With tomorrow’s confirmation hearing for Second Circuit nominee Gerard E. Lynch, Senate Judiciary Committee chairman Patrick Leahy continues his race to rubberstamp President Obama’s nominees before anyone has time to review their records.  For Obama’s three appellate nominees, the time from nomination to hearing will have been 15 days for David Hamilton’s first sham hearing, 43 days for his second hearing, 27 days for Andre Davis’s hearing, and 41 days for Lynch’s hearing.  The shortness of these time periods is exacerbated by the fact that each of these nominees has years of rulings as a district-court judge.

To put this rush in context:  During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman.

Some quick comments on a hasty review of Lynch’s academic writings on the role of the courts:

Lynch, a former law clerk to Justice Brennan, is a full-fledged defender of Brennan’s judicial approach.  Lynch observed with regret in 1997:

The notion that Justice Brennan’s judicial philosophy was one that illegitimately imposed his own values on the country is very widespread, in this more conservative age, among legal scholars as well as among politicians and the public.  

Lynch contends that “it is an oversimplification to speak of a judge’s imposing her ‘own’ values.”  Rather, “[w]hen the going gets tough—precisely because textual or precedential analysis doesn’t yield clear signals—the judge is left, I’m afraid, with his own ability to articulate, as persuasively as possible, his best understanding of the true meaning of the broad value to which the Constitution requires adherence.”  In the end, Lynch explains, Brennan’s “interpretations of those values were the unique product of his own experience, his own intellect, and his own generous spirit.”  (Lynch, “William J. Brennan, Jr., American,” 97 Colum. L. Rev. 1603, 1604, 1606-1607, 1608 (1997).)

So, even if one sets aside the farfetched notion that Brennan’s activism was limited to cases where traditional legal analysis wouldn’t yield a clear answer, Lynch’s defense of Brennan amounts to the claim that Brennan, rather than imposing his own values, was imposing his own highly subjective interpretations of the Constitution’s broad values.  That strikes me more as wordplay than as a defense of Brennanism.  Nor does Lynch explain how it is that, when traditional legal analysis doesn’t yield a clear answer, judges have any warrant to resort to their own highly contestable “interpretations” to override a democratic enactment. 

In another of his articles (reviewing Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment), Lynch contends that “any acceptable interpretation of the Constitution must bear a reasonable relation to the text.”  Lynch maintains that this “reasonable relation” test “is no trivial restriction” on judicial inventiveness since “[s]ome texts are not particularly malleable.”  But the fact that the only example he musters of a text that is “not particularly malleable” is the provision setting forth a four-year presidential term clearly signals how much he thinks is fairly up for grabs—and how weak the “reasonable relation” test is.  (Lynch, Book Review, 63 Corn. L. Rev. 1091, 1096 & n. 24 (1978).)