith to Thomas.

Whyowhyowhy did Meese not vet O'Scannlain back in '87? As I've said many times before, take a minute to compare DFO'S's resume as of 1987 to AMK's.

Isn't Souter always the last to hire clerks?

Breyer is all over the place for 09; got clerks from Reinhart, Wilkinson & Posner.

Bush's comments to Gibson show that he still knows little about the Judiciary and nothing about fighting for good judges.

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

http://legaltimes.typepad.com/blt/2008/12/holder-talks-with-senators-who...

"Eric Holder Jr. met today with two key members of the Senate Judiciary Committee as he prepared for the confirmation process to become attorney general.

And one of those senators made clear that the process would move quickly.

“I intend to start hearings the first week we come back,” said Sen. Patrick Leahy, chairman of the Judiciary Committee, referring to the beginning of the 111th Congress on Jan. 6. Leahy laid out a timeline that would have the Senate voting on Holder’s nomination and those of other top Justice Department nominees shortly after President-elect Barack Obama’s inauguration on Jan. 20."

http://volokh.com/posts/1228745082.shtml

"Today's Washington Post features a front-page article detailing the effect of President Bush's nominees on federal appellate courts, focusing on the U.S. Court of Appeals for the Sixth Circuit. It's an interesting piece, as is this companion article on the politics of judicial nominations going forward, but I worry that it might exaggerate the ideological or partisan divisions among appellate judges, even if only because it focuses on the unusually divided Sixth Circuit.

The heart of the article focuses on the Sixth Circuit, and it portrays a Court unusually riven along ideological lines, particularly on criminal justice issues. This perception of the Court is widespread (indeed, I've blogged extensively about it), but the article suggests at least some judges see it this way too. It even quotes one judge to that effect."

"The story also discusses the impact of Bush nominees on the appellate courts as a whole. After eight years of judicial appointments by George W. Bush, Republican nominees are the majority of judges on most Circuits. This is what one would expect after eight years of a GOP President (and Republican control of the White House for 20 of the last 28 years)."

http://bench.nationalreview.com/post/?q=YjI5ZDZhNGRkOGFmMjhlMmVhYzMwNDQw...

"Continuing its cheerleading for Barack Obama, the Washington Post features a couple articles on its front page today under the headline “The Politics of the Federal Bench”. I’ll address the first article here and the second in a follow-on post.

The first article, titled “GOP-Appointed Majorities Winning Ideological Battles at Appellate Level”, undertakes to address President Bush’s legacy of federal appellate appointments. It is accompanied on the carryover page by a page-wide chart showing the total number of Republican-appointed judges on each court of appeals and the net increase in Republican-appointed judges resulting from appointments by Bush. (At least I think I have the latter right; the Post’s own description—“the total gain in Bush appointees on each appellate court since 2001”—is difficult to decipher.)

As you might guess from the title, the article does not inform readers that Bush’s total of 62 federal appellate appointees (which includes three of President Clinton’s nominees whom Bush renominated) is lower than Clinton’s total of 65, or that Senate Democrats opposing Bush nominees used the partisan filibuster for the first time (and on repeated occasions) as a weapon against judicial nominees. These omissions are all the more striking in light of the prominent attention that the Post during the Clinton administration gave to claims (as one front-page article quoted AG Reno) that Senate Republicans were causing an “unprecedented slowdown” in confirming Clinton nominees.

The article focuses on the Sixth Circuit to illustrate the supposed impact of Bush’s nominees. But the case it tries to make is highly defective in several respects..."

http://bench.nationalreview.com/post/?q=Zjg0MDRjMGQwZTgxMzlmYzc3MGQ5Mzdk...

"Now let’s look at the second article, titled “Obama’s Appointments Are Expected To Reshape the U.S. Legal Landscape”. Just a few comments:

1. The general thesis of the article—that Obama will be able to appoint lots of appellate judges and (in some cases soon, in other cases over time) swing circuits with current Republican-appointee majorities to Democratic-appointee majorities—is correct.

2. It may well be that these lower-court appointments will “reshape the U.S. legal landscape” and lead to a “major shift”, but the article curiously fails to mention that federal appellate judges are obligated to follow Supreme Court precedent. If Obama appointees do so in good faith, then it seems unlikely that the shift will be as dramatic as the article suggests..."

http://www.nytimes.com/2008/12/09/washington/09bar.html?_r=1&partner=per...

"...A new study in the DePaul Law Review claims to show that the political leanings of law clerks do influence the votes of Supreme Court justices.

The study is based on information about political party affiliations collected from more than 500 former clerks, and on standard measures of judicial ideology.

“Over and above the influence of the justices’ own policy preferences,” the study concludes, “their clerks’ policy preferences have an independent effect on their votes.” Everything else being equal — the justice, the year, the case — the presence of additional liberal clerks in a given justice’s chambers makes a liberal vote more likely, the study says, while the presence of additional conservative clerks pushes justices in the opposite direction."

Courtesy of How Appealing:

http://www.law.depaul.edu/students/organizations_journals/student_orgs/l...

"In the past ten years, U.S. Supreme Court law clerks have achieved a visibility unmatched in Supreme Court history. A former Blackmun clerk wrote a tell-all tale of law clerk mischief at the Supreme Court, a series of articles in USA Today addressing the lack of law clerk diversity sparked protests and the grilling of Supreme Court Justices by congressional subcommittees, former clerks offered insight into the turmoil gripping the Court during the 2000 presidential election, and two new television series focused on the behind-the-scenes machinations of Supreme Court clerks. The decade of the law clerk culminated in the publication of two major academic works on Supreme Court law clerks. Both books sought to provide a thorough analysis of the rules and norms surrounding the hiring and utilization of law clerks and to address the one question deemed most salient by Court scholars: whether law clerks wielded inappropriate influence
over judicial decision making."

http://www.politico.com/news/stories/1208/16382.html

"The Senate confirmation hearings for Eric Holder, President-elect Barack Obama’s pick for attorney general, have been slated to begin January 8, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced Tuesday.

“While I had hoped to begin Mr. Holder’s confirmation hearings on January 7, I have accommodated the ranking member and members of the committee who will be attending a Republican Senate caucus retreat on that day,” Leahy said in a statement."

http://bench.nationalreview.com/post/?q=YTc2MzRkYWYzMzYzODQwNGZhNWE0ZGQ0...

"I’ve already noted that President Bush’s total of 62 federal appellate appointees (which includes three of President Clinton’s nominees whom Bush renominated and appointed) is lower than Clinton’s total of 65."

Bush nominated only 61 (NOT 62) people to be COA judges who were later confirmed by the Senate. The missing judge is Charles Pickering, who was recess-appointed to the Fifth Circuit but never confirmed. He resigned when his recess-appointment expired.

In addition, Bush only renominated TWO, not THREE, failed Clinton COA nominees: Roger Gregory of the Fourth Circuit and Helene White of the Sixth Circuit. People are often confused about Barrington Parker of the Second Circuit. Bush nominated Parker to the Second Circuit after Parker had been confirmed to a district court position under Clinton. Parker NEVER was nominated by Clinton to a COA position.

Bobo - thanks for the clarification on Whelan's figures. I was scratching my head on his 62 number until I read your post. Thanks.

http://thehill.com/leading-the-news/specter-seeks-to-slow-down-holder-co...

"Sen. Arlen Specter (R-Pa.), the ranking member of the Judiciary Committee, wants to slow down the process of confirming Eric Holder attorney general, citing lingering concerns about the nominee’s role in the 2001 pardon of Marc Rich.

Specter said his concerns do not suggest he would oppose Holder, but said starting the hearings before Jan. 26 is 'not realistic or fair.'"

"Some Senate Republicans have privately asserted that Leahy is trying to rush Holder through the confirmation process. They note that Leahy has said he wants a confirmation vote ready just 12 days after hearings start."

I am highly suspicious of Specter. I have come to the conclusion that Specter frequently gives lip service to conservative Republican concerns with no intention of actually doing anything about them. At this point, I can't see Specter putting any real roadblocks in Holder's path. Personally, I think Specter is just grandstanding. With 58 Democratic senators in the 111th Senate, the reality of the situation is that Senate Republicans will not be able to do much of anything to stop or delay any executive branch nominee.

http://legaltimes.typepad.com/blt/2008/12/leahy-says-history-supports-ea...

"The chairman of the Senate Judiciary Committee says he wants Eric Holder Jr.’s confirmation hearing to go on as scheduled.

Sen. Patrick Leahy (D-Vt.) made his thoughts known in a sharply worded, three-page letter today to Sen. Arlen Specter (R-Pa.), the committee’s ranking GOP member. The letter (pdf) responds to comments Specter made on the Senate floor Wednesday and in a letter to Leahy Tuesday, asking Leahy for more time before the Senate considers Holder’s nomination to be attorney general.

The letter’s opening line suggests that Specter needs more time in part because he’ll be out of the country for two weeks.

'As I hope you know,' Leahy writes, 'I honored your request and asked Secretary [of State Condoleezza] Rice to facilitate your 14-day trip to 10 countries from December 25 through January 7. Please do let me know who the other Senators are who will be accompanying you.'"

For those of you who do not have a subscription, below is the text of the Roll Call article from 12/1 in its entirety. And yes, the lead sentence does indeed misspell Obama's first name:

Jury Is Still Out on Obama Judges

By John Stanton
ROLL CALL STAFF

Senate Republicans and conservative activists are warily watching President-elect Barrack Obama's early executive branch nominations, aiming to glean a sense of how the new president will approach the minefield of judicial nominations after he takes office in January, activists and aides said.

Although the first round of nominations to the federal bench are not expected until spring at the earliest, conservative activists and Republicans in the Senate are already gearing up for a sustained battle with the new president over nominations.

Late last month, Senate GOP leaders vowed to block any nominations that they feel hew too far to the left.

In a speech to the Federalist Society late last month, Senate Minority Leader Mitch McConnell (R-Ky.) seized on Obama's statements that judicial picks should demonstrate the ability to "empathize" with certain groups as proof that his picks will not fit the "strict constructionist" model that Republicans have favored.

"In my opinion, we should reject the permanent establishment of an entirely subjective, extra-constitutional test for judicial nominees. We cannot countenance a process where nominees will be selected based upon whether they promise, or are presumed to favor, certain 'sides' in litigation," McConnell said. "This is antithetical to what 'judging' is. And it calls into serious question whether nominees who are chosen on these grounds will even be capable of living up to their solemn oath of administering justice without respect to persons."

Senate Minority Whip Jon Kyl (R-Ariz) was more blunt, telling the conservative legal organization, "I will lead a filibuster if the nominee is the kind of radical leftist who decides cases based on empathy rather than the Constitution or the law. And if that's what he intends to do, then I'll try to get my colleagues to join in that as well."

Curt Levey, executive director of the Committee for Justice, said outside activists have begun discussing how they will take on Obama on the nomination issue. "We're already talking strategy...I think we need to be prepared for the worst," Levey said.

But Levey and others acknowledge that in recent weeks, Obama's decision making on his economic advisers and first round of planned Cabinet nominations have given some conservatives pause.

Noting that many of Obama's picks have indicated he might take a moderate approach, Levey said activists are willing to give the new administration a chance, even as they prepare for the worst.

"We don't know which Obama we'll see," Levey said. "I want us to be ready in case we're wrong...but we're giving him the benefit of the doubt for now."

A senior GOP Senate aide who works for a member of the Judiciary Committee agreed, saying much of the nuts and bolts planning for nominations battles is on hold until Republicans get a better sense of the type of candidates Obama will choose.

"He seems to be smarter and more pragmatic than we thought. Now, it remains to be seen whether that will translate to judges because he'll be under enormous pressure from his base," the aide said.

Glenn Sugameli, senior legislative counsel for Earthjustice, said it remains unclear what types of nominees Obama will select. Sugameli noted that Vice President-elect Joseph Biden was chairman of the Judiciary Committee for a time and that Obama aid Melanie Barnes, who will become director of the Domestic Policy Council, worked for liberal Sen. Edward Kennedy (D-Mass) on judicial nominee issues.

While Obama's nominees will certainly come from the progressive side of the political spectrum, Sugameli said the amount of experience in the process - and difficulties - of moving judicial nominees that his team has should mean they will tap viable candidates. "You've got plenty of exposure there," Sugameli said.

Sugameli predicted that aside from the Supreme Court, which is always a major fight, skirmishes can be expected when Obama begins nominating judges to the Fourth Circuit, which has traditionally been a conservative circuit, and D.C. Circuit, which deals with cases challenging federal regulations.

"Flash points will clearly be the D.C. Circuit...and the Fourth Circuit because it is a circuit in flux," Sugameli said.

bended over backwards for years and gave the Dems any delay they wanted. Now Specter will learn that it does not go both ways. The only question is why it took him so long to learn.

http://www.nytimes.com/2008/12/11/us/politics/11network.html

"...the American Constitution Society, founded in 2001 to be a liberal counterweight to the conservative Federalist Society, is rising to power.

Although Mr. Obama has just started to fill the thousands of politically appointed jobs in his administration, the society’s affiliates are already well positioned to shape legal policy, hiring decisions and judicial nominations for years to come. In addition to Mr. Holder, other prominent officials in the new administration who have ties to the society include Lisa Brown, the White House staff secretary; Melody Barnes, who will direct the Domestic Policy Council; and Ronald Klain, chief of staff to Vice President-elect Joseph R. Biden Jr.

Three other society board members are on the transition’s agency review team, and observers expect that the Obama team will turn to society members to fill subcabinet positions and judgeships."

Given that the National Review's Ed Whelan obviously reads ConfirmThem's comments section (for proof, see link below to his latest post correcting his COA comparisons between Clinton and Bush 43!), I'd like to ask Ed: when are you going to continue your Bench Memos series on Obama's Supreme Court candidates? You got started with Harold Koh and Deval Patrick, and then you seemed to run out of gas with your Sonia Sotomayor write-up. When will we see your profiles on other possible candidates like Elena Kagan, Diane Wood or Kathleen Sullivan, or even less likely names like Jennifer Granholm, Merrick Garland and Cass Sunstein?

http://bench.nationalreview.com/post/?q=NzJkODU5YzRlY2U1NWQzMzJiNWZlMjZj...

http://writ.news.findlaw.com/commentary/20081215_tobias.html

Tobias throws out the following names:

"Examples of highly-qualified legal scholars who would likely make superb appellate judges abound. Illustrative are Harvard Law Dean Elena Kagan, Yale Law Professor Judith Resnik, Harvard Law Professors Lani Guinier and Cass Sunstein, who is Obama's former University of Chicago colleague, and Stanford Law Professors Pamela Karlan and Kathleen Sullivan. Five University of California Law School Deans are also excellent candidates: Christopher Edley of UC Berkeley, Kevin Johnson of UC Davis, Nell Newton of UC Hastings, Erwin Chemerinsky of UC Irvine, and Michael Schill of UCLA."

ConfirmThem has been offline for a long time. I'm glad it's back.

Courtesy of How Appealing:

http://www.slate.com/id/2207071/

"Obama should look to sitting district court judges who have shown their dedication to opening up the courts as an avenue for redress. If they go up to the appeals courts, these judges will have more impact more quickly than the lawyers or academics lining up for appointments."

"Examples from different parts of the country help to make the point. Myron Thompson is a district judge in Alabama. President Carter chose him in 1980 at the age of 33 in an effort to put a black judge on Alabama's federal trial court."

"Moving toward the middle of the country, another standout judge is Mark Bennett, appointed by Bill Clinton to Iowa's federal trial court."

"Our third standout district court judge (who is also [Bazelon's] friend and a former Slate blogger) is Nancy Gertner, a Clinton appointee from Massachusetts."

"