Academic

Justice Stevens' retirement: what impact on Goodwin Liu's nomination?

By Tung Yin

Just thinking aloud -- what impact does Justice Stevens' retirement have on the pending nomination of Boalt law prof Goodwin Liu to the 9th Circuit?

There's always the tiny possibility that President Obama will take a page out of George Bush's handbook, and revise it, by switching Liu's nomination to the Supreme Court; just as Bush switched John Roberts' nomination from Associate Justice (for O'Connor's spot) to Chief Justice (for Rehnquist's spot) after the Chief died suddenly.  I doubt this will happen.

More likely, the question is how the Supreme Court nominee compares in terms of perceived ideology to Liu.  The storyline that the Republicans are using is that Liu is too liberal, etc.  (I'm neither endorsing nor rejecting that storyline, just observing its existence.)  If Obama nominates someone perceived as moderate, say DC Circuit Judge Garland, then the Liu storyline can be expected to incorporate arguments like "we're not obstructionists, the President just needs to appoint non-ideological people like [Garland]."

So Obama could defuse this particular argument by nominating someone who's perceived to be just as, if not more, liberal than Liu.  But that may help the Republicans in the fall more than it helps the Democrats, and of course, now that the Republicans have 41 votes in the Senate, they can filibuster any nominee if they're willing to pay any potential political price.  The time for Obama to get through someone perceived as very liberal was for the Souter seat, not this one.

Full post as published by The Yin Blog on April 09, 2010 (boomark / email).