George W. Bush judicial appointment controversies
During President George W. Bush's two term tenure in office, some of his nominations for federal judgeships were blocked by the Senate Democrats either directly in the Senate Judiciary Committee or on the full Senate floor in various procedural moves. Republicans labeled it an unwarranted obstruction of professionally qualified judicial nominees. Democrats responded that statistics demonstrated they were not obstructing Bush nominees in any systemic way.
Soon after the inauguration of Bush as president in January 2001, many liberal academics became worried that he would begin packing the federal judiciary with conservative jurists. Yale law professor Bruce Ackerman wrote an article in the February 2001 edition of the liberal magazine The American Prospect that encouraged the use of the filibuster to stop Bush from placing any nominee on the Supreme Court during his first term. In addition, law professors Cass Sunstein (University of Chicago) and Laurence Tribe (Harvard), along with Marcia Greenberger of the National Women's Law Center, counseled Senate Democrats in April 2001 "to scrutinize judicial nominees more closely than ever." Specifically, they said, "there was no obligation to confirm someone just because they are scholarly or erudite." 
On May 9, 2001, President Bush announced his first eleven court of appeals nominees in a special White House ceremony. This initial group of nominees included Roger Gregory, a Clinton recess-appointed judge to the Fourth Circuit, as a peace offering to Senate Democrats. There was, however, immediate concern expressed by Senate Democrats and liberal groups like the Alliance for Justice. Democratic Senator Charles E. Schumer of New York said that the White House was "trying to create the most ideological bench in the history of the nation."
As a result, from June 2001 to January 2003, when the Senate in the 107th Congress was controlled by the Democrats, many conservative appellate nominees were stalled in the Senate Judiciary Committee and never given hearings or committee votes.
During the 108th Congress in which the Republicans regained control of the Senate by a 51-49 margin, the nominees that the Senate Democrats had blocked in the 107th Congress began to be moved through the now Republican Senate Judiciary Committee. Subsequently Senate Democrats started to filibuster judicial nominees. On February 12, 2003, Miguel Estrada, a nominee for the D.C. Circuit, became the first court of appeals nominee ever to be successfully filibustered. Later, nine other conservative court of appeals nominees were also filibustered. These nine were Priscilla Owen, Charles W. Pickering, Carolyn Kuhl, David W. McKeague, Henry Saad, Richard Allen Griffin, William H. Pryor, William Gerry Myers III and Janice Rogers Brown. Three of the nominees (Estrada, Pickering and Kuhl) withdrew their nominations before the end of the 108th Congress.
As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott termed the "nuclear option". This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. However, in the 108th Congress, with only a two vote majority, the Republicans were in a weak position to implement this procedural maneuver.
On October 7, 2004, just prior to the presidential election, Senate Democrats issued a statement complete with statistics arguing that they were not obstructing Bush nominees in any systemic way. Although the included statistics showed that district court candidates nominated by Bush were being confirmed at a higher rate than those similarly situated candidates nominated by Presidents Ronald Reagan and Bill Clinton in their first term, it also showed that Bush's success rate at getting circuit court of appeals nominees confirmed during his first term (67%) was less than those of Reagan (85%) and Clinton (71%).
Things changed in 2005 due to the 2004 elections. With President Bush's re-election and the Republicans picking up further Senate seats (55-45) in the 109th Congress, the "nuclear option" became a more viable strategy to ensure confirmation. On May 24, 2005, seven moderate senators of each party, called the Gang of 14, in a deal to avoid the use of the "nuclear option", agreed to drop the filibuster against three of the seven remaining affected court of appeals nominees (Priscilla Owen, Janice Rogers Brown, and William Pryor) but not two others (Henry Saad and William Myers). In addition, the senators in the group agreed not to block future judicial nominees with filibusters except in cases involving "extraordinary circumstances".
As a direct result of the deal, the two filibustered nominees not mentioned in it (David W. McKeague and Richard Allen Griffin) were confirmed, as was Thomas B. Griffith, the person nominated to replace Miguel Estrada after his withdrawal. Griffith too had become the subject of controversy. Since Saad had no hope of a successful cloture vote to overcome his filibuster due to the deal, he withdrew his nomination in the spring of 2006.
At the end of the 109th Congress, a new controversy arose over William Myers and three other Bush court of appeals nominees who had not been specifically mentioned in the Gang deal but were still subject to its provisions: Terrence Boyle, William J. Haynes, II and Michael B. Wallace. These nominations were returned to the White House according to Senate rules on August 3, 2006 in advance of the annual August recess of Congress. When the Senate returned in September, it was only for a short period before a break for the 2006 midterm election. Although Boyle, Myers, Haynes and Wallace were renominated, again no action was taken on them in the Senate Judiciary Committee before the break, and their nominations were sent back a second time to the White House on September 29.
After the November 7, 2006 election in which Democrats picked up six additional Senate seats, President Bush again renominated the candidates whose nominations had been sent back to him in September. The Republican Judiciary Committee chairman, Senator Arlen Specter, however, said that he would not process these nominees during the lame duck session of the 109th Congress.
At the beginning of the 110th Congress in January 2007, President Bush did not renominate Boyle, Myers, Haynes and Wallace in an attempt at reconciliation with the Democrats. However, that did not stop many Bush judicial nominees from being blocked in committee by the new Democratic chairman of the Senate Judiciary Committee, Senator Patrick Leahy. Among those stalled in committee until their nominations lapsed were appellate nominees Peter Keisler, Robert J. Conrad, Steve A. Matthews and Glen E. Conrad.
Senator Harry Reid, the Democratic Majority Leader, and Chairman Leahy cited the previous controversy over President Clinton's court of appeals nominees in justifying why only ten Bush appellate nominees were confirmed during the 110th Congress. A total of eleven appellate seats with Bush nominees were left open at the end of the 110th Congress. Of those seats, two (i.e. the North Carolina and Maryland seats of the Fourth Circuit) had originally become available to fill during the administration of President Bill Clinton.
List of stalled, blocked or filibustered nominees
- United States Court of Appeals for the First Circuit
- United States Court of Appeals for the Second Circuit
- New York seat vacated by John M. Walker, Jr. - Debra Ann Livingston (Livingston was nominated by President Bush in June 2006 but not allowed to be confirmed by Senate Democrats until May 2007)
- New York seat vacated by Chester J. Straub - Loretta A. Preska (judgeship later filled by Obama nominee Gerard E. Lynch)
- United States Court of Appeals for the Third Circuit
- United States Court of Appeals for the Fourth Circuit
- Maryland seat vacated by Francis D. Murnaghan, Jr. - Claude Allen, followed by Rod J. Rosenstein (judgeship later filled by Obama nominee Andre M. Davis)
- North Carolina seat vacated by James Dickson Phillips, Jr. - Terrence Boyle, followed by Robert J. Conrad (Boyle was nominated by President Bush in May 2001. After waiting six years, President Bush withdrew his nomination January 2007, making this 2001-2007 nomination the longest court of appeals nomination never processed by the Senate; Robert Conrad was nominated July 2007, but the Senate Democrats refused to process his nomination during the Democratic 110th Congress; judgeship later filled by Obama nominee James A. Wynn, Jr.)
- South Carolina seat vacated by William Walter Wilkins - Steve A. Matthews (judgeship later filled by North Carolina Obama nominee Albert Diaz)
- Virginia seat vacated by H. Emory Widener - William J. Haynes, II, followed by E. Duncan Getchell, followed by Glen E. Conrad (judgeship later filled by Obama nominee Barbara Milano Keenan)
- United States Court of Appeals for the Fifth Circuit
- Mississippi seat, converted from a Louisiana seat vacated by Henry Anthony Politz - Charles W. Pickering, followed by Michael B. Wallace, followed by Leslie H. Southwick (Pickering was filibustered by Senate Democrats and eventually withdrew his nomination; there was so much Democratic resistance to Wallace's nomination that it too was withdrawn; and Southwick was only confirmed due to the efforts of Democratic senator Dianne Feinstein)
- Texas seat vacated by William Lockhart Garwood - Priscilla Owen (Owen was filibustered by Senate Democrats and only allowed to be confirmed under the terms of the Gang of 14 Deal)
- United States Court of Appeals for the Sixth Circuit
- Michigan seat vacated by James L. Ryan - Henry Saad, followed by Raymond Kethledge (Saad was filibustered by Senate Democrats; Kethledge was only confirmed after a deal in which failed Clinton nominee Helene White was allowed to replace Bush nominee Stephen J. Murphy III as a Sixth Circuit nominee)
- Michigan seat vacated by Richard Suhrheinrich - David W. McKeague (McKeague was filibustered by Senate Democrats and only allowed to be confirmed under the terms of the Gang of 14 Deal)
- Michigan seat vacated by Damon Keith - Richard Allen Griffin (Griffin was filibustered by Senate Democrats and only allowed to be confirmed under the terms of the Gang of 14 Deal)
- Michigan seat vacated by Cornelia Groefsema Kennedy - Susan Bieke Neilson (Neilson was only confirmed three months prior to her death after a four-year battle over her nomination.)
- Michigan seat vacated by Susan Bieke Neilson - Stephen J. Murphy III, followed by failed Clinton nominee Helene White (Murphy's nomination was replaced by that of failed Clinton nominee Helene White at the behest of Democratic Michigan senator Carl Levin)
- Ohio seat vacated by David Aldrich Nelson - Jeffrey S. Sutton (Senate Democrats refused to process his nomination during the Democratic 107th Congress and he was only confirmed once Republicans assumed control of the house in 2003)
- Ohio seat vacated by Alan Norris - Deborah L. Cook (Senate Democrats refused to process her nomination during the Democratic 107th Congress and she was only confirmed once Republicans assumed control of the house in 2003)
- United States Court of Appeals for the Seventh Circuit
- United States Court of Appeals for the Ninth Circuit
- California seat vacated by James R. Browning - Carolyn Kuhl (Kuhl was filibustered by Senate Democrats and eventually withdrew her nomination; judgeship later filled by Bush nominee Sandra Segal Ikuta)
- California seat vacated by Stephen S. Trott - N. Randy Smith (judgeship still open; Smith was later confirmed to the Ninth Circuit when he was renominated for an Idaho seat)
- Idaho seat vacated by Thomas G. Nelson - William Gerry Myers III (Myers was filibustered by Senate Democrats; judgeship later filled by Bush nominee N. Randy Smith)
- United States Court of Appeals for the Tenth Circuit
- Oklahoma seat vacated by Stephanie Kulp Seymour - James H. Payne, followed by Jerome A. Holmes (Payne withdrew his nomination after allegations made by liberal organizations created the appearance of "extraordinary circumstances" which would not have allowed his confirmation under the terms of the Gang of 14 Deal; judgeship later filled by Bush nominee Jerome A. Holmes)
- United States Court of Appeals for the Eleventh Circuit
- Alabama seat vacated by Emmett Ripley Cox - William H. Steele, followed by William H. Pryor (Senate Democrats refused to process Steele's nomination during the Democratic 107th Congress and his nomination was withdrawn; Pryor was filibustered by Senate Democrats and was only allowed to be confirmed under the terms of the Gang of 14 Deal)
- United States Court of Appeals for the District of Columbia
- Miguel Estrada, to seat vacated by Patricia Wald (Estrada was nominated May 2001, but was filibustered by Senate Democrats and withdrew his nomination after waiting over two years in September 2003; judgeship later filled by Bush nominee Thomas B. Griffith, who was only allowed to be confirmed under the terms of the Gang of 14 Deal)
- John Roberts, to seat vacated by James L. Buckley (Senate Democrats refused to process his nomination during the Democratic 107th Congress and he was only confirmed once Republicans assumed control of the Senate in 2003)
- Janice Rogers Brown, to seat vacated by Stephen F. Williams (Brown was filibustered by Senate Democrats and was only allowed to be confirmed under the terms of the Gang of 14 Deal)
- Brett Kavanaugh, to seat vacated by Laurence Silberman (Kavanaugh was initially stalled by Senate Democrats and was only allowed to be confirmed under the terms of the Gang of 14 Deal)
- Peter Keisler, to seat vacated by John Roberts (President Bush nominated him June 2006, but Senate Democrats refused to process his nomination during the 109th and Democratic 110th Congress; judgeship still open)
Others who were considered for nomination
In the spring of 2001, then-Representative Christopher Cox and lawyer Peter Keisler were both considered for federal appellate judgeships. Cox was considered for a California seat on the Ninth Circuit and Keisler for a Maryland seat on the Fourth Circuit. Both withdrew themselves from consideration before a nomination could be made because their homestate Democratic senators objected to them due to their perceived conservatism. The California seat that Cox had been considered for was eventually filled by Bush nominee Carlos T. Bea. In 2005, Cox was nominated and confirmed as Chairman of the U.S. Securities and Exchange Commission, a position he held until the end of the Bush administration in January 2009. The Maryland seat that Keisler had been considered for was to remain open the entirety of Bush's presidency with the failed nominations of Claude Allen and Rod J. Rosenstein. In 2006, Keisler was unsuccessfully nominated to a seat on the D.C. Circuit. In 2007, after the resignation of Alberto Gonzales, Keisler became the Acting Attorney General until the confirmation of Michael Mukasey. He left the Department of Justice in March 2008 to return to private practice.
Failed district court nominees
Bush nominated 23 people for 23 current or future federal district judgeships who never were confirmed by the U.S. Senate. Like the appellate court nominations mentioned above, many of these nominees were blocked by Democrats in the Senate Judiciary Committee, which was controlled by the Democrats four out the eight years that Bush was in office. Twenty-one of these twenty-three nominees were blocked in the Democratic 110th Congress. Republicans claimed at the time that the Democrats were trying to keep these district court positions open for a future Democratic president to fill. Eventually, Bush declined to make nominations for 23 other current or future federal district judgeships in the 110th Congress.
Of the 23 federal district judgeship vacancies with actual nominees in place, 2 eventually were filled with a different Bush nominee, 14 so far have been filled with Barack Obama nominees, 4 remain open, 1 became moot when the district judge decided not to retire and 2 never ended up becoming vacant because the district judge who had it never received confirmation to be elevated to an appellate court. In addition, two of Bush's 23 failed district court nominees, Oregon's Marco Hernandez and Illinois' John J. Tharp, were subsequently renominated by Obama to federal district judgeships. They both were confirmed in the 112th Congress.
The failed Bush district court nominees:
- United States District Court for the District of Rhode Island
- United States District Court for the Northern District of New York
- United States District Court for the Eastern District of Pennsylvania
- Carolyn P. Short (judgeship was to become vacant when Judge Gene E. K. Pratter was elevated to the United States Court of Appeals for the Third Circuit but Pratter was forced to withdraw due to Democratic opposition and was replaced by Judge Paul S. Diamond.)
- Carolyn P. Short (judgeship was to become vacant when Judge Paul S. Diamond was elevated to the United States Court of Appeals for the Third Circuit but Diamond never was confirmed to that post before Bush's presidency ended.)
- United States District Court for the District of Delaware
- United States District Court for the Eastern District of North Carolina
- Thomas Alvin Farr (judgeship still open)
- United States District Court for the Eastern District of Virginia
- United States District Court for the Northern District of West Virginia
- United States District Court for the Middle District of Louisiana
- United States District Court for the Southern District of Mississippi
- United States District Court for the Eastern District of Michigan
- United States District Court for the Middle District of Tennessee
- United States District Court for the Northern District of Illinois
- United States District Court for the Eastern District of Wisconsin
- United States District Court for the Western District of Wisconsin
- J. Mac Davis (judgeship still open)
- United States District Court for the Central District of California
- United States District Court for the District of Hawaii
- United States District Court for the District of Oregon
- United States District Court for the District of Colorado
- United States District Court for the District of Wyoming
- United States District Court for the Middle District of Florida
- United States District Court for the District of Columbia
- Lewis, Neil A. (May 1, 2001). "Washington Talk: Democrats Readying for Judicial Fight". The New York Times. Retrieved October 20, 2010.
- Lewis, Neil A. (May 9, 2001). "Bush to Nominate 11 to Judgeships Today". The New York Times. Retrieved May 3, 2010.
- Threadgill, Susan (2003). "Who's who". Washington Monthly.
- "Senators compromise on filibusters". CNN. May 24, 2005. Retrieved May 3, 2010.
- "Judicial Nominee Practiced Law Without License in Utah". The Washington Post. June 21, 2004. Retrieved May 3, 2010.
- Baker, Peter (November 16, 2006). "Bush Renominates Judicial Picks". The Washington Post. Retrieved May 3, 2010.
- Lewis, Neil A. (January 10, 2007). "Bush Drops Plans to Renominate 3 Judges". The New York Times. Retrieved May 3, 2010.
- Lewis, Neil A. (April 24, 2001). "Bush to Reveal First Judicial Choices Soon - New York Times". The New York Times (New York: NYTC). ISSN 0362-4331. Retrieved June 19, 2012.