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Howard J. Bashman
Special to Law.com
02-05-2007

In January, the White House announced that it was withdrawing the nominations of three controversial federal appellate court nominees. Each nominee had failed to attain confirmation while the Republican Party controlled the U.S. Senate, and once the Democratic Party assumed control of the Senate, the chances that these nominees would achieve confirmation decreased from slim to none.

With these latest withdrawals, the number of federal appellate court nominees for whom the Bush administration has failed to attain confirmation for lifetime seats on the bench increases to seven. What is even more significant, however, is that there are now 17 vacancies on the federal appellate courts, but the Bush administration currently has pending only five nominations to fill those vacancies.

Of course, the Bush administration has achieved some notable successes thus far. The two most obvious examples now serve on the U.S. Supreme Court: Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. And on the federal appellate courts, young conservative Bush appointees include D.C. Circuit Judge Brett M. Kavanaugh, 5th Circuit Judge Priscilla R. Owen, 6th Circuit Judge Jeffrey S. Sutton, 7th Circuit Judge Diane S. Sykes, 8th Circuit Judge Steven M. Colloton, 10th Circuit Judges Michael W. McConnell and Neil M. Gorsuch, and 11th Circuit Judge William H. Pryor Jr.

Yet, rather improbably, after more than six years in office there remain three federal appellate courts on which only a single Bush nominee has been confirmed to serve: the 1st Circuit, the 7th Circuit and the 11th Circuit. And of those three courts, only the 1st Circuit currently has a vacancy.

The number of existing vacancies threatens to wreak havoc on two regional federal appellate courts in particular. The Richmond, Va.-based 4th Circuit currently has four vacancies (counting a judge who has declared the intent to take senior status when a successor is confirmed) for which there are no nominees, while the Philadelphia-based 3rd Circuit has three vacancies for which there is only one nominee.

With a presidential election to occur in November of next year, time is not on the side of the Bush White House. After more than six years of trying to place highly intelligent individuals with a conservative outlook onto federal appellate courts, the administration should now consider becoming more practical -- and should think about opting for second best when its top choice appears too controversial to attain confirmation in the current political climate. This pragmatic approach would reflect political reality, possibly maximize returns in an arena where the opposing political party now controls the agenda, and prevent the nomination decision from falling into the hands of a new president who might not share the current administration's views on the proper role of federal appellate court judges.

It is of course possible that a few impeccably credentialed federal appellate court nominees who are especially to the liking of the White House can still be confirmed in the time that remains. In this category I would place D.C. Circuit nominee Peter D. Keisler and Solicitor General Paul D. Clement. The latter is not currently a federal appellate court nominee but certainly appears very highly qualified to be one, should he have any interest.

Still, the clock is ticking, and the White House should do what is necessary to nominate acceptable candidates soon, so that open federal appellate judgeships will not be left to the next president to address.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.

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