ConfirmThem

April may well be remembered as the month when Senate Democrats showed their true colours as obstructionists in this Session. A grand total of one nominee (District Judge Ozerden) was confirmed and there was of course no CCA “April confirmation” after all. May will show if this was an aberration or the start of a dismal trend. Following are the dismaying figures for April:

Circuit Confirmations: 0
District Confirmations: 1
Circuit Nominees Reported by SJC: 0
District Nominees Reported by SJC: 3
Circuit Nominees had Hearings: 1 (Livingston)
District Nominees had Hearings: 3
# of Judicial Nomination Hearings: 1 (4/11/07)
Circuit Nominations: 0
District Nominations: 0
Total Nominees Pending on 4/30: 28 (6 CCA, 22 DJ)
Nominees on Executive Calendar on 4/30: 2

In last month’s Report, I wrote that for April “a Circuit nomination will be dicey”. Well, the dice came up snake-eyes, as Leahy & Co. delayed Livingston’s Committee vote into May. A vote is scheduled at the Business Meeting on May 3rd. Since there seems to be no real opposition, her nomination should be voted on and sent to the Floor on the 3rd or the 10th-11th. There was a one-week interval before the confirmation vote for both Smith and Hardiman,; by that pace Livingston should be confirmed by the 10th or the 17th unless the Dems. choose to delay further. It’s quite unlikely that Keisler or Southwick could then be confirmed before the Memorial Day Recess. I suppose that a Keisler confirmation is possible, if and only if a secret Deal has indeed been made and Senate #378 (Court Improvement Security Act, containing CCA transfer of D.C. 12th judgeship to 9th Circuit 29th) is signed within the next few weeks.

On the District level, Democrats are making an unmistakable statement by reducing confirmations to a trickle. Only one (Ozerden) was confirmed, and two have been put on the Executive Calendar (Settle and Kapala), and may well be confirmed this week. I predicted in last month’s Report “that only 3 District nominees will receive hearings in April”. Three nominees did indeed get hearings in April: Sullivan, Mauskopf and Van Bokkelen on April 11th. This was the third consecutive month that Leahy held only one hearing: 2/6, 3/13, and 4/11. If it holds, this is a very significant and ominous trend. No action was taken on the 3 Michigan W.D. nominees; May will show whether or not they are consigned to some obstructionist limbo. Since this is a short month and no hearings are scheduled for this week, there likely will be only one hearing (for 3 DJ nominees) again this month. Presumably they’ll confirm the current batch of 5 already with hearings, and maybe or maybe not some of the new ones. Not very good, and they’ll still be working on the January 9th nominees in June. Well played on the Democrat side, it must be admitted.

In last month’s Report, I set a monthly confirmations standard which several here have since echoed: 7 confirmations per month (1 CCA and 6 DJ’s), plus at least 1 CCA and 6 DJ hearings. April clearly fell way below that level. After this month, Democrats will likely have exhausted the supply of nominees with previous hearings from last year. Livingston will probably be the only CCA confirmation this month, barring a Keisler miracle deal. What’s really disconcerting, though less important, is the almost gratuitous slowdown on DJ’s. Senate Democrats are clearly feeling their oats.

Although 5 or 6 nominees will probably be confirmed this month, much of that is due to the backlog from April. If the SJC doesn’t increase the number of hearings very soon, the well will begin to run dry in June. And the projected total confirmations for April-May is only one-half of the Seven per Month standard.

[For reference, my March “Judicial Nominee Progress Report” appeared on Monday, April 2, as post #12 in the thread “We Need One More Vote”]

Does anyone know anything about Christine Jolls? She's a former Scalia/Williams clerk with a sterling academic record - BA, Stanford; JD Harvard, PhD MIT. She's the Tweedy Professor of Law and Organization at Yale, the Director of the Law and Economics Program at the National Bureau of Economic Research, and she's not bad looking - especially for a woman of her academic record.

She was born in 1967. Might she be a potential Ruth Bader Ginsburg replacement if we have a future 2-term Republican president that Ginsburg can't outlast.?

Once we get the military funding bill complete, it may be time to block any other legislation from coming to the floor until we get floor votes for adequate numbers of judges.

It is time to remind Sen McConnell of his commitment in this regard.

It would be good to get Livingston and Keisler done before late June-in the off chance there's a SCOTUS retirement

Jolls is not a conservative. She is a liberal. During her term as a Scalia law clerk, she was the designated "counter-clerk". She was specifically hired by Scalia as someone who could pinpoint any holes in his arguments that could be exploited by the liberals. He hires one "counter-clerk" every term. Since Jolls is a liberal, I would not want her nominated by a Republican president to be a judge. Let a Democrat president nominate her.

Thanks Bobo. Good to know. Too bad, but good to know.

Hey Bobo - what about Margaret Ryan? She's on the US Circuit for the Armed Forces and clerked for Thomas and Luttig. I can't find how old she is/might be to gauge when her prime window for potential SCOTUS elevation might be.

http://en.wikipedia.org/wiki/Margaret_A._Ryan

Ryan is a conservative, so she might be a good SCOTUS nominee.

but still can't gauge how old she is.

http://www.law.pace.edu/currentstudents/commencement2007speaker.html

"She is a graduate of Knox College, cum laude (1985) and the University of Notre Dame Law School, summa cum laude (1995)."

This makes it appear that Ryan was born around 1963 or 1964.

Back to the topic of this thread: the results of tomorrow's scheduled SJC Business Meeting are a litmus of future appellate confirmations for this month and next. If Livingston is voted out of Committee and placed on the Executive Calendar, there's a slight chance that another Circuit nominee could get a hearing this month (I still think that Democrats will insist on another hearing for Keisler). This hearing would likely be part of the SJC's single "monthly" hearing, during the week of May 14-18, along with 3 DJ nominees. Since this year's pattern has been to confirm Circuit nominees one week after being voted out of Committee, Livingston could be confirmed on the week of May 7-11.

However, if Livingston is delayed for one week tomorrow, until at least the 10th, then significant progress on another Circuit nominee this month is almost impossible (barring a Secret Deal to expedite Keisler, which seems unlikely). If Democrats also delay the 3 District nominees tomorrow, it's a sure sign that a major-league slowdown is in full progress.

We should know the results in about 24 hours. Let's hope that one of our Senate-connected posters informs us ASAP.

is that she has a dog named Reagan :-)

Signature disclaimer: I'm not currently paid by any campaign, but I am available. Current preferences for President: 1) F.Thompson; 2) Romney; 3) McCain; 4) Gingrich; Guiliani removed 04/03/07

Bush needs to nominate people for the North Carolina and South Carolina seats on the Fourth Circuit. Later, maybe in June, he needs to nominate a person to fill the Van Antwerpen/Pennsylvania seat on the Third Circuit. These three seats look the easiest for confirmation after Southwick and Elrod.

Unless the White House has an iron-clad assurance from Webb that he won't block any Virginia nominees, it would be better for Bush to delay nominating people for the two Virginia seats on the Fourth Circuit until the Keisler situation is resolved. If Keisler is blocked, Bush will know that there is no way he can get any nominees past Webb.

Great catch, Oz. And also a dog named Dagny, perhaps a reference to the character in Ayn Rand's "Atlas Shrugged". Randian libertarians tend to be solid originalists. See, e.g., Clarence Thomas and Janice Rogers Brown.

And how about the other 5th Circuit-TX vacancy? What's holding up the naming of a nominee there? That too would be a fairly easy confirmation, unless Bush picked a truly controversial person. I'm still hoping for Prof. Ernest Young or Judge Dale Wainwright.

From one of David Lat's posts, Bush at least originally wanted a more traditional, hard-core conservative for the second Texas seat. That could be a hard sell. If, however, he goes with a more moderate conservative, you are right - Bush could nominate him now.

I'd love to see the Dems try to stop a former Marine from Notre Dame, esp. in an election year!

Her resume appears more impressive than Sykes', and unlike Eid she's already a judge...just saying...

And she's certainly more acceptable than Mahoney or Callahan. Defo one to save for '08.

I mostly agree, BoBo. Bush's next two Circuit nominations should be to the 4th Circuit (S.C and N.C.). But, these should be the ONLY nominations during the next 3 months. There are currently 6 pending Circuit nominees, enough for the next 5 months, even if you don't include the 2 problemmatical 6th Circuit ones.

Democrats will move virtually any other viable nominees ahead of the 4th Circuit ones, who should be highest priority after Keisler. So no unnecessary circuit nominations should be made in the near future.

There are already two 5th Circuit nominations pending. A third 5th Cir. nomination would be untimely and counterproductive; Senate Dems. would just move it ahead to thwart and delay the 4th Circuit nominees. No new 5th Circuit nomination should be made until next Fall.

http://www.nd.edu/~lawvisit/videowin/ryan11_bb.html

In a video done prior to her judicial confirmation, Margaret Ryan discusses the role of Notre Dame in preparing people to be SCOTUS clerks.

Really Outsider? We should just leave a vacancy empty on the 5th Circuit because they'll treat us nicer if we do? ANY nomination at this point is more productive than leaving the seat without a nominee. The longer we wait to name, the greater the likehood there is never a confirmation uder this president. No more delays for any vacancies.

I mean...she should at least be on the list to be considered for the Supreme Court, right? :-)

I'm not saying slam dunk her but...I mean, come on...the signs that she might be awesome are there. U.S. Marine. Woman. Luttigator/Thomas clerk. Dog named Reagan. Perhaps another named after a Rand character. U.S. Court of Appeals for the Armed Services.

I mean...other than Allison Eid, it's difficult to come up with a more promising, confirmable conservative female justice.

Do you think Bush should name nominees to seats controlled by Dem senators, especially if he knows that those senators will block the nominees? Should he nominate people for the Rhode Island, Maryland, New Jersey and Virginia seats if he knows the Dems will never allow the nominees to be confirmed?

Sorry, but you clearly have no understanding of the fundamental concepts of the Art of Strategy. The goal now is to get as many nominees to the most crucial Circuits confirmed, not simply to nominate a bunch of people because it makes you feel good, even if they never get confirmed and impede other nominees to boot.

Remember this fundamental precept, which I'll put in capital letters so that it may sink in: NOMINATIONS ARE NOT CONFIRMATIONS. Nominations in themselves mean nothing, unless you enjoy reading the decisions of 'circuit justices" Boyle, Haynes, Saad, Kuhl, Wallace et al.

I and others here have explained repeatedly why a "shotgun' approach to Circuit nominations will not work at present, and will actually be counterproductive by enabling Senate Democrats to cherry-pick less important nominees for hearings, bypassing the DC and 4th Circuits.

Future nominations should be made in a carefully choreographed sequence, in the approximate following order: 1. 4th Circuit (N.C & S.C.); 2. 3rd C. (Pa.); 3. 5th Cir. (Tex) 4. 4th Cir. (1 Va.); 5. 3rd Cir. (NJ) 6. 9th Cir. (2 Cal.-hopefully a package with Levi and a Feinstein moderate-Dem.).

By the way, the second sentence of your post (in purported reply to me) does not even remotely relate to anything I said.

To certain extent, Bush must choose his battles. Just with Iraq, his plate is full. Should Bush be picking fights with Feinstein and Boxer now over Trott's seat, or with Lautenberg and Menendez over Alito's COA seat? What about with Webb, does anyone really think that Bush can get a nominee past Webb if Webb has Reid and Co. behind him?

If she was a liberal, Hillary was president, and Ryan clerked for Reinhardt and Ginsburg would you still think she is qualified to be on SCOTUS. She has been a judge for less than 6 months! I wouldnt want some liberal darling with no real CCA experience on SCOTUS that is also under the age of 50. A military appeals court is much like the CO Supreme Court in that they are NOT CCAs. I would rather take a Dianne Wood of the 7th CCA or M Garland of the DC CCA with federal appealate track records over some fluzy on some non federal appeals court for a year or less who is also in their 40s!!! Eid and Ryan just dont have the experience or age yet to be seriously considered. We wouldnt let the Dems pull a trick like this so we shouldnt kid ourselves about it ever happening for us either. Get them on CCAs for a few years and then we will talk about SCOTUS material. Do I think they are great, smart, conservative judges? YES Do I think they deserve to be mentioned in the same breath as SCOTUS at this time? NO

Check out the next thread that Andrew just posted on Fourth Circuit rumors.

Republicans let Democrats nominate liberals to every court in the land, and thus a Democrat has many radical left wing liberals to choose from. Democrats haven't shown the same courtesy. They make Republicans fight so hard that they're scared of their own shadow.

And yeah - if Cuomo had accepted Clinton's nomination, he would have been confirmed without ANY court experience. Chief Justice Earl Warren didn't have any court experience. These were not or would not have been great justices, but it didn't harm their confirmability.

Sandra Day O'Connor was a mid-level appeals court judge in Arizona - not even on the highest bench in the state! Are you going to argue that David Souter's less than a year on the bench and Clarence Thomas's slightly more than a year on the bench really MADE them SCOTUS quality? Give me a break!

I would say that if Maureen Mahoney can be taken seriously for a Supreme Court spot, then Allison Eid, Margaret Ryan, and Miguel Estrada can be taken just as seriously sans COA experience. What matters is that they can do the job and do the job well. Would I rather see them have 5 years on a COA? Of course. But Democrats have made clear that they will do everything in their power to stop our Supreme Court quality candidates from advancing to the Court of Appeals. Chris Cox, Henry Saad, Carolyn Kuhl, Miguel Estrada, Brett Kavanaugh, William Haynes, William Pryor, Janice Rogers Brown, Priscilla Owen, and now Peter Keisler have all been subjected to this shameful treatment. They tried to do it to Michael McConnell and John Roberts - but they were shamed out of it. Many others have been dissuaded from considering such a nomination - such as Ted Cruz to the 5th Circuit and Miguel Estrada to the Supreme Court for O'Connor's seat after Roberts was promoted to the Chief Justice's seat.

The reason conservatives generally like long track records is so that we know what we're getting - which is important in the wake of O'Connor, Kennedy, and Souter. However, I think we have a pretty good idea about what kind of justices Allison Eid and Margaret Ryan would be. I think we can be especially certain that Eid has the superior intellect and interpersonal advocacy skills we need to do battle with Ginsburg/Souter/Breyer to win Kennedy when Stevens is gone. And I think that Ryan could be very promising. I'd like to read some analysis of her work and hear some more from people who know her, but...the prima facie case for her being an outstanding, intelligent conservative justice is certainly there.

Just because Democrats are able to successfully filibuster outstanding conservative judges who would be attractive future supreme court justices doesn't mean they should be stricken from consideration for the Supreme Court when they are otherwise qualified. THAT would be letting the liberals WIN! And I'll be DAMNED if I'll sit by and let THAT happen.

I say give the Democrats the middle finger and march our best and brightest to the Supreme Court. Show them that their filibusters of lower court nominees are for naught. Heck...if they become convinced that they're ineffective, they might relent some.

especially by a Democrat senate. I don't like the idea of nominating people much less than 50, and certainly not less than 45 (except perhaps under rare circumstances; sterling academic qualifications, and an early start on the COA giving them about 5 years experience). they are the farm team for the next R POTUS, but they won't be ready in this administration.

Should Bush nominate people for DOA seats? Given that every Leahy press release trumpets how many nominees he's let through vs something from the Hatch days or whatever, I'd say yes if he can find people willing to go through the exercise. Getting rid of this nonsense excuse of the Dems would seem to make sense.

For example, look at his press release related to moving the Randy Smith nomination or this one from Feb 1st.

There are some differences regarding Justice Thomas and Justice Sandy. Reagan needed to pick a woman. There were like zero Republican appointed women in 1980. He had to look outside the judicial monastery. Same with Bush I, he had to pick a black. CT was about the only conservative black man with the legal skills necessary for that position. I think we have learned after Harriet that affirmative action picks are not necessary. There is more than enough conservative legal talent on the CCA's now to pick a good, solid, confirmable, justice. We should not have to resort to picking Eids and Ryans when there are Easterbrooks and McConnells to pick from.

Margaret Ryan is 45. I don't think that's too young to be confirmed at all. If a Chief Justice can be confirmed at 50, an Associate Justice can be confirmed at 45. There's ample precedence for under-50 justices - some of whom became legendary justices because the same intellect that recommended them to become justices at such young ages also distinguished them on the court. I'm very confident that this would be the case with Eid, Cruz, Estrada, Yoo, and Dinh. I think that is a lot of hope for Margaret Ryan.

I don't necessarily share your opinion that McConnell or Easterbrook would be better than Ryan, Eid, Estrada, or Yoo. Also, Easterbrook is getting a bit too old for my taste. I think he's brilliant and I wish that a Republican had been president from 1992-2000 and been able to insert Easterbrook and Edith Jones instead of Clinton's justices. I'm afraid that the sun it at least setting on their window of opportunity if it has not already set.

To compare Ryan or Eid to Harriet Miers is beyond disingenuous. In fact, it does more harm to your argument than good. Meirs was 61. It was not her age that made her unqualified - it was her ability. Ryan, Eid, Estrada, Cruz, Yoo, and Dinh would be attractive nominees in part because of the diversity that they would bring to the court - but it is their ability that recommends their prospects.

I think that a diverse court that is unified in ideology would be a powerful statement on behalf of judicial conservatism.

is that I do NOT want to set a precedence of appointing people to SCOTUS just because they are young darlings of the conservative movement. If we do it, when the Dems are in power they will try the same stunts. It would be totally unacceptable in my mind to have a liberal Ryan or Eid equivalent be put on SCOTUS.

People are living longer and longer. Its not uncommon for people to be active and fit well into their 80s and 90s(JPS case and point). Do you really want someone to be on the court for 40 maybe 50 years? If we start appointing 40 year olds to the court, decades will go by without having any vacancies occur. How happy were you during the last 11 years when the court was stagnant with no new ways of thinking injected to it.

Do you really think Ryan, Eid, Estrada, Cruz, Yoo, or Dinh have any shot at getting confirmed in this Congress or even the 109th when we had 55 seats. Hell no!

Lastly, my comment about Harriet had nothing to do about her being old, it had to do with her being a woman. Sandy and CT were picked SOLELY because of their RACE or GENDER period. This is why we they had little or no CCA experience. In 1981 and 1991, there were no acceptable women and blacks on the CCAs respectively. It is arguable that there were no acceptable women in 2005 either that had served for very long on the CCAs either. Just to further expand my point. Bush I had to pick a black to replace Marshall. The Dems knew that and gave him a pass when he picked someone who was soo young. There simply werent that many conservative black lawyer. The Dems will not allow this to happen again. CT has already been on the court for 16 years and he is only 57. Just wanted to clear this up.

This stinks that there are soo many threads. It makes it hard to keep track of everything.

Bush I initially wanted Clarence Thomas for William Brennan's seat - when he was a year younger.

I think that Estrada, Ryan, Eid, Cruz, and possibly even Yoo and Dinh COULD be confirmed to the Supreme Court. Some stand better chances than others, and the votes might be close. But I think they could be confirmed.