January 07, 2009

Will Obama Renominate Bush Judge Picks?

Since the election of Barack Obama, we’ve been wondering aloud whether he would meet the standard for bipartisanship in judicial nominations set by George W. Bush in the first year of his Administration. Among Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton nominee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee. Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit last year and quickly confirmed.

On November 29, the Wall Street Journal called for Obama to “renominate some of President Bush's highly qualified judicial picks who have been left to languish for years.” It would be a “good first gesture,” the Journal said, if Obama wants to “end[] the political war over judicial nominations.”

This week, Quin Hillyer of the Examiner joined the voices calling for Obama to make this bipartisan gesture. Hillyer focuses on the person who best meets the Journal’s description – highly qualified and left to languish for years – D.C. Circuit nominee and former acting U.S. Attorney General Peter Keisler. Hillyer argues convincingly that renominating Keisler “more than any other [step], would put substance behind [Obama’s bipartisan] rhetoric.”

As Hillyer points out, “Keisler’s reputation for probity, fairness, and legal brilliance” is recognized across the political spectrum:
“Ted Kennedy publicly praised Keisler’s record and temperament … The liberal editorial boards of The Washington Post and Los Angeles Times singled out Keisler as a nominee who especially merits approval. When the Inspector General issued a report blasting the politicization of the Bush Justice Department, the report repeatedly praised Keisler for resisting the politicization … Harvard Law Dean Elena Kagan [Obama’s choice for Solicitor General] signed a letter supporting [Keisler].”
No wonder “Senate Democrats never even tried to offer substantive reasons for [obstructing Keisler].” Instead, they just ignored Keisler, denying him a vote in the Judiciary Committee throughout the entire 110th Congress, despite rave reviews at his 2006 hearing.

Democrats’ obstruction of Keisler apparently reflected their fear of his Supreme Court potential and their unstated desire to hold a seat open on the all-important D.C. Circuit for the next president to fill. The latter reason rings hollow now that D.C. Circuit Judge Raymond Randolph has taken “senior” status, opening up a second seat on the circuit. As Hillyer notes,
“Randolph was an appointee of the first President Bush, so Keisler would be filling what already was a ‘Republican seat,’ rather than altering the balance of power . . . Another seat remains open for a Democratic nominee.”
Meeting the Bush Standard for bipartisanship in judicial nominations is not only the right thing to do; it’s in Obama’s best interests. After two years of criticizing President Bush for being too partisan, it’s unlikely that Obama wants to be seen as less bipartisan on judges than his predecessor. Moreover, writes Hillyer,
“Republicans - justly furious that Senate Democrats never reciprocated Bush’s goodwill on the Gregory nomination - would be much more likely to cooperate with Obama if the new president makes a similar gesture with Keisler.”
In particular, Arlen Specter, the ranking Republican senator on the Judiciary Committee, would appreciate the gesture. Hillyer notes that Sen. Specter has touted Keisler’s nomination, “calling him a ‘stellar nominee’ of ‘deep integrity.’ As a Senate swing vote, Specter might be especially worth cultivating by Obama.”

Assuming Obama wants to match his predecessor’s numbers, he’ll need to chose a second Bush nominee – in addition to Keisler – for the circuit courts. Rod Rosenstein, U.S. Attorney in Maryland and a Bush nominee for the vacancy-plagued Fourth Circuit, would be the perfect pick. The Washington Post supports his nomination and Senate Democrats and their allies haven’t found a bad thing to say about him. Maryland’s Democratic senators blocked his consideration by the Judiciary Committee, but the best they could come up with, to quote the Post, is the argument that “Mr. Rosenstein is doing such a good job as U.S. attorney that he should be kept in that post rather than moved to the court.”