Bench Memos

This day in liberal judicial activism—February 24

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—As the Left awaits President Obama’s nomination to fill the vacancy resulting from Justice Scalia’s death eleven days earlier, it concocts all sorts of crazy claims that the Senate has some sort of duty to vote on his nomination.

Appearing on national television on PBS NewsHour, Senator Dick Durbin badly misstates the Constitution’s Appointments Clause:

“The Constitution which we’ve sworn to uphold is very clear when it comes to Article two, section two. The President shall appoint a nominee to fill a vacancy on the Supreme Court and the Senate shall by advice and consent vote on that nominee. Those are not, uh, vague words. Those are words that impose a responsibility on the Senate which the Republican leader is ignoring.”

Yes, Senator Durbin, those aren’t vague words. They’re imaginary ones. The Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It does not speak at all to how the Senate should go about exercising its power over nominations.

Law professor Geoffrey Stone out-Durbins Durbin. Appearing at a mock hearing held by Senate Democrats, Stone purports to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee. Yes, this is the same Stone who urged the Senate in 2006 not to confirm Alito and who emphasized back then that a “Supreme Court nomination is, and always has been, a political process” (Stone’s emphasis) and that “members of the Senate are free to reject nominees if they disagree with [the nominee’s] views.”