March 26, 2010

Tom Goldstein Tries His hand at Rewriting History

I talked about Marc Ambinder trying to rewrite the history of judicial nominaitons. Jonathan Adler catches SCOTUSblog founder, Tom Goldstein, trying to do the same.
Goldstein’s central argument is that Republican opposition to Liu’s confirmation will set a disturbing precedent of rejecting nominees based upon their ideology. ...

What Goldstein fails to acknowledge is that this line has already been crossed. Senate Democrats have openly opposed confirmation of appellate and Supreme Court nominees well within the “mainstream” of conservative legal thought. Senate Democrats orgainzed hearings to justify the imposition of such ideological tests, and the consideraton of a judicial nominee’s ideology has been advocated by numerous Democrats, including then-Senator Obama and, interestingly enough, by Professor Liu. As I noted before, Liu called upon Senators to consider Judge Samuel Alito’s “judicial philosophy” and reject his confirmation because he was outside of the judicial “mainstream.” In short, Liu himself sought to “set the bar on whether certain substantive views on the law are just too extreme to permit confirmation” in such a way as to exclude “brilliant and conscientious lawyers” — albeit only those from the “idegological right.”

Goldstein also writes that “Liu’s formal qualifications for the post are not actually seriously disputed.” He notes that the ABA Standing Committee on the Federal Judiciary gave Professor Liu its highest rating of “well qualified.” This is all true, but high ABA ratings were hardly dispositive for Republican nominees. Liu’s rating will also revive concerns about ideological bias in the ABA’s ratings.

The ABA Committee evaluates judicial nominees based upon “their professional qualifications: integrity, professional competence and judicial temperament. According to the Committee, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.” Yet as Ed Whelan noted, Professor Liu has not even been out of law school for twelve years, and only practiced law for two years, and has only argued one case. By comparison, when President Reagan nominated University of Chicago Professor Frank Easterbrook to the U.S. Court of Appeals eleven-plus years out of law school, the ABA rated Easterbrook “qualified/not qualified” even though he had spent four years in the Solicitor General’s office and had argued twenty cases before the Supreme Court.

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