Scott Matheson – Excellent Nomination for the Tenth Circuit

On Wednesday, President Obama nominated University of Utah law professor Scott Matheson for the Tenth Circuit.  This is the kind of kind consensus nominee for a judgeship that deserves wide support.

  Matheson (a colleague of mine at the law school school) has a resume that makes him a extremely well qualified for the federal bench.  As the White House press release on the nomination explains:

Scott M. Matheson currently holds the Hugh B. Brown Presidential Endowed Chair at the S.J. Quinney College of Law, University of Utah, where he has been a member of the faculty since 1985.  He served as Dean of the Law School from 1998 to 2006.  He also taught First Amendment Law at Harvard University’s Kennedy School of Government from 1989 to 1990.

While on public service leave from the University of Utah from 1993 to 1997, Matheson served as United States Attorney for the District of Utah.  In 2007, he was appointed by Governor Jon Huntsman to chair the Utah Mine Safety Commission.  He also worked as a Deputy County Attorney for Salt Lake County from 1988 to 1989.  Prior to joining the University faculty, Matheson was an associate attorney from 1981 to 1985 at Williams & Connolly LLP in Washington, D.C.

Matheson was born and raised in Utah and is a sixth generation Utahn.  He received an A.B. from Stanford University in 1975, an M.A. from Oxford University, where he was a Rhodes Scholar, and a J.D. from Yale Law School in 1980.

     Matheson is widely regarded as cautious moderate rather than an activist liberal.  Having worked as a prosecutor in both the state and federal systems, he has a good understanding of the day-to-day realities of modern law enforcement.  And his “paper trail” reveals someone who is firmly in the mainstream of American law.   Presumably this is why, when the Matheson nomination was announced, Utah Senator Orrin Hatch was quick to offer this statement of support:  “I’m pleased President Obama has nominated Scott Matheson to fill the vacancy on the Tenth Circuit. I’ve known Scott a long time and he is a capable, bright attorney whose experience has prepared him for judicial service. The Matheson family has had a significant impact on Utah and can rightly be proud of Scott’s nomination.”

  Unfortunately, however, a few conservative bloggers have found something sinister about the timing of the nomination.  The Weekly Standard, for example, was quick to opine in this blog post that “the timing of this nomination looks suspicious” given that Scott Matheson’s brother, Jim Matheson, is a Democratic congressman who is undecided on how to vote on Obamacare.   A few other right-wing blogs have echoed this theme.

  Unfortunately for conspiracy theorists, the facts show that the Scott Matheson nomination has nothing to with the health care debate.  The Tenth Circuit vacancy that the Matheson was just nominated to fill was created on May 5, 2009, when another University of Utah law professor — Michael McConnell — resigned his judgeship to accept a teaching position at Stanford Law School (press release here).  Within a matter of days, it was widely understood in the Utah legal community that Matheson would be the front runner for the nomination.  He was the obvious choice for the Obama administration, given Matheson’s legal acumen, extensive experience in state and federal public service, and long Democratic political connections (his father, Scott Matheson, Sr., was a well-regarded and moderate Democratic Governor of Utah 1977 to 1985 and Scott himself ran for Governor in 2004)  After that, the Obama administrator presumably pondered the choice — their delay in moving forward on nomination having drawn the attention of this blog and many other commentators.   

  I can add on factoid on the timeline to the nomination.  In approximately mid-January, my wife and I were both contacted by the American Bar Association in connection with the ABA evaluation process.   The fact that the ABA was evaluating Matheson at that time means that the Admininstration had already made the determination to move foward with the nomination — and, indeed, had decided at least a month or two earlier, as an FBI background check would automatically precede an ABA investigation.   Given that the ABA was evaluating Scott in roughly January, one would expect an announcement roughly six weeks later — exactly as happened here.

  While I don’t have inside knowledge of the timing, others who do are quick to scoff at the idea of any “vote buying” with the nomination.  According to the Salt Lake Tribune story on the issue, Senator Hatch said he knew Scott Matheson was going to be the nominee more than a month ago and disputes any idea that Obama was trying to get a vote for the nomination.  “I can assure you [of] that,” Hatch said. “I don’t think Jim [Matheson] would change because of it anyway.”

  I hope that conservatives will not let understandable concern about some of the Obama Admistration’s other initiatives cloud their judgment when something comes along that should be supported.  Even in Utah, Obama had a lot of left-wing activists he could have nominated for this Tenth Circuit vacacy.  Scott Matheson is precisely the kind of restrained, consensus choice that conservatives should join Senator Hatch in applauding.

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