Bench Memos

Tester’s Test on Ninth Circuit Nominee Goodwin Liu

The people of Montana endure the burdens of living within the boundaries of the Ninth Circuit, long the lawless liberal laughingstock of the federal appellate courts. Montanans account for less than 2% of the population of the Ninth Circuit and are overwhelmed by much more liberal states like California. Given its small population, it’s rare that Montana can exercise any real influence over the composition of the Ninth Circuit. But it now has that opportunity.

Freshman senator Jon Tester, a Democrat from Montana, is well positioned to put an end to the controversial nomination of Berkeley law professor Goodwin Liu to the Ninth Circuit. If Tester opposes cramming the Liu nomination through in the Senate’s lame-duck session, then it’s highly unlikely that Liu would be confirmed before the newly constituted Senate takes office in 2011. If Tester makes clear that he would vote against Liu’s confirmation, the White House would probably not even renominate Liu. And even if it did so, the new Senate would very likely have the votes to defeat his nomination, with a few other Democrats like Ben Nelson of Nebraska joining forces with Tester and Senate Republicans.

As I’ve documented extensively—see, for example, my NRO essay, my inventory of selected blog posts, my commentary (parts 1, 2, 3, and 4) on Liu’s hearing testimony, and my review (parts 1, 2, 3, and 4) of his post-hearing written responses—Liu’s aggressive constitutional ideology generates the litany of left-wing results that you might expect from a wild-eyed Berkeley law professor, from a supposed constitutional right to same-sex marriage (Tester opposes same-sex marriage), to new rights to a broad range of social “welfare” goods, to pervasive racial quotas.

Tester is up for re-election in 2012. If he doesn’t stand up forcefully against the Liu nomination now, let’s hope that the people of Montana stand up forcefully against Tester two years from now.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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