The quality of commentary in support of controversial Ninth Circuit nominee Goodwin Liu has been so dismal that I offer one sincere cheer for today’s house editorial in the Washington Post on the Liu nomination.
Just as it did last April, the Post makes the best possible case for Liu’s confirmation—one that rests critically on the (highly contestable) premise that considerations of judicial philosophy should play no role in the decision whether or not to confirm a judicial nominee who is otherwise objectively qualified. Unlike other Liu supporters, the Post doesn’t contend that critics have mischaracterized what it calls Liu’s record of “unabashedly liberal speeches and academic writings,” nor does it seek cover behind the ill-informed endorsements of some Republicans. Indeed, the Post recognizes that it’s Liu who has been dissembling about his judicial philosophy by “pretend[ing] not to have one,” and it’s appropriately skeptical about his belated expressions of regret for his demagogic attack on Samuel Alito’s nomination.
Applying its very deferential standard, the Post asserts that Liu should be confirmed because he “has sterling credentials that earned him the highest rating from the American Bar Association” and because “there have been no allegations of impropriety to disqualify him from serving.” Both of these assertions invite dispute.
First, Liu certainly has “sterling credentials” to be what he is—a law professor—but he doesn’t have “sterling credentials” to be a judge. As I’ve discussed, the ABA’s own standards state that “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law” and that “substantial courtroom and trial experience as a lawyer or trial judge is important.” Liu has barely been out of law school for twelve years (he graduated from Yale law school in 1998), and he’s only been a member of a state bar since May 1999. His entire practice of law appears to consist of less than two years in appellate litigation, so it would appear that he has zero “trial experience as a lawyer.” Nor, of course, does he have any experience as a trial judge. So while I wouldn’t dispute the ABA’s straining to rate Liu “qualified,” he certainly hasn’t “earned” the “well qualified” rating. That rating is a political gift from the ABA committee.
Second, apart from his demagogic mud-flinging against the Roberts and Alito nominations, Liu may well have engaged in other improprieties related to this very confirmation process. Specifically, despite the fact that he began compiling his dossier for a judicial nomination within weeks of the November 2008 elections, he somehow inexplicably failed to include in his Senate questionnaire response some of his most controversial and incendiary comments. Democratic control of the Senate Judiciary Committee has ensured that no investigation of these omissions has taken place. Perhaps such an investigation would have established that Liu’s omissions were entirely innocent. Perhaps not. We evidently will never know.
More broadly, while I admire the fact that the Post over the years has generally been consistent (with at least one stark and lamentable exception) in espousing and applying its very deferential standard, there is zero reason for Republican senators to adopt that standard when Democratic senators have so clearly rejected it. If it were possible to have a long-term resolution of the confirmation wars that incorporated that standard of deference, that might be desirable as a practical matter, notwithstanding the standard’s serious conceptual defect. (Why shouldn’t judicial philosophy be part and parcel of a senator’s consideration of a judicial nominee’s fitness?) But it would be naïve to think that unilateral surrender on the part of Republican senators would move the confirmation process closer to a long-term resolution. And, as Miguel Estrada has pointed out, Goodwin Liu certainly does not deserve to be the nominee who would benefit from such surrender.