The Daily Journal reports that President Obama is “poised” to nominate Professor Goodwin Liu, Associate Dean at the University of California at Berkeley’s Boalt Hall School of Law, to the U.S. Court of Appeals for the Ninth Circuit. Prof. Liu is an accomplished scholar with an impressive background. But I also suspect his nomination could face a chilly reception from Senate Republicans, and not simply because he is a liberal academic.
I believe Senate Republicans are likely to oppose Prof. Liu for multiple reasons. First, Prof. Liu Chairs the Board of Directors the American Constitution Society for Law and Policy. This is not the sort of thing that should be disqualifying for a federal judgship, to be sure. Yet Senate Democrats firecely opposed, and ultimately blocked, confirmation of Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit, largely because he was a co-founder of the Federalist Society for Law and Public Policy Studies (where he is also now Chairman of the Board).
Second, Prof. Liu was an outspoken critic of President Bush’s nomination of Samuel Alito to the Supreme Court. He co-authored an ACS report critical of Judge Alito’s record on death penalty cases and, more importantly, testified against then-Judge Alito’s confirmation to the Supreme Court. In his testimony, Prof. Liu argued that Senators should consider a nominee’s “judicial philosophy” and suggested that Judge Alito should fail such a test. According to Prof. Liu, then-Judge Alito was “at the margin, not the mainstream,” and that the America envisioned by his record on the bench “is not the America we know. Nor is it the America we aspire to be.” I suspect Senate Republicans will remember this testimony when considering Prof. Liu’s nomination.
I have long deplored the politicization and obstruciton of judicial nominations. I believe qualified judicial nominees should be readily confirmed, and from what I know Prof. Liu is well qualified. (I have met Prof. Liu, and debated him on TV, but do not know him personally.) Yet most Senate Democrats, including then-Senator Obama, did not support such a deferential approach to Republican judicial nominees, nor did Prof. Liu. As a consequence, Senate Democrats and the President should should not be surprised when Republicans follow their lead. In my experience, Republicans are most likely to challenge Democratic nominees who previously attacked GOP nominations, so I would think this makes Prof. Liu a particularly appealing target for GOP obstruction.
Perhaps now that the shoe is on the other foot, more will recognize the value of de-escalating fights over judicial nominations — but don’t bet on it.
UPDATE: It appears from my comments that my position is unclear. I believe the Senate should be quite deferential to a President’s judicial nominees, without regard to ideology, and I oppose the filibuster of nominations. Unless a nominee is unqualified or lacks judicial temperament, I believe that nominee should be confirmed. At the same time, it is unreasonable to expect one party to remain deferential to a president’s nominees if the other is not. So, unless and until Senate Democrats are willing to foreswear the use of nomination filibusters or the consideration of a Republican nominee’s ideology, they should expect Republicans to follow suit. I don’t like this result. I have decried the downward spiral of judicial nomination fights for years (see the links at the end of this post), but I also don’t believe it will end unless and until leaders in both parties step up.
ruuffles says:
You made the typo on accident, but it’s a good question: Exactly who is nominating Goodwin Liu? [Typo fixed now.]
He’s clearly outside the mainstream of the previous circuit nominees. He is around 40, 10 years younger than the previous youngest. He has no previous judging experience. Only one other nominee satisfies this, 6th Ct who is a labor lawyer. Aside from Hamilton (whom Lugar, R-IN, supported), he’s the only one with clear liberal credentials.
The answer might come from the fact that every single Ct nominee from a state with at least one Democratic senator had their name sent to the White House by the Senator(s) office or committee. Martin (11th, GA) and (female nominee, 6th, TN) have two Republican home-state Senators.
I strongly suspect this was the work of Boxer, Feinstein, or their allies.
January 21, 2010, 11:14 amThorley Winston says:
I’ve always said that Senate Republicans should give now-President Obama’s nominees the same deference that then Senator Obama gave President Bush’s. That this potential nominee is on record as supporting blocking nominees because of their ideology makes it an easier decision.
January 21, 2010, 11:19 amepluribus says:
This post surprises me, and not pleasantly. You state that Prof. Liu “is an accomplished scholar with an impressive background.” You state that Keisler’s nomination to the Court of Appeals was blocked “largely because he was a co-founder of the Federalist Society” and that “this is not the sort of thing that should be disqualifying for a federal judgeship.” Yet you suggest that Liu’s nomination should be blocked because he chairs the Board of Directors of the American Constitution Society for Law and Policy, the very sort of thing you say should not be disqualifying for a federal judgeship. You state that Liu opposed the nomination of Samuel Alito to the Supreme Court and suggest that this should be the basis for opposing Liu. Tit for tat. All of this despite your statement that “Prof. Liu is well qualified” and your endorsement of the “value of de-escalating fights over judicial nominations.” So we should de-escalate fights over judicial nominations, but not until after we have blocked Liu’s nomination on political grounds.
January 21, 2010, 11:25 amyarrrrr says:
epluribus, read what he said again…
January 21, 2010, 11:32 amDave N. says:
I have repeatedly stated I oppose judicial filibusters. That said, I am not too keen on having a Reinhardt/Pregerson clone on the 9th Circuit, either.
January 21, 2010, 11:33 amSammy Finkelman says:
You can’t de-escalate fights on judicial nominations until *after* you have done a little tit for tat – unless there is some other reason to think it is over. Tit for tat is a way of ending fights – but in most cases you first have to do it.
Besides anyway, that corrects for the tilting of the balance caused by the blocking of keistler’s nomination.
That is, if what you want is that judicial nominations should follow the Presidential election returns.
January 21, 2010, 11:34 amzuch says:
Prof. Adler:
It could be because he’s an Obama appointee facing the “Party of No”….
Cheers,
[RESPONSE: zuch -- It's amusing to read this sort of comment one day after the Senate unanimously confirmed another nominee. JHA]
January 21, 2010, 11:36 amK Dackson says:
A wise saying comes to mind:
January 21, 2010, 11:38 amRPT says:
Now that the political season has started, we can expect the R’s to oppose pretty much every appointment to any post on the “tit for that” or “Waterloo” or some other theory. Any discussion of the merits of any nominee will be interesting but superfluous in light of the “I oppose judicial filibusters except for in this case”.
January 21, 2010, 11:38 amepluribus says:
yarrrrr says:
Why don’t you read it for the first time.
January 21, 2010, 11:40 amLTR says:
I hope Sessions already has someone digging through Liu’s garbage.
January 21, 2010, 11:40 amepluribus says:
Dave N. says:
I don’t especially disagree with you–my view of the filibuster is not fixed, and I’m still open to arguments on the issue. But why do you oppose it for judicial nominations but not for other matters that come before the Senate?
January 21, 2010, 11:44 amChrisHo says:
I am still confused as to what you are reading.
It reads to me that he expects Republicans to block the nomination and the reasons he suspects they will use. I do not see it as proposing that they should.
January 21, 2010, 11:47 amMark Field says:
I’m one who thinks robust debate about judicial philosophy and temperament is a good thing, and that remains true whether the nominees are liberal or conservative. That’s not to say obstruction for the sake of obstruction is, nor that filibusters are appropriate except in (what I hope would be) very rare cases.
January 21, 2010, 11:48 amSteve says:
Who cares if they oppose it? Unless the party that recently claimed judicial filibusters are practically an offense against God is going to round up 41 votes against cloture (they won’t), then it makes no difference. So some of the Republicans will vote no, big deal. The Republic will survive their outraged floor speeches.
January 21, 2010, 11:50 amDavid M. Nieporent says:
Okay. Now you. Hint: you invented lots of things he never said. Like:
No, he didn’t “suggest” any such thing. Or:
No, he didn’t “suggest” any such thing. Or:
He didn’t say that, either.
It’s depressing enough that people have trouble interpreting speech, but when something is written right in front of them and they can’t read it, it shows a serious problem.
January 21, 2010, 11:52 amepluribus says:
ChrisHo:
I see it as stating that they will. I don’t see it as proposing that they shouldn’t.
January 21, 2010, 11:53 amJonathan H. Adler says:
epluribus –
You should re-read the post. I am not advocating “payback” or blocking Liu’s nomination. I do not think Republicans “should” seek to block his nomination. Rather, I expect Republicans will seek to block his nomination and explain the reasons why. While I do not like this sort of response, I believe it is predictable and understandable. Further, if the President and Senate Democrats would like an easier time confirming individuals like Prof. Liu — who, again, I believe is qualified — they should reconsider the standards they have applied to Republican nominees in the past and seek an accommodation that would re-establish a more deferential approach to judicial nominees of either party.
JHA
January 21, 2010, 11:55 amepluribus says:
I have an idea, David, that what depresses you and what depresses me are two different things. You don’t seem to like my use of “suggest.” My dictionary defines “suggest” as “to mention or imply as a possibility.” Yes, he suggested just what I said he suggested. No, he didn’t “say” “tit for tat.” I did. It was my comment you were reading, remember?
January 21, 2010, 12:01 pmTamerlane says:
This nastiness began with Bork. The Democrats started it.* If this type of behavior is going to stop or be toned down it’s up to the Democrats to initiate the process when they once again find themselves in the position the Republicans now hold. This opportunity for Democrats to show that they’ve grown up or at least shed the more infantile elements of their left wing appears to be rapidly approaching. Let’s hope they don’t once again blow the opportunity. (*Please don’t bring up Abe Fortas and similar cases. Those nominees had obvious baggage that made them unsuited for the SC or indeed any judgeship.)
January 21, 2010, 12:02 pmgeokstr says:
I can just hear the D’s now – “we promise that in the future when you are in power we will not block your nominees if you don’t block ours now”.
Where have I heard something like that before? Oh, yes, “I’ll gladly pay you Tuesday for a hamburger today”.
That’s the same as a bully telling you “I promise I won’t take your lunch money next month if you give it to me without a fight every day until then”.
The hell with believing anything a leftist tells you. Lying is just another acceptable means to their wonderful ends.
January 21, 2010, 12:06 pmDave N. says:
Not just judicial nominations, but also for other executive nominees as well.
The distinction I see between executive nominations (judicial and otherwise) and legislation is that the filibuster can serve as an useful check on controversial legislation. On the other hand, with respect to nominations, I think the President is entitled to some level of deference on his choices.
January 21, 2010, 12:06 pmepluribus says:
Prof. Adler. Whether I misinterpreted your words or you expressed yourself poorly is, I think, an open question. If the former, I apologize. I take you at your word that you think Democrats “should reconsider the standards they have applied to Republican nominees in the past and seek an accommodation that would re-establish a more deferential approach to judicial nominees of either party.” I second that, with the proviso that Republicans should do the same. If “a more deferential standard” is to be applied, say right now, who would that benefit? Liu or those who want to block Liu?
January 21, 2010, 12:11 pmJonathan H. Adler says:
Tamerlane –
The nastiness actually began before Bork. Ideological opposition to appellate nominees begain the mid-1980s when Senate Democrats decided to begin opposing some of President Reagan’s nominees. It has been an escalating game of “tit-for-tat” ever since.
JHA
January 21, 2010, 12:16 pmrandom commenter says:
“The Republic will survive their outraged floor speeches.”
As it will survive your comedic hyperventilation. Perhaps you should re-read what Adler said.
January 21, 2010, 12:22 pmepluribus says:
Thanks, Dave, I see the distinction.
January 21, 2010, 12:24 pmzuch says:
It’s amusing to read this from a person that admits that the Republicans have been needlessly and unfairly obstructive on many nominations.
Cheers,
January 21, 2010, 12:28 pmepluribus says:
Tamerlane says:
IIRC, the nastiness dates at least from the 1960s, when Strom Thurmond filibustered the nomination of Abe Fortas to be chief justice. Again IIRC, that was back in the days when a filibuster actually meant that debate on the Senate floor had to be continuous. Thurmond was greatly admired for his ability to “hold his water” for hours on end.
January 21, 2010, 12:29 pmzuch says:
Some honesty. For that, I’m thankful.
Cheers,
January 21, 2010, 12:30 pmhugh says:
I first remember this issue coming up in 1986 during the hearings to confirm Rehnquist as chief justice. I remember the Dems accusing Rehnquist of being an anti-semite because their was a restrictive covenant against Jews on a house he purchased decades earlier. Fortunately, Rehnquists efforts to assist various Jewish efforts were presented to counter those charges.
January 21, 2010, 12:30 pmStrict says:
“The nastiness actually began before Bork. Ideological opposition to appellate nominees began in the mid-1980s when Senate Democrats decided to begin opposing some of President Reagan’s nominees.”
Bork was a mid-1980′s Reagan nominee opposed by Senate Democrats. Do you mean there were other mid-1980′s Reagan nominees opposed by Senate Democrats? Could you teach us about the others? Thanks in advance.
January 21, 2010, 12:33 pmStrict says:
Ok, so Rehnquist in 1986 came before Bork in 1987. Thanks. Any others?
January 21, 2010, 12:35 pmzuch says:
Ummm, the guy that didn’t believe in precedent? Now that’s a ‘theory’ sure to increase judicial effectiveness (albeit a boon for lawyers).
Cheers,
January 21, 2010, 12:35 pmluagha says:
Obviously, the way to end the tit-for-tat is not to promise for the future, but to nominate one of Bush’s denied appointees now, get him through, and then receive your desired nominee. After enough of that is done to prime the pump, we can get back to a trust relationship.
January 21, 2010, 12:41 pmzuch says:
I remember Rehnquist lying to Congress about the Jackson memo. And then there’s his wonderful past harassing minority voters in Arizona.
Cheers,
January 21, 2010, 12:41 pmHugh says:
Where do you get your history from? There was a threat of a filibuster, but opposition to the nomination was so strong that it was likely that Fortas would not have even received 50 votes.
Arrogance and ignorance all in a single package; how efficient of you.
January 21, 2010, 12:42 pmDangerMouse says:
Well, I advocate “payback” and the tit-for-tat strategy. In fact, even if Democrats were to swear that they would never Bork another judicial nominee ever again, I wouldn’t believe them. They need to learn not to play with fire, and being told not to do it isn’t the same lesson as being burned.
The hell with believing anything a leftist tells you. Lying is just another acceptable means to their wonderful ends.
That’s very true, given Saul Alinsky and all. The Dems need to be burned before anything sinks in. Republicans should proudly and loudly block Liu, openly proclaiming that the only reason they’re doing it is because of payback. In fact, they should create a list, checking it twice, to see which nominees were blocked by the Dems, and block appropriate Democrat nominees. So since Dems borked Bork, a Democrat Supreme Court Nominee should be borked as well. Same for all judges at similar levels.
January 21, 2010, 12:49 pmAssistant Village Idiot says:
Well, one party of this debate certainly believes it has stepped up repeatedly in terms of deference, and also believes they didn’t start it. Evidence for those opinions has been supplied and seems at least somewhat persuasive. Rather than niggling around the edges of whether that evidence might sorta maybe kinda be subject to other interpretations, do the Democrats have any strong evidence that they actually have been generally deferential over the past 3 decades? So far their argument seems to be “Yeah, it’s gotten out of hand. Let’s put down our weapons. You first.”
My recollection is that the Democrats said at the time they opposed nominations because they believed certain political/judicial views were bad for the country and should be part of the evaluation – a matter of principle. Does this mean those principles have changed or no longer apply?
Rather than reading the goat entrails of whether Adler is or is not calling for the Republicans to engage in this partisanship, will someone try and make a positive case why the Democrats are being treated unfairly if Republicans oppose Liu?
January 21, 2010, 12:54 pmArthurKirkland says:
A Democrat nominated Bork?
That must have been the mother of all mistakes.
January 21, 2010, 12:58 pmStrict says:
Geok: The hell with believing anything a leftist tells you. Lying is just another acceptable means to their wonderful ends.
Dangermouse: That’s very true
All leftists lie, and all things said by leftists are lies. Wow, those are pretty extreme beliefs…
January 21, 2010, 1:03 pmArthurKirkland says:
If torture-soaked nominees (Bybee), young career partisans (Kavanaugh) and close-minded ideologues (too numerous to catalog) made it through, some deference must have been involved as recently as a few years ago.
January 21, 2010, 1:04 pmSteve says:
Obviously, the way to end the tit-for-tat is not to promise for the future, but to nominate one of Bush’s denied appointees now, get him through, and then receive your desired nominee.
Or, alternatively, just nominate the people who you want to nominate and confirm them. Again, why all the hand-wringing over the prospect that some Republicans may vote no? They’re never going to find 41 votes to filibuster a judicial nominee, so their “obstruction” isn’t actually obstructing anything.
January 21, 2010, 1:06 pmArthurKirkland says:
Why is the filibuster so fearsome? If anyone wants to stand for endless hours to object to every judicial nominee that can be advanced, I’d provide the wetnaps and ice water for as long as that senator can endure. If the objectors can make the case that the extremism is appropriate, more power to them. If not, in a world in which neither party is greatly admired, they will be unmasked.
Let the filibusters begin!
January 21, 2010, 1:07 pmJonathan H. Adler says:
Strict & epluribus –
The first coordinated effort to challenge appellate nominees (as opposed to Supreme Court nominees) began before the Bork nomination in 1985, as reported in the Washington Post on November 12, 1985. I discussed this history several years back in posts here and here.
As for the Fortas nomination, there are several important distinctions. First, the opposition to Fortas was bi-partisan. Second, it appears Fortas lacked majority support, as there were not even 50 votes in favor of cloture on his nomination. Third, there were serious ethics questions about Fortas’ conduct that may have been sufficient grounds for opposing his confirmation as Chief Justice. Fourth, fights over Supreme Court nominations have always been more common than fights over appellate nominations, so the precedent of one is not precedent for the other.
JHA
January 21, 2010, 1:08 pmStrict says:
“will someone try and make a positive case why the Democrats are being treated unfairly if Republicans oppose Liu?”
There’s nothing “unfair” about Republican opposition to Democratic nominees.
Moreover, Adler himself isn’t against “opposition.” He has made the point that Congress should oppose nominees when the nominees are not qualified, and only on the ground.
Whether politically-motivated (as opposed to qualification-based) opposition is an annoying practice, disrespectful, or a poor use of Senatorial resources is another thing…
January 21, 2010, 1:10 pmDangerMouse says:
Strict,
I didn’t say that “all things said by leftists are lies.” I agreed that they lie to accomplish their goals.
It’s not extreme to state that leftists believe in lying to accomplish their goals. They openly proclaim it. Haven’t you read Rules for Radicals, by Saul Alinsky (Obama’s mentor, and of whom Chris Matthews of MSNBC said was his hero).
Anyway, this is sorta off topic. There are plenty of resources authorized by leftists that you could look to to familiarize yourself with the proud manner in which leftists believe in lying to further political goals. This is so basic that I’m surprised you’ve never heard of it before.
January 21, 2010, 1:10 pmJonathan H. Adler says:
Steve –
FWIW – Senate Democrats and some commentators have accused Republicans of effectively obstructing the President’s judicial nominees with holds, committee hold-overs, etc., despite the Democrats’ filibuster-proof majority. I think such claims are exaggerated, but there is no question that even a Senate minority can slow down the confirmation rate on the margin, and that such slowdowns will be easier to maintain now that the Republicans have 41 votes (and will become still easier if, as expected, Republicans gain more seats this Fall).
JHA
January 21, 2010, 1:12 pmStrict says:
Thanks Mr. Adler for the history lesson.
January 21, 2010, 1:16 pmStrict says:
You agreed with this: “The hell with believing anything a leftist tells you”
And now you say this: “I didn’t say that “all things said by leftists are lies.””
You agreed with the idea that you shouldn’t believe ANYTHING a leftist tells you (because those things are lies).
So you can find some examples of some leftists sometimes saying some lies or supporting the practice of lying to achieve political goals? Big deal. That means very little.
January 21, 2010, 1:20 pmAnon321 says:
I tend to agree, and this comment thread provides some evidence that people on both sides will never support a change of norms unless and until the other side acts first (which, of course, will never happen if both sides believe that the other side must act first, or believes that acting first will not bring about the desired result). As such, I always wonder why the parties don’t agree now to change in the rules and norms at some set date in the future. If there’s a general consensus that anonymous holds and judicial filibusters are bad, but no one is willing to end them when they’re in power, why not agree today that the practices will end in, say, 2016? There would be no way to know which party it would help. Just change the rules now, but have the change kick in later. Some will protest that a needed change shouldn’t be delayed for 6 years. But when the only realistic alternative is that the change will never occur, it seems to be the least bad alternative.
January 21, 2010, 1:20 pmpete says:
The easiest way to end the tit for tat would be for a sitting president to renominate and the Senate confirm all the judges his party blocked in the previous administration. Do you see Obama doing that any time soon for Bush’s nominees?
January 21, 2010, 1:32 pmStrict says:
Good proposal Anon.
January 21, 2010, 1:33 pmJonathan H. Adler says:
Anon —
I tend to agree, and have a post scheduled for tonight that sketches possible (albeit unlikely) compromises that could end the obstruction.
JHA
January 21, 2010, 1:46 pmegd says:
The Republicans took the position a few years ago that a majority up-or-down vote was Constitutionally required for judicial nominees, but (apparently) took the position that this was a political question to be decided by the Senate rules.
Assuming that the Constitution (or the Senate) eliminates the filibuster for judicial nominees, do you think this would result in more deference to Presidential appointments?
Or are the traditionally deferential Senators only deferential because it provides them with a useful cover story in their home districts? “I didn’t filibuster Judge X, it was those other guys in my party.” Without this cover (moving from 41 necessary opposition votes to 51 necessary opposition votes), will there be more opposition senators willing to take the position against a judicial nominee?
I think it’s at least possible.
January 21, 2010, 1:54 pmDangerMouse says:
You agreed with the idea that you shouldn’t believe ANYTHING a leftist tells you (because those things are lies).
Logic isn’t your friend. A person shouldn’t believe anything a leftist tells you. It may still be true, however. Just because they said the sky was blue wouldn’t mean I’d believe it. I’d check for myself. The problem is not that all things they say are lies, the problem is that they lie so often you can’t be sure when they’re not. So you can’t believe them at all, and have to verify if in fact they are telling the truth. This is basic logic we’re talking about here, and your parenthetical makes a leap of logic that I never said.
January 21, 2010, 1:58 pmSteve says:
I think such claims are exaggerated, but there is no question that even a Senate minority can slow down the confirmation rate on the margin, and that such slowdowns will be easier to maintain now that the Republicans have 41 votes (and will become still easier if, as expected, Republicans gain more seats this Fall).
I don’t see how 41 votes as opposed to 40 makes any kind of opposition easier, aside from an actual filibuster, which would require the Republicans to assemble 41 votes that they will likely never have on a judicial filibuster.
As for holds and the like, it only takes one Senator to throw a wrench in the works, but I find it hard to take these complaints seriously because Democrats have plenty of tools at their disposal to overcome this sort of obstruction if they really wanted to. If they feel the Republicans are getting abusive with holds, then just proceed to the nomination already. The Republicans threw out blue-slipping and the like when they held the majority and these practices would not exist but for tolerance by the current Democratic majority.
January 21, 2010, 2:05 pmepluribus says:
Hugh:
Books, mostly.
Hugh:
Henry J. Abraham. Justices, Presidents and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. Roman and Littlefield, 1999. Page 219:
The Oxford Companion to the Supreme Court of the Ubnited States, Second edition. Oxford, 2005. Page 357:
Hugh:
A little overstated, I think. I prefaced my remarks with “IIRC,” and it appears that my memory wasn’t too awfully bad.
January 21, 2010, 2:06 pmEarl Burton says:
Given that liberalism has made its biggest political inroads in our government through the judiciary, due to years of GOP following the tradition of acquiescence to judicial nominations made by the other party (further compounded by GOP appointment blunders), it is absolutely necessary that judicial appointments be filibustered. We are in a contest with those who would have government control every aspect of human existence and will stop at very little to do so. We need to use any legal, political means available to halt them and to reverse the tide. If this steps on the toes of tradition, then so be it. Adherence to that tradition is at least partly responsible for the present mess.
January 21, 2010, 2:07 pmCrunchy Frog says:
To your credit, you have been remarkably consistent on this point, however misguided your position is.
To me, there is a difference between executive branch appointments, and judicial ones. An executive appointment is an at will one, fireable at any time, not outlasting the term of the president who hired him (with the exception of FBI Director and a few others). A President should have deference on those; they’re his people after all, and with few exceptions, will be gone when he is.
Judicial appointments have even more long term ramifications than treaties – how long has Justice Stevens been on SCOTUS? Any appointment that outlives the administration, especially lifetime ones, should have true bipartisan support.
January 21, 2010, 2:07 pmStrict says:
“So you can’t believe them at all, and have to verify if in fact they are telling the truth.”
Do you actually practice this in real life? That must be really tedious. So anytime someone tells you something, you have to first figure out if that person is a leftist, in order to know if you have to then verify what that person told you. What an awful way to live, not trusting anybody who doesn’t fit in your definition of “right wing.” How do you go about asking your mechanic or doctor about his political views?
January 21, 2010, 2:12 pmStrict says:
“it is absolutely necessary that judicial appointments be filibustered.”
But Earl, is it really worth the time and effort of every Republican Senator to filibuster day after day, possibly for weeks on end, to potentially block the nomination of a circuit judge or district judge?
There’s a cost-benefit analysis that goes along with these decisions. Couldn’t it be a waste of resources to spend all that time just being obstructionist? Instead of, you know, legislating?
January 21, 2010, 2:16 pmepluribus says:
Earl Burton:
I guess it’s a matter of opinion what’s “biggest,” but do you discount the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments to the Constitution? They ended slavery, gave equal voting rights regardless of race and gender. How about the New Deal, Social Security, Medicare, the Civil Rights Acts of the 1950s and 1960s, the Americans with Disabilities Act? They were not judicial creations, but legislative acts. Do you believe that civil rights are an “inroad”? If so, you and I have very little to talk about.
January 21, 2010, 2:18 pmHugh says:
I apologize.
My ability to do research at work is limited. With some effort (on a blackberry) I found a reference that stated there was a 5 day filibuster against Fortas led by Republicans and Southern Democrats. I will assume that Thurman was part of that pack.
However, I note Professor Adler’s comment above.
January 21, 2010, 2:26 pmepluribus says:
Thank you, Hugh.
January 21, 2010, 2:30 pmMenshevik says:
Liu’s pronounced support of affirmative action is something that most of the country, if they had a voice in the matter, would regard as misguided. See e.g., “The Myth & Math of Affirmative Action,” Washington Post, April 14, 2002, where he argued that the costs of affirmative action in college admissions are overstated, because only a few whites are disadvantaged and because their chances of admission would only have gone up by a few percentage points, and that less quantifiable factors “such as compassion, communication skills and commitment to research” were important in admissions decisions.
I doubt that Liu would be similarly dismissive of discrimination against blacks, if only a few were so treated, or if their chances of admission would have been improved only marginally. Also, it is not the case that only a few white students are disadvantaged. Every unsuccessful applicant with qualifications superior to those of minority applicants who have been admitted has been injured, and by now, these unsuccessful candidates number many thousands. I also doubt if he can marshal any evidence showing that the beneficiaries of affirmative action possess the non-quantifiable qualities he values in greater measure than whites.
Liu also questioned why critics of affirmative action don’t target other forms of preferences, such as those given to athletes and children of alumni. But I have not seen any indication that advocates of affirmative action would change their support of racial preferences even if all institutions were to eliminate preferences for athletes, the children of alumni, and so on.
January 21, 2010, 2:31 pmHugh says:
Serves me right for relying on Wikipedia in a pinch (an online service that my office’s net nanny allows me to use monitoring free).
January 21, 2010, 2:34 pmlgm says:
Democrats filibustered a few of the worst Bush appointees. Republicans now are filibustering every single thing Democrats propose. Can you spot the difference?
The filibuster was created so that in a few extreme cases the minority could obstruct the majority. If Republicans can’t figure out what that means, the filibuster will have to be taken back.
January 21, 2010, 2:43 pmegd says:
So it’s a “distrust but verify” position?
January 21, 2010, 2:43 pmzuch says:
He wouldn’t need to. Your conservatives on the court have been doing that well for decades now.
Cheers,
January 21, 2010, 2:49 pmDave N. says:
Do you honestly believe that? As JA noted above, only yesterday the Senate unanimously voted to confirm Beverly Baldwin Martin to the Eleventh Circuit.
January 21, 2010, 2:52 pmhugh says:
“A few of the worst,” huh? There were some excellent people kept off the bench by that effort, and it was more than a few.
Take back the filibuster? Please. Do that and it would be so much easier for some of the worst excesses in legislation to be repealed. Of course, the result would be policy that careens from extreme to extreme.
We probably should have a thread on the procedure for eliminating the filibuster. I read an article last week in The Harvard Journal of Law and Public Policy discussing “the constitutional option” for changing the Senate rules. If my faulty memory recalls correctly, the strongest argument is that the Senate could adopt an amended Rule XXII at the commencement of the next Congress in January of 2011 by a mere majority vote. But there might be political hell to pay in 2012 if the Democrats did that.
January 21, 2010, 3:01 pmMark Field says:
I agree with this distinction, but I’d prefer to see term limits for Justices and an end to the filibuster.
January 21, 2010, 3:05 pmMark Field says:
I’m pretty sure that a change to that rule requires a 2/3 vote. The Senate considers itself a “continuing body”, such that the rules stay the same until changed (unlike the House, which does pass “new” rules each time). Thus, the Senate can’t change a rule without complying with the existing ones.
January 21, 2010, 3:08 pmyankee says:
That’s exceptionally unlikely. If Republicans are allowed to obstruct the President’s agenda until 2012, Obama will look like an impotent President who hasn’t gotten anything done. Obama will look much stronger if he’s able to enact his agenda. The very small number of voters who care about the Senate’s procedural rules will have forgotten about the issue when it comes time to vote two years later.
January 21, 2010, 3:10 pmMN says:
I think it’s clear that Prof. Liu has the legal chops to do the job, but I do question whether he has the required impartiality. I remember a talk he gave at Harvard a few years ago on locating a right to education in the Constitution, and he was pretty explicit about his belief that the Constitution was a great vehicle to advance progressive causes. I don’t want to mischaracterize what he said, but I remember it striking me as coming very close to endorsing the Constitution as the “law as you wish it to be,” rather than the law as it actually is. That’s a fine philosophy for impact litigators and law professors. It’s quite another thing entirely when it comes to federal appellate judges.
January 21, 2010, 3:23 pmepluribus says:
It’s not true that the Republicans are filibustering everything the Democrats propose. For example, Republicans did not filibuster Sotomayor. Similarly, the Democrats didn’t filibuster Roberts or Alito. I believe the filibuster survives because both parties want it to be available “just in case.” They feign outrage when the other party employs it, but defend it when they employ it. I’m not a great fan of the filibuster, as I believe it is undemocratic and not required by the Constitution. (Yes, it is permitted by the Constitution; and, yes, there are other undemocratic features–for example, equal representation in the Senate). But I don’t think it will be abolished any time soon. Some proposals for modification have been made, though: e.g., requiring 60 votes to end a filibuster on the first vote but only 55 on the second vote, etc. What chance these changes might have I don’t know.
January 21, 2010, 3:38 pmhugh says:
Mark Field: you may very well be right. I was just stating the point made in the article. But what would then happen if the Dems said they could amend Rule XXII with just 51 votes at the start of the next Congress and acted accordingly? They might think that it would work and that the public may not care, as yankee writes.
I disagree with yankee; I think that the public would notice this change and it might further fuel the populist rage that got Scott Brown elected. Get the public angry enough and you could see “safe” Senators like Chuck Schumer lose (assuming he is up for reelectio this year).
January 21, 2010, 3:40 pmNew Federal Judge Nominee as Trial Balloon « FIRST ONE @ ONE FIRST says:
[...] Posted in Uncategorized by Mike Sacks on January 21, 2010 Jonathan Adler at Volokh Conspiracy writes about Obama’s nomination of Prof. Goodwin Liu to sit on the Ninth Circuit Court of Appeals. [...]
January 21, 2010, 3:49 pmnice strategy says:
All this talk about the filibuster is interesting, but what about Senate holds? Aren’t conservatives more likely to spout off about judicial decisions that undermine majority rule? You can’t get much more undemocratic than a Senate hold. Stay tuned: more hypocrisy after a few words from our corporate sponsors.
And, as I understand it, the judicial nomination war escalated in the 1990s when a number of Clinton appointees to district and appellate courts were held up to the point that Rehnquist spoke up about it. The total # of confirmed appointees from Clinton and Bush was approximately equal. After 16 years, is enough enough?
Bork was a very, very intelligent radical. His contempt for precedent raised questions about his temperment which have only been confirmed by his bitter screeds written since then. That liberal interest groups went bananas and participated in nonsense like digging up his video rentals wasn’t what moved votes. It was the closed-minded Bork whose arrogance could be seen with the naked eye.
January 21, 2010, 3:59 pmADF Alliance Alert » Obama poised to nominate Goodwin H. Liu to 9th Circuit says:
[...] H. Adler writing at The Volokh Conspiracy: “The Daily Journal reports that President Obama is “poised” to nominate Professor [...]
January 21, 2010, 4:00 pmjukeboxgrad says:
hugh:
It wasn’t “decades earlier.” Rehnquist bought the house in 1974. This became an issue in 1986. And it’s not just that he ignored the covenant. He also ‘forgot’ to mention it during the hearings. And this is not the only sign of anti-Semitism on his part (link).
January 21, 2010, 4:01 pmMark Field says:
My crystal ball is cloudier than most, but my best guess is that the public isn’t enamored of filibusters generally (happy as they may be when “their” side does it) and wouldn’t much care as long as the playing field was the same for both.
January 21, 2010, 4:11 pmJoe says:
[RESPONSE: zuch — It’s amusing to read this sort of comment one day after the Senate unanimously confirmed another nominee. JHA]
A nameless nominee when the Republicans didn’t have 41 votes? This isn’t too helpful.
January 21, 2010, 4:24 pmHugh says:
A lot of hatred against Rehnquist here…he must have been doing something right.
January 21, 2010, 4:26 pmHugh says:
Hey, try using a blackberry as a crystal ball.
January 21, 2010, 4:28 pmJoe says:
As I recall, Congress once overturned legislation that set up new judgeships that the majority party thought provided the other party a means to stack the courts and actually prevented the Supreme Court from hearing the case for a year by canceling the session.
This did not happen c. 1987 or in the 1990s. It happened in 1801.
January 21, 2010, 4:30 pmPer Son says:
To change the filibuster rule the Senate would need a 67 member vote. The filibuster won’t change. I am just sad the Senators are not required to keep debate open with actual people. This “paper filibuster” is bull. I want to see them reading phonebooks and ignoring all other legislation so that a filibuster has actual consequences besides the immediate matter at hand.
January 21, 2010, 4:57 pmHugh says:
I agree with about the paper-filibuster. If in-person filibusters were required, we probably would see fewer of them. I think that would be a good thing. I wonder if a return to the single-track for legislation would also be a good thing. The two-track approach means that a filibuster does not bring all Senate action to a halt.
January 21, 2010, 5:32 pmzuch says:
I suspect the difficulty here is that “a few of the worst” are in your mind “excellent” (and also “excellent” in the mind of the Dubya maladministration … see, e.g., L. Paul Bremer, Brownie, and Monica Goodling).
Cheers,
January 21, 2010, 5:46 pmRich Rostrom says:
I would tend to agree with JA that it would be improper for Republicans to block a Democrat nominee on the basis of “judicial philosophy” merely because Democrats have done it to Republican nominees.
However, there is another issue in this case. Liu is himself an advocate of blocking nominees for such reasons. In blocking Liu, Republicans would be acting exactly as Liu himself argues they should.
If the rule of deference on nominations is to be upheld, then one who attacks it should not benefit from it.
January 21, 2010, 6:23 pmDave N. says:
Zuch,
I wasn’t aware that “L. Paul Bremer, Brownie, and Monica Goodling” were nominated for judgeships. Who knew?
January 21, 2010, 7:09 pmtvk says:
Orin will make the point that the hypocrisy argument always runs both ways. Liu will be held to the fire that he advocated that ideology should be taken into account, and now it will be applied to him. Senate Republicans will be held to the fire that they advocated that ideology should not be taken into account, or no filibusters, or something that their blocking of Liu will certainly contradict. No one has the moral high ground here.
Descriptively, of course, what will happen is that just as President Bush could expect a couple of Democrats to capitulate if he had patience, Obama can expect likewise from a couple of Republicans (especially when Democrats start reviving talk of a nuclear option of their own). Unlike Bush, however, Obama has shown absolutely no patience nor willingness to spend political capital on this issue. Perhaps the Massachusetts election has, ironically, changed that.
January 21, 2010, 7:47 pmzuch says:
I never said they were. I was just pointing out ‘excellent’ Dubya appointees (see link). Hell, Bremer even was awarded the Preznitential Medal of Freedom.
Cheers,
January 21, 2010, 10:32 pmjccamp says:
“…but I also don’t believe it will end unless and until leaders in both parties step up.”
As a practical matter, I don’t believe either party will give up the practice of vetting (and blocking) appellate judges based on judicial philosophy. The long-term effect of Federal appellate judges with a particular philosophical bent is just too apparent and long-lasting. Parties in power come and go; public opinion seemingly oscillates 180 degrees out of sync with the majority in Congress, but, for instance, the 9th Circuit just goes on and on (and on…). I’m sure those with a more liberal view see the Roberts Court in much the same way.
Those “Let’s be deferential to the President (or maybe the senior Senator from the state, or ?), and let’s respect some sense of qualifications, irrespective of philosophy” feelings are no match for “Let’s get some more liberal/conservative judges deciding cases and ban guns/abortions/detainees/the exclusionary rule/etc.” I think the overriding need to establish a political agenda will win every time.
For better or not, I think there is no going back. Rather than point fingers, better to accept it as the new reality and learn to live with it.
January 21, 2010, 10:44 pmVader says:
Since the Supreme Court has become the [i]de facto[/i] institution in charge of amending the Constitution, it’s probably unrealistic to expect politics to stay out of judicial confirmation. Like Jonathan, I’m not advocating this, just suggesting it’s how things seem to work nowadays.
I don’t know how to turn back the clock on the Court’s role. Especially since you’d basically have to turn it clear back to Marbury vs. Madison.
January 22, 2010, 3:52 pmVisitor Again says:
No, the nastiness began when the Republicans tried, several times, to impeach Justice Douglas.
February 25, 2010, 12:37 amA look at Liu | America Watches Obama says:
[...] should be solely on his objective qualifications. But that has not been Liu’s position. As Jonathan Adler at the Volokh Conspiracy reminds us, when Liu testified against the nomination of Justice Alito to [...]
February 25, 2010, 1:02 amThe Volokh Conspiracy » Blog Archive » Liu Goes Before the Judiciary Committee says:
[...] law professor Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit. As I predicted, it looks like this nomination will face substantial opposition from Republicans. Categories: [...]
March 24, 2010, 8:02 amThe Volokh Conspiracy » Blog Archive » On Goldstein On Liu says:
[...] 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 [...]
March 25, 2010, 11:45 pmArchangel says:
Personally, I’m sick and tired of Republicans and Democrats, Liberals and Conservatives using the Supreme Court like a political football or a venue to extract personal revenge. The Constitution reads…“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.
“Under this Constitution” is specific in stating that the Supreme Court is subservient to the Constitution and has no authority to modify, reinterpret, reinvent, or revise the Constitution. The Courts most sacred purpose is to uphold the Constitution as the litmus by which all legislation is tested for validity.
The Federalist Papers are available free on line, if we spent a little more time reading those rather than being played against each other by our own “Representatives” you may find how far this nation has wandered from the Founders principles and why we are in the mess that we are today. All the issues we face today they saw coming and they gave us the tools to fix every one of them in the Constitution. Unfortunately, we pay no heed to the Founders and instead listen to the idiot reading the teleprompter on CNN, FOX, or ABC.
As for Liu, he is not qualified to be a Supreme Court Justice, just as a man who only teaches flight simulators is not qualified to be a pilot and a man who teaches anatomy may be lacking as a physician. It was a silly nomination on Obama’s part, but most of the things our government has been doing for decades is silly, if not stupid…like ignoring the National Debt.
April 9, 2010, 5:37 amThe Volokh Conspiracy » On Eric Liu on Goodwin Liu says:
[...] as I’ve blogged before, the fervent opposition to Liu should be no surprise given Profesor Liu’s own role in opposing [...]
April 16, 2010, 10:14 amWhere has this guy been? | Hoystory says:
[...] 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 [...]
June 5, 2010, 12:46 am