Bench Memos

Re: Claim that President Bush Would/Might Have Nominated Garland

A few brief thoughts offered as addenda to Ed’s post about Richard Painter’s op-ed.

First, if we are to believe that President Bush, if presented with a Supreme Court vacancy at the end of his second term when Democrats controlled the Senate, would have nominated a moderate appellate judge picked by a Democratic president to the Court, and if we are to further believe that this is relevant to the fight over the current Supreme Court vacancy, then does this not suggest that President Obama should have nominated a moderate Republican-nominated judge? Perhaps he should have nominated someone like Judge Jeff Sutton who is highly regarded, for his intellect and voted against the constitutional challenge to the Affordable Care Act? Another possibility would be Judge Debra Livingston of the U.S. Court of Appeals for the Second Circuit. If we take Professor Painter’s claim seriously, this would seem to the logical implication.  Moreover, there is precedent for such a move. The last time a vacancy arose in a presidential election year, President Eisenhower picked a Democrat — William Brennan. Interestingly enough, this is the only time in the past century when a vacancy that arose in an election year was filled when the opposition party controlled the Senate.

Second, as to whether President Bush would have tried to offer a “compromise” to defuse opposition to his judicial nominations, he did — and got nothing for it. In his first batch of appellate nominees, Bush included two Democratic nominees; Barrington Parker for the U.S. Court of Appeals for the Second Circuit and Roger Gregory for the U.S. Court of Appeals for the Fourth Circuit. Gregory, it should be recalled, had been blocked by Republican Senators as payback for Senate Democrats refusal to consider the nomination of Terrence Boyle by the first President Bush. Nonetheless, Bush offered a substantial olive branch by re-nominating Gregory over the opposition of some members of the Senate Republican caucus. What did Bush get for this effort to compromise? Nothing. Bush tried a compromise at the end of hi term too, offering to renominate Helene White to the U.S Court of Appeals for the Sixth Circuit in exchange for an end to Senate Democratic opposition to several other Sixth Circuit nominees. This deal worked, and multiple nominations went through.  Interestingly enough, for all the talk of “compromise” on judicial nominations, President Obama has never tried anything like this since he has been in office.   Apparently, Republicans are the only ones who are supposed to offer compromises and olive branches.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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