On May 9, 2001, President George W. Bush unveiled his first set of nominees to the federal appellate bench. Several of them were widely anticipated, including Michael McConnell and John Roberts. Others were a bit of a surprise. In particular, Bush chose to nominate Judge Barrington Parker, a Clinton appointee, to a seat on the U.S. Court of Appeals for the Second Circuit. More surprising still was Bush’s decision to renominate Clinton recess appointee Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit. “I now submit these nominations in good faith, trusting that good faith will also be extended by the United States Senate,” Bush explained.
His trust was misplaced.
The Democrats have done their best to portray President Bush as a monster of small-minded partisanship, but the facts argue the opposite: The Gregory and Parker nominations were a rare gesture of bipartisanship in judicial politics, and Democrats, rather than reciprocating, instead redoubled their efforts to subvert the president's constitutional role in filling vacancies on the bench. Voting against a nominee is one thing, but the Democrats prevented the Senate from even taking an up-or-down vote on many of Bush's judges. President-elect Obama talks a good game about post-partisanship and “transcending” traditional politics, but so far he's given no indication that he intends even to equal Bush's bipartisanship on this score. If Obama wants his deeds to live up to his words, he would do well to follow Bush's example.
There are 13 vacancies on the federal appellate courts, eight of which are considered judicial emergencies by the Federal Judicial Center. President Bush has seen fewer appellate nominees confirmed per term than any president in the past 30 years. We would not have thought it possible, but the rate of confirmation in the past two years crawled to a new low. As a consequence, Obama could fill as much as one-third of the federal appellate bench in a single term. He can afford to be bipartisan.
Conservatives would like to see Obama renominate Peter Keisler, a co-founder of the Federalist Society and now a partner at Sidley Austin (the high-powered Chicago law firm where the president-elect met his wife), to the U.S. Court of Appeals for the D.C. Circuit. There are at present two vacancies on that court. A former assistant attorney general and acting attorney general who gets the highest marks for his professionalism and integrity, Keisler is supremely qualified for a seat on the bench. He was first nominated in June 2006 to fill the vacancy created by Roberts’s confirmation to the Supreme Court. A hearing followed shortly thereafter, but the nomination has languished since. The
Washington Post, no bastion of judicial conservativism,
called the Senate’s failure to confirm Keisler a “tragedy.”
The U.S. Court of Appeals for the Fourth Circuit has the greatest need for additional judges, and several highly qualified, well-respected Bush picks would make very fine candidates for renomination. Four of the court’s 15 seats are open. Three of these are judicial emergencies, and two have remained vacant for the entire Bush presidency. Any of Bush’s Fourth Circuit nominees — Robert Conrad, Rod Rosenstein, Steve Matthews, Glen Conrad — could receive quick confirmation, as all have won bipartisan praise.
The renomination of one or two Bush judicial nominees would be particularly welcome. Obama, for all his unifying rhetoric, exhibited a conspicuous lack of bipartisan initiative in the Senate, especially in the area of judicial nominations. Not only was Senator Obama absent from the “Gang of 14,” he also voted against confirmation of both John Roberts and Samuel Alito — and even voted to filibuster the latter. President Obama will have ample opportunity to make his mark on the judiciary. Including a few Bush picks among his nominees would be a demonstration of Obama's good faith and, more important, it would correct an injustice that has diminished the presidency and our constitutional order.
