Bench Memos

Law & the Courts

‘Senate Flip Dooms D.C. Circuit Nominee Peter Keisler’

My social-media fast during my vacation—something I’d highly recommend—also has me late in highlighting my Confirmation Tales post from last week. Here’s how it opens:

Never take a Senate majority for granted.

When George W. Bush appointed Brett Kavanaugh to the D.C. Circuit at the end of May 2006, Kavanaugh filled the tenth seat on that court. So Bush had one more vacancy to fill, apart from the controversial twelfth seat.

One month later, Bush nominated the outstanding lawyer Peter Keisler. Republicans had a comfortable 55 seats in the Senate. Upon his confirmation and appointment, Keisler would become the eighth Republican appointee on the D.C. Circuit, versus only three Democratic appointees.

But Republicans would fail to confirm Keisler’s nomination before the November 2006 elections, and those elections would swing control of the Senate back to Democrats. Keisler’s nomination would languish in limbo through 2007 and 2008.

I invite you to sign up for Confirmation Tales.

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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