Eminent Domain

Considering that the election was over a month ago, I should probably finish this four-part series of posts. This is really the post that I dreaded writing. I'm going to try to figure out what President Bush is going to do about judicial nominations in the next two years. I have a hard time reading W sometimes, but I'll give it a shot.

On November 15th, Bush sent this list of judicial nominations back to the Senate. Keisler, Haynes, Boyle, Wallace, and the rest of the gang are all there. These are the people that Bush wants on the bench. The president is big on "his people." He's going to keep sending those names to the Senate until something substantive happens. Bush got no help from the outgoing Republican Senate on the "controversial" nominees in this group, and I doubt that Judiciary Chairman Leahy is going to be kind to them.

While it's nice to see that Bush is loyal to his nominees, I think that there are going to be major problems if this continues. The vacancies are starting to pile up, especially on the appeals courts. The Fourth Circuit will have our vacancies once Chief Judge Wilkins takes senior status. Judge Widener said that he would take senior status once his replacement (Haynes) was confirmed. Widener is 83 years old. Nixon appointed him. Not to be morbid but the "big senior status in the sky" might take Widener before Haynes is confirmed. Bush needs to realize that those vacancies need to be filled by conservative judges as soon as possible. If those seats stay empty and a Democrat wins the White House, the once uber conservative Fourth Circuit will look very different.

It's not just the Fourth Circuit either. The Third Circuit has three vacancies. On a court as tight as the Third Circuit, three vacancies is a huge number. There is currently only one nominee. This is unacceptable. The problem is that I don't think Bush and/or his nomination crew think of the judiciary this way. People like me are doing head counts of judges, watching for potential shifts. While Bush wants to get his people on the courts, it doesn't seem like the administration is working hard to fill all of the vacancies. They've become stalled in fights over "controversial" nominees. The Democrats are more than willing to run out the clock, blocking these nominees and keeping the administration fighting unwinnable battles.

Wallace withdrew his nomination. That's a pure class move on his part. He knows that he got railroaded by the ABA, but he also knows that his nomination isn't going anywhere. I'm hoping that the other "fatal" nominees take Wallace's lead, because Bush isn't going to pull them on his own. He didn't pull Miers until she asked him. While a federal judgeship is a sweet gig, some of these nominees need to put that aside and take one for the team and step aside.

I have strong feelings of dread for the next two years and the federal courts. I don't think Bush is thinking about the courts strategically enough. I understand that there are other things going on in the world that take his attention. However if he wants to secure a lasting domestic legacy, he needs to act decisively and intelligently on his federal court nominations. If he doesn't, his second term will be looked back on as one of the biggest blown chances to shore up the federal courts.