For all of Barack Obama’s lofty talk about bipartisanship, the incoming president has yet to do anything of real substance on the domestic political front to lessen the Capitol’s partisan toxicity.
One step, more than any other, would put substance behind his rhetoric – renominate former acting Attorney General Peter Keisler for a seat on the U.S. Court of Appeals for the D.C. Circuit.
Keisler is a superbly qualified nominee (more on that later) who has been praised by legal experts and editorial boards across the political spectrum but has been treated extremely shabbily by Senate Democrats.
There is excellent precedent for a president of one party re-nominating an out-going chief executive’s judicial choice. In 2000, a Republican-majority Senate never acted on former President Clinton’s nomination of Virginia’s Roger Gregory to the Fourth Circuit Court of Appeals, but President George W. Bush included Gregory among his very first group of nominees in 2001.
Bush later also nominated Michigan’s Helene White, another Clinton nominee, to a Sixth Circuit Court of Appeals spot for which a prior Republican Senate had not confirmed her, and Bush elevated Judge Barrington Parker of New York to the Second Circuit, even though Parker originally was a Clinton appointee to a district judgeship.
Republicans – justly furious that Senate Democrats never reciprocated Bush’s goodwill on the Gregory nomination – would be much more likely to cooperate with Obama if the new president makes a similar gesture with Keisler.
But why appoint Keisler, particularly, rather than any of the dozen or so other Bush appellate nominees blocked by Senate Democrats? Because Keisler’s reputation for probity, fairness, and legal brilliance is unmatched, and because Senate Democrats never even tried to offer substantive reasons for not providing him a hearing (much less a committee vote) since Bush re-nominated him in January of 2007.
Indeed, liberal lion Ted Kennedy publicly praised Keisler’s record and temperament when Keisler was first nominated late in 2006. The liberal editorial boards of The Washington Post and Los Angeles Times singled out Keisler as a nominee who especially merits approval.
When the Inspector General issued a report blasting the politicization of the Bush Justice Department, the report repeatedly praised Keisler for resisting the politicization.
And respected former Deputy Attorney General James Comey has written admiringly that Keisler “treats people without regard to their station in life, showing the same decency and kindness to the man cleaning DOJ’s hallways as to the Attorney General.”
A graduate of both undergraduate and law school at Yale, Keisler has clerked for Supreme Court Justice Anthony Kennedy and worked in the Reagan White House and at the Justice Department under the current President Bush.
Behind the scenes, people Obama respects can give him superb personal references for Keisle, who now works in the D.C. office of the Chicago-based mega-firm Sidley Austin – the same firm where Obama first met his wife, Michelle, when both were young associates there.
Moreover, when Keisler earlier had been nominated for the U.S. Fourth Circuit Court of Appeals (Bush later switched his nomination to the D.C. Circuit), Harvard Law Dean Elena Kagan signed a letter supporting the choice. Kagan was named just yesterday by Obama as the incoming president’s choice for Solicitor General.
In the past, Senate Democrats balked at confirming another Republican for the 11-seat D.C. Circuit. But as of November 1, when Judge Raymond Randolph took “senior status,” the D.C. Circuit has just nine active judges.
Significantly, Randolph was an appointee of the first President Bush, so Keisler would be filling what already was a “Republican seat,” rather than altering the balance of power against the liberal judges Obama ordinarily prefers. Another seat remains open for a Democratic nominee.
Several Bush nominees on other circuits would be good candidates for an Obama re-nomination – as an olive branch and to promote good government in general.
But Pennsylvania’s Arlen Specter, the ranking Republican on the Senate Judiciary Committee, wrote a column last fall specifically touting Keisler’s nomination, calling him a “stellar nominee” of “deep integrity.” As a Senate swing vote, Specter might be especially worth cultivating by Obama. The Keisler nomination may be just the right political seed for Obama to plant.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at [email protected].
