To the surprise of exactly no one, Senate Republicans will filibuster Goodwin Liu’s nomination to the 9th Circuit Court of Appeals. As I argued yesterday, this really shouldn’t matter if the administration’s eventual goal is to appoint Liu to the United States Supreme Court: many of the greatest justices had no or virtually no judicial experience before coming onto the high bench. But if the administration really believe that Liu has to have some judicial experience beforehand, there are a couple of other options:
1) Give Liu a recess appointment to the Ninth Circuit. This will last until the end of the current Congress. With more than a year and a half of experience on the federal bench, Liu will have more judicial training than John Marshall Harlan, Clarence Thomas, or Elana Kagan. Temporary Article III judgeships are going to be more and more common as long as Senate Republicans have decided to make the Senate dysfunctional. (It’s bad for the judiciary as an institution, but the GOP doesn’t care about institutions.).
2) Prevail upon California Governor Jerry Brown to appoint Liu to the open seat on the California Supreme Court. It says something not-so-great about the legal profession and legal academia that state supreme courts are not regarded as having the same or greater prestige than intermediate federal appellate courts. For the most part, state supreme courts have control over their dockets, unlike the federal circuit courts, and they are the last word in their own jurisdictions. State supreme court justices elevated to the US Supremes have a pretty good track record — Souter, Brennan, and Holmes immediately come to mind. Why would Brown do this? Why not? Liu would be a highly effective judge. And besides, given California’s ongoing fiscal crisis, it would be really good to have friends in Washington high places who owe you a favor.
Author: Jonathan Zasloff
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees.
Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses.
Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.
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You know, the custom of road-testing someone one thinks might be a good Sup Ct. justice in the court of appeals is probably a good idea, even if not actually required.
Talking up court of appeals nominees as potential Supreme Court nominees is a dumb idea, and everyone engaged in it should STFU. No one knows what the future holds: when a vacancy is going to occur, what the short-list is going to look like, how a potential nominee’s work will look. So there’s no upside. Plenty of downside, of course, as a blind man can see.
I think the President should fill every vacancy in the federal judiciary for which he has proposed a nominee at the next recess. And continue to do so during every recess at which there is a nomination more than 60 days old. Yes, I’m prepared to live with this when the shoe is on the other foot. The Senate has proven itself unworthy of Executive restraint in this area: the President’s power is clear, and he should use it.
“… but the GOP doesn’t care about institutions”
Zasloff must inhabit a very small world
Good suggestions! Hope someone on the WH staff has similar ideas, or takes a good read of the blogosphere once a day…
Hope you’re prepared to have the next Republican President make recess judicial appointments when in a similar bind with the Senate. As today’s WSJ editorial pointed out, GOP “filibusterers” are merely following the precedent set by Dems during the GWB years. Unlike Dems, GOP has usually (not always of course, there are limits) given much greater deference to appointments by Dem Presidents. No such deference provided by the party opposite, who made Borking infamous. As an example, see Liu’s own opposition (in writing ) to Roberts and Alito, strictly on political grounds. You can be sure that as long as there are 41 or more GOP Senators, Mr. Liu will need a visitors pass to get to the Supreme Court.
Well, Bork is and was a loon, so Borking Bork was a good choice.
I would agree that Liu was correct in opposing Roberts & Alito. p.s. nothing improper about opposing nominees because of politics.
Thank you to Redwave72 for delivering the canned - and false - “The Democrats Were Worse” message, direct from the propaganda mills of News Corp.
First of all, it would be a tremendous favor not only to accurate discourse but to your own self-respect if you would retire the verb “to Bork” from your vocabulary, especially but not only when the question is one of filibustering. Leaving aside the fact that Bork had professed legitimately disqualifying opinions about civil rights, and leaving aside the really quite important fact that he had materially supported Nixon in his attempt to undermine the very concepts of accountable government and the rule of law, you are invoking Robert Bork, a nominee who was not filibustered. He was rejected by the Senate, 58 to 42. And that’s not even to mention the nearly three decades he’s spent since that time writing books and op-eds and giving interviews, providing heap upon heap of evidence of how truly unhinged he is, and how awful it would be to give him one of nine votes (or one of five votes, depending on how you’re counting) on questions that dictate the shape of our society. Sure, the Bork nomination fight was a bitter one, and irrelevant “issues” contaminated the conversation. Some asshole leaked his video rental history and other stupid embarrassments were invoked - but he wasn’t filibustered, and when he was rejected it wasn’t about the stupid and irrelevant stuff.
But the real rip-snorter is this one:
Clearly, you need a refresher course in Orrin Hatch’s tenure as Judiciary Chair for six years of the Clinton Presidency. Don’t feel too badly, you’re not alone. I’d blame the Wall Street Journal and its ilk for affirmatively misinforming you, not to mention the New York Times and the like for failing to inform you, but for one thing: when I say you’re not alone, among those misinformed along with you is one Orrin Hatch, Senator from Utah. Hatch denied hearings to vast numbers of Clinton judicial nominees - far in excess of anything the Democrats had ever done to any Republican, and far in excess of what they later did to Dubya - before, under Dubya, getting himself quoted all over the news piously pronouncing on the crucial importance of a rapid up (or, technically, down) vote for each and every person Dubya nominated to the bench, no matter how self-evidently that person was a rabid ideologue or an extremist partisan.
Obama’s not handled this well - as his existing nominees languish, he hasn’t made a fuss about it, and he’s left far too many other slots with no nominee to languish. But to pretend that the behavior of Democrats and Republicans with respect to obstructing the other’s lower-ranking nominees is even comparable, let alone to pretend that the Democrats were worse, is simply arrant nonsense.
Does someone have the relevant statistics on this at hand?
One could make up lists, and Le Wique has a bunch of raw data that might even be accurate, see e.g., http://en.wikipedia.org/wiki/Bill_Clinton_judicial_appointment_controversies, but I think there are so many individual factors that the comparison fails. In every presidency, certainly in the GWB presidency, blocked nominations are far outweighed by confirmations.
Quotes of the day on why this filibuster should matter:
Senator Saxby Chambliss (GA): “I believe [filibustering judicial nominees] is in violation of the Constitution†(4/13/05).
Senator John Cornyn (TX): Judicial filibusters are “offensive to our nation’s constitutional design…. [S]eparation of powers principles strongly suggest that the Senate may not—and especially not by mere Senate rule—enhance its own power in such a manner without offending the Constitution†(2004).
Senator Mike Crapo (ID): “[T]he Constitution requires the Senate to hold up-or-down votes on all nominees†(5/25/05).
Senator Jim Demint (SC): “[D]enials of simple votes on judicial nominees†are “unconstitutional†(5/22/05).
Senator Orrin Hatch (UT): Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional†(1/12/05).
More here:
http://www.pfaw.org/press-releases/2011/05/flashback-gop-senators-claim-filibusters-of-judicial-nominees-are-unconstitut
The funny thing about the Republican quotes that Koreyel provided is that, if there is any occasion on which a supermajority might be appropriate, it is for a lifetime appointment. But, with those quotes, the Republicans are foreclosed from making that argument.
Henry, it’s worth keeping in mind that - while you are certainly correct that filibustering a lifetime appointment makes sense - the Republicans have also made a habit, even a vocation, out of filibustering all appointments, even for quite noncontroversial people appointed to have fairly little power only so long as Obama remains in office.
This is not a question of hypocrisy. Keep in mind what those quotes mean: a large part of the Republican caucus is, in their own mind, violating their oath of office. They would rather be forsworn than allow Obama to make judicial appointments. This isn’t like most instances in which politicians complain about the opposition’s tactics and then turn around and use them. Usually, the argument is that something isn’t fair, or that letting a practice become widespread leads to bad results. In those cases, it is reasonable to say that one won’t unilaterally disarm. There may be some hypocrisy, but you have to live with that.
Those aren’t the arguments the Republicans made. Thanks to their constitutional (ahem) inability to use anything other than the heaviest rhetorical artillery they can reach, they insisted that judicial filibusters aren’t just a bad idea, they’re unconstitutional. Now, if that question had been adjudicated before some body competent to rule on the matter, and they had lost, then doing it would be one thing. No such body has ruled. Legally, nothing has changed since they made those arguments. They are, by their own statements, violating the Constitution.
I’d love to see someone file impeachment charges against these guys. I can’t think of *any* act that more deserves impeachment than willfully and knowingly violating one’s oath of office. I think that violating your own interpretation of the Constitution, even if you’re wrong, is worse than the other way around. So, make these guys officially argue that they were lying when they made these statements.