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Where Are the Nominees for Appellate Courts?

Nearly two months ago, the White House press secretary announced that President Bush intended to renominate 12 appeals court nominees whose confirmation Democratic Senators had opposed in the first term. On the afternoon before Christmas Eve, Scott McClellan released a “Statement on Judicial Nominations,” which observed that the chief executive would renominate the dozen blocked nominees after the 109th Congress convened on Jan. 4.

Now the entire month of January has come and gone, and Bush has failed to nominate a single person for the more than three dozen vacancies on the federal appellate and district courts. Day after day throughout the month of January, I dutifully called up the White House Web site every hour on the hour only to learn that no one had received nomination. As an inveterate judicial appointments junkie, my behavior and curiosity is not surprising.

However, additional inquiring minds are wondering. The voters, whom Bush has repeatedly claimed accorded him a mandate to name ideologically conservative judges, also want to know where the federal bench nominees are. After all, the chief executive made judicial selection an issue during both his first term and the 2004 campaign. The president has often characterized Antonin Scalia and Clarence Thomas as his “favorite” justices, while incessantly repeating the mantra that he will appoint judges who construe, but do not make, the law or apply their personal opinions.

Indeed, as recently as the Feb. 2 State of the Union address, the chief executive proclaimed that “judges have a duty to faithfully interpret the law, not legislate from the bench [because they] must always deliver impartial justice.” Bush also recognized his “constitutional responsibility to nominate men and women who understand the role of courts in our democracy and are well qualified to serve on the bench” and claimed he had done so.

The president concomitantly admonished that the “Constitution also gives the Senate a responsibility: Every judicial nominee deserves an up-or-down vote.” So, the chief executive’s much-vaunted political base wants to know where are those ideologically conservative nominees whom Bush promised he would tender in winning re-election and the press secretary suggested would be forthcoming during early January.

Many others want to know. The curious include Senate Democrats, who staunchly opposed the dozen candidates in the first term and have vowed, as recently as Feb. 1, that they will continue blocking the individuals, even invoking filibusters, should the 12 be renominated. Senate Democrats’ advice and consent is essential to facilitating the nominees’ smooth approval, although Republicans enjoy a Senate majority.

Perhaps the answer to these queries is that Bush is reconsidering. Maybe he understands why Democrats have opposed specific candidates among the dozen he pledged to renominate. Illustrative are his three nominees for the District of Columbia Circuit. Janice Rogers Brown is a vociferous critic of New Deal statutes and related “social legislation,” such as civil rights laws, which underlie many of that court’s appeals; Thomas Griffith has practiced law for several years without a bar license, which he allowed to lapse; and Brett Kavanaugh has been the chief architect of the administration judicial selection policy. Another example is 4th Circuit nominee William J. Haynes II, whose qualifications John Dean characterized as weak and who as Defense Department general counsel formulated the discredited “enemy combatant” notion to which Justice Thomas alone subscribed in Hamdi v. Rumsfeld. A third illustration is the four nominees to Michigan’s vacancies in the 6th Circuit. Michigan’s Democratic Senators have blocked their confirmation partly because the Republican Senate never seriously considered two highly qualified Michigan individuals whom President Bill Clinton nominated. A final example is 9th Circuit nominee William Myers III. Democrats criticize Myers for taking anti-environmental positions as the Interior Department’s solicitor and as a mining industry lobbyist.

Perhaps the president appreciates the institutional complications. Maybe he recognizes that renominating the 12 individuals whom Democrats strongly opposed and recently vowed to persist in blocking will only continue the unproductive dynamics of bitter accusations and recriminations, divisive infighting for partisan advantage and paybacks. The chief executive might well realize that perpetuating these phenomena will additionally erode the severely dysfunctional appointments process, exacerbate its downward spiral, and further undermine already gravely deteriorated citizen respect for the process, the Senate, the executive, and perhaps the judiciary and the judges who receive appointment. The president may even comprehend that manipulating judicial selection for near-term political advantage breeds disrespect for appointments and those who participate in selection and that he must rise above politics for the nation’s good. Finally, Bush might appreciate that the best starting point to improve a process which many in the Senate, the executive and the judiciary frankly acknowledge is broken would be reconsidering and rejecting the renomination of appellate candidates whom Democrats have opposed.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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