Speaking of law professors at the University of California at Berkeley, the Los Angeles Times reported this morning that President Obama will nominate Professor Goodwin Liu to a seat on the U.S. Court of Appeals for the Ninth Circuit today. I blogged on this possibility a few weeks back when this nomination was first floated. My view remains the same: From what I know of his background and experience I believe Prof. Liu is qualified for the job and I would vote to confirm him, but I expect his nomination to provoke significant Republican opposition, and not simply because he’s a liberal academic.
UPDATE: The official announcement is here.
ruuffles says:
Yeah well I don’t see an official WH announcement like all their other nominees, so I’m going to chalk this up to another liberal wet dream that just won’t die.
If he is nominated and confirmed in time, would he have to recuse from Prop 8?
http://blogs.laweekly.com/ladaily/queer-town/goodwin-liu-prop-8/
February 24, 2010, 1:43 pmSteve says:
I agree with the appraisal in your prior post that the Republicans will not have any meritorious objections to Prof. Liu, although they may play tit-for-tat in Liu of same.
February 24, 2010, 1:49 pmruuffles says:
Okay this blog has a copy of a WH PR, but I don’t see it anywhere else
http://mydd.com/2010/2/24/obama-nominates-goodwin-liu
February 24, 2010, 1:57 pmDangerMouse says:
Steve,
What do you mean they won’t have any meritorious objections? He’s a lib. That alone should disqualify him.
February 24, 2010, 2:00 pmandy says:
A while ago, I was waiting in a long security line at Dulles Airport. A JetBlue rep came walking by, and I could tell she was scanning those of us in line. She stopped a few feet ahead of me and asked “are you going to California,” to which I retorted “Yes!”, thinking that she would let me skip to the head of the line. However, she ignored me in favor of the man a few feet in front of me, who also replied affirmatively. She asked him if he was “Goodwin Liu” and he said yes. She then handed him his wallet, which apparently he had left at the ticket counter.
The name rang a bell for some reason, but I couldn’t remember from where and I forgot about the incident until now. But this post reminded me of it. Back at Dulles, I must have read an article of his and hence recognized the name. Thanks for solving my mystery.
February 24, 2010, 2:30 pmAnon21 says:
Rarely does one witness such a moment of sublime self-parody.
February 24, 2010, 2:39 pmRoscoe says:
I liked this line from the article:
I didn’t know you could be Asian American on a part-time basis.
February 24, 2010, 3:10 pmruuffles says:
Oy. Tashima on the 9th is senior status. Chin is still awaiting confirmation to the 2nd.
February 24, 2010, 3:13 pmgracchus says:
The 4th circuit could use him more than the 9th
February 24, 2010, 3:22 pmMatt says:
DangerMouse is always such a welcome voice in any civilized debate.
Have you read any of Professor Liu’s scholarship, DM? Care to weigh in on any of his speeches or writings?
February 24, 2010, 3:29 pmruuffles says:
DC Circuit, really, due to informal residency requirements (used by MD’s D senators to block Keisler, I think). Brown, for example, went from CA SC to DC Circuit.
Also, if Obama fills all the vacancies, the 4th will be 2-1 D nominees while he’s unlikely to get DC even to parity.
February 24, 2010, 3:38 pmRoger the Shrubber says:
DangerMouse has overplayed his hand. In light of that gem, he can only be a liberal troll. He had me going, I’ll admit.
February 24, 2010, 3:41 pmBamaLegal says:
Having perused his background and experience, Liu seems to have very solid credentials. Going on merit alone he should be fine, but that is rarely how things pan out.
February 24, 2010, 3:58 pmDave N. says:
And what, exactly then, is the ethnicity of Ninth Circuit Judge Sandra Ikuta?
Also:
Please specify what other reasons you think there might be for Republicans to oppose him.
[I already did here. JHA]
February 24, 2010, 4:46 pmJohn Elwood says:
Her maiden name is “Segal.”
February 24, 2010, 4:53 pmDave N. says:
I don’t care what her maiden name is. She is of Asian heritage, as her photograph (which I linked to) aptly demonstrates.
February 24, 2010, 5:10 pmbailey says:
What’s he done as a lawyer? The article certainly doesn’t make it clear. He clerked, did some government work and went into academia. Has he tried a case? Participated in some ground breaking appellate work? Examined a witness? Ever appeared in front of a judge as a litigant, either at the trial or appellate level. Does he have a grasp of the Rules of Evidence? This is a law professor site and he’s a law professor. What else is there?
February 24, 2010, 5:11 pmruuffles says:
Are you being sarcastic? Her official government classification is “White.”
http://www.fjc.gov/servlet/tGetInfo?jid=3121
Contrast with Tashima, classified as “Asian American.”
http://www.fjc.gov/servlet/tGetInfo?jid=2339
February 24, 2010, 5:13 pmDave N. says:
Out of fairness, though Judge Ikuta certainly appears to be of Asian heritage, the Biographical Directory of Federal Judges lists her ethnicity as “White.”
(I was busy preparing this response when ruufles posted). And in answer to his question, no, I was not being sarcastic. I have appeared in front of Judge Ikuta and my impression, if I were asked her ethnicity, would be to say that she is Asian-American.
February 24, 2010, 5:20 pm801d2d says:
Sandra Ikuta? Asian? Judging from that picture? AND you’ve appeared before her? It’s time to get a new prescription from the optometrist, pal.
February 24, 2010, 5:29 pmbyomtov says:
Sandra Ikuta (nee Segal) doesn’t look Asian to me in that picture.
February 24, 2010, 5:33 pmClarity on Ikuta says:
Judge Sandra Segal Ikuta is not of Asian descent. She is fully Caucasian. Her husband – Ed Ikuta – is Asian American.
This is similar to Judge Marilyn Hall Patel of the Northern District, who is not white herself but is married to someone of South Asian descent.
February 24, 2010, 5:33 pmMatt says:
Liu practiced appellate litigation for two years O’Melveny & Myers.
February 24, 2010, 5:36 pmNunzio says:
Given it’s the 9th Circuit, why would the Senate even care.
On the other hand, Liu himself subscribes to the view that temperament and intellect are not enough to deserve life tenure. Ideology matters as well.
So it would be fair to judge him by his own standard.
February 24, 2010, 5:41 pmHouston Lawyer says:
Liu practiced appellate litigation for two years O’Melveny & Myers.
What, no O’Melveny third-year associates available? I guess not, because they would have to take a pay cut.
February 24, 2010, 5:53 pmCJColucci says:
Just another person chiming in to say that Sandra Segal Ikuta doesn’t look like any Asian I know, and I know several, but looks like a lot of Segals and Siegels and other folks with similar names — and I know a lot of those.
February 24, 2010, 6:00 pmbailey says:
So, his actual experience as a lawyer is pretty much nil?
February 24, 2010, 6:02 pmMichael Wang says:
I think he is a bit too young (both based on age and actual life experiences) to be a federal circuit judge at this point. I would have no issue if he were appointed to a district court judgeship. But to a court of appeals–too early.
February 24, 2010, 6:10 pmSuperSkeptic says:
If true – and I’d personally love to see the basis of this assertion – then Liu and DangerMouse are actually aligned in reasoning here.
I suppose this does not disqualify him, though.
February 24, 2010, 6:12 pmRPT says:
Did this post get crossed from the Yoo threads? How do you feel about Justices Alito, Thomas, etc…..
February 24, 2010, 6:27 pmArthur Kirkland says:
I agree, although he is older and more qualified than plenty of nominees of the past decade or so.
February 24, 2010, 6:28 pmJay says:
He appears to be 40 or 41, based on college graduation date. Were there really “plenty” of COA nominees younger than that in the last decade? And I must have missed Yoo being nominated to be a judge…
February 24, 2010, 7:23 pmpublic_defender says:
I woul
I’d think the opposite would be true. Appellate judges need brains and judgment. They have weeks if not months to study a case before ruling. By contrast, a trial judge needs to make snap decisions.
As to the “lack” of “experience,” come on. This is an appellate position. Appellate judges read, research and write. Every once in a while, they sneak out of their chambers and ask a few questions. It’s a lot more like being a law professor than a trial attorney.
February 24, 2010, 7:35 pmPresident Obama to Nominate Prof. Liu to Ninth Circuit | Liberal Whoppers says:
[...] the original: President Obama to Nominate Prof. Liu to Ninth Circuit [...]
February 24, 2010, 8:09 pmdrunkdriver says:
As Prof. Adler’s prior post notes, 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.”
Hard to feel sorry for him if he ends up cooked in his own juices by the Republicans.
February 24, 2010, 8:21 pmAnton says:
Liberals are, almost by definition intellectually dishonest at best. How is opposition to that not meritorious?
February 24, 2010, 8:22 pmChristopher Cooke says:
I think one can make a distinction between the criteria one applies to a Court of Appeals nominee and the criteria to a US Supreme Court nominee. I would tend to be more deferential to a President’s choice for a Circuit court judge than a Supreme Court Justice.
Sure, Liu is young and hasn’t done much but teach law, but that is a dangerous argument to make in these parts :)
February 24, 2010, 8:36 pmCornellian says:
I don’t mind liberal or conservative appointees, though I think we could do with fewer constitutional scholars and more litigation and business law experts.
February 24, 2010, 8:37 pmbailey says:
RPT-you might want to take a look at the qualifications and background of Judges Alito and Roberts. Quite a bit more to see there than simply being a professor. The premise of this thread is that his qualifications are unassailable on anything but partisan grounds.
February 24, 2010, 8:44 pmArthur Kirkland says:
He appears to be 40 or 41, based on college graduation date. Were there really “plenty” of COA nominees younger than that in the last decade?
Evidence indicates that forty-to-forty-one, (or sometimes even younger), often with lackluster and/or ideologically driven credentials, was right in the Courts of Appeals wheelhouse during the relevant period.
February 24, 2010, 9:59 pmOrenWithAnE says:
Seconded but not holding my breath. There’s no political advantage in appointing wonks.
February 24, 2010, 10:02 pmLN says:
LOL @ how Judge Ikuta is obviously Asian, based on a photo of her where her eyes are a little squinty, and having seen her in person (!)
February 24, 2010, 10:11 pmjccamp says:
When GWB was in position to nominate Federal judges, especially appellate judges, this was Professor Liu’s feeling:
“However,” Liu says, “in the hiring of political staff as well as, frankly, in the nomination of judges, the decision-makers are entitled to consider a broad range of factors, including the political backgrounds or affiliations of the candidate.”
and
‘The group (ACS)…is modeled around a broad legal philosophy that eschews strict constitutionalism for what Liu calls the “lived circumstances of the law” or including the consideration of outside factors in constitutional law cases.’
or
“The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation.”
In his testimony to Congress regarding Alito’s nomination to the SC, Liu praised Alito’s “intellectual abilities”, but then went on to slam Alito over “judicial philosophy.”
So, it would be no surprise if the Republicans fail to defer to the President’s choice, and instead, take on Professor Liu’s judicial philosophy of Constitutional interpretation, judicial philosophy having been green-lighted as fair game for the Celebrity Roast, so to speak, by none other than the nominee himself.
But that is what this OP and the previous were all about. The nuclear exchange continues, and this is not the nominee likely to instill some comity into the process – if such person even exists.
February 24, 2010, 10:40 pmJay says:
Well, true to a certain extent, but how far should we take that logic? Every year appoint the EICs of the most prestigious law reviews directly to the courts of appeals, since experience doesn’t matter? Maybe install outgoing SCOTUS clerks straight onto the more prestigious circuits?
February 24, 2010, 10:46 pmObviously appellate judging requires someone willing to live the somewhat cloistered lifestyle and with the ability and temperament to put a lot of intellect and hard work into each case. But trial courts and lawyers also have to apply appellate opinions, and the knock on appellate courts is already that they’re too detached from the daily realities of litigation. Even on a federal circuit COA, the majority of the work is fairly rote application of existing law to variations on facts, not overseeing revolutions in jurisprudence. And working as an appellate specialist is not all that much like being a law professor, regardless of what law firms may tell recruits or lawyers may tell themselves. I am inclined to think that nominees should have more experience with the actual practice of law than Prof. Liu does.
leo marvin says:
And at worst? Psychopaths? Social workers? Toyota dealers?
February 24, 2010, 11:00 pmSteve says:
But Democrats AGREE that ideology should be an appropriate consideration for voting on judges. So all these threats to withhold deference for some clever reason or another are just comical.
Every time a nomination discussion comes around, the conservatives work up these elaborate justifications for why they aren’t going to defer this time. I’m not sure who they’re trying to persuade.
February 24, 2010, 11:13 pmJ. Aldridge says:
Great nomination if you want someone to find enormous hidden rights and powers embedded within the Constitution. Amending the constitution will never be required.
February 24, 2010, 11:26 pmjccamp says:
Steve –
“But Democrats AGREE that ideology should be an appropriate consideration for voting on judges.”
Actually I think the way it works is that the party of the nominating authority – the President – claims his choice should receive all due respect and that the opposition party should defer to the President’s choice, assuming the nominee meets some minimal qualifications irrespective of political bent. The opposition party, on the other hand, claims judicial philosophy is a legitimate basis on which to confirm or deny said choice. These statements have been generally true, regardless of which party occupies which position, for recent nominations. Depending on which party you favor, you might believe this trend first aggrieved your party, not the other. I think most would agree it is a relatively new phenomena, at least in the degree to which is applied.
I don’t think I heard many in the majority party saying “let’s discuss judicial philosophy” over Soto-Mayor. It more along the lines of “the President is entitled to pick…defer…etc”
February 24, 2010, 11:37 pmMark Field says:
Don’t tell anyone, but some of ‘em are…. lawyers.
February 24, 2010, 11:41 pmMick says:
Exactly. How can Volokh support a judge that believes that the legislature can make the constitution anything it wants to mean in accordance with the times? Just because he’s another Cali. Con Law prof? Constitutional Relativism is the death of the Republic. He sees the USC as duties of the legislature to benefit the citizens rather than as a restriction of powers over the people. Another Statist dirtbag.
February 25, 2010, 12:29 amJay says:
The post was written by Jonathan Adler, not Professor Volokh.
February 25, 2010, 1:06 ampublic_defender says:
Other than personal experience (which I thought was off limits after Sotomayor’s hearings), appellate judges have three ways to deal with the real world impact of their decisions. First, they are reviewing district court opinions, and the district court judges can explain the practical reasons behind their judgment. Second, lawyers for the parties should discuss that impact in their briefs. And third, the judge can listen to the opinions of the two other panel members.
Also, appellate judges sometimes use “it would be a pain for trial judges” as an excuse not to follow the law. The law can be a pain for trial judges, but that’s part of being a trial judge.
And as to the need for experience, appellate panels are a better place for novice judges to start than a trial court. Appellate judges act in (at least) groups of three. (How many appellate judges does it take to screw in a light bulb? . . . ) Unlike trial judges, they pretty much never fly solo.
February 25, 2010, 4:25 ampublic_defender says:
And as to the mundane work of an appellate judge, anyone who thinks that would be new to a law professor hasn’t graded 100+ exams at a time.
February 25, 2010, 7:32 amBored Lawyer says:
Actually, there is a very simple justification:
Deference is a two-way street. Otherwise, deference becomes unilateral disarmament.
There was a time when the parties did defer to the President’s pick, at least up to a point. Exhibit A: Justice Ginsburg. She was a highly qualified, but also obviously ideologically very liberal appointment. Yet she was confirmed by a Republican controlled Senate, almost unanimously, IIRC.
Contrast that with Exhibit B: Chief Justice Roberts. Mirror image of Ginzburg — highly qualified, but also obviously ideologically conservative. Yes, he was confirmed, but probably a majority of Democratic Senators voted against him. This included one freshman Senator from Illinois (who soon went on to a bigger office) who explicitly stated that while the nominee was qualified he was voting against him on ideological grounds.
In theory I would prefer to defer to the President’s choice, unless the nominee is unqualified, a crook, or wide-eyed radical. But one side of the political divide won’t give that deference, so why should I?
February 25, 2010, 8:26 amjames says:
That reminds me never to drink with a full spleen and access to a keyboard…
February 25, 2010, 9:06 amruuffles says:
Both points are wrong. When her name was on the short lists, liberal groups were unenthusiastic, due to her moderate record on the DC circuit. Her nomination (as well as Breyer’s) occured before the 1994 midterms, under a Democratic senate. Even then, ranking member Hatch had vetoed at least one other short-lister when Clinton was floating names.
February 25, 2010, 10:23 amSteve says:
Deference is a two-way street. Otherwise, deference becomes unilateral disarmament.
But no one is arguing that Republicans should disarm, unilaterally or otherwise. To read some of these comments, you would think that every time a Democratic nominee comes up, the Democrats start screeching about how the President deserves deference, it would be illegitimate to ever look at a nominee’s ideology, and so forth. But the Democrats don’t actually do that.
February 25, 2010, 10:39 amMick says:
Jay says:
The post was written by Jonathan Adler, not Professor Volokh.
Oh well that explains it. Liu is still a disgusting Statist and Adler knows nothing. Apologies to Prof. Volokh.
February 25, 2010, 10:40 amBored Lawyer says:
Nice try, but both points are right. Anyone who came up from the ACLU clearly must be considered liberal. And she certainly was at the time, even if some left wing groups thought her a bit moderate.
And she was confirmed by a Republican Senate, and quite handily. (More than 90 votes, IIRC).
February 25, 2010, 12:50 pmmike says:
He’s not qualified. Liu did a total hatchet job on Alito. Liu’s personal biases adversely affect his ability to employ sound legal reasoning and judgement. http://goo.gl/wqml
February 25, 2010, 12:56 pmbyomtov says:
He’s not qualified… Liu’s personal biases adversely affect his ability to employ sound legal reasoning and judgement.
You mean human beings aren’t qualified to be judges?
IMO, once you get past basic professional qualifications, ideology is always involved in the nomination and confirmation process. I’d much rather see everyone start to act like grownups about this than cloak it with all the pious blather and irrelevant garbage that seems to dominate the process now.
February 25, 2010, 3:10 pmtlj says:
Mike – Surely you don’t mean a Stanford, Oxford, Yale Law grad who clerked at the Supreme Court and is a well known scholar/professor is not qualified to be a judge?
I have no worries about his “personal biases” and think he will faithfully interpret the law. At the end of the day, that’s all a judge does. He was clearly against Proposition 8 in CA, yet he applied CA law and correctly decided how the case would turn out. http://articles.latimes.com/2008/nov/10/opinion/oe-liu10
February 25, 2010, 3:22 pmpublic_defender says:
Darn that Liu and his faithfulness to precedent!
February 26, 2010, 7:51 ammike says:
tlj: Yet Lui thought a Princeton and Yale Law grad, Army Reservist, with 3 years as an AUSA, 4 years as an Asst. to the Solictor General, 2 years as the Deputy Assist to the USAG, 3 years as the USAG NJ, and 16 years as a justice on the USCA, 3rd Circuit was not qualified for the USSC? Thank you for pointing out more evidence of Liu’s lack of judgement, lack of qualifications, and bias making him unqualified to sit on the court.
p.s.: Upholding Prop 8 was a no brainer.
February 26, 2010, 11:51 amBeldar says:
His record suggests he is smart. Nothing in his record gives any hope that he is, or even might become, wise. There are already too many law professors on the federal bench, too many “experts” like this guy whose connection to the actual practice of law is far too tenuous; this nomination exacerbates a bad trend, and while I agree that presidents ought to get substantial deference on judicial nominees (I’d have voted to confirm Sotomayor, for example, were I a senator), I would vote against this nominee.
February 26, 2010, 12:09 pmRemember Miguel Estrada says:
Miguel Estrada was nominated for the D.C. Circuit at age 39. He had similar credentials to Liu: graduated magna cum laude from Harvard Law School, served as editor of the Harvard Law Review, clerked for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Amalya Lyle Kearse of the Second Circuit. Unlike Liu, who only has two years as a junior associate in O’Melveny’s litigation department (where it appears that Liu had only one court argument, which he lost), Estrada had logged numerous Supreme Court arguments at the time of his nomination.
Yet, the Democrats successfully filibustered Estrada, noting his lack of any prior judicial experience. Estrada’s nomination was eventually withdrawn.
Thereafter, Liu launched broadside attacks against the nominations of Chief Justice Roberts and Justice Alito, testifying before the Senate that Alito was “outside the judicial mainstream,” and that presented grounds to deny confirmation.
Liu, who espouses radical and truly scary views of the Constitution, should meet the same fate as Estrada. Turnabout is fair play.
February 28, 2010, 2:47 pmGunRunner says:
Perhaps Ginsberg started out “lacklusterly Liberal” but she has developed into a real winner. “I thought the purpose of Legalized Abortion was the suppression of undesirable populations” (ie Black or “others”).
Liberals are really heartwarming.
March 6, 2010, 12:37 am