Bench Memos

Law & the Courts

Obama’s New Appellate Nominees Ought to Be Dead on Arrival

Since January 1, President Obama has nominated three individuals to federal appellate seats: Donald K. Schott (7th Circuit, Wisconsin); Myra C. Selby (7th Circuit, Indiana); and Jennifer Kelmetsrud Puhl (8th Circuit, North Dakota).* And a fourth nomination—of Lucy Koh (9th Circuit, California)—is expected soon. If Senate Republicans are not to indulge in a game of unilateral surrender, these nominations ought to be dead on arrival.

Back in 2008, the Democratic-controlled Senate confirmed only two of President George W. Bush’s federal appellate nominees made after January 1, 2008 (indeed, only two made after August 1, 2007): Sixth Circuit judge Helene N. White and Fourth Circuit judge G. Steven Agee.

White, you may recall, was in reality a Democratic pick. A cousin-in-law of Democratic senator Carl Levin, she was first nominated to the Sixth Circuit by President Clinton in 1997. Bush nominated her in 2008 only as part of a package deal with Michigan senators that also resulted in the confirmations of Raymond Kethledge to a Sixth Circuit seat and of Stephen Murphy to a federal district seat (both in Michigan).

Agee was also the result of a bipartisan deal: Virginia’s senators John W. Warner (a liberal Republican) and Jim Webb (a moderate Democrat) jointly recommended him to President Bush.

By contrast, there is no evidence that suggests that Obama or Senate Democrats negotiated in advance with Senate Republicans over any of the recent nominees. On the contrary, it’s very clear that Republican senator Ron Johnson of Wisconsin, Republican senator Dan Coats of Indiana, and Republican senator John Hoeven of North Dakota didn’t pre-approve the Schott, Selby, and Puhl nominations, respectively. (There being no Republican senator from California, a Koh nomination would also not have the support of a home-state Republican senator.) 

* Because it matters for internal Senate politics, including the blue-slip policy, I list the state supposedly associated with each seat. I say “supposedly” because the work of circuit judges is not tied to any particular state, and the law does not identify their seats by state.



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