Sunday’s Washington Post carried a house editorial recommending that the Senate confirm the controversial nomination of Berkeley law professor Goodwin Liu to the Ninth Circuit. Key to the Post’s recommendation is the very low standard that it sets for judicial nominees:
Mr. Liu, like every other judicial nominee, should be judged on his qualifications and voted down only if he is ethically compromised or if his views fall far outside accepted strands of legal theory.
While the Post correctly observes that Liu’s “academic works show him to be aggressively liberal” and provide “plenty of ammunition” against his nomination, it concludes that he should be given the opportunity to “put aside [his] political impulses” and serve as a judge.
Oddly, the print version of the editorial included the sub-headline “A good fit for an appeals court.” But a more fitting sub-headline, given the Post’s standard of extreme deference, would be something like (if I may borrow from one of my children’s comments, as a toddler, on a meal) “Not too yuck for us.”
For reasons I won’t develop here, I don’t embrace the Post’s standard of extreme deference, but I also don’t dispute that it’s one that reasonable folks can hold. It’s also my general impression that the Post over the years has been fairly evenhanded in applying its standard. *
Whether Liu actually meets even the Post’s low standard is far from clear. The first prong of the Post’s standard is whether the nominee “is ethically compromised.” As I’ve discussed, there is a disturbing pattern that Liu’s most inexplicable omissions from his questionnaire response contain some of his most controversial and incendiary comments, and this pattern reasonably invites the suspicion that Liu was trying to hide aspects of his record from the Senate. The Post doesn’t address this matter.
The second prong of the Post’s standard is whether the nominee’s “views fall far outside accepted strands of legal theory.” I confess that I don’t quite know what this means. Accepted by whom? Left-wing legal academics?
* I was too hasty in crediting the Post with “fairly evenhanded” application of it standard. Its strident 2003 editorial against the nomination of Bill Pryor to the Eleventh Circuit is a striking counterexample. Among other things, the Post complained that Pryor’s “speeches display a disturbingly politicized view of the role of courts”—evidently because he properly complained that the courts had politicized some major rulings—and it said that President Bush “cannot complain too loudly when [nominees like Pryor] receive the most searching scrutiny.” (Emphasis added.)