The Volokh Conspiracy

A commenter to an earlier post wondered whether the relatively low rate of Senate confirmation of Bush appellate nominations in the past two years can be explained, in part, because Bush nominees were confirmed more rapidly (in comparison to prior administrations) earlier in his term. The short answer is "no."

For comprehensive statistics on judicial confirmations from 1977 through February 2004, one can consult this CRS report. For judicial confirmations since then, one can look at the website of the Office of Legal Policy, which has data on confirmations during the 108th and 109th Congresses. For the current Congress, one can consult the data maintained by the Administrative Office of the U.S. Courts here.

Consulting these sources, here is what one finds. President Carter had 56 appellate nominees confirmed. President Reagan had 83 appellate nominees confirmed over two terms (for an average of 41.5/term). President Bush (41) had 42 confirmed. President Clinton had 65 confirmed (an average of 32.5 term). President Bush (43) had 35 confirmed during his first term, and has had 24 confirmed since, for a total of 59. This data shows a clear, and fairly consistent, downward trend over the past thirty years.

One also sees a downward trend in the confirmation percentage of appellate appointees. These figures from the CRS reports are as follows: Carter - 91.8%; Reagan - 81.4%; Bush(41) - 77.8%; Clinton: 56.5%.

The confirmation percentage for President Bush's first term through 12/9/2003 was a measly 32.3%. Since then, it has improved. By my calculation, the confirmation rate for appellate nominees during Bush's first term was a respectable 67% and it has been 56% thus far in his second term, for an overall average of 62%. One factor that aided this percentage was the "Gang of 14" deal, that set aside the filibuster of several Bush nominees. The other was the slow rate at which the Bush Administration has made appellate appointments. In any event, it is worth noting that while President Bush has seen fewer appellate nominees confirmed to the bench than his predecessors, the percentage of his appellate nominees confirmed is slightly higher than that of President Clinton.

For my part, I would like to see more of President Bush's nominees confirmed, particularly Peter Keisler (D.C. Circuit), Robert Conrad (4th Circuit), and Rod Rosenstein (4th Circuit), all of whom are extremely well-qualified nominees deserving of confirmation (and two of whom are actively supported by the Washington Post, which has also called for quick action on Conrad). I would also like to see an end to the downward trend in appellate judicial confirmations and needless obstruction by either party, and I hope that the next occupant of the Oval Office -- whether Obama or McCain -- sees any and all qualified appellate nominees considered and confirmed without undue delay.

The Club for Growth's Pat Toomey explains why his organization is opposing the re-election of Congressman Don Young (R-AK).

Over his 35 years in Congress, Mr. Young made himself into the most powerful Republican on the House Transportation Committee. But instead of using his power to steer Republicans down a principled, conservative track, he helped derail the GOP train in 2006.

Mr. Young spends taxpayer money so wastefully he could make a liberal Democrat blush. As chairman of the Transportation Committee (from 2001 to 2007), Mr. Young was directly responsible for one of the biggest boondoggles of the Republican majority – the 2005 highway bill. With a price tag of $296 billion, the highway bill contained a record 6,371 pork projects. . . .

During his time in Congress, Mr. Young has come to represent the worst of a Republican Party that became too comfortable in power. In 1995, a Republican majority passed a budget that actually cut spending. Today, only 40 Republicans out of 248 GOP senators and representatives have sworn off earmarks, despite overwhelming support for earmark reform among the party's base and the general public.

Just 12 years ago, the Republican Caucus, including Mr. Young, voted for a bill to phase out farm subsidies. Three weeks ago, Mr. Young and many of those same members voted for a farm bill that exemplifies everything the GOP once stood against. Somewhere between then and now, many congressional Republicans abandoned their former commitment to limited government, fiscal discipline and economic freedom.

I wish Toomey luck in unseating Congressman Young.

On Monday I will appear on a panel at AEI in Washington, D.C. to discuss the legal and other implications of the Interior Department's decision to list the polar bear as a "threatened" species under the Endangered Species Act. Joining me on the panel will be Bryan Arroyo, Assistant Director for the Endangered Species Program for the Fish & Wildlife Service. AEI's Ken Green will moderate. Details about the event are here.

On Wednesday morning I led a session on “Federalism and the Roberts Court,” in which we considered the likely trajectory of the Court’s federalism jurisprudence. Efforts to reinvigorate the judicial safeguards of federalism were a hallmark of the Rehnquist Court’s jurisprudence. A slim majority of the Court sought to advance this cause in two areas: Enumerated Powers (commerce clause, Section 5 of the 14th Amendment) and State Sovereignty (sovereign immunity and commandeering). Further, these cases tended to split along traditional ideological lines.

These issues – enumerated powers and state sovereignty – have been largely absent from the jurisprudence of the Roberts Court thus far. While such traditional federalism concerns were quite evident in some prominent cases (e.g. Gonzales v. Oregon, Rapanos), such concerns merely served to narrow the Court’s statutory interpretations, and the justices largely avoided any consideration of the underlying constitutional questions.

This far, the action has shifted to questions of preemption and the dormant commerce clause. The latter area, in particular, seems ripe for change as the Court’s recent decisions in this area (e.g. United Haulers, Ky. Dept. of Revenue v. Davis) suggest the Court may be ready to simplify or even scale back its enforcement of commerce clause limits on state regulatory authority. Also interesting is that the Roberts Court’s cases in these areas have not broken down along traditional ideological lines. Consider, for instance, the divisions in Watters v. Wachovia Bank, a preemption case in which Roberts and Alito split, and Kennedy’s dissenting votes in the dormant commerce cases. In short, the early returns suggest that federalism in the Roberts Court could be quite different than federalism in the Rehnquist Court.

Will this pattern continue, or will the Court return to the federalism battlegrounds of the Rehnquist years. Given the small size of the Court’s docket, it may not mean much that it has yet to hear a significant enumerated powers or state sovereignty case. Such cases could still be waiting in the wings and a more traditional ideological split in preemption or dormant commerce clause cases could yet emerge.

This morning’s plenary considered “Regime Politics and the Roberts Court.” Moderated by Stephen Griffin (Tulane), the panel featured Pamela Karlan (Stanford), Thomas Keck (Syracuse), and Neil Siegel (Duke). As Griffin explained, the aim of “regime politics” analyses in political science is to explain constitutional doctrine by reference to the governing partisan coalition of which the Court may be a part. In this regard, such analyses seek to situate the Court in the broader context of American politics, political regimes, and governing coalitions. While Justices may reflect the Presidents that nominated them, and the time at which they were nominated, they may also respond to broader political changes and social movements.

The June ABA Journal cover story focuses on the confirmation "logjam" that has left four vacancies on the U.S. Court of Appeals for the Fourth Circuit -- three of which are classified as "judicial emergencies" and one of which has been open for almost 15 years. (There were five vacancies when the article went to press, but Steven Agee was recently confirmed --the first confirmation to the Fourth Circuit since 2003.) Given there are 15 seats on the Fourth Circuit, the court is operating at less than 75 percent strength.

As the article makes clear, Senators from both parties have contributed to the obstruction of fourth Circuit nominees for some time. Senator Jesse Helms, in particular, kept one North Carolina seat open for over six years during the Clinton Administration because Senate Democrats had refused to confirm his protege Terrence Boyle to the court when nominated by the first President Bush. Senator John Edwards returned the favor when President Bush was elected, blocking Boyle's confirmation as payback. And since then things have only gotten worse. The political fights over judicial nominations have steadily escalated over the past twenty years, and there is no sign it will let up soon.

The reason the nomination logjam has lasted this long is that judicial retirements have turned what was once the nation’s most reliably conservative appellate court into one split evenly—between judges appointed by Democratic presidents and those appointed by Republicans.

With the circuit’s ideological direction hanging in the balance, there’s been near-paralysis in Washington. The president has nominated reliably conservative lawyers to fill most of the vacancies, and the Democrat-controlled Senate has failed to act on most of the nominations. Meanwhile, the work of the circuit grinds on, with fewer and fewer judges to shoulder the burden.

Since Democratic Party leaders are feeling confident about their prospects for retaking the White House this fall, chances that any nominees beyond Agee will be confirmed before Bush leaves office in January range from slim to none, most experts say. And if the next president is a Democrat, his or her nominees could remake the 4th Circuit into a more moderate appeals court for a generation or more.

Despite the judicial shortage, the 4th circuit continues to dispose of cases quicker than almost any other circuit. But it does so while granting oral argument in fewer cases than its counterparts, and by issuing fewer substantive opinions explaining its decisions.

In 2006, the 4th had an average disposition time per appeal of 91⁄2 months, which tied the 11th Circuit as the quickest in the nation. The 9th Circuit had the slowest, at nearly 16 months. The national average was slightly longer than 12 months.

Judges in the 4th Circuit also consistently rank as among the hardest-working in the federal appeals courts. In fiscal year 2006, 679 appeals per active judge were terminated on the merits. Only the Atlanta-based 11th Circuit, with 877, and the New Orleans-based 5th Cir­cuit, with 836, ranked higher. The D.C. Circuit had the fewest, at 173. The national average was 539.

But the 4th Circuit granted oral argument in less than 12 percent of its cases in 2006, far and away the smallest percentage of any circuit in the country. The average for all circuits was nearly 26 percent. That same year, the circuit also issued the lowest percentage of published opinions, at just over 6 percent. The average for all circuits was just under 16 percent.

Chief Judge Karen J. Williams, a 1992 appointee of the first President Bush, says the court is making the best of a bad situation.

The circuit has been able to stay current with its workload so far without suffering any loss in quality—in part by relying on its senior judges, and by inviting trial judges in the 4th Circuit and senior judges from other circuits to sit by designation, she says.

But she also says it won’t be able to do so indefinitely. “While we can continue to get our work done in a timely manner for the near future, over time the vacancies on our court, if not filled, may begin to have an adverse effect,” she says.

Today, D’Ambrosio v. Bagley, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit split over an interesting question in a capital habeas case: Where a habeas petitioner makes a Brady claim that the government suppressed or withheld mitigating evidence, when does the government “expressly waive” its defense that the petitioner failed to exhaust the Brady claim in state court? In this case, a divided panel held that the government’s conspicuous failure to raise such a claim could constitute an “express” waiver, even though the waiver was never made explicit. On this basis, the court upheld the district court’s grant of death-row inmate Joe D’Ambrosio’s habeas petition. Judge Rogers wrote the opinion of the court, joined by Judge Gibbons. Chief Judge Boggs dissented in part.

Here is how Judge Rogers summarized the case in his majority opinion:

Joe D’Ambrosio was convicted of murdering Anthony Klann in 1988. After D’Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district court granted the writ. On appeal, the warden argues, for the first time, that D’Ambrosio failed to exhaust his Brady claim and should be required to return to state court to relitigate the claim there. Although D’Ambrosio’s Brady claim was not presented to a state court, we do not dismiss his petition because the warden expressly waived the exhaustion requirement.

The warden expressly waived the exhaustion requirement because her counsel’s conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement. In response to D’Ambrosio’s motion to amend his habeas petition in order to add the Brady claim, the warden stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend. On October 25, 2002, the warden filed a motion to expand the record to include evidence that the warden argued undermined D’Ambrosio’s Brady claim. On November 25, 2002, the district court granted both motions. Importantly, with respect to D’Ambrosio’s motion to amend his habeas petition, the district court stated that its understanding was that the warden would not argue that the Brady claim was unexhausted . . . .

This is an extraordinary case in which the district court stated that it understood exhaustion to be a non-issue and that the warden would not later assert it, the warden failed to correct what the district court clearly viewed as the warden’s position during the almost four years of litigation before that court, and the warden went on to state to the district court that D’Ambrosio’s claims would be untimely in the state courts (thereby confirming the district court’s understanding). We are aware of no binding authority that says that such conduct by the State is not an express waiver of the exhaustion requirement.

Another interesting aspect of D’Ambrosio is the non-ideological split it produced. As I’ve been noting in a series of posts, the sixth Circuit appears to be quite ideologically divided on habeas matters, particularly in death penalty cases. Particularly in divided cases, “liberal” judges vote to grant habeas petitions and “conservative” judges vote to deny. In this case, however, all three judges on the panel – Boggs, Gibbons, and Rogers – would generally be considered “conservative, and two of the three voted to affirm the district court’s grant of habeas relief.

This morning’s plenary panel is on executive power. Moderated by conference chair Mark Tushnet, it features the line-up of Kathleen Clark (WashU), Joseph Margulies (Northwestern), Sai Prakash (USD), and Adrian Vermeule (Harvard). Tushnet opens with the observation that the law of executive power seems to “come in waves.” There was “Nixon Law” (impeachment, exec privilege, war powers), then “Clinton Law” (impeachment, privilege, and immunity), and now “Bush Law” (war powers, secrecy).

Kathleen Clark addressed “Accountability Mechanisms and National Security Secrecy.” In short, her claim is that assertions of national security secrecy undermine political accountability mechanisms within the separation of powers. From this perspective, secrecy not only serves to advance executive functions, but also to insulate the executive branch from oversight by other branches and the public at large.

Clark provided a useful typology of accountability mechanisms based upon how they were created and where they are situated, ranging from those that are wholly internal to the executive branch (such as the Office of Legal Counsel opinions, the Office of Professional Responsibility, etc.), Congressional accountability mechanisms (oversight hearings, legislative protection for whistleblowers etc.), judicial accountability mechanisms (Bivens actions, etc.), and those that are external to the government (media, elections, etc.). In each of these cases, Clark observed, assertions of secrecy can undermine, if not wholly disarm, the accountability mechanisms.

Clark’s presentation highlighted an interesting tension between secrecy and accountability. Without question, secrecy in national security and other matters is sometimes essential (though downplayed by clark). There are some things governments must do under cover. Yet Clark is certainly correct when actions (and their justifications) are kept secret, even formal accountability mechanisms may cease to function. Striking the right balance is particularly difficult. To focus on an example Clark used as a case study – NSA surveillance – some degree of secrecy is necessary to ensure the effectiveness of certain types of surveillance activities. At the same time, the high degree of secrecy about this particular program made it particularly difficult for Congress (let alone the public) to ensure that Executive Branch was complying with relevant statutory and constitutional constraints. Even if one believes that the Bush Administration’s surveillance initiatives were necessary for national security, allowing the executive branch to initiate and engage in such activities in virtually complete secrecy reduces the likelihood that such activities will be conducted in a responsible fashion and deactivates the political checks that ultimately constrain overbroad assertions of executive power.

Sai Prakash spoke on the theory of the unitary executive in the Bush Adminsitration. Where many argue the Bush Administration has been too aggressive in asserting the theory of the unitary executive, Prakash’s view is that the Administration has paid “too little” attention to the theory of the unitary executive. This theory, Prakash hastened to add, has “nothing to do” with many the Bush Administration’s assertions of executive power. As he explained, the theory says little if anything about war powers, foreign affairs or the executive’s ability to disregard congressional enactments. Rather, the theory of the unitary executive is almost exclusively concerned with “law execution.” In other words, it is about the executive branch as a unified whole under the control of the President, and says little about the scope of the executive power or even the executive branch’s ability to contravene Congressional command.

In practice, Prakash argued, much of what occurs within the executive branch occurs independent of meaningful Presidential oversight. In some instances we actually have “multiple, plural executive counsels,” rather than single chief executive because of the existence of independent agencies, such as the FCC and SEC, that are able to operate without executive oversight. As a consequence, the President does not “take care” that the laws within these agencies’ control are executed. For those concerned about a “unitary executive,” this is of greater concern than whether the executive has the authority to act unilaterally with regard to national security or foreign affairs. (Perhaps, as Clark suggested in comments, the Bush Administration has sought to follow a “unilateral executive” model, rather than a “unitary executive” model.)

Joseph Margulies discussed the Bush administration’s detention policies and their relation to the architecture of executive power. Margulies argued that the Bush Administration’s policies on detention are largely unchanged from 2001 and 2002, despite extensive criticism and a (near) consensus that its policies are wrong-headed if not also illegal. One aim of Margulies’ talk was to explore why the policies are so resistant to change if they lack legitimacy or support.

Margulies suggested that criticism of the Bush Administration’s detention policies is universal, but I think he overstates his case. There is no question that academic criticism of the Administration’s detention policies is (almost) universal. A similar consensus appears to exist abroad (at least in public). Some aspects of the Administration’s policies have also been challenged from within the executive branch and by the courts, including the Supreme Court. Yet on the political right there remains substantial support for the executive branch’s unilateral authority to detain enemy combatants as unlawful combatants and military adversaries. Many individuals, within the administration and without, believe that such measures are necessary for the security of the nation, and must be pursued even in the face of substantial opposition.

Margulies explanation for the present situation is that there is a dominant cultural and political narrative that existing policies are “flawed” and should be criticized. This makes it necessary for political elites to disclaim existing policies. Yet there is relatively little public concern for detention policies. That is, the average voter is far more concerned about other issues, so the political consequences of maintaining existing policies are virtually nonexistent. So political elites can condemn existing policies, but need not do anything to change them. One implication of this, Margulies suggests, is that it can be particularly difficult to control or discipline unpopular exertions of executive power absent electoral change.

Adrian Vermeule sought to look forward to the next administration, and consider how a President McCain or Obama will approach executive power. Drawing on theoretical and empirical research in the political science literature, Vermeule noting the prevalence and importance of “cross-over policy-making” – the tendency for left-wing presidents to supply right-wing policies and vice-versa. As explained by Vermeule, there is a tendency for Presidents to successfully advance policies that appear contrary to their ideological orientation. One reason such efforts are successful is because voters, lacking information, find executive claims to be more credible when they are contrary to the executive’s stated ideological preference. So, for instance, the public is more suspicious of hawkish policies from a hawkish president than from a dovish president, and vice-versa. This is self-limiting, as a right-wing president who moved too far to the left will lose his reputation as a”right-wing” president, but is nonetheless significant.

What does this mean for the next Administration? Perhaps, Vermeule suggested, this means that a President Obama would “engage in some symbolic civil-libertarian policies” on high-profile issues, but could also maintain or expand some Bush Administration national security and counterterror policies more successfully than a President McCain. Just as “only Nixon could go to China,” only a President Obama could escalate existing policies, and perhaps only a President McCain could withdraw from Iraq or negotiate with Iran. This asymmetry in political constraints means (in technical terms) that the mode and the mean of presidential policies are likely to diverge. In lay terms, while the majority of a President Obama’s policies are likely to be liberal, his ability to advance very liberal policies is truncated; he has more room to move to the right than to the left. Consider the Bush Administration: While definitely advancing “right-wing” policies on most issues, there are key areas in which the Bush Administration has moved farther to the “left” than would have a Democratic President (e.g. No Child Left Behind, Medicare Drug Benefit, federal spending). Looking forward, this means that on a handful of issues, it is likely that Obama could advance quite right-wing policies. The difficulty, of course, is that it can be difficult to know where a given President is likely to advance policies contrary to his ideological orientation.