Bench Memos

The Case for Keisler

It is difficult to imagine that any judicial nomination could receive heartier informed bipartisan acclaim than President Bush’s nomination of Peter Keisler to the D.C. Circuit has garnered.  Yet despite all the support I cite below, despite his unanimous “well qualified” rating from the ABA judicial-evaluations committee, despite the Washington Post’s assessment that he “certainly warrants confirmation”, and despite the Los Angeles Times’s specific recommendation (in mid-January 2007) that Senate Democrats confirm him, Keisler’s nomination remains mired in the Senate Judiciary Committee nearly two years after his June 2006 nomination. 


Here’s a sampling from letters of recommendation from folks who know Keisler well and who (from their self-descriptions in their letters or from their public reputations) aren’t conservatives:


Akhil Amar (Yale law professor):  “I would rank Peter at the very top of the distribution curve in terms of sheer intelligence, lawyerly skill, judicial temperament, and overall character.  In short, Peter Keisler has the potential to be one of the most respected jurists of the early twenty-first century.…  I support his judicial candidacy enthusiastically and without reservation.”


Neal Katyal (Georgetown law professor and opposing counsel in the Hamdan case):  Keisler “would be a fabulous judge”; “not an ideologue, but rather a lawyer who took tremendously seriously both his craft and his carefulness.”


Anthony Kronman (Yale law professor):  “He will make a wonderful judge—a truly wonderful judge.”


Stephen Sachs (former Maryland AG):  Keisler is “especially well qualified to be an outstanding appellate judge”; “judiciousness … marks his values, his conversation, even his advocacy.”


George W. Jones Jr. (self-described “life-long Democrat” and former supervisor of Keisler’s):  Keisler is “easily one of the most talented and hardworking lawyers I have ever had the privilege of working with”; “there was never an instance in which I thought Peter approached any issue or conversation with a closed mind”; “one of the best listeners I know”; “always listened respectfully and with a sincere desire to understand my position”; “rare capacity and instinct to reserve judgment until he has heard and considered all sides of an argument”; “I can think of no one more capable than Peter to sit on the D.C. Circuit.”


Nine “Democrats or Independents” who were law clerks at the same time Keisler clerked (in all but one case working in different chambers):  Keisler is “straightforward, candid, and always respectful”; “the respect Peter so consistently shows for opposing viewpoints is one reason that many of us have become his friends”; he “would decide cases based on the law and facts, rather than his policy preferences.”


David Carpenter (self-described “political liberal” who worked closely with Keisler at Sidley & Austin):  “Peter absolutely epitomizes the kind of lawyer and the kind of person who should be sitting on a federal court of appeals”; “personally and intellectually honest, to the very depths of his bones”; “There have been many occasions in which Peter has refused overtures of others to slant the facts of a case in ways that were favorable to our client and that would, as a practical matter, have been immune from sanction or even detection”; “assiduous in trying to see and fully understand both sides of every issue”; “an extraordinarily fine listener”; “willingness, indeed his eagerness, to listen and to give others a chance to persuade him of a position”; “unfailingly courteous to and respectful of the people with whom he deals”


Virginia Seitz (former Brennan clerk whose “political affiliation differs from” Keisler’s):  “I am utterly and completely confident that he will approach the task of judging with both the desire and the ability to follow the law—that his intellectual and personal integrity will make him a judge without agenda and with a fierce commitment to the ideals of fairness and neutrality so critical to the judicial branch.”


Two recently submitted letters are also worth noting:


Jack Goldsmith (Harvard law professor and recent OLC head):  “Peter would be an outstanding judge.…  Peter is a person of extraordinary integrity.  Behind closed doors, when it counted, Peter displayed a principled commitment to getting the law right.…  I do not know anyone who is better suited to be a judge.”


Douglas N. Letter and Mark B. Stern (highly respected career attorneys at DOJ who worked closely with Keisler when he headed DOJ’s Civil Division):  “Between us, we have represented the United States in the courts of appeals for over 50 years and have had the privilege of working with many talented and dedicated members of several administrations.  None, in our experience, is more deserving of Senate confirmation than Mr. Keisler.”


There’s plenty more that I could quote in these letters, and there are plenty more letters of recommendation that I could quote from.  But the question is already adequately posed:  Why are Pat Leahy and his fellow Democrats on the committee obstructing this nomination?

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