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Bench Memos

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Putting the D.C. Circuit Vacancies in Context—Part 3



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The White House is expected to demand quick Senate action on its impending nominations to the D.C. Circuit. Any such demand ought to be considered against the backdrop of the Senate’s treatment of President George W. Bush’s nominees to that court:

1. President Bush nominated the superbly qualified Miguel Estrada  to the D.C. Circuit on May 9, 2001. Senate Democrats did not give Estrada a hearing until September 2002, and they then held his nomination in committee. After they lost control of the Senate in the 2002 elections, they unleashed the unprecedented use of the filibuster against the Estrada nomination and defeated seven cloture petitions. In September 2003, 848 days after his nomination, Estrada withdrew.

2. Bush nominated another outstanding candidate, Peter B. Keisler, to the D.C. Circuit on June 29, 2006. After Senate Democrats took control of the Senate, they never moved Keisler’s nomination out of committee. Keisler’s nomination died some 2-1/2 years after it was made.

3. Bush did succeed in getting four of his nominees confirmed (a net of three, as John Roberts was elevated to Chief Justice), but only after extended delays and massive obstruction. Roberts’s nomination took 729 days to confirmation. Janice Rogers Brown’s took 684 days and encountered two cloture defeats. Thomas Griffith’s took 400 days. And Brett Kavanaugh’s took 1,036 days, including an unsuccessful filibuster effort.

By contrast, Senate Republicans have blocked (and have forced cloture votes on) only one of President Obama’s D.C. Circuit nominees, Caitlin Halligan. Sri Srinivasan’s confirmation last week came a mere six weeks after Senate Judiciary Committee chairman Pat Leahy afforded him a Judiciary Committee hearing. (Srinivasan was first nominated in June 2012—a hasty mid-election year nomination that no one expected any action on. Even then, his time from nomination to confirmation was less than a year—less (and, in most cases, much less) than that of the Bush appointees.)



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