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Senate sends Justice, judicial nominees back to White House

In a flurry of mostly overlooked action, the Senate on December 24 confirmed a slew of President Obama's nominees on a single "en bloc" vote. Included in the list (starting here in The Congressional Record's Daily Digest) was David Strickland, the former trial lawyer lobbyist named administrator of the National Highway Traffic Safety Administration. (See this Dec. 9 post on the nomination of Strickland, who has a Senate Commerce staffer bears great responsibility for the excesses of the Consumer Product Safety Improvement Act.)

Notable was the Senate's decision to return six nominees to the White House, a sign of major political opposition to their confirmation. The Washington Post's Federal Eye blog reported the high-profile nominees to the Justice Department the Senate decided against approving: "Dawn E. Johnsen, nominated to oversee the Office of Legal Counsel; Mary L. Smith, tapped to head the Tax Division; and Christopher H. Schroeder, nominated as assistant attorney general for legal policy."

The most controversial rejected nominee -- at least in civil justice reform circles -- was Louis Butler, put forward by President Obama to be U.S. District Court Judge for the Western District of Wisconsin. As a justice on the Supreme Court of Wisconsin, Butler offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and "collective liability" for lead paint manufacturers. Appointed by Democratic Gov. Jim Doyle to the court, Butler lost a 2008 election seeking to win a full term on the court. Conservative activist groups organized against his confirmation, and The Wall Street Journal prominently editorialized against him.

The Senate Judiciary Committee voted 12-7 to confirm Butler in early December over strenous objection by Republican committee members, Sen. Jeff Sessions of Alabama and John Cornyn of Texas. (See Point of Law post.)

Also returned to the White House was the nomination of Edward Chen, a federal magistrate in San Francisco, to serve as U.S. District Court Judge for the Northern District of California. A formal opposition did not get organized, but some conservatives have criticized him for reactive hostility to U.S. society. (See Washington Times, "Another judicial radical; Sean Hannity, "Another Radical Surfaces in White House.") The Senate Judiciary Committee reported out his nomination 12-7 in October.

President Obama could withdraw the nominations or return them to the Senate. Butler was certainly vigorously supported by his two home-state Senators who serve on the Judiciary Committee, Sens. Feingold and Kohl. The President could also make recess appointments, but that rarely makes sense for judicial nominees with otherwise lifetime appointments; they could only serve until the end of the current Congress. (See CRS report, "Recess Appointments: Frequently Asked Questions.")

UPDATE The Senate action occurred under Rule XXXI, paragraph 6, of the Standing Rules of the Senate. We've put the language in the extended entry:

"Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.