Rule of Law.

March 3, 2009 at 7:58 pm | Posted in Judiciary, politics straight up, senate | 1 Comment
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Boys judging prize heifers at 4 H Club Fair at Charleston, W. Va. Location: Charleston, West Virginia / Photo by Lewis W. Hine.  1921 October

Boys judging prize heifers at 4 H Club Fair at Charleston, W. Va. Location: Charleston, West Virginia / Photo by Lewis W. Hine. 1921 October

The Republicans are off the deep end — seriously off the deep end. Anyone watching their performance over the last eight years but especially — most especially — anyone listening to them over the last six weeks is aware of this undeniable fact. I mean, come on, people — Rush Limbaugh is the undisputed leader of their party. What’s left to discuss?

What’s left to discuss is the damage these flying monkeys are trying their best to wreak on this country.

(Politico) President Barack Obama should fill vacant spots on the federal bench with former President Bush’s judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.

You may remember George Bush, no? Yeah, the incompetent screw-up who acted as the frontman for these lunatics for eight years?

Yeah, and you might also remember the blatant politicizing of the Department of Justice and appointment of judgeships not requiring Senate approval?

How about a refresher, just in case your memory is vague.

In an [October 2003] internal Department’s Executive Office for Immigration Review (EOIR) e-mail from an Assistant CIJs (ACIJs) to the Chief Immigration Judge (CIJ), stating that Laura Baxter, a Senior Counsel to the Deputy Attorney General, had recently informed EOIR that “the Dept. is going to take a greater role in [immigration judges] hiring.” The e-mail noted further that Baxter “emphasized that she wanted us to know that this is coming from the AG [John Ashcroft].” The email contained an attached file entitled “Appointment of Immigration Judges.”

And what did that attached document file say?

Many lawyers seeking positions within the Administration, including judgeships, become known to the White House offices of Political Affairs, Presidential Personnel, and Counsel to the President.” The document stated that some lawyers might qualify to be IJs, and that “coordination” was needed to ensure that such lawyers were “informed of the opportunity” to become IJs. The document included a “Proposed Process,” which was substantively identical to the process that became established under Sampson, Williams, and Goodling, and which is quoted below:

A. EOIR informs DAG (Baxter) of current or upcoming IJ vacancy.
B. DAG (Baxter) informs OAG (Sampson) of the vacancy.
C. OAG (Sampson) informs WH OPA . . ., WH PPO . . ., and WHCO . . . of the vacancy and solicits names of possible applicants.
D. OAG (Sampson) transmits application package to possible applicants; DAG (Baxter) transmits a list of possible applicants recommended by WH to EOIR.
E. EOIR recommends candidates for AG appointment.
F. AG appoints.

You can read the entire Justice Department report on politicized hiring by the Bush Justice Department here.

Now that we have had that little history lesson, let’s return to more recent history.

Claiming that they only seek “fairness and reciprocal treatment,” Republican Leader Mitch McConnell and all 41 Republican United States Senators sent a letter to President Obama, saying, in part:

Regretfully, if we are not consulted on, and approve of, a nominee from our states, the Republican Conference will be unable to support moving forward on that nominee.”

Apparently these Senators have a very short memory as to their own demands less than a year ago. In April 2008 Republican Senator Arlen Specter — currently peddling as fast as he can — speaking on behalf of Senate Republicans, complained that “the Democrats’ slow judicial roll follows their misuse of the filibuster when they were in the minority during the first Bush term.”

The three in particular that are named in a letter from Senator Specter (I have not yet been able to confirm whether this is the same as that sent by the Republican Conference but I hope to have the answer later today):

Paul Diamond did not come up yet for a vote in the Senate because he was nominated after July 1, 2008, the unofficial start date of the Thurmond Rule during a presidential election year. Judge Diamond does not appear to be a controversial nominee and was nominated after Gene E.K. Pratter withdrew from consideration for the same Judgeship on the 3rd U.S. Circuit Court of Appeals in Philadelphia. She withdrew once it became clear she would not be confirmed by the Senate.

As to Glen Conrad, described in a Virginia newspaper editorial as a moderate, I have not been able to find any information on his status subsequent to his early May 2008 nomination. I will update when I am able to provide details. [UPDATE: Judge Conrad and/or his state’s Senators did not get the paperwork submitted on his nomination before July 1, 2008 so no action was taken by the Senate. I’m hoping to get a more precise explanation at some near date.] However, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee had this to say on May 20, 2008:

I am sure there are some who prefer partisan fights designed to energize a political base during an election year, but I do not. I am determined to prioritize progress, not politics, and focus the Committee on those nominations on which we can make progress. The Republican Senate majority during the last five years of the Clinton administration more than doubled vacancies on our nation’s circuit courts, as they rose from 12 to 26. Those circuit vacancies grew to 32 during the transition to the Bush administration. The statistics are worth repeating: we have been able to reverse that trend and reduce circuit vacancies by almost two-thirds. Today there are fewer circuit court vacancies than at any time since the 1996 session. In fact, our work has led to a reduction in vacancies in nearly every circuit. We are heading toward reducing circuit court vacancies to single digits for the first time in decades. [emphasis mine]

Bush nominated Keisler twice. Why was he rejected by the Senate?

It was reported at the time that the Democrats in the Senate did not want to confirm Keisler for four basic reasons. First, he was a co-founder of the Federalist Society, a conservative legal group which many Democrats saw as seeking to control the federal judiciary. He was on its board of directors from 1983 until 2000. Second, he clerked for Robert Bork, a former judge whose nomination to the Supreme Court was embroiled in controversy before being rejected by the Senate. Third, during his tenure at the DOJ, he was instrumental in defending some of the most controversial policies of Republican President George W. Bush concerning the Global War on Terror.[2] Finally, he was seen as being a possible Republican nominee to the Supreme Court.[10]

I’ve spent more hours on this than I had originally intended and I am still nowhere satisfied with what I’ve got here, particularly the lack of a finished conclusion, but I’m going to post it anyway as I think I’ve fleshed out some things that were not covered in the press reports of late yesterday/this morning in The Hill, Politico and elsewhere.

It’s really getting tedious to have to spend my own time doing for free the job that someone else is well paid for..

UPDATE: Steve Benen and Right Wing Watch have the history of the “modern” Senate judicial confirmation process.


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  1. […] was in The Library of Congress archives looking for a picture to illustrate a post I was working on and I came across these photographs of the incredible interior of the Church of […]

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