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Another Judicial Nomination Fight:

Another showdown over judicial nominations is looming on the horizon. In 2006, President Bush nominated Peter Keisler to a seat on the U.S. Court of Appeals for the D.C. Circuit, and renewed the nomination earlier this year. Keisler is eminently qualified for a seat on the Court, but Senate Democrats may oppose his confirmation nonetheless. As The Hill reports:

The judge's liberal critics acknowledge that he has excellent legal credentials, but charge that he has shown no commitment to advancing civil rights or environmental and worker protections. They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) last week hinted that Democrats would block Keisler's nomination.

There is little to challenge in Keisler's record, as he has distinguished himself in both private practice and government service -- so his opponents will instead insist that the Administration has been too slow, or too unwilling, to release documents that bear on Keisler's fitness for the bench.

Last year, liberal groups filed Freedom of Information Act requests with the Ronald Reagan Presidential Library for documents related to Keisler's time in the administration. Although the Reagan Library has cleared the records for public release, the White House has withheld them from dissemination.

"Unless those records are publicly disclosed, the Senate Judiciary Committee lacks the information to consider someone to lifetime appointment to the second-most important court in our country," said Judith Schaeffer, the legal director of People for the American Way, a group that has led opposition to Bush nominees.

In my opinion, Keisler deserves confirmation on the merits. I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. This would be a welcome step toward a de-escalation in judicial nomination fights -- a step the next President (whomever he or she is) might appreciate.

badger (mail):

I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example.

Maybe Senator Hatch should have been mindful of such examples when he was denying committee hearings to Clinton's appointees.
5.15.2007 3:45pm
Ramza:

The judge's liberal critics acknowledge that he has excellent legal credentials, but charge that he has shown no commitment to advancing civil rights or environmental and worker protections. They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.

I thought it was the judge's duty not to "advance" the law but instead to follow the law and the constitution?
5.15.2007 3:51pm
Randy R. (mail):
" I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example. "

That a nice thought. Perhaps the Bush Administration and the Republicans should consider this as well.

But they won't, of course, because to them, winning is the *only* thing, not how you play the game. So I guess it's going to be up to the Democrats to act like adults.

In the meantime, we can kiss the environment, workers' rights, and civil rights good bye. Gay rights? Who cares, because we ought play nice for Cheney and Rove.
5.15.2007 3:51pm
The Red Menace (mail):
In the meantime, we can kiss the environment, workers' rights, and civil rights good bye. Gay rights?

It must be hard to type so efficiently with your head in its current location. Bravo, good man.
5.15.2007 4:03pm
frankcross (mail):
As I recall, Clinton nominated Elena Kagan to this seat, but the Republicans never granted her a hearing. Perhaps the Republicans should have considered how they would wish their nominees to be treated in the future.
5.15.2007 4:12pm
elChato (mail):
Is there any more substantial objection to his confirmation, other than what is referenced in the article ("no commitment to advancing civil rights or environmental and worker protections" + founder of *shudder* Federalist Society)?
5.15.2007 4:17pm
Random Commenter:
"But they won't, of course, because to them, winning is the *only* thing, not how you play the game. So I guess it's going to be up to the Democrats to act like adults.

In the meantime, we can kiss the environment, workers' rights, and civil rights good bye. Gay rights? Who cares, because we ought play nice for Cheney and Rove."

A lot of fishermen frown on the use of bait, considering it unsportsmanlike. I see you're a dead fish-and-buckets-of-chum kind of guy.
5.15.2007 4:18pm
Brian G (mail) (www):
"Mr. Kiesler, are you now or were you ever a member of the Federalist Society?"
5.15.2007 4:23pm
Christopher M (mail):
I just don't understand why evidence about a person's likely judicial philosophy is not supposed to be a valid reason to vote against his or her confirmation. Most Democrats view the proper role of the federal courts much differently than most members -- let alone founders -- of the Federalist Society, and accordingly think that it would be bad for the country if the federal bench continues to tilt more and more toward the Fed Society approach to deciding cases. Obviously I understand why judicial conservatives like Prof. Adler disagree with the liberals' votes on confirmation, but it's silly to pretend that it's in the same category as, say, a Senator holding up a judicial nomination because of some personal grudge against the nominee or out of mere desire to spite the President.

I also don't especially understand the attitude that Senators should defer to the President's choices. Judges are not part of the Executive Branch, so the President has no special need to appoint people that will carry out his goals. Part of the value of the confirmation process is that it ensures that nominees will be acceptable across a broad spectrum of American opinion. It's not like the Democrats are demanding nominees like william Brennan.
5.15.2007 4:24pm
Brian G (mail) (www):
Sad state if people actually believe that their rights depend on who the judges are.
5.15.2007 4:24pm
Steve:
As I recall, Clinton nominated Elena Kagan to this seat, but the Republicans never granted her a hearing. Perhaps the Republicans should have considered how they would wish their nominees to be treated in the future.

That's a good point. There's been a lot of tit-for-tat on judges over the last 10 years, and if the tension is going to be de-escalated, there needs to be an effort to appoint broadly acceptable people to these hotly contested seats.

The Democrats should, indeed, think about how they want the nomination process to work in the future. But there's no reason for them to believe that unilateral surrender will somehow dissuade future Republicans from employing obstructionist tactics.
5.15.2007 4:31pm
rarango (mail):
Years ago some pundit wrote a NYT op ed piece on the arms race entitled: Apes on a treadmill. This seems to be the status of judicial nominations. Apparently no one is going to blink.

I mean really this is playground stuff: so and so hit me first....The President's approval rating is in the low 30s and Congress' in the high 20s. Its a good thing adults are running the country.
5.15.2007 4:34pm
Bretzky (mail):
I personally have no problem with the Senate voting down judicial nominations solely on the basis of how they think a potential judge will rule in areas that are important to the Senators. Judicial nominations are fundamentally different from executive branch nominations in that the President and the Senate have equal responsibility for selecting the candidates but neither really has an ability to remove them once they are in place (other than through the cumbersome, politically tricky impeachment process).

As such, the Senate has as much of a responsibility as the President does to ensure that each federal judicial nominee will apply the law in compliance with the constitution. If a Senator does not feel that a nominee will do so, then he has an obligation to vote against confirmation.

However, I do think that every nominee should be given an up-or-down vote by the entire senate.
5.15.2007 4:35pm
Brasher:
The bigger issue is that the DC Circuit doesn't need another judge. It has by far the lowest per-judge workload of any circuit. The two open seats were just created as a holding area for future Supreme Court nominees.
5.15.2007 4:36pm
Soldats (mail):
Bush has shown no inclination to compromise by nominating a more centrist judge, rationally speaking Mr. Adler, why should the Democrats not block it? Or were you somehow too wrapped up in your naivety to not realize that politics is about politics?
5.15.2007 4:39pm
Andrew Okun:
I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example.

Begin?! Based on the last few decades of Republican behavior, the only way Democrats can influence the treatment of Democratic judicial nominees is to have Democratic control of both the White House -- because Replublicans don't nominate them -- and the Senate -- because when the Republicans are in control their behavior is designed to keep Democratic nominees off the bench.

Republican Senate behavior toward judicial nominees was not terribly secret or nefarious ... they campaigned on wanting to remake the judiciary to eliminate the influence of the kinds of judges Democrats nominate and confirming Clinton nominees was not part of the program. But that behavior is not compatible with the idea of everyone getting together in a sober, we're-all-in-it-together, bipartisan kind of way to appoint wonderful judges. That bipartisan thing died during the Reagan Administration and the idea that Democrats can resuscitate it unilaterally by deferring to Republicans, whose direct mail makes quite clear the judiciary cleansing program is ongoing, is loopy. A Democrat who thought being nice to Kiesler and the like would have the slightest impact on the treatment of a Dem nominee by a future Republican Senate would have to be opaque.

That is not to say Kiesler wouldn't be a swell judge, and a return to pre-Reagan consensusy judge appointments would be an excellent thing, but from a game theory and psychology standpoint, you can't there from here by being nice. If Democrats care about Democratic judicial nominees, their best percentage play is ruthless stonewalling, political grandstanding and savage payback. Either it causes Replublicans to make a serious effort to return to an earlier age or it sets up the next Dem president the way Hatch's behavior set up Bush.
5.15.2007 4:44pm
WHOI Jacket:
Remember, "bipartisanship" = caving to the Democrats.
5.15.2007 4:47pm
wuzzagrunt (mail):
They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.


They just aren't making boogeymen like they used to.
5.15.2007 4:47pm
KeithK (mail):

I personally have no problem with the Senate voting down judicial nominations solely on the basis of how they think a potential judge will rule in areas that are important to the Senators.


There's nothing wrong with this from a constitutional perspective. But what this amounts ot is accepting that the judiciary is fundamentally political. Even though we're far down that road already I'm not sure that's where we want to be heading. It's not terribly conducive to the rule of law.


There's been a lot of tit-for-tat on judges over the last 10 years, and if the tension is going to be de-escalated, there needs to be an effort to appoint broadly acceptable people to these hotly contested seats.


In the environment we've created it's hard to see who could possibly be broadly acceptable anymore. I guess we could only nominate milquetoast technocrats to the bench who have no opinions of their own.
5.15.2007 4:47pm
Anderson (mail) (www):
But what this amounts ot is accepting that the judiciary is fundamentally political.

As if either party thought otherwise?
5.15.2007 4:49pm
Steve:
In the environment we've created it's hard to see who could possibly be broadly acceptable anymore.

Really? Judges are getting nominated and easily confirmed all the time. The fact that the Democrats are apparently considering drawing the line to exclude this one nominee hardly means that they're rejecting everyone these days.
5.15.2007 4:51pm
AppSocRes (mail):
Just dimocrats continuing what they started with Robert Bork. Let the dying party have its fun. It will just hasten its extinction and a few unappointed judges won't matter in twenty years.
5.15.2007 4:51pm
Dave N (mail):
Bretzky said it best, "I do think that every nominee should be given an up-or-down vote by the entire senate."

Both political parties can point fingers--arguably Jimmy Carter can be blamed for the start of the trend of politicizing the judiciary by naming some of the most liberal judges (Reinhardt, for example) ever to grace the American judiciary.

Opposing a nominee on ideological grounds is fine with me. However, the name calling (think Ted Kennedy's famous speech about Robert Bork) or personal slandering a nominee because you ideologically oppose that person (calling William Pryor a racist) is beyond the pale.

As a slightly off-topic comment, I would note that the same Democrats who say "Elections matter" when they win an election (2006) were strangely silent when their judicial obstruction tactics helped lose an election (2004).

Frankly, filibustering nominees set a bad precedent--and one I am sure the Democrats will rue if they win the 2008 Presidential election.
5.15.2007 5:00pm
EH:
Looks like we might be seeing some waves breaking from the Administration's politicizing of the DOJ appointment process. I believe we're going to see a lot of discussion in the future about whether the appointment well is poisoned and how much.
5.15.2007 5:20pm
Shake-N-Bake:
Dave N -- the Democrats say "elections matter" because that's what the Republicans said previously in judicial matters, that "elections have consequences"

Both parties pull these stunts. It's not a Democrat thing. Give it up, Republicans, on trying to pretend that the GOP never did this. Everyone knows the GOP will be doing the exact same filibuster threats the Democrats did prior to their 2006 election wins if a Democrat wins the White House next year. And the Democrats will threaten the same rule change the GOP did, and they'll each use the terminology that the other party did the previous round.

Prof. Adler, I know this site leans conservative (and therefore largely Republican, though not the same thing) but that last paragraph was, quite frankly, simply ignorant of history. Whether someone deserves confirmation hasn't mattered since at least when the Republican Revolution of 94 happened, and more likely back into the 80's when the control of Congress and the White House was reversed from the Clinton years. These games have been going on for years, and it would be political suicide for the Democrats to be the ones to blink. I don't expect the Republicans to do so in '09 and beyond either should they be in the complete minority that the Democrats were from 2002-2006. This is the way the game is now played. Merit no longer matters.
5.15.2007 5:38pm
Shake-N-Bake:
To clarify, I don't think the fact that merit no longer matters (or at least isn't the lone concern in confirmation) is a good thing. And I agree that the candidates should get a vote. But I would be hard pressed to find a way that either party would trust the other to actually guarantee a vote short of both parties changing the rules together, which simply won't happen because both parties are going to want to have some modicum of control even when in the minority.
5.15.2007 5:42pm
Dave N (mail):
Shake-N-Bake,

I agree that both political parties play the game. To blame the 1994 election as the start of the trend is disingenuous, however, when one of my specific examples (Ted Kennedy's slander toward Robert Bork) occurred during the Reagan Administraiton.

Frsnkly, the way to change the system is the so-called "nuclear option"--prohibiting filibusters on judicial nominations and with an automatic discharge provision from the Senate Judiciary Committee, even with a recommendation of "Do Not Confirm."

My ideological preferences are well known but I honestly think that is the best way to cut the Gordeon knot around the judicial nomination process--and I would support this change regardless of which party controls the Senate or the White House.
5.15.2007 5:54pm
Dave N (mail):
I would add to my proposal that all nominees be guaranteed a Senate vote within 120 days of formal nomination. If there is a disqualifying skeleton, it will emerge during that 4-month process.
5.15.2007 6:01pm
byomtov (mail):
To blame the 1994 election as the start of the trend is disingenuous, however, when one of my specific examples (Ted Kennedy's slander toward Robert Bork) occurred during the Reagan Administraiton.


Go back further. The Republicans have made complaints about the courts a part of their campaigns for decades, reaching back (at least) to the days of Earl Warren.
5.15.2007 6:15pm
NickM (mail) (www):
Majorities get to do things. One of those things is voting down nominations they don't like. If it's a bad enough thing to enough voters, they pay for it at the polls and lose majority status (or at least enough seats that they decide to tone it down). This is just like the 1995-200 years . What was different about 2003-2006 is that a Senate minority there used rules in an unprecedented fashion to gum up the works.

Of course, it's still unseemly for the Democrats in the Senate to look like they're being led around by PfAW. Voters don't like the thoughof an interest group calling the shots.

Nick
5.15.2007 6:19pm
Shake-N-Bake:
Dave, I did specifically say in my post that this more likely started in the Reagan era, though if I remember correctly Bork did at least get an actual vote. He was treated poorly, but at least he got a vote, which is more than I can say for what began with the GOP Senate during the Clinton term and was carried on to its logical extension by the Democrats from 2002-2006. Either way, it resulted in no votes, and was done within the rules at the time.

But beyond that, I agree that they really SHOULD have rules that require a vote, but that they will never, ever do so because neither party in Congress is going to want to give up one ounce of power.
5.15.2007 6:31pm
SG:
I find it hard to get worked up over politicians acting politically, but to the extent that Democrats in the Senate want to be "advancing civil rights or environmental and worker protections", perhaps they could, you know, legislate some of those advances instead of expecting the judiciary to do it.
5.15.2007 6:40pm
Daniel950:
"There's nothing wrong with this from a constitutional perspective. But what this amounts to is accepting that the judiciary is fundamentally political. Even though we're far down that road already I'm not sure that's where we want to be heading. It's not terribly conducive to the rule of law."


Do you think we can turn back? Look at what the Democrats want here: judges are to ADVANCE certain interest group rights, not to interpret whether the law was executed properly according to how it was written (aka: traditional judging).

We are so far down the road of politicized courts that there is no turning back. One's rights absolutely depend on what kind of judges get to decide. What laws are enforced depend on the judge. What Constitutional Amendments are approved in states depend on the judge. Does anyone here still think that this is a representative democracy? It's not for nothing the Democrats have passed hardly any laws upon achieving power: the courts do everything but appropriate federal money (state courts have been appropriating state money, for educational funding, for years).
5.15.2007 6:54pm
Randy R. (mail):
Me: In the meantime, we can kiss the environment, workers' rights, and civil rights good bye. Gay rights?

Red Menace: It must be hard to type so efficiently with your head in its current location. Bravo, good man.

Random Commentator: A lot of fishermen frown on the use of bait, considering it unsportsmanlike. I see you're a dead fish-and-buckets-of-chum kind of guy.

Me, again: Strange. I complain that a conservative judge will likely vote against the environment and gay and other civil rights. And people respond that I must be off base. So, are you saying that this judge will be pro-environment, pro-gay and civil rights and be some big ole liberal? If so, I stand corrected, and applaud his nomination.

If not, then what are you complaining about -- that I am right?
5.15.2007 6:57pm
Christopher Cooke (mail):
If Keisler is such a great guy, why not let the Reagan library release its records on him? The Dems will only assume the worst when the Bush administration stonewalls on releasing such records.

I think the Senate should use judicial ideology as a part of the equation in considering whether to hold a vote on a nominee, and the Senate should not even schedule a vote on a nominee if they are not consensus pick of a majority of the Senators on the judiciary committee.

That way, the party that controls the Senate has to agree on the nominee, and we obtain more consensus candidates. Clinton, for example, had to run his nominees by Senator Hatch, and nominated judges that Hatch found unobjectionable. I think that process was better than simply having the Senate serve as a rubber stamp for the President.

Professor Adler's view is that "everyone" should be entitled to an up or down vote if they are "eminently qualified" by which he presumably means went to the right law school and had an impressive professional career. Why should these be the only criteria?

If the Senate's rules allow for blocking candidates, filibusters, etc., why are these rules not part of the proper political equation that the President has to consider when nominating someone, regardless of the party of the president and the party that controls the Senate.
5.15.2007 7:39pm
Scipio_79:
If we need judges to advance our rights or provide us rights we are no longer citizens, but subjects. Long live the Constitution. A quick death to the living constitution!
5.15.2007 8:02pm
Mark Field (mail):

I find it hard to get worked up over politicians acting politically, but to the extent that Democrats in the Senate want to be "advancing civil rights or environmental and worker protections", perhaps they could, you know, legislate some of those advances instead of expecting the judiciary to do it.


Or maybe they believe that the existing laws would advance those interests were it not for judicial veto of those laws by conservative judges.
5.15.2007 8:08pm
Daniel950:
Strange. I complain that a conservative judge will likely vote against the environment and gay and other civil rights. And people respond that I must be off base. So, are you saying that this judge will be pro-environment, pro-gay and civil rights and be some big ole liberal? If so, I stand corrected, and applaud his nomination.


You are off base. A "conservative" judge, if he is doing what judges are supposed to do (interpret the law as executed based on how the law was written), would be indifferent to each of these causes and would issue rulings based on the merits of each case. If a civil rights violation were to have occurred, he would find it existed.

However, based on your underlying assumptions, it seems that if a "conservative" judge is merely indifferent to a party's interests, he is failing as a judge, since in your view a judge is to ADVANCE certain causes and interests. Presumably, in your view, a judge should also RESTRICT other causes and interests. And therefore, judging would become wholly political (much, much worse than it is now), and the laws we live by would entirely depend on the political outlook of judges. There would be no need to vote for politicians, no need to write new laws, no need to do anything related to democracy. Want a new civil right? Get a judge to create it. Is that what you want? Apparently.
5.15.2007 8:19pm
David M. Nieporent (www):
One thing to note is that there's a fundamental difference between post-2006 Senate Democrats and pre-2006 Senate Democrats -- that is, the difference between a majority and a minority. What they were doing before 2006 was far more egregious. It's one thing for a majority of the Senate to reject a presidential nominee because they disagree with his views; it's quite another for a minority of the Senate to block votes on presidential nominees because they disagree with his views.

While I don't think that presidents are entitled to a rubber stamp by the Senate, I think their choices are entitled to some deference, because otherwise we'll have a permanent stalemate.

In any case, I agree with Chuck Schumer (which is a statement you'll very rarely hear me say): if one is going to oppose judges on political grounds, one should openly say that one opposes them on political grounds. PfAW-style personal attacks on the character of the nominees -- like calling them racists -- are disgraceful, when the real complaint is that one disagrees with their judicial philosophies. And bogus claims that the Senate needs more information about the nominees are dishonest when the Senate has plenty of information and simply disagrees with their judicial philosophies.
5.15.2007 8:19pm
Viscus (mail) (www):

I also believe Senate Democrats should begin to consider how they would like Democratic judicial nominees to be treated in the future, and set an example.


Democrats are better off fighting it out with Republicans on this one. We control the Senate. We shouldn't let even a single Republican Appeals Court choice go through, unless we are sure they are very moderate.

I don't expect Republicans to give any quarter on Democratic judicial nominees and I hope they do not. There is always the "nuclear option" available for the next Democratic President and Democratic Senate. =)

As far as Adler's plea to consider reciprocity, we haven't forgotten how the Republicans ran the Senate and the House when they were in charge. There are some dues to be paid by Republicans before we consider playing nice on anything as important as judicial nominees.
5.15.2007 8:39pm
Viscus (mail) (www):

it's quite another for a minority of the Senate to block votes on presidential nominees because they disagree with his views.


I agree. We should do away with the filibuster on both judicial nominees and legislation. For a minority of Senators to block legislation just because they disagree with the point of view advanced by the legislation is horrible.
5.15.2007 9:26pm
Viscus (mail) (www):
Peter Keisler co-founded the Federalist Society. That does make blocking his nomination especially enjoyable.
5.15.2007 9:34pm
David M. Nieporent (www):
Or maybe they believe that the existing laws would advance those interests were it not for judicial veto of those laws by conservative judges.
Perhaps -- but it's telling that they don't say that. They don't say, "He'll refuse to enforce existing laws on worker protections and the environment." They say that he has failed to show a commitment to "advancing" these things in the past.
5.16.2007 6:12am
hugh:
Nah, let's just let the whole process fall apart. Let's just never allow any judicial nominees by any president to ever be confirmed. Let all judges serve on recess appointments.
5.16.2007 7:36am
Brian K (mail):
HAHAHA...I find it odd that many of the conservatives are picking on the word "advanced" and attributing it to the standard democratic position. Perhaps none of you realized that this wasn't a quote from an actual democratic senator but a quote from a reporter. Last time I checked reporters weren't eligible to vote in the senate, nor were they representative of anyone's position. Next time, I suggest reading the article first.
5.17.2007 6:07am
Jonathan H. Adler (mail) (www):
Brian K --

The word "advance" (which is not in my initial post) comes not from a reporter, but from Nan Aron, who coordinates opposition to Bush nominees at the Alliance for Justice.
Nan Aron, the president of Alliance for Justice, a group regarded by many liberals as a leader on judicial issues, acknowledged that Keisler has excellent legal qualifications. She said that is not sufficient, however.

"Excellence of the law is not the only criterion for a federal judgeship," she said. "It's important that any nominee demonstrates a commitment to equal justice, to advancing justice for all Americans and not just special interests.

"He would not advance on the D.C. Circuit civil rights, environmental and worker protections," added Aron, who said Democrats should not advance Keisler's nomination.
You're right. People should read the article before commenting.

JHA
5.17.2007 9:14am
Brian K (mail):
That does not change the fact that the word is not used by any democratic senator. A lobbyist/pundit/political commentator/interested 3rd party is still not a member of the senate.
5.17.2007 6:29pm