ConfirmThem

Here is a pretty long article about where things are at with the judicial-nominations atmosphere in DC -- and Obama's role in it -- right now:

http://www.newyorker.com/reporting/2009/09/21/090921fa_fact_toobin?curre...

The article's first seven paragraphs are here, plus I've added another excerpt below that. Look for Ed Whelan's reaction to it on Bench Memos later today:

"The Obama Administration wanted to send a message with the President's first nomination to a federal court. "There was a real conscious decision to use that first appointment to say, 'This is a new way of doing things. This is a post-partisan choice,' " one White House official involved in the process told me. "Our strategy was to show that our judges could get Republican support." So on March 17th President Obama nominated David Hamilton, the chief federal district-court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton's appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself.

The power to nominate federal judges is one of the great prizes of any Presidency, and Obama assumed office at a propitious moment. After Democrats won control of the Senate in 2006, the new chairman of the Judiciary Committee, Patrick Leahy, of Vermont, significantly slowed down the confirmation process for George W. Bush's appointees to the federal appeals courts. In addition, many federal judges appointed by President Clinton were waiting for the election of a Democratic President in order to resign. Now vacancies abound. Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench—more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two. But Obama, unlike Bush in his first year, has had the opportunity to place his first Justice on the Supreme Court, Sonia Sotomayor—and her confirmation has opened up another seat on the Second Circuit court of appeals. Justice John Paul Stevens, who is eighty-nine, has hired only one law clerk for the next Supreme Court term, so a second Obama appointment to the Court may be imminent as well.

"The unifying quality that we are looking for is excellence, but also diversity, and diversity in the broadest sense of the word," another Administration official said. "We are looking for experiential diversity, not just race and gender. We want people who are not the usual suspects, not just judges and prosecutors but public defenders and lawyers in private practice." Yet Hamilton and Sotomayor are the usual suspects—-both sitting judges, who had already been confirmed by the Senate. Of Obama’s seven nominees to the circuit courts, six are federal district-court judges. The group includes Gerard Lynch, a former Columbia Law School professor and New York federal prosecutor, and Andre Davis, who was nominated to the Fourth Circuit by Bill Clinton. (At the time, Republicans blocked any vote on Davis.) Two of the seven are African-American; two are women; all but one are in their fifties. (None are openly gay.) The one non-judge is Jane Stranch, who has represented labor unions and other clients at a Nashville law firm and is nominated for the Sixth Circuit. They are conventional, qualified, and undramatic choices, who were named, at least in part, because they were seen as likely to be quickly confirmed.

But then, as the first White House official put it, "Hamilton blew up." Conservatives seized on a 2005 case, in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. In June, Hamilton was approved by the Judiciary Committee on a straight party-line vote, twelve to seven, but his nomination has not yet been brought to the Senate floor. Some Republicans have already vowed a filibuster. (Republican threats of extended debate on nominees can stop the Democratic majority from bringing any of them up for votes.)

"The reaction to Hamilton certainly has given people pause here," the second White House official said. "If they are going to stop David Hamilton, then who won't they stop?"

Republicans in the Senate have not allowed a vote on any of the other nominees, either. So far, the only Obama nominee who has been confirmed to a lifetime federal judgeship is Sotomayor. The stalemate provides a revealing glimpse of the environment in Washington. Obama advisers (and Democratic Senate sources) aver that all the nominees, even Hamilton, will be confirmed eventually, but contrary to the President’s early hope the struggle for his judges is likely to be long and contentious.

"The President did not set a good example when he was in the Senate," Orrin Hatch, the senior Republican senator from Utah, told me, pointing to Obama's votes against the confirmation of John G. Roberts, Jr., and Samuel A. Alito, Jr., to the Supreme Court. "You have to be a partisan ideologue not to support Roberts," Hatch said. "There is a really big push on by partisan Republicans to use the same things that they did against us." Hatch himself, who had voted for Ruth Bader Ginsburg, Stephen G. Breyer, and every other Supreme Court nominee in his Senate career, voted against Sotomayor. (The vote for her confirmation was sixty-eight to thirty-one.)"

And then Toobin writes this about future nominees:

"In recent years, thirties-style conservative judicial activism, targeting federal legislation, has been returning to the Court. As Cass Sunstein, a former professor at Harvard Law School, writes in the "2020" collection, "Increasingly, conservatives have been drawn to 'movement judges'—-judges with no interest in judicial restraint, with a willingness to rule broadly and a demonstrated willingness to strike down the acts of Congress and state governments. Movement judges have an agenda, which, as it happens, overlaps a great deal with the extreme wing of the Republican Party." Sunstein notes that the Rehnquist Court struck down more than three dozen federal enactments between 1995 and 2004—"a record of aggressiveness against the national legislature that is unequaled in the nation’s history."

Last week, after a long delay, Sunstein was confirmed as director of the Office of Information and Regulatory Affairs in the Office of Management and Budget. Dawn E. Johnsen, another contributor, has been waiting for months for a Senate vote on her nomination as an assistant attorney general. Harold Hongju Koh, who was the dean of Yale Law School and another writer in the collection, was recently confirmed, also after a long delay, as legal adviser to the State Department. The trouble that these outspoken academics have had in winning confirmation for Administration posts offers another augury of major battles ahead if Obama nominates any of them, or anyone like them, for judgeships."

As was recommended by VA's senators in early June, President Obama today nominated Barbara Milano Keenan to the Fourth Circuit (the VA seat that Judge Widener had held until his death in 2007). Interestingly, Keenan is the president's eighth straight COA nominee over the age of 50 (and she's well over 50 -- she may even be 60):

http://www.whitehouse.gov/the_press_office/President-Obama-Nominates-Jus...

"THE WHITE HOUSE

Office of the Press Secretary
___________________________________________________________________________
For Immediate Release September 14, 2009

President Obama Nominates Justice Barbara Milano Keenan
for United States Court of Appeals for the Fourth Circuit

WASHINGTON, DC – President Obama today nominated Justice Barbara Milano Keenan for a seat on the United States Court of Appeals for the Fourth Circuit. Justice Keenan is currently a Justice on the Virginia Supreme Court, a seat she has held since 1991.

"Justice Keenan has a long and distinguished record of service on the bench," President Obama said. "She was the first female judge elected in the state of Virginia and the only woman appointed to the Virginia Court of Appeals upon its creation. Her commitment to fairness and judicial integrity has been unwavering throughout her career, and I am honored to nominate her today to serve on the United States Court of Appeals."

Justice Barbara Milano Keenan: Nominee for the United States Court of Appeals for the Fourth Circuit
Justice Barbara Milano Keenan currently serves on the Supreme Court of Virginia, a seat she has held since 1991. In 1980, she became the first female judge in the state of Virginia when she was elected to the General District Court of Fairfax County. Two years later, she became the first female circuit court judge in Virginia when she was elected to the Circuit Court of Fairfax County. She was then the only woman appointed to the Court of Appeals of Virginia upon its creation in 1985. When she was elected to the Supreme Court in 1991, she also became the first judge on that Court to have served at all four levels of Virginia’s judicial system.

Justice Keenan received a B.A. from Cornell University in 1971 and a J.D. from George Washington University Law School in 1974. In 1992, she also received a Masters from the University of Virginia Law School. Prior to becoming a judge, she served as a prosecutor in Fairfax County, Virginia from 1974 to 1976, and worked in private practice from 1976 to 1980, first as a solo practitioner and later at the firm of Keenan, Ardis and Roehrenbeck. In the spring of 2009, Virginia Lawyers Media named Justice Keenan the "Influential Woman of the Year." She has received a well-qualified rating from the ABA and is being nominated to the United States Court of Appeals for the Fourth Circuit."

Here is the latest update on total COA vacancies for Obama, including both current vacancies and announced vacancies:

1st Circuit - 1 (no formal nominee; one recommended nominee)
2nd Circuit - 5 (1 formal nominee; one recommended nominee)
3rd Circuit - 2 (2 formal nominees)
4th Circuit - 5 (2 formal nominees)
5th Circuit - 1 (no formal nominee)
6th Circuit - 1 (1 formal nominee)
7th Circuit - 2 (1 formal nominee)
8th Circuit - 0
9th Circuit - 3 (no formal nominees)
10th Circuit - 1 (no formal nominee)
11th Circuit - 2 (1 formal nominee)
Federal Circuit - 1 (no formal nominee)
DC Circuit - 2 (no formal nominees)

Total current and announced COA vacancies - 26, with 8 formal nominees and 2 recommended nominees, Denny Chin and Ojetta Rogeriee Thompson.

Names seem to be trickling out 1 at a time, and with only 7 formal nominees in 8 months, he's well behind George W.

I suppose the healthcare debate is really taxing his agenda. Cap and tax will be worse.

I suspect this is part of the downside of a 1st year SCOTUS vacancy. It does cut into the 3.5 year window by 4-5 months.

You make a great observation, and one that I was thinking about earlier as I was writing my comment. Obama *is* indeed moving very slowly. I do agree with you that healthcare is indeed taxing his agenda, and that the Sotomayor nomination set things back, as SCOTUS vacancies always do. On top of that, I have to believe that the vetting process is far tougher than it was in 2001. As a result, you have to think that it takes several months to vet COA nominees even after they're recommended by the Senate. That's probably not because vetting takes three months (I'm not sure that it does) or because the administration doesn't view COA nominees as being important, but it's probably more likely that the administration doesn't give as much resources to the vetting process for COA nominees because they're not needed as immediately (in the administration's mind) as various executive branch nominees are. That's just my guess.

Also, I went back and checked earlier, and in fact, by this point in Bush 43's year one, he had nominated -- brace yourself -- a whopping 22 COA judges by this point: Prost, Lavenski Smith, Pickering, Tymkovich, Hartz, Clifton, Kuhl, Melloy, Shedd, Sutton, Brooks Smith, Parker, Roberts, McConnell, Estrada, Cook, Clement, Boyle, O'Brian, Howard, Owen and Riley.

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/14/AR200909...

"After law school, Keenan served three years as an assistant commonwealth's attorney in Fairfax under Robert F. Horan Jr., then spent four years in private practice before becoming a district court judge. As a circuit judge, she once sentenced a rapist to 110 years in prison and ruled that adult bookstores could remain open in Fairfax, but without partitioned viewing booths.

On the state Supreme Court, she was criticized for dissenting from a 1995 majority opinion that ruled lesbians were unfit to have custody of a child. She wrote majority opinions upholding the state's civil commitment law for sex offenders in 2005 and affirming the murder conviction last year of a defendant in the controversial "Norfolk 4" case. Keenan's dissent in a case last year challenging the admissibility of drug-test certificates without live testimony closely mirrored the opinion written this year by Supreme Court Justice Antonin Scalia in the Melendez-Diaz v. Massachusetts case ruling the certificates alone were inadmissible."

http://hamptonroads.com/2009/09/va-supreme-court-justice-nominated-us-co...

"'In nearly three decades on the bench, Justice Keenan has earned the respect of her colleagues and the broader legal community for her balanced and thoughtful judgment in cases both clear and complicated,' Gov. Timothy M. Kaine said in a statement."

http://legaltimes.typepad.com/blt/2009/09/obama-picks-va-supreme-court-j...

"She is Obama’s eighth nominee to the circuit courts and his second to the 4th Circuit, after U.S. District Judge Andre Davis of Maryland. The Senate has not confirmed any of the nominees. Keenan is the second not to be nominated from a federal district court, after 3rd Circuit nominee Jane Stranch, a private practitioner in Nashville, Tenn.

Among the other names circulating for a Virginia-based nominee was Akin Gump Strauss Hauer & Feld partner Patricia Millett, who co-chairs the firm’s Supreme Court practice. Millett garnered support from bar associations in Virginia."

http://www.mcclatchydc.com/homepage/story/75373.html

"There are several reasons why the court lacks 33 percent of its judges. Democrats asserted that President George W. Bush tapped conservative nominees, who were not consensus choices, and refused to consult senators, including GOP members, from the states where vacancies occurred before he submitted nominees. Bush even nominated several prospects multiple times, despite clear opposition from his own party. Republicans claimed that Democrats did not swiftly assess candidates whom the White House nominated or promptly schedule Judiciary Committee hearings and votes or Senate floor debates and votes. Indeed, the Democratic majority in the 110th Senate supplied no hearings for the five Bush nominees to the four unfilled judgeships remaining at his tenure's conclusion.

President Obama has instituted a few practices that should facilitate expeditious appointments.

First, he pursued bipartisanship to break the deleterious cycle of charges and recriminations, partisan infighting and incessant paybacks. Second, the White House fostered consultation by soliciting guidance on candidates from Democratic and GOP Senate members, particularly home state senators, prior to actual nominations. Obama has also tendered consensus nominees, who possess balanced temperament and are very intelligent, ethical, industrious and independent. He has cooperated with Senator Patrick Leahy (D-Vt.), the Judiciary panel chair, who arranges committee hearings and votes, Senator Harry Reid (D-Nev.), the Majority Leader, who schedules floor debates and votes, and their GOP analogues to expedite confirmations.

Illustrative is Obama's nomination of U.S. District Judge Andre Davis, who has rendered distinguished service on the U.S. District Court for the District of Maryland since 1995. Maryland Democratic Senators Barbara Mikulski and Ben Cardin promptly recommended the experienced trial judge to the President, who nominated him on April 2. By late April, the committee held Davis's confirmation hearing, and on June 5, the panel approved Davis 16 - 3. Senator Reid must quickly schedule Davis's floor debate and vote.

Virginia Democratic Senators Jim Webb and Mark Warner have recommended Virginia Supreme Court Justice Barbara Milano Keenan for a Virginia opening. The White House should expeditiously consider that suggestion. North Carolina Democratic Senator Kay Hagan has appointed a panel to vet candidates, which has sent her recommendations, and she will soon make suggestions to the White House for a North Carolina vacancy.

No recommendations for the South Carolina opening created by Judge William Wilkins's 2007 assumption of senior status have been announced, so the White House should consult with high-ranking Democratic elected officials, such as Representative Jim Clyburn, as well as Republican Senators Lindsey Graham and Jim DeMint, to expedite recommendations and promptly nominate a candidate."

http://writ.news.findlaw.com/commentary/20090914_tobias.html

"There are a few reasons why the Maryland position has been vacant since August 31, 2000. Initially, this timing made it too late in a presidential election year for Senate confirmation, even though President Bill Clinton did nominate Judge Davis, who had served on the U.S. District Court for the District of Maryland since 1995, that October.

Then, President George W. Bush ineffectively attempted to fill this judgeship. He considered Peter Keisler, but Paul Sarbanes and Barbara Mikulski, Maryland's Democratic Senators, objected, as Keisler had not practiced in Maryland. In 2003, Bush nominated Claude Allen; however, Maryland's senators opposed Allen because he had practiced law minimally and not in Maryland. Allen's candidacy languished, and he later withdrew. During 2007, Bush nominated Rod Rosenstein, Maryland's U.S. Attorney, but Senators Mikulski and Ben Cardin (also a Democrat) preferred that Rosenstein remain the U.S. Attorney.

Analogous difficulties troubled attempts, during the Bush Administration, to fill the open Fourth Circuit positions in Virginia, North Carolina and South Carolina vacancies.

President Obama Was Wise to Consult States' Senators, And Should Soon Put Forward More Fourth Circuit Nominees

Laudably, President Obama employed several effective measures that led him to promptly choose a nominee to fill the Murnaghan seat. In particular, he expeditiously consulted the Maryland senators before making the actual nomination. The senators cooperated with the White House and promptly recommended Judge Davis, who is known to be very intelligent, ethical, independent, and diligent, and clearly possesses the kind of balanced temperament that best suits a judge.

Obama nominated Davis on April 2. Davis then received an April 29 hearing and gained the Judiciary Committee's approval, 16–3, on June 4. Senator Harry Reid (D - Nev.), the Majority Leader, should now expeditiously arrange Davis's floor debate and vote.

Although Davis's confirmation seems likely, it is still the case that no one has been nominated to the remaining four vacancies. Virginia Democratic Senators Jim Webb and Mark Warner have recommended Virginia Supreme Court Justice Barbara Milano Keenan for the Virginia opening. President Obama should promptly assess that suggestion. Meanwhile, North Carolina Democratic Senator Kay Hagan has appointed a panel to vet candidate; the panel has sent her proposals, and she has been discussing with the White House a suitable nominee for the empty North Carolina seat. Finally, no recommendations have yet been publicly announced for the South Carolina vacancy created by Judge William Wilkins's 2007 assumption of senior status, or for Judge Williams's opening. (As Judge Williams only retired on July 8, however, more time may be needed for consideration and recommendations with respect to that additional vacancy.)"

SCOTUS nominees do set back CoA ones, but this effect is worse in the first year of a presidency since there are no CoA nominees already in the pipeline.

Newsweek's Katie Connolly reported this week that Newsweek's Howard Fineman had learned that Justice Stevens had sent an e-mail to all his former SCOTUS clerks inviting them to a reunion in May. Connolly noted that that's a fairly unusual thing for Stevens to do (she wrote that he "doesn't care much for reunions"). One clerk told Fineman that many of Stevens' clerks have concluded that Stevens will announce his retirement at next May's reunion:

http://blog.newsweek.com/blogs/thegaggle/archive/2009/09/14/scotus-watch...

The Blog of Legal Times, however, noted this afternoon that not all of Stevens' former clerks had gotten the e-mail; several had not received it. And, the BLT noted that the e-mail was sent not by Stevens or his chambers, but rather by another former clerk, who apparently is in the early stages of spreading the word about a reunion. (the BLT didn't note this, but could this simply just be a 90th birthday party for the justice?) On top of all of that, one ex-Stevens clerk said Stevens has a reunion every five years, and that he's due for one in spring 2010.

The best line in the BLT post is at the end, where several ex-Stevens clerks said even his current hiring of one clerk for the 2010-2011 term is "not proof-positive of Stevens' plans, several clerks believe. 'If he decided to stay on,' said one former Stevens clerk, 'he could pick up the phone and hire three excellent clerks in an hour.'" That's a point I've suggested before; hiring just one for the time being may well be a strategy of his as he starts his 90s; while it most likely means he's hanging it up next June, it also could be a concession to his age and the fact that he no longer wants to commit that far out to clerks a promise that he might not be able to keep.

Here's the BLT post:

http://blog.newsweek.com/blogs/thegaggle/archive/2009/09/14/scotus-watch...

The BLT link that StayUpLate is referring to is:

http://legaltimes.typepad.com/blt/2009/09/justice-stevens-retirement-wat...

that Souter would retire in 2009, Stevens in 2010, and Ginsberg in 2011. I tend to (unfortunately) think they are right.

As I've said before, Elena Kagan will be nominated for one of these vacancies. Obama knows her very well way back from their time together at U of Chicago, and he likes her. I'd be very surprised if Kagan is not the nominee to replace Stevens, and racial politics (i.e. need to appoint a Latino) was the only reason why Kagan was not nominated this year.

Since I don't really see any possibility that Kagan wouldn't be confirmed, get ready for Justice Kagan to lead the liberal minority for a long long while. And pray that it indeed remains a minority.

You make a great comment about Tom Goldstein/SCOTUSblog's predictions. He really has hit the nail on the head so far. The only question is, will Ginsburg really walk away in 2011. Some of it will depend on her health (duh), and some of it, I suspect, will depend on how likely she thinks Obama is to win re-election.

I've been thinking a lot lately about the issue of Stevens' replacement, and more and more, I think it will be Kagan as well. Obama does indeed know her well -- and like most presidents, his is an administration where pals matter. He also knows and likes Diane Wood, but I just don't see her getting the nod at age 60 next year, especially given that she's a judge. Kagan fits Obama's stated mold of wanting a non-judge (a desire he obviously violated to get Sonia, but probably won't violate again), and Kagan carries around far less baggage (published and otherwise) than longtime academic shortlisters like Cass Sunstein, Harold Koh, Kathleen Sullivan and Pam Karlan. Plus, Kagan got four more Senate votes for her job than Sunstein did for his, and she doesn't have anywhere near the red-state controversy that Sunstein did (re: hunting, guns). Obama obviously likes Napolitano a lot, but her legal background (schooling, clerking and working) isn't anywhere near as impressive as Kagan's; Napolitano also represented Anita Hill, which wouldn't help her cause (she'd still probably get McCain's vote, though!). And Obama clearly doesn't seem *that* interested in any African-Americans -- Leah Ward Sears was one of his nine original candidates for the Souter vacancy, but he never wound up interviewing her; no other blacks seem to be on the table right now, although that could eventually change with Joseph Greenaway's confirmation (for whatever reason, Obama seems entirely uninterested in Roger Gregory). The other Hispanic candidates he considered last time are largely uncompelling and probably wouldn't be considered with Sotomayor now in place.

Who else is left? A different Dem president (Hillary Clinton) might have considered Merrick Garland (although Hills also might have pushed for Kim Wardlaw, I suspect -- and maybe even Seth Waxman), but I think Garland wouldn't satisfy Obama's liberal supporters and therefore wouldn't be chosen.

And Kagan's political negatives are pretty minimal -- she was never a judge, but neither was Rehnquist (as her Dem supporters will be quick to point out). And she now can finally say she's argued a case (before the SCOTUS, no less). Her unsuccessful support for the constitutional challenge to the Solomon Amendment? That surely will garner some attention, but it ultimately won't be anywhere near enough to sink her nomination. I agree with you, JamesSmith130 -- I also don't really see any possibility that she wouldn't be confirmed.

Right now, it seems like the Stevens seat is Kagan's to lose.

http://bench.nationalreview.com/post/?q=MTU0ZmY1NDM0NjRlZTMxYzc1Zjk4MWNh...

"According to this National Law Journal article, federal district judge Stephen G. Larson has announced that he will resign from the bench because Congress’s failure to increase judicial salaries makes it impossible for him to support his family. Larson, 44, who was appointed by President Bush to the Central District of California in 2006, has seven children. He has a long career of public service, including nine years as a prosecutor and six years as a magistrate.

My sympathies are genuinely with Larson, who may reasonably have expected at the time he was appointed that a substantial increase in judicial pay was imminent. As I discussed in this February 2008 post, the judicial-pay bill reported out of the Senate Judiciary Committee would have raised the salaries of federal district judges to $218,000 (from $169,300), of federal appellate judges to $231,100 (from $179,500), of associate Supreme Court justices to $267,900 (from $208,100), and of the Chief Justice to $279,900 (from $217,400). But that bill was apparently stymied because of some of its ancillary provisions."

http://www.rollcall.com/news/38649-1.html

"Judiciary Committee Chairman Patrick Leahy (D-Vt.) blasted Republicans Thursday for preventing the Senate from considering a handful of judicial nominees."

The Senate is expected to vote to confirm Gerard Lynch to the Second Circuit this afternoon -- within another hour or two.

(What this tells me, of course, is that the only way an earlier COA nominee, David Hamilton, gets a floor vote is by Harry filing for cloture. It'll be interesting to see if Harry can get unanimous consent on Andre Davis and on other COA nominees.)

Stay tuned.......

Confirmed - but as of this time the Senate's vote isn't yet posted.

Confirmed - but as of this time the Senate's vote isn't yet posted.

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm...

Sorry about the double posting before.

http://legaltimes.typepad.com/blt/2009/09/obama-set-for-first-win-among-...

"The Senate confirmed President's Obama's first circuit court nominee to the bench today, voting 94-3 to send Gerard Lynch of New York to the U.S. Court of Appeals for the 2nd Circuit.

Voting no were Republicans Jim Bunning of Kentucky and Oklahomans Tom Coburn and James M. Inhofe.

As was the case last week when the Senate Judiciary Committee approved two judicial nominees on the first try, Chairman Patrick J. Leahy, D-Vt., could not resist castigating Republicans for delaying judicial nominations.

"We should not have to overcome filibusters and spend months seeking time agreements to consider these (non-controversial) nominations," said Leahy, who, of course, led numerous filibusters himself when Democrats objected to nominees sent up by former Republican President George W. Bush.

Nor could Jeff Sessions of Alabama, the panel's top Republican, resist the chance to decry judicial activism when he rose to speak about the nomination on the Senate floor.

Obama has made eight circuit court nominations so far, but only three are pending on the Senate's calendar awaiting a vote, including his first nominee: David Hamilton of Indiana to the Seventh Circuit."

http://www.google.com/hostednews/ap/article/ALeqM5jSbQEN0NS24UsPCdJ_X7XX...

"The Senate on Thursday confirmed Gerard Lynch for the 2nd U.S. Circuit Court of Appeals, giving overwhelming approval to the New York judge who presided over cases involving former basketball coach Isiah Thomas and recording artist Lil' Kim.

The 94-3 vote means that Democratic nominees now hold four of 10 currently filled seats on the appellate court that serves New York, Connecticut and Vermont. The court has three vacancies, giving President Barack Obama the opportunity to give the circuit a Democratic tilt.

Lynch became the only Obama administration judicial nominee to win confirmation besides Sonia Sotomayor, who was elevated to the Supreme Court from the 2nd Circuit on a 68-31 vote.

In President George W. Bush's first year, 2001, the Senate had only confirmed two appellate court judges and two district court judges by this date. One of the appellate judges originally was nominated by President Bill Clinton.

The first of Bush's two Supreme Court nominees, Chief Justice John Roberts, was confirmed in September 2005.

While the nomination generated no significant controversy, the two parties made clear that future confirmations will turn into ideological battles in the Democratic-controlled Senate.

The Judiciary Committee chairman, Patrick Leahy, said Republicans have been using Senate rules to block votes on judicial nominees while vacancies mount. There are 20 vacancies on the regionally based federal appeals courts and another 72 for the lower district courts.

"We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations," Leahy said. "It is imperative that we move to fill the growing number of vacancies throughout the federal courts."

Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said that while he backed Lynch, "We're seeing a pattern of nominees who believe they have the power to amend the Constitution."

Sessions voted against Lynch in 2000 when he was confirmed as a U.S. district judge, but said he is now satisfied that Lynch is not a judicial activist.

Lynch, who was nominated to the lower court in 2000 by President Bill Clinton, handled several high profile cases.

He presided over a sexual harassment and retaliation suit by a vice president of Madison Square Garden against her employer and then-New York Knicks coach Thomas. Lynch allowed the case to go to trial, and a jury returned an $11.7 million verdict for the plaintiff. The suit subsequently was settled.

Lynch was the judge in the trial of recording artist Lil Kim and an associate on charges of conspiracy, obstruction of justice, and perjury in a case related to a shooting. Both defendants were convicted of conspiracy and all perjury counts. Lynch sentenced Lil' Kim to a year and a day in prison.

In a major heroin distribution and murder case, he sentenced three defendants to life without parole.

And he was part of a three-judge panel that upheld the Communications Decency Act against a First Amendment challenge. The ruling was affirmed by the Supreme Court.

He has served as a federal and New York state prosecutor, chief counsel for the New York State Commission on Government Integrity and an associate counsel in the Iran-Contra independent counsel's office."

with the most liberal justices in history, Hugo Black and William Douglas.

"In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law.

During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics.""

http://online.wsj.com/article/SB125314088285517643.html

Although I must say, that as a supporter of originalist thinking, it isn't clear to me that the framers (or the designers of the 14th Amendment) intended to consider corporations as individuals.