The Jaded JD

The coming week in judicial nominations

To my chagrin, after writing last Sunday's update I apparently clicked "save as draft" instead of "publish" so the post never appeared in public.  No one emailed to complain, so perhaps no one cares about updates, whether weekly or daily.  (The league standings page is still getting several hundred hits a day, though.)  Based on this accidentally-collected data, I may forego any updating on the main site from this point forward and only update the standings page.

Putting that decision off for another day, the still-relevant portions of last Sunday's post are that (1) the Senate did indeed vote on January 25 to confirm Professor Rosanna Malouf Peterson to be United States District Judge for the Eastern District of Washington, (2) the Judiciary Committee did indeed vote on January 28 to report to the floor the nominations of state Judges Albert Diaz and James A Wynn Jr. to be United States Circuit Judges for the Fourth Circuit, and (3) the committee also voted on February 4 to report the reprised (if not repristinated) nominations of Edward Milton Chen and Louis B. Butler Jr. to be United States District Judges for the Northern District of California and Western District of Wisconsin, respectively.

At the other end of Pennsylvania Avenue, President Obama nominated four new judges on February 4:  Elizabeth Erny Foote and Marc Thomas Treadwell to be United States District Judges for the Western District of Louisiana and Middle District of Georgia, respectively, and state Judges Mark A. Goldsmith and Josephine Staton Tucker to be United States District Judges for the Eastern District of Michigan and Central District of California, respectively.

In the coming week, despite Friday morning's report in The Hill that Senator Richard Shelby has placed a blanket hold on all nominations on the Executive Calendar over a dispute concerning unfulfilled earmarks for his home state, the Senate will vote at 5:00 Monday evening on the nomination of United States District Judge Joseph A. Greenaway Jr. to be United States Circuit Judge for the Third Circuit.  (The unanimous consent agreement enabling the vote was adopted last Thursday, the same day Shelby reportedly filed his hold.)  In addition, the Judiciary Committee will hold a hearing on one or more nominees on Wednesday afternoon at 4:00 and an executive business meeting to report up to four nominations Thursday morning at 10:00.

Shelby's hold obviously puts the Republican conference in a difficult position regarding its public opposition to the exploding federal budget deficit in general and to earmarks in particular--and complicates fellow Alabaman Senator Jeff Sessions's attempts as ranking Republican on the Judiciary Committee to blame the Democratic leadership for the Senate's failure to confirm uncontested judicial nominees.  It may be interesting to see how long Shelby's hold lasts, with respect at least to the uncontroversial nominees, before Republicans begin to defect.  Sessions's comments before Monday's vote on the Greenaway nomination may be telling.

(As a procedural footnote, it may be of interest to readers that the precedents of the Senate regard senatorial courtesy and personal objections to be an informal practice implicated only when the nominee would fill a federal office within the objecting senator's home state.  Moreover, there is no mechanism by which to enforce the practice through the formal rules of the Senate.  Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure: Precedents and Practices, Nominations 951-52 (1992), available at http://www.gpoaccess.gov/riddick/938-953.pdf.  Presumably, the Senate could still act on nominations without the widely-reported 60-vote threshold if the Democratic leadership simply ignored the unwritten practice (though most backbench senators, regardless of party, would probably unite to protect this prerogative, and ignoring it would certainly provoke retaliation and set a precedent for the day Republicans retake control), though certain convenience and expediting measures (like taking nominations out of the order in which they're printed on the calendar) would remain subject to objections to the enabling unanimous consent requests.)

In which people who should know better forget that the federal Constitution protects States

From Lyle Denniston at SCOTUSblog comes word of a proposal to amend the Constitution of the United States to abrogate the Supreme Court's decision in Citizens United v. FEC.  The proposed amendment would provide, among other things, that "[t]he U.S. [sic] Constitution protects only the rights of living human beings."  (Ignore the inelegance of referring to the Constitution as the "U.S. Constitution" within the document itself.)

Well, that's clearly throwing the baby out with the bathwater, because the Drafters were obviously attentive to the preservation of federalism--and the delegates to the various State ratification conventions obviously were, too--which means that the Constitution protects States' rights as well.  What mammoth ignorance of history this proposal evidences.  Either that or the proponents, which appear to include an unnamed professor at the Hofstra University School of Law (surely this individual is not tenured), are leveraging Citizens United into a much broader tool by which to finally enact the idea that the States are nothing more than the administrative subdivisions of the federal government.

Here's a reminder:  the entire sovereign power of the Kingdom of Great Britain passed upon independence to the several States, not the federal government.  The States are sovereign entities whose powers are only narrowly limited--limited comparatively slightly by the federal Constitution through the Supremacy Clause and circumscribed more substantially by their own constitutions, imposed on them by their citizens; if neither the federal Constitution nor their own constitution prohibits an action, and sovereigns were in the common law of nations entitled to do it, the States can do it within their jurisdiction.

By contrast, the federal government derives its powers from the grant of the States, or more precisely from the citizens of the several States acting through their ratification conventions (but nevertheless from the citizens of the several States rather than the citizens of the United States)--that grant was first conveyed in the Articles of Confederation, and subsequently in the Constitution of the United States.  The federal government is a sovereign of broadly limited powers--what the federal Constitution does not give, the federal government does not have.

If you subscribe to the school of thought that believes that federalism should end and that States should no longer be sovereigns--that the United States should no longer be a collection of sovereigns--that is a political issue completely distinct from and unrelated to the question of whether the First Amendment right to speech reaches a corporation's right to spend money articulating political opinions.  Conflating the two is ignorant at best, and is more likely a cynically disingenuous ploy.

2010 already portended danger for federalism, with likelihood that the Supreme Court will decide that the Necessary and Proper Clause allows Congress to enact laws without an underlying enumerated federal power (in United States v. Comstock) and that the States lack the police power to regulate firearm ownership because the Second Amendment is incorporated against them through the Fourteenth Amendment (in McDonald v. City of Chicago).  There is no need to compound what the Court will most likely do with an inartfully drafted (and ill-conceived) constitutional amendment to undo what the Court did somewhere else.

The coming week in judicial nominations

In November, I predicted that "Today in Judicial Nominations" would likely become a weekly or bi-weekly feature.  The time has come.  I presently plan to forecast the week ahead on Sunday and recap after the Senate has adjourned for the week.  (The prior week's recap will probably merge into the coming week's forecast when the Senate is in session from week to week.)  Any intermediate developments, including new nominations and unscheduled confirmation votes, will be listed on the box scores page (so if you're not using that already, you should--the XML feed for your RSS reader is here) but not on the main page unless the event is of extraordinary interest.

Monday evening at 6:00, the Senate will vote on the nomination of Professor Rosanna Malouf Peterson to be United States District Judge for the Eastern District of Washington.  One or more additional confirmation votes may occur later in the week.

Thursday morning at 10:00, the Judiciary Committee will hold an executive business meeting to consider reporting the nominations of state Judges Albert Diaz and James A Wynn Jr. to be United States Circuit Judges for the Fourth Circuit.

Today in judicial nominations

The Judiciary Committee will hold an executive business meeting at 10:00 this morning, at which it may consider the nominations of state Justice O. Rogeriee Thompson to be United States Circuit Judge for the First Circuit and state Judges Albert Diaz and James A. Wynn Jr. to be United States Circuit Judges for the Fourth Circuit.

President Obama has also, as expected, renominated Louis B. Butler Jr. and United States Magistrate Judge Edward Milton Chen to be United States District Judges for the Western District of Wisconsin and Northern District of California, respectively, after those nominations were returned to him by the Senate at the end of the First Session.  In addition, he sent five new nominations to the Senate:  Jon E. DeGuillo, United States Magistrate Judge Audrey Goldstein Fleissing, and state Judge Lucy Haeran Koh to be United States District Judges for the Northern District of Indiana, Eastern District of Missouri, and Northern District of California, respectively, as well as United States Magistrate Judge Jane E. Magnus-Stinson and state Judge Tanya Walton Pratt to be United States District Judges for the Southern District of Indiana.

Today in judicial nominations

Sometime before lunch, the Senate will vote on the nomination of United States District Judge Beverly Baldwin Martin to be United States Circuit Judge for the Eleventh Circuit.

Then at 2:30, the Judiciary Commitee will hold a hearing on the nominations of Nancy D. Freudenthal, State Judge Denzil Price Marshall Jr., United States Magistrate Judge Benita Y. Pearson, and United States Magistrate Judge Timothy S. Black to be United States District Judges for the District of Wyoming, Eastern District of Arkansas,  Northern District of Ohio, and Southern District of Ohio, respectively.