Legal Commentary

Judge Goodwin Liu?

By Jonathan H. Adler

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.

Full post as published by The Volokh Conspiracy on January 21, 2010 (boomark / email).