"EXTRA! EXTRA! Read all about it!" A little bird tells Article III Groupie that William K. Kelley, a law professor at Notre Dame Law School, will soon be nominated to a federal appeals court. And it looks like we're not talking about any old appeals court. Rumor has it that Professor Kelley may be bound for one of the most exalted courts in the land, whose name A3G's glossy lips are not worthy to utter: the U.S. Court of Appeals for the D.C. Circuit!
As review of his fabulous résumé discloses, Professor Kelley is no stranger to the hallowed halls of the Prettyboy Courthouse. After graduating from Harvard Law School, where he served on the Law Review, Kelley clerked on the D.C. Circuit for Judge Kenneth W. Starr. (At the time, Judge Starr was a top-ranked feeder judge, one of the most powerful battleships in the legal conservative fleet -- well before he ran aground on the treacherous shoals of Monica Lewinsky...)
Like so many D.C. Circuit clerks, Professor Kelley then joined the ranks of the Elect, clerking for Chief Justice Warren E. Burger and Associate Justice Antonin Scalia. In the years since One First Street, Kelley practiced at two major law firms and served, under Ken Starr, in the Solicitor General's office (the only branch of the Department of Justice more prestigious than Finishing School for the Elect).
The rumor of Professor Kelley's imminent apotheosis raises a few questions. First, is there a spot for him on the D.C. Circuit? The court has twelve authorized judgeships. At the current time, there are nine active judges on the court and three nominees for the open slots: Brett M. Kavanaugh, Janice Rogers Brown, and Thomas B. Griffith. (As you surely recall, the nomination of Miguel Estrada was withdrawn in September 2003. By the way, the kid from Tegucigalpa is a good friend of Professor Kelley and a strong supporter of his candidacy for a judgeship.)
One possibility is that Professor Kelley is being groomed for the spot that may open up when Judge Harry T. Edwards takes senior status, which is rumored to be happening in November 2005. But it seems a bit early to be vetting someone for a position that may (or may not) open up in nine months. So here's another, more interesting possibility: Could the White House be thinking about jettisoning one of its three current nominees to the D.C. Circuit, all of whom have engendered enormous controversy?
It's not likely to be Janice Rogers Brown. According to additional D.C. Circuit rumor-mongering, next month the Senate Republicans will be using the "nuclear option" to break the Democrats' filibuster of the Uppity Black Diva. (Thanks to Nomination Nation for the Novak link.)
And now, a digression on Justice Brown. Rumor has it that Janice Brown was first offered a spot on the Ninth Circuit, which would have been a far more logical appointment for her as a justice of the California Supreme Court. But she declined the post. Keeping her eye on the ultimate prize of the Supreme Court, she insisted upon the D.C. Circuit, well-recognized as a way station for One First Street. Her message to the White House: "The Prettyboy Courthouse, or bust!"
A3G can't help admiring the chutzpah of a diva who rejects a nomination to the Ninth Circuit like a plate of chopped liver. In hindsight, however, Justice Brown may have made the wrong choice. In light of the opposition engendered by her nomination to the D.C. Circuit, she probably would have been better off simply taking a seat on the Ninth Circuit. As a sitting justice of the California Supreme Court, she would have been an eminently sensible nominee to the Ninth Circuit -- and very difficult for senators to oppose. And she still would have had an excellent shot of making it to One First Street via the Ninth (which was AMK's path to the Court).
Okay, back to Professor Kelley. If he's about to be nominated to the D.C. Circuit, and if it's "full speed ahead" for the Uppity Black Diva, does that spell trouble for the nominations of either Brett Kavanaugh or Thomas Griffith? Is the White House thinking of pulling the nomination of Griffith, under fire for failing to pay his bar dues? Or will they withdraw the nomination of Kavanaugh, who has been attacked as a conservative partisan? Have the savvy operators in the White House Counsel's Office hatched a plan for rewarding the loyal (and brilliant) Kavanaugh with some other post -- such as a high-level DOJ appointment? Stay tuned...
Very well, that's enough speculation for now. A3G will now leave you with a few tidbits about the "Deliciously Cool" Circuit that she believes to be fairly reliable. First, here's a detailed eyewitness account of the court's recent en banc argument in the Cheney energy case:
In case you missed this superstar laden event, the D.C. Circuit (en banc!) heard arguments in the remand of the Cheney energy task force case on [the morning of Thursday, January 27]. Arguments took place in the posh "ceremonial courtroom" on the sixth floor of the federal courthouse in D.C. And the intellectual firepower present did not disappoint. Acting Solicitor General Paul D. Clement (Silberman, Scalia) argued the case for the United States. Accompanying him at the table, among others, was Deputy S.G. Edwin Kneedler, who makes frequent appearances at One First Street.
The first rows were filled with the elite appellate attorneys from the Department of Justice's Civil Appellate division and the S.G.'s office. Adding a bit of tension to the situation... in two large jury boxes at each side of the courtroom sat clerks to the eight judges on the bench (Ginsburg, Edwards, Sentelle, Randolph, Rogers, Tatel, Garland, Roberts), including at least a few recognizable Tatel-tots. Many of those fortunate folks willl soon do the heavy lifting for the Supremes. I counted myself alongside other awestruck law students in attendance.
Second, here's a recent sight-ation of Judge Sentelle, sporting a cowboy hat, addressing a gathering of the Columbia Law School Federalist Society. According to a UTR source, Judge Sentelle "is a fan of UTR, and [he] knows that his clerks are referred to as Sentelle-tubbies."
Third, A3G would like to dispel certain myths about the D.C. Circuit. Just as the beauty and glamour of Hollywood celebrities spawn all sorts of untrue rumors, the splendor and magnificence of the D.C. Circuit have similarly generated unfounded gossip. The following, frequently repeated rumors about the court are not true:
1. Each judge of the D.C. Circuit, upon entering into service, receives a solid gold gavel encrusted with diamonds (custom-made for the court by Harry Winston). Each gavel is so heavy that it takes two hands to lift it!
2. Before the D.C. Circuit judges enter the courtroom for oral argument, a courtroom deputy unfurls a crimson carpet from the robing room door to the bench, then showers the carpet liberally with rose petals. Fabulous!
3. Every time the court sits en banc, it hires a masseuse and a masseur to give the judges post-argument rubdowns -- full body massages, natch.
4. Under Chief Judge Edwards, the collegiality of the D.C. Circuit left something to be desired. To improve relations between judges, Chief Judge Ginsburg instituted the following tradition: before the beginning of each court meeting, the judges dance around their conference table, to the thumping beat of Gonna Make You Sweat (Everybody Dance Now), by C+C Music Factory.
The judges wear their judicial robes for this ceremonial dance, and they "bust a move" in the exaggeratedly theatrical, high-energy style of music video backup dancers. The best dancer on the court is Judge Judith Rogers, whose signature move involves making the sleeves of her robe cut through the air like kites.
Even if the foregoing items are merely urban legend, the D.C. Circuit is still a magnificently fabulous court that deserves our utmost veneration. A3G hereby calls upon her readers to form a circle, hold hands, and raise their voices in song: "Let us praise the D.C. Circuit with trumpet sound; with harp and lyre; with timbrel and dancing; with stringed instruments and pipe (no, Chief Judge Ginsburg, not that pipe). Let everything that has breath praise the D.C. Circuit!"
On bended knee, before her shoebox diorama of the Prettyman Courthouse,