As NRO’s Greg Pollowitz pointed out on Tuesday, in 1986, the Democrats in the Senate were so focused on attacking William Rehnquist — whom Ronald Reagan had chosen to elevate to chief justice of the Supreme Court — that they made nary a noise about Reagan’s pick to succeed Rehnquist as an associate justice. Thus it was that Antonin Scalia was confirmed to sit for life on the highest court in the land with 98 senators in favor, and none against.

It’s incumbent on those of us who care about the judiciary to keep this in mind as the nation’s attention focuses on Elena Kagan. Only a tiny fraction of cases decided by the appellate courts are granted review by the Supreme Court, which means that those lower appellate benches are usually the courts of last resort in the federal system. And because so many cases never make it even that far, federal trial courts wield enormous power, too.

When it comes to nominees to the federal bench below the Supreme Court level, President Obama has offered up some doozies. Those who spend much time at NRO’s Bench Memos blog should be aware of my law-school classmate Goodwin Liu, whom the president has tapped for the Ninth Circuit Court of Appeals. Liu is a dyed-in-the-wool lefty who saw fit to attack the nominations of Chief Justice Roberts and Justice Alito, in bombastic and disingenuous fashion, on wholly ideological grounds. The Judiciary Committee is scheduled to consider his nomination this morning.

But you’d have to be paying close attention to know about two of the president’s craziest choices for the federal district courts, Wisconsin’s Louis Butler and Rhode Island’s Jack McConnell.

President Obama nominated Butler last year, but the Senate returned Butler’s nomination without action after it passed through the Judiciary Committee on a party-line vote; the president resubmitted the nomination on January 20 of this year. A former public defender and municipal-court judge, Butler campaigned for the Wisconsin Supreme Court in a nonpartisan 2000 election, but the voters decisively rebuffed him. Butler subsequently won election to a judgeship on a county circuit court before Wisconsin’s Democratic governor, Jim Doyle, appointed him to fill a state-supreme-court vacancy in 2004.

Once on the state’s high court, Butler quickly amassed one of the most activist records in the country. In 2005, Butler authored a split opinion for the court in Thomas v. Mallet, which permitted lawsuits against the manufacturers of paint that may have contained lead, even absent proof that any individual manufacturer’s paint had been used by the person or persons filing the lawsuit. This expanded Wisconsin law to embrace the theory of “market-share liability,” a doctrine accepted in California regarding litigation against manufacturers of the anti-morning-sickness drug diethylstilbestrol but overwhelmingly rejected in other jurisdictions and contexts thereafter.

Scarcely a week after writing Thomas, Butler joined a 4–3 opinion in Ferdon v. Wisconsin Patients Compensation Fund, which overturned the state’s medical-malpractice liability reform. Notwithstanding contrary findings by the state legislature — and hosts of contrary empirical studies — the Ferdon decision held that medical-malpractice damage caps bore no rational relationship to doctors’ malpractice-insurance rates. Fed up with such activist behavior, the Wisconsin electorate in 2008 voted Butler off the court — the first time in over 40 years that the moderate Badger State citizenry had failed to retain an incumbent justice.