Bench battle resumes over new nominee

Senate partisans are preparing to battle over a nominee to the second-most powerful court in the country, threatening to end a year and a half of peace in the Senate judicial confirmation wars.

President Bush nominated Peter Keisler to the U.S. Court of Appeals for the District of Columbia in June, making him one of the longest pending circuit court nominees. Bush resubmitted Keisler’s name to the Senate this year.

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The judge’s liberal critics acknowledge that he has excellent legal credentials, but charge that he has shown no commitment to advancing civil rights or environmental and worker protections. They are also suspicious of his role as co-founder of the Federalist Society, a bastion of conservative jurisprudence.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) last week hinted that Democrats would block Keisler’s nomination.

 “With respect to the nomination of Peter Keisler, that re-nomination is controversial,” Leahy said. “He was previously nominated in June of 2006 but was not considered by the Republican majority then in control. The Republican majority did not seek to proceed with this controversial nomination at that time.”

Despite Leahy’s assertion, Senate Republicans are lining up behind Keisler and pressing Democrats to move him.
“We would urge you to place Mr. Keisler on the agenda for the next available executive committee meeting,” the nine
Republican members of the Judiciary Committee wrote in a recent letter to Leahy. “Mr. Keisler’s hearing was late last year, providing more than enough time for senators to complete their evaluations of the nominee. Mr. Keisler’s exceptional qualifications speak for themselves.”  

A Senate Republican aide said that lawmakers signed the letter to make clear that there is no behind-the-scenes Republican opposition to Keisler. They hope to put pressure on Democrats, who in 2005 appeared to have abandoned the notion of opposing judicial nominees purely on ideological grounds.

That year, they dropped their opposition to two controversial nominees, D.C. Circuit nominee Janice Rogers Brown and 5th Circuit nominee Priscilla Owen, under threat that Republicans — then in the majority — would strip them of the power to filibuster nominees. A showdown over Senate procedure was averted when a group of 14 centrist lawmakers formed a pact not to block judicial nominees except under extraordinary circumstances.

“He’s really a high-quality nominee and it looks like some of the Democrats want to block him. It’s tough to maintain that position given that we’ve broken new ground,” a Republican aide said in reference to Keisler. The aide said there is an expectation among Republicans that Democrats will not block judges solely because of ideology.

“It’s supposed to be a new day,” the aide said. “He’s the longest pending nominee … it’s a good test of whether Democrats will keep their commitment.”

Bush gestured in the direction of bipartisan cooperation on judges at the beginning of this year when he declined to resubmit his most controversial judicial nominees: Jim Haynes and Terrence Boyle, both Fourth Circuit nominees; William Myers, a Ninth Circuit nominee; and Mike Wallace, a Fifth Circuit selection.

Senate Minority Leader Mitch McConnell (R-Ky.) referred to that gesture during a floor statement Thursday when he called for Democrats to confirm 17 appeals court nominees in the 110th Congress.

“The president took those off the table, sent up new nominees,” McConnell said. “Most of them are completely without controversy.”

McConnell has told Reid and Leahy that Republicans could stall Senate business if that standard is not met, according to a conservative who lobbies on judicial nominees.

But Leahy has said he feels no compulsion to follow McConnell’s preferred pace.   

“Some will undoubtedly repeat the current Republican ‘talking point’ that the Senate must confirm 15 Circuit judges this Congress, this year and next, because that is a ‘statistical average’ of selected years,” Leahy said. “Well, during the 1996 session the Republican-led Senate refused to confirm a single Circuit Court nominee, not one. That meant that in the 104th Congress, in 1995 and 1996 combined, only 11 Circuit nominees were confirmed.”

Conservative and liberal activists alike are talking tough about Keisler’s nomination.

“Democrats are being cautious here because it’s the D.C. Circuit,” said Curt Levey, the executive director of the Committee for Justice, a group that has advocated for conservative legal principles and Bush’s judicial nominees over the past several years. “It will be a test.”

Levey said that if Democrats were to oppose any nominee “who is a member of the Federalist Society or [a] solid conservative, then this peace on judges is not going to last.”

Levey said his group has been raising money and would spend it on issue advertising if Democrats continue to sit on Keisler’s nomination.

Liberal activist leaders, however, say that Democrats should block the nomination until the White House releases records from Keisler’s career in the Reagan administration.

Last year, liberal groups filed Freedom of Information Act requests with the Ronald Reagan Presidential Library for documents related to Keisler’s time in the administration. Although the Reagan Library has cleared the records for public release, the White House has withheld them from dissemination.

“Unless those records are publicly disclosed, the Senate Judiciary Committee lacks the information to consider someone to lifetime appointment to the second-most important court in our country,” said Judith Schaeffer, the legal director of People for the American Way, a group that has led opposition to Bush nominees.

Nan Aron, the president of Alliance for Justice, a group regarded by many liberals as a leader on judicial issues, acknowledged that Keisler has excellent legal qualifications. She said that is not sufficient, however.

“Excellence of the law is not the only criterion for a federal judgeship,” she said. “It’s important that any nominee demonstrates a commitment to equal justice, to advancing justice for all Americans and not just special interests.

“He would not advance on the D.C. Circuit civil rights, environmental and worker protections,” added Aron, who said Democrats should not advance Keisler’s nomination.