January 27, 2011

Sen. Lee, the SG Nominee & Goodwin Liu

Statement of CFJ Executive Director Curt Levey on the Judiciary Committee, judges and the Solicitor General nominee:

The Committee for Justice applauds today’s announcement that Sen. Mike Lee of Utah will become the newest member of the Senate Judiciary Committee. We also thank Sen. Orrin Hatch (R - Utah) for working to waive the rule that otherwise bars Senate committees from having two Republicans from the same state.

We can think of no better addition to the Judiciary Committee than Sen. Lee. His experience as both a constitutional lawyer and clerk for Supreme Court Justice Samuel Alito gives him the ideal background for the job. And Lee’s keen understanding of the Constitution’s role in limiting federal power grabs and runaway spending makes him the perfect fit for the times.

We particularly look forward to the frank and insightful questions Sen. Lee will ask the President’s judicial nominees when they come before the Judiciary Committee for hearings. There is a bipartisan consensus that many of the people renominated by the President earlier this month are too uncontroversial to merit a new hearing in the new Congress. However, any Committee member – especially new members Mike Lee and Democrat Chris Coons – should be given the opportunity, if requested, to question a particular nominee via a
new hearing.

Were Chairman Leahy to deny Sen. Lee or other Committee members the opportunity to question the more controversial of the repeat nominees – including Goodwin Liu, John McConnell, Louis Butler, and Edward Chen – it would be an embarrassing reversal of both Senate tradition and Leahy’s practice during the Bush Administration. We are hopeful that Leahy will act responsibly here. But if we’re wrong, we trust that Ranking Member Grassley and his Republican colleagues on the Judiciary Committee will do whatever is necessary to defend the right of Sen. Lee to question nominees he will vote on.

Ninth Circuit nominee Liu, an unabashed advocate of judicial activism, is of most immediate concern because of reports that Majority Leader Reid will quickly push to force a confirmation vote on Liu. That would require Chairman Leahy to be complicit by rushing Liu through the Committee. If reports of a rush job are correct, the result will be to blow up what Sen. Chuck Schumer (D - N.Y.) says is “a really strong and bipartisan effort to get many more judges approved.”

Also of concern are reports that President Obama failed to consult with newly elected GOP senators before renominating people from their states to the federal bench. That failure is at odds with the President’s recent attempt to portray a more bipartisan approach to governing. Sen. Ron Johnson of Wisconsin summed up the reasons for concern in a statement earlier this month:
“My understanding of the standard procedure in the judicial nomination process is that the Administration extends the courtesy of consulting the home state Senators before nominating an individual to the courts. It’s unfortunate in this case that the voters of Wisconsin who expressed their wishes on November 2nd were completely ignored.”
Finally, it’s not just judicial nominees we’re worried about. Earlier this week, the President nominated Donald Verrilli to be Solicitor General, the federal government’s top Supreme Court lawyer. While Verrilli has the requisite experience and intellect to be Solicitor General, his liberal background merits close examination by the Senate.

Verrilli clerked for two of the most activist judges in history, Supreme Court Justice William Brennan and DC Circuit Judge Skelly Wright, and he received an award from the ultra-liberal Southern Center for Human Rights. His supporters reassure us that Verrilli’s corporate legal work proves he’s not a liberal ideologue, but corporate representation is the typical career path for ambitious lawyers and thus provides no reassurance about ideology.

Most importantly, Verrilli should be carefully questioned about his leadership of Jenner & Block’s diversity committee at a time when diversity initiatives at top law firms such as Jenner have often degenerated into racial preferences and double standards (see here, here and here). If Obama is serious about being a post-racial president, his Administration must encourage the Supreme Court to enforce the constitutional limits on racial preferences. We need to know if Mr. Verrilli is up to that task.