Judicial Nomination Wars Reigniting
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After turning away from judicial nominations in the wake of Justice Samuel Alito’s early February confirmation, the Bush administration and Senate Republican leadership, prodded by impatient conservative bloggers and activists, renewed their drive to shift the nation’s appellate courts rightward. As a result, the judicial nomination wars have reignited and should continue until the 109th Congress adjourns in early October. As of the beginning of August, here is a brief summary of the status of controversial nominations addressed in 2006:
Controversial Nominees Confirmed in 2006
Brett Kavanaugh – DC Circuit. First nominated in 2003, Kavanaugh was White House Secretary until his confirmation on the court of appeals. Before that he had been White House Associate Counsel since the outset of George W. Bush’s presidency. Prior to his White House service, Kavanaugh held senior positions in the Solicitor General’s office and on Kenneth Starr’s Independent Counsel staff. In light of Kavanaugh’s partisan record and relatively sparse judicial or litigation experience, Democrats strongly opposed his nomination. But his record invited no objections on professional or character grounds, and bore almost literally no traces of controversial legal or philosophical views. Thus, the nomination presented no basis for the “extraordinary circumstances” determination necessary to permit a filibuster under the terms of the May 2005 “Gang of 14” Agreement. He was confirmed 57-36 on May 26, 2006.
Jerome Holmes – 10th Circuit. Holmes was nominated on May 4 and confirmed 67-30 on July 26, 2006. An Assistant U.S. Attorney for the Western District of Oklahoma from 1994 through 2005, and more recently with a private law firm in Oklahoma City, Holmes was opposed by civil rights groups because of his vocal opposition to affirmative action. He is the first African American to serve on the 10th Circuit.
Controversial Nominees Who Remain (Apparently) Blocked
William Myers – 9th Circuit. Strongly opposed by the environmental community and by several senior organizations including NSCLC – because of his strong anti-regulatory views – Myers was singled out in the May 2005 Gang of 14 Agreement as a previously filibustered nominee who would not be protected from future Democratic filibusters. Assuming that the Republican members of the Gang adhere to their agreement, Myers’ candidacy is a dead letter. There is as yet no indication that the candidacy can be revived.
William Haynes – 4th Circuit. He was first nominated in the 108th Congress and renominated in February 2005. Haynes’ nomination has been stalled because of his role, as General Counsel to the Department of Defense, in authoring and defending the Administration’s policies regarding the detention and treatment of suspected enemy combatants. Unanimously opposed by Judiciary Committee Democrats, Haynes’ nomination remains bottled up in the Committee because it is also opposed by South Carolina Republican Lindsey Graham, both a member of the Committee the Gang of 14.
Pending Controversial Nominations
Michael Wallace – 5th Circuit. Nominated on February 8, 2006, Wallace has been battered by a rare “not qualified” rating from the American Bar Association. The ABA found him qualified in terms of his professional ability and personal integrity but unqualified because of concerns about his alleged lack of judicial temperament and capacity to treat litigants fairly, particularly minorities and disadvantaged persons. The ABA’s report has been strongly attacked as biased by conservatives, and Specter has circulated a letter recommending that the report be rejected by the Committee. Wallace was appointed by President Reagan to the Board of Directors of the Legal Services Corporation, in which capacity he played a high visibility role seeking to curb the litigating authority of LSC-supported attorneys.
Peter Keisler – DC Circuit. Nominated on June 29, Keisler’s nomination has been pushed at an unprecedented pace by the Republican leadership. The Judiciary Committee held a hearing on Keisler on August 2, barely one month after the White House announced his nomination. A founder of the Federalist Society while at Yale Law School in the 1980s, Keisler served as an Associate Counsel in President Reagan’s White House and as an Associate and Assistant Attorney General in the current administration. Democrats are strongly protesting the haste with which Chairman Specter is attempting to move Keisler’s nomination, and their inability to access records of Keisler’s extensive government service.
For further information, contact Si Lazarus or Rochelle Bobroff in NSCLC’s Washington DC office.