On Goldstein On Liu

Yesterday, the Senate Judiciary Committee was scheduled to hold a hearing (subsequently postponed) to consider President Obama’s nomination of Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.  In anticipation of the hearing, SCOTUSBlog founder Thomas Goldstein discussed the Liu nomination and its potential broader significance on The Huffington Post.  According to Goldstein, the committee’s consideration of Liu “will chart the course for many dozens of judicial nominations that the president will make during his time in office.”  In the process, Goldstein presents a surprisingly lopsided and ahistorical perspective on the Liu nomination and its place in the history of judicial nomination fights.

Goldstein’s central argument is that Republican opposition to Liu’s confirmation will set a disturbing precedent of rejecting nominees based upon their ideology.  Goldstein writes:

The vote to confirm or reject an appellate nominee not only stakes out a position on the individual candidate, but also more broadly sets the bar on whether certain substantive views on the law are just too extreme to permit confirmation.By openly blocking Liu’s confirmation on the ground that his views of the Constitution are outside the mainstream, they would set a precedent applicable to dozens of future nominations, including for seats on the Supreme Court. If Liu’s opponents succeed, it is hard to see why the president would later nominate or the Senate would confirm any candidate who openly embraces the long-prevailing view that the Constitution is written in broad terms precisely in order to account for the varied problems that a huge and dynamic country would confront over the centuries.

The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the “mainstream.” Nor is Goodwin Liu.

What Goldstein fails to acknowledge is that this line has already been crossed.  Senate Democrats have openly opposed confirmation of appellate and Supreme Court nominees well within the “mainstream” of conservative legal thought.  Senate Democrats orgainzed hearings to justify the imposition of such ideological tests, and the consideraton of a judicial nominee’s ideology has been advocated by numerous Democrats, including then-Senator Obama and, interestingly enough, by Professor Liu.  As I noted before, Liu called upon Senators to consider Judge Samuel Alito’s “judicial philosophy” and reject his confirmation because he was outside of the judicial “mainstream.”  In short, Liu himself sought to  “set the bar on whether certain substantive views on the law are just too extreme to permit confirmation” in such a way as to exclude “brilliant and conscientious lawyers” — albeit only those from the “idegological right.”

Goldstein also writes that “Liu’s formal qualifications for the post are not actually seriously disputed.”  He notes that the ABA Standing Committee on the Federal Judiciary gave Professor Liu its highest rating of “well qualified.”  This is all true, but high ABA ratings were hardly dispositive for Republican nominees.  Liu’s rating will also revive concerns about ideological bias in the ABA’s ratings.

The ABA Committee evaluates judicial nominees based upon “their professional qualifications: integrity, professional competence and judicial temperament.  According to the Committee, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.”  Yet as Ed Whelan noted, Professor Liu has not even been out of law school for twelve years, and only practiced law for two years, and has only argued one case.  By comparison, when President Reagan nominated University of Chicago Professor Frank Easterbrook to the U.S. Court of Appeals eleven-plus years out of law school, the ABA rated Easterbrook “qualified/not qualified” even though he had spent four years in the Solicitor General’s office and had argued twenty cases before the Supreme Court.

As I have written before, I believe Liu is a qualified nominee and that the Senate should be deferential when evaluating a President’s judicial nominees.  But this has not been the Senate’s practice for quite some time, as evidenced by the many Bush nominees blocked on ideolgoical grounds.  Republican opposition to Liu’s confirmation will not represent some great turning point in the Senate’s treatment of nominees — even if it is successful.  If Goldstein is concerned about the imposition of ideological litmus tests on judicial nominees, he should consider how and when they began — and perhaps Professor Liu’s own role in this as well.