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Adventures in Appeals Court Nominations

May 23, 2011

Last week, Republicans filibustered the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals, the second time they have blocked his appointment to the court. Mr. Liu is an Associate Dean and Professor at Berkeley Law as well as former Board Chair of the American Constitutional Society. His nomination received support from across the political spectrum, including Ken Starr, prosecutor of President Clinton during the Lewinsky scandal, and John Yoo, author of the Bush torture memos.

There appear to be two main reasons Republicans refused to give Liu an up-or-down vote, one undisguised and one latent. Overtly, Republicans said that Liu’s views, including testimony against the nomination of current Supreme Court Justice Samuel Alito in 2006, put him outside of the mainstream. Behind this, Republicans also fear Liu’s potential as a future Supreme Court nominee, considering his age (39) and the possibility of him being the first Asian-American on the Court.

As some have pointed out, the use of the filibuster is pretty hypocritical by the Republicans. In 2006, many GOP senators asserted that it was unconstitutional to filibuster judicial nominees when Democrats were using the tactic. The “Gang of 14” agreement stated that judicial nominees would not be filibustered except for “extraordinary circumstances”. Whatever the Republicans say, Liu’s nomination is not such a case: he had support from conservatives and a well-qualified rating from the ABA. Others say the Republicans are just getting back at Liu for being so mean to Alito during his confirmation. Considering Liu’s testimony was the main talking point of many GOP senators, that’s probably true, too. Either way, the filibuster raised on pretty thin evidence.

Aside from the fact that Liu would make a great judge, the Republican filibuster raises other more general problems. Although my first impulse is to chide the Democrats for not playing hardball when they were in the minority, and not raising the nuclear option now themselves, a president’s judicial nominees must receive at least some deference from senators of the other party. Otherwise, even if the nuclear option were invoked, nominees would only be confirmed when the Senate and the Presidency were held be the same party. This would result in an underpopulated federal bench and an over-politicized nomination process, which would in turn result in reduced access to and trust in the courts. Filibustering of judicial nominees should really only occur in “extraordinary circumstances”, not in cases like Prof. Liu.

The prospect of increased Republican filibusters against judicial nominees is especially problematic currently because of the judicial vacancy crisis. This past December, Chief Justice John Roberts’ annual report on the federal judiciary urged the Obama administration and the Senate to speed judicial confirmations: more than one out of eight federal judgeships were vacant at the time of the report. While it’s true that the Obama administration has been slow in making nominations, the Senate also has a responsibility to confirm nominees that are fit for the position. In filibustering Liu, Republicans refused to bear that responsibility.

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