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Bench Memos

NRO’s home for judicial news and analysis.

No White House Strategy of Holding Back



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I reported yesterday a Senate source’s concern that the White House had adopted a strategy of holding back on making new nominations until the Senate processes the nominees that it already has. I am pleased to report that a very reliable source assures me that no such strategy has been adopted. On the contrary, except with respect to the 11th and 12th seats on the D.C. Circuit, the White House is moving as fast as it can to submit nominations for existing vacancies. This process is slowed by, among other things, the practical need to negotiate in advance with senators about prospective nominations — a need that flows from the Senate’s absurd blue-slip policy that effectively gives home-state senators, including those of the opposing party, a veto over both district and appellate nominees in their states. And, of course, the attention of senior White House lawyers had understandably been diverted over the past seven months to the Roberts and Alito nominations.

With respect to the D.C. Circuit, it turns out that it is far from clear that key Republican senators have embraced the proposition that 11 active judgeships are needed. The confirmation of Thomas Griffith to the 11th seat last June might instead be regarded as an internal Senate favor that sets no precedent as to the need for an 11th seat. So don’t expect another nomination to the D.C. Circuit until Brett Kavanaugh is confirmed to the 10th seat on that court.



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