Bench Memos

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Status Report on Appellate-Court Nominations


From what I can make out, here’s where things currently stand:


1.  Two court of appeals nominees—Peter Keisler (D.C. Circuit) and Leslie Southwick (Fifth Circuit)—have had their hearings but have not yet been voted out of committee.  Keisler’s hearing took place nearly a year ago, on August 1, 2006.  Southwick’s occurred on May 10, 2007.


In mid-January 2007 (as I discussed here), the Los Angeles Times specifically recommended that Senate Democrats confirm Keisler and, more generally, display a “cooperative spirit” rather than “obstructionism” and “forswear knee-jerk opposition to Bush appointees who are within the legal mainstream.”  So much for that advice.


2.  Three court of appeals nominees—Jennifer Walker Elrod (5th Circuit), Raymond M. Kethledge (6th Circuit), and Stephen J. Murphy (6th Circuit)—await their hearings.  Elrod was nominated in March 2007.  Kethledge and Murphy were first nominated in June 2006, and their nominations were resubmitted in March 2007.


3.  Three court of appeals nominees—Debra Livingston (2nd Circuit), Thomas Hardiman (3rd Circuit), and N. Randy Smith (9th Circuit)—have been confirmed in 2007.  All three had originally been nominated in previous years.


4.  Ten court of appeals vacancies still await nominations.  Six of these ten vacancies have existed for more than a year (though in three of these cases, I think, the previous nominees withdrew at the end of last year).  No nomination, for example, has yet been made for Justice Alito’s Third Circuit seat, which he vacated on January 31, 2006.


It would be easy to blame the White House for failing to make the nominations, but in at least some (and perhaps all) of these cases the White House’s pre-nomination consultation with senators is encountering severe obstruction.


I welcome any corrections to this summary.

Tags: Whelan


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