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What About Bush's Judicial Nominees?

By Jack M. Balkin

In response to my previous post on judicial appointments, see here, I have received some inquiries about whether I think that President-Elect Obama should renominate some of the pending (and less controversial) Bush 43 judicial nominees, including Peter Keisler. It should come as no surprise that my normative answer is yes because I believe that nominees such as Keisler have been unfairly held by the Senate. (In the interest of full disclosure, I worked with Peter while practicing law at Sidley, Austin, Brown & Wood from 2001-2002 and think quite highly of him.) I would also encourage President-Elect Obama to renominate one of Bush's Fourth Circuit nominees, such as Judge Robert Conrad of the Western District of North Carolina, because of the record number of vacancies on that court. Both Keisler and Conrad have been unanimously deemed "highly qualified" by the ABA Standing Committee on the Federal Judiciary.

Do I think that Obama will renominate any of Bush's judicial nominees? No, though it would be an incredible gesture of bipartisanship, one that Bush himself made when he renominated Roger Gregory, originally a Clinton nominee, to the Fourth Circuit in 2001. As Jonathan Adler points out in this post, however, Obama has not shown bipartisan tendencies with respect to judges as he voted to filibuster the Alito nomination and did not participate in the "Gang of 14."

But far more fundamentally, there is very little political incentive for Obama to renominate any of Bush's judicial nominees. If Roland Burris and Al Franken are seated, Democrats will control 59 of 100 Senate seats, just one short of a filibuster-proof majority. Unless Obama makes some outrageous judicial selections (such as corrupt, biased, or unqualified nominees), I cannot imagine that Republicans will be able to hold together a coalition to filibuster or block any nominees, particularly with moderate senators such as Olympia Snowe, Susan Collins, and Arlen Spector among the ranks of Republicans. (I suspect, in fact, that if any of Obama's judicial nominees fail to come up for a vote in Obama's first two years in office, it will be because one or more Democratic senators oppose the nomination.) If there were ever a situation where it might be prudent to renominate judicial nominees of a prior president, it would be when the Senate is virtually equally divided or even tilted toward the opposition party. Indeed, when President Bush renominated Roger Gregory to the Fourth Circuit and then nominated Clinton district court appointee Barrington Parker to the Second Circuit, the Senate was equally divided between Republican and Democratic senators. In such a case, the hope is that the gesture of bipartisanship by the president will encourage recalcitrant senators of the opposition party to confirm the entire slate of judicial nominees.

But even with an equally divided Senate, Bush's bipartisan strategy was unsuccessful. Of the eleven nominees initially advanced by President Bush including Parker and Gregory, two never received a vote (Terrence Boyle and Miguel Estrada) and another (Priscilla Owen) was confirmed by the Senate about four years after her nomination as a result of the compromise reached by the Gang of 14. Other nominees in that group, such as Jeffrey Sutton and Deborah Cook, also encountered some delay after their nominations were submitted to the Senate. Thus, based on recent history and the reality of the political situation, I cannot imagine that Obama would feel pressure to renominate any of Bush's judicial nominees unless he is trying to curry political favor with a particular set of senators, such as with respect to the North Carolina senators by renominating Judge Conrad.

Full post as published by Balkinization on January 07, 2009 (boomark / email).