Judicial Nomination Watch: The Keisler Fake (Test)?

[Welcome ATLers!  Please, comment away if you have thoughts to share about whether Keisler has a shot at this, and if not, what is the GOP's aim here.  If you'd rather not comment, but still have thoughts to share, please drop me an e-mail (address at the right).]

On Monday, the entire Republican Senate caucus sent a letter to President Obama regarding the judicial nomination process.  The Senate Republicans, under cover of “bipartisanship,” sent an opening volley in the confirmation wars:

We look forward to working with you as you consider nominees for the federal judiciary.  Unfortunately, the judicial appointments process has become needlessly acrimonious.  We would very much like to improve this process, and we know you would as well.  It is in that spirit that we write early on to suggest two steps your Administration can take to achieve that shared goal.

I fail to see how it passes the laugh test to believe that the entire Republican caucus believes those sentences.  This sounds like something written by the “gang of 14,” not the Republican caucus.  This doesn’t sound like Limbaugh-approved language.  Other than those members of the “gang of 14,” I find it more than a little troubling that only now does the Republican caucus want to “improve this process.”  Now, that’s not to say the partisan Democrats were any less disingenuous in earlier times, but now we are here, not there.

What, might you ask, are the two steps the Republican senators would like President Obama to take?

One, Obama can nominate Bush nominees to the bench.  Of course.  The Republicans stretch reality in making this argument.  Just because Jesse Helms was blocking Clinton’s black nominee for the Fourth Circuit doesn’t mean it’s normal practice, as the Bush Administration noted at the time.  Also, the initial Bush nominees, 11 individuals named on May 9, 2001 (Bush remarks here), were tilted closer to the center only because of Senate dynamics — relating to the 50-50 Senate split — not some generous spirit of the Bush Administration.

Their choice: Peter Keisler, with brief follow-up mention of U.S. District Court Judges Glen Conrad and Paul Diamond.

• Keisler, nominated by Bush for the D.C. Circuit, is a founding member of the Federalist Society, serving on the board of directors from 1983 to 2000, and was nominated repeatedly by President Bush for the D.C. Circuit.  He was a Reagan White House hero at 24, clerked for Judge Bork on the D.C. Circuit and then worked in the White House Counsel’s Office to push Bork’s Supreme Court nomination.  He then worked in the Bush Justice Department from 2002 to 2007, heading up the Civil Division and serving briefly as Acting Attorney General, before returning to Sidley Austin (bio here).  The Alliance for Justice report on Keisler can be found here.
• Conrad, nominated by Bush for the Fourth Circuit, has spent the past 35 years in the Western District of Virginia courthouse, first as a law clerk and probation officer, then as a magistrate judge for 27 years, and as a district court judge since 2003.  His DOJ info can be found here.
• Diamond, nominated by Bush for the Third Circuit, had been a Philadelphia attorney for many years before being named to the Eastern District of Pennsylvania bench.  Diamond was a compromise candidate after opposition was raised about the previous Bush nominee for the seat, District Judge Gene E.K. Pratter.  Interestingly, he also served as “counsel and treasurer to Specter’s presidential campaign from 1993 to 1995.”  The relevant law.com article can be found here.

The second step: senatorial courtesy.  The usual stuff about consultation being an important part of the Constitution, etc., etc.  But then, a line about Republican solidarity seems to me to be a little much:  “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.”  In other words, every nominee needs to meet with the approval of any Republican senator from a nominees’ state, or else: filibuster.  This could be much ado about nothing, and not represent much of a change from past practice, or it could foretell of a strong Republican line on judges.  Although I can’t find the specific letter, it would appear that a similar letter was sent from the Democrats to President Bush in 2001.  Here is then-White House Counsel Alberto Gonzales’s response.

In light of those two requests, it is helpful to consider 2001, as detailed here in Salon.  Bush’s initial slate of nominees sheds some light on the 2009 Senate Republican requests remarkably well:

But some attempts at reconciliation seemed to be at play on Wednesday.  Noticeably absent from Bush’s list of 11 nominees were two would-be jurists who have been selected — though not officially nominated — without even a phone call to the two Democratic home state senators. Rep. Chris Cox, R-Calif., is expected to be nominated for the 9th U.S. Circuit Court of Appeals in California, though neither Sen. Barbara Boxer nor Sen. Dianne Feinstein was asked about him. A similar dynamic played out with conservative Maryland attorney Peter Keisler and his senators, unconsulted Democrats Barbara Mikulski and Paul Sarbanes.

Yes, for real: Peter Keisler.  Keisler was too controversial a name for Bush’s initial panel of judges — a slate that included more than one controversial name, from Sutton and Cook to Roberts and Estrada to Owen and McConnell.  Keisler later was repeatedly named by Bush, to no avail.  And now Republicans, after years of Keisler being too controversial to get through, expect President Obama, in a 58-41 Senate (waiting, of course, on Senator-in-waiting Franken), to name Keisler to the D.C. Circuit.  I can’t see it.

Is this a head fake?  Does Specter want his friend, Judge Diamond, named?  Is this the Senate Republicans’ test of Obama?

[UPDATE: Media Matters covers the selective coverage of the GOP letter here.]

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