GOP Payback on Court Nominees Is Hard to Justify

Posted February 6, 2009 at 1:36pm

As the Feb. 2 Roll Call article “Judiciary to Test Post-Partisanship” reports, the battle over President Barack Obama’s court picks could go nuclear. The reason some Republican Senators are girding for a fight stems from their perception of how Senate Democrats treated former President George W. Bush’s judicial nominees.

Explosive confrontations loom over 69 current and announced future lifetime federal judgeship vacancies and legislation to create badly needed new judgeships. Nominations to fill widely anticipated retirements of one to three Supreme Court justices would determine the balance of the court for decades, creating the conditions for a “perfect storm.”

Opposition to qualified Obama judicial nominees cannot be justified as payback. The Senate cut vacancies sharply by confirming 326 Bush lifetime judges, the vast majority, and a far higher percentage than confirmed for former President Bill Clinton. Moreover, the following examples illustrate objective problems that justified failure to confirm all of Bush’s nominees.

Nominees With Broad Bipartisan Senate Opposition

Bush prolonged a continuing vacancy by ignoring bipartisan opposition to the 4th Circuit nomination of Defense Department General Counsel William J. Haynes II. Republican and Democratic Senators derailed Haynes because of concerns about his role in abusive interrogation techniques and cutting short legal and policy review of the techniques.

When Haynes finally withdrew after four years, Bush went out of his way to ensure a continuing vacancy. He chose E. Duncan Getchell Jr., one of a handful of prospects whom then-Sen. John Warner (R-Va.) and Sen. Jim Webb (D-Va.) had previously interviewed and jointly rejected. The Senators had jointly recommended five names, including Steven Agee, who was confirmed to another seat after a belated Bush nomination.

Nominees With Competence and Ethical Problems

Far too many of Bush’s judicial nominees suffered from severe problems with competence, ethics or both.

Maryland’s Senators testified against Claude Allen’s 4th Circuit nomination because of concerns with his record, qualifications and Virginia residence (for a Maryland seat). After Allen withdrew, he pleaded guilty to shoplifting theft.

Bush reportedly deferred to then-Senate Majority Leader Trent Lott (R-Miss.) in nominating Charles Pickering Sr. Pickering’s lifetime 5th Circuit nomination was blocked in part because, as a district judge, he unethically solicited attorneys with cases pending before him to send him letters supporting his appellate nomination.

District Judge James Payne’s 10th Circuit nomination was withdrawn after reports that his federal bench career was riddled with conflicts of interest and violations of legal and ethical bans by issuing more than 100 orders in at least 18 cases involving corporations in which he had reported stock holdings.

Fifth Circuit nominee Michael B. Wallace withdrew after receiving the first unanimous American Bar Association “Not Qualified” rating for an appellate nominee in 24 years.

Michael O’Neill withdrew from academic tenure but attempted to pursue a lifetime judgeship after evidence of plagiarism plagued several of his articles; one journal even retracted his entire, already-published article. O’Neill was the only judicial nominee in the previous Congress who never received an ABA rating.

Nominees Who Would Impose Unjustified Limits on Senators

Many controversial Bush judicial nominees had records indicating that they would rewrite the Constitution to impose unjustified limits on the authority of Congress (including the Senate, which must confirm any nominee). For example, failed 9th Circuit nominee William G. Myers III, among others, had supported unjustifiable limits on the Commerce Clause, which gives Congress authority to protect workers, consumers, civil rights and the environment.

Pickering, Myers, failed 9th Circuit nominee Carolyn Kuhl and others also had records of imposing or supporting unwarranted limits on Congress’ ability to allow citizens to challenge government decisions in court. Charles Fried, who supervised Kuhl when he was President Ronald Reagan’s solicitor general, wrote that she launched a frontal attack in the Supreme Court on the settled doctrine that allows public interest and other associations to represent their members in court. As Fried noted, Kuhl’s argument was opposed by “a vast array of organizations,” including the Chamber of Commerce and the American Medical Association and was “rejected by the court with no dissent.”

Close Ties to Intemperate Attacks on Senators

Failed 4th Circuit nominee Steve A. Matthews was an officer and director of the Landmark Legal Foundation when it tried to nominate the fiery Rush Limbaugh for a Nobel Peace Prize. Landmark is headed by Mark Levin, who ridicules Sens. John McCain (R-Ariz.) and Joe Lieberman (ID-Conn.) as “liberal idiots.” In the book “Men in Black: How the Supreme Court Is Destroying America,” Levin thanked Matthews for having “supported me in all I do.”

In short, any fair evaluation of the Senate’s review of Bush’s judicial nominations can only argue for confirmation of qualified nominees.

Glenn Sugameli is senior legislative counsel at Earthjustice. He has also headed Earthjustice’s Judging the Environment Project on federal judicial nominations and the environment since 2001.