Bench Memos

Eliminating the 12th D.C. Circuit Seat

I’m reliably informed that at the Senate Judiciary Committee’s executive session today Senator Kyl, with the support of Senator Feinstein, successfully moved to amend the Court Security Improvement Act of 2007 (S. 378) to transfer the D.C. Circuit’s vacant 12th seat to the Ninth Circuit (where it would become that court’s 29th active judgeship).  The committee favorably reported that act to the floor, and I’m told that its enactment into law seems likely.


The elimination of the 12th D.C. Circuit seat would help the prospects of Peter Keisler’s D.C. Circuit nomination, as some committee Republicans have hesitated to push his nomination while the 12th seat continues to exist.  As I noted here, the Washington Post likewise coupled its endorsement of the Keisler nomination (Keisler “certainly warrants confirmation”) with its observation that the dispute over the proper number of D.C. Circuit seats “ought to be decided” before Keisler is confirmed.  I don’t agree with this linkage and instead prefer the Los Angeles Times’s house editorial from last month that encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism” by confirming nominees like Keisler (whom it specifically singled out).  But whatever one’s views on this issue, there is good reason to believe that Keisler will be confirmed. 


Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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