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John W. Dean

The New Nattering Nabobs of Negativism Are Gunning For Obama's Judicial Nominees: A Republican Strategy That We Must All Hope Fails


Friday, April 17, 2009

There is a high-stakes game for the future of the federal judiciary currently underway, albeit, at this time, still quietly being played out behind-the-scenes. Over a month ago, the New York Times revealed the then-imminent selection by the Obama Administration of "a small stream of nominees to the federal appeals courts" throughout the nation. The story even floated a few names of potential nominees. But little has happened since then.

Thus far, there has been no stream of nominees; indeed, barely a trickle. No one keeps score better than the Alliance for Justice, which reports three Obama nominees so far: Gerald Lynch for the U.S. Court of Appeals for the Second Circuit, Andre Davis for the Fourth Circuit, and David Hamilton for the Seventh Circuit.

The reason Obama's judicial nominees have not been streaming forth is that conservatives in the Senate are doing their best to dam that stream, literally and figuratively. To use the phrase coined by former Nixon speechwriter Bill Safire, the Obama Administration is being blocked by what can accurately be described as the new "nattering nabobs of negativism."

According to the coiner of the phrase, Safire, nattering is complaining; a nabob – taken from Urdu – is a self-important potentate; and negativism, of course, is habitual skepticism, the tendency to be pessimistic, seeing the world in the worst light possible. This outlook is very much the one possessed by the remarkably pompous contemporary conservative Republican leaders, particularly those in the Senate.

Nattering Negative Nabobs of Conservatism: Working to Block Change In the Judiciary

Needless to say, conservatism is inherently negative (see William F. Buckley's founding motto and mission statement for the National Review: "It stands athwart history, yelling Stop"). But since President Obama's election, the conservative nabobs have been yelling STOP before anything even starts. They have truly fulfilled Safire's colorful alliterating appellation for overbearing naysayers.

Well-known nabobs like John Boehner and Eric Cantor have led House Republicans to vote in-bloc against the stimulus legislation, and the half-dozen Republican nabobs serving as governors announced they would reject all or some of the federal stimulus money – until the citizens of their states turned on them.

Not as well-known are the nattering negative nabobs of the Senate, who have laid down a gauntlet to block President Obama's judicial appointees, before they even arrive in the Senate Judiciary Committee. These are Senators who are having trouble adjusting to the fact that there is no longer a Republican in the White House, and in no area is this truth more difficult for them to accept than with the prospective loss of conservative control, as well, of the federal judiciary. These are men like Senators John Cornyn of Texas and Jon Kyl of Arizona – to mention but two of two dozen.

These men were part of the effort by all forty-one Republican members of the Senate to warn the new president that if he wanted to avoid a huge fight over the future of the federal judiciary, then he should start by re-nominating a number of Bush nominees who had not been confirmed before the Bush presidency ended. This unprecedented request was chutzpah on stilts.

Their letter to President Obama spelled out another demand: "[I]f we are not consulted on, and approve of, a nominee from our state, the Republican Conference will be unable to support moving forward on that nominee" – a thinly-veiled threat of a filibuster on any Obama nominee who fails to meet the GOP standard. In short, if a GOP senator rejects a judicial nominee for a court with jurisdiction in his state, the entire Republican Conference has agreed to join that senator to hold up the nomination. (It takes sixty votes to prevent a filibuster, so if the Republican Conference remains together, it can block any Obama nominee from confirmation.) Clearly, Republicans plan to fight any effort to change the conservative ideological make-up of the federal judiciary.

Conservative Ownership of the Federal Judiciary Is Now Seriously Threatened, But the Idea that Bush Nominees Previously Were Largely Blocked Is Absurd

Conservative alarm sirens sounded last fall, as it became clear that Barack Obama was likely to win the November 2008 presidential election. A typical example of the conservative distress was that of Federalist Society co-founder (and nabob) Steven Calabresi, who went to the editorial pages of the Wall Street Journal – the bulletin board for nattering negativism.

Employing the intellectual legerdemain that has become the hallmark of contemporary conservative scholarship, where fancy becomes fact, Northwestern law professor Calabresi opened his call to arms by claiming that "[o]ne of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts," most importantly, the U.S. Courts of Appeal throughout the country in general and in the District of Columba (with its jurisdiction over many government actions) in particular.

Here, however, "thoroughly thwarting" appears to mean that Bush II failed to win confirmation for a few of his most radical nominees, for he certainly managed to pack the federal courts with over 316 judges, who now constitute over 37 percent of the federal judiciary. Notwithstanding Calabresi's claim, the Senate in fact approved 95 percent of Bush's nominees. In fact, currently Republican presidents (Bush II, Bush I, Reagan, Ford and Nixon) are responsible for over 58 percent of the federal judiciary – and their reach includes seats on the U.S. Supreme Court, the U.S. Appeals Courts, and the U.S. District Courts, along with a few special courts as well.

Professor Calabresi, and other right-wingers, fear that the ideological balance will shift under an Obama presidency, particularly in the influential appellate courts. Today, most of those courts are controlled by conservatives. The New York Times cited University of Pittsburgh Law School Professor Arthur Hellman, whose studies of the federal circuit courts reveal that Republican judges dominate these courts and that they have moved federal law in a more conservative direction. (As court watchers know, conservative judges are more protective of corporations and the government than of those who can be victimized by these organizations; they are less concerned about the civil rights and liberties of average Americans; and they believe that presidents should be free to do most anything they desire, regardless of the other branches' role.)

The Court Fights To Watch In the Coming Months

As FindLaw guest columnist Carl Tobias noted, President Obama would like to end the confirmation wars, and has made good on his effort by nominating Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. Indeed, President Obama has shown that he would like to increase bipartisanship in countless areas, and he has certainly made an effort to do so. But Republican nabobs have rejected his efforts. All of the judges nominated so far by President Obama can be characterized by their strong credentials as jurists, rather than by their display of ideology, although they may still be opposed by Republicans.

It is unrealistic, since they lost the election, but the Republican nabobs simply do not want the conservative lock broken on several circuits. Rumor has it that efforts by the White House to fill many of the vacancies on various federal appellate courts are being thwarted by pure Republican obstructionism. While it has not erupted publicly, yet, there is a closed-door struggle in progress, and it concerns courts that are likely to swing from right to left if President Obama prevails, as he should, since he won the election.

More specifically, conservatives are most worried about the District of Columbia and Fourth Circuits. Professor Calabresi pointed out that Ronald Reagan was able to appoint an average of a judge a year to the DC Circuit, including such conservative stalwarts as Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. Bush II added four: John Roberts (now chief justice), Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh.

Today, the DC Circuit's ideology is not just right, but hard right. There are eleven active judges on this circuit court, but there are two vacancies. On the right wing, there are two Reagan appointees (Sentelle and Ginsburg), one Bush I appointee (Karen Henderson), and three Bush II appointees (Brown, Griffith, and Kavanaugh). In the middle – there are no real liberals – there are three Clinton appointees (Judith Ann Wilson Rogers, David Tatel, and Merrick Garland). So even if President Obama adds two more centrists, the right will still control this court. The oldest of the active judges is Judge Rogers, the Clinton appointee, who was born in 1939. The oldest of the right-wingers is Judge Sentelle, who was born in 1943. So the conservative grip on this court will most likely hold fast during a first Obama term.

There May Be Blood: The Coming Fight Over the Fourth Circuit

The Fourth Circuit, however, is a very different story. It has been the most conservative circuit court in modern American history. This circuit has pushed the limits across the board. For instance, it has restricted abortion rights and all but declared criminal defendants guilty because they have been indicted by the government. Moreover, this court – which sits where the president of the Confederacy once had his office -- has difficulty finding a state right it does not like, or a federal power that it would not like to restrict.

This Fourth Circuit includes Virginia, Maryland, West Virginia, North Carolina and South Carolina. Today, because of recent retirements, the conservatives now have only a 6-to-5 majority on this aggressively conservative fifteen-member court. Court seats are informally numbered by the order in which they were filled, and by tradition they are allocated to the different states within the circuit. President Obama has four seats to fill, and for the so-called "Maryland seat" – or seat 8 – he selected Baltimore federal trial judge Andre Davis. Maryland has two Democratic senators, both of whom endorsed Judge Davis, so the Republican Conference has no reason to raise an objection.

The other vacant seats – seats 4, 7 and 11 – do raise problems. Seat 4, by tradition the "Virginia seat," should be no problem because both senators – Jim Webb and Mark Warner – are Democrats. Seat 7, which traditionally has been filled by a North Carolinian, is a problem, however. While North Carolina Senator Kay Hagan is a Democrat, the state's other senator, Richard Burr, is a Republican. Seat 11, most recently filled by a South Carolinian, is not clearly South Carolina's, for that state has long claimed seat 12. But South Carolina's two Republican senators are nattering nabobs of negativism who are sure to cause trouble.

You can be certain that White House Counsel Greg Craig has plotted out what he believes President Obama can do, and when he can do it, in filling the appellate judicial vacancies throughout the country. The White House had made clear that Senators can have their say about the selection of U.S. District Court judges, which has long been the tradition. But it has also long been the tradition that presidents have the prerogative of exercising their power regarding the appellate courts, and President Obama is not going to relinquish that prerogative to the Senate, not to mention to Republicans in the Senate.

There are 179 active circuit court seats. Currently, there are fifteen vacancies. President Obama has moved to fill three. None will be more difficult to fill than those on the Fourth Circuit, where there may be blood before the bench is filled. The way the Obama Administration handles the President's judicial appointees will tell us more about the Republicans' disdain for bipartisanship than about President Obama's efforts to restore it. Nattering nabobs of negativism will just say no, regardless. Hopefully voters will, in turn, say no to their obstructionism.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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