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Bench Memos

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A Couple Clarifications/Rejoinders



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1. Some have questioned my observation here that “the Republican signatories’ agreement to oppose cloture reform is contingent (both expressly and as a matter of basic contract principles) on the Democrat signatories’ living up to their end of the bargain.” I would like to explain why it is both legally wrong and tactically imprudent to dispute this point.

Any agreement must be read against background contract principles. One of the most elementary principles of contract law is that a material breach by one part excuses continued performance by the other. So there is, I submit, no question that a Republican signatory is not bound to his promise to oppose cloture reform if the Democrat signatories do not live up to their end of the bargain.

Besides being legally wrong, it is tactically imprudent to read the agreement any other way. The agreement is no longer at the drafting stage; it is now a fait accompli. Some Republican signatories will undoubtedly look for excuses not to change their position down the road. Misreading the agreement to suggest that they are bound under all circumstances to oppose cloture reform will give them something to hide behind.

Some readers have suggested that my reading of the agreement is too optimistic. I have rarely been accused of optimism, and I am innocent of the charge here. I don’t trust the Republican signatories to recognize and act upon a breach when one occurs. Intense pressure will need to be placed on them.

2. I think that Jonathan’s disagreement with my comments on pre-nomination consultation is both far less and far greater than he suggests. I agree that there has been a practice of pre-nomination consultation with home-state senators. But Jonathan’s examples of the non-nominations of Peter Keisler and Chris Cox prove my point that this consultation leads to mediocrity. It would be difficult to find a finer lawyer with a more judicious temperament than Peter Keisler. And although I don’t know Chris Cox, I understand that he is also outstanding. The fact that pre-nomination consultation doomed their nominations supports my point that consultation is the enemy of excellence and that anything that increases the Senate’s pre-nomination role is bad.

Simply put, most senators don’t care about, and are ill-equipped to discern, quality nominees. They care about raising money. Jonathan doesn’t think that consultation is a big deal. But it is impossible to identify all the outstanding potential nominees who have been overlooked because they are not fundraisers and cronies of senators. Consider this: Why is it that the D.C. Circuit has consistently had more outstanding judges than other circuits? I think a big part of the answer is that there is no home-state senator who can adversely influence D.C. Circuit nominees.



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