Eminent Domain

Howard Bashman, czar of the must-read How Appealing blog, has a great article on Law.com entitled "For Federal Appellate Judicial Nominations, It's a Time for Pragmatism." I spent the better part of November writing about the appeals court nomination landscape, post-election. If you missed those posts or just want to relive their splendor, you can find all four in the Least Worst section. If I told anyone how long Part 3 took to write, they would have me committed.

Bashman's article sets the scene, describing the January withdrawals of a handful of the "controversial" judicial nominees...

With these latest withdrawals, the number of federal appellate court nominees for whom the Bush administration has failed to attain confirmation for lifetime seats on the bench increases to seven. What is even more significant, however, is that there are now 17 vacancies on the federal appellate courts, but the Bush administration currently has pending only five nominations to fill those vacancies.

I talked about this in my quartet of posts. The vacancy situation is at near crisis state. The White House may have other priorities right now, but they need to at least get a couple of interns working on this judiciary thing. Hell, I'll do it if they are strapped for people. Significant movement must occur soon.

Bashman then reminds us of the good times...

Of course, the Bush administration has achieved some notable successes thus far. The two most obvious examples now serve on the U.S. Supreme Court: Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. And on the federal appellate courts, young conservative Bush appointees include D.C. Circuit Judge Brett M. Kavanaugh, 5th Circuit Judge Priscilla R. Owen, 6th Circuit Judge Jeffrey S. Sutton, 7th Circuit Judge Diane S. Sykes, 8th Circuit Judge Steven M. Colloton, 10th Circuit Judges Michael W. McConnell and Neil M. Gorsuch, and 11th Circuit Judge William H. Pryor Jr.

That's a list that brings a smile to my face. It probably makes Ralph Neas cry. I'm okay with that.

Back to the bad news. There are some circuits teetering on the brink right now...

The number of existing vacancies threatens to wreak havoc on two regional federal appellate courts in particular. The Richmond, Va.-based 4th Circuit currently has four vacancies (counting a judge who has declared the intent to take senior status when a successor is confirmed) for which there are no nominees, while the Philadelphia-based 3rd Circuit has three vacancies for which there is only one nominee.

The Fourth Circuit is one of the most conservative courts in the country. However, the many vacancies have caused things to tighten up ideologically. The Third Circuit is also incredibly close. If the White House fails to act on these vacancies, the ideology of those courts may shift. This would be a huge loss. Those of us who spend our free time on Wikipedia counting votes on appeals courts would be quite upset.

Bashman's advice to the White House: be practical...

After more than six years of trying to place highly intelligent individuals with a conservative outlook onto federal appellate courts, the administration should now consider becoming more practical -- and should think about opting for second best when its top choice appears too controversial to attain confirmation in the current political climate. This pragmatic approach would reflect political reality, possibly maximize returns in an arena where the opposing political party now controls the agenda, and prevent the nomination decision from falling into the hands of a new president who might not share the current administration's views on the proper role of federal appellate court judges.

Well said. He even has a few recommendations...

It is of course possible that a few impeccably credentialed federal appellate court nominees who are especially to the liking of the White House can still be confirmed in the time that remains. In this category I would place D.C. Circuit nominee Peter D. Keisler and Solicitor General Paul D. Clement.

Keisler is one of the current nominees that is worth fighting for and is confirmable. Paul Clement is insanely qualified for the federal bench and should be nominated to the Fourth Circuit. Losing him in the SG's office is not going to be easy for the Bush Administration to take, but he can do more good on the bench.

Bashman's advice is on point. These vacancies need to be filled now. If the White House waits, the Democrats will try to run out the clock. Then President Clinton can nominate judges that reflect her judicial philosophy. And that... that's bad.