Stop using politics to block Liu’s appointment to the 9th Circuit

For the third time, the Senate Judiciary Committee last week approved UC Berkeley law professor Goodwin Liu for a seat on the U.S. 9th Circuit Court of Appeals. That the vote again divided along party lines suggests that Republicans might organize a filibuster of the nominee. If so, a handful of Republicans will decide whether Liu is confirmed. If they possess a modicum of fair-mindedness, they will balk at such obstructionism. This is, after all, a nominee with a distinguished academic record who has been rated “well qualified” by the American Bar Assn.

The controversy over the Liu nomination is emblematic of the politicization of appointments to lower federal courts, a recent phenomenon. Some critics have pointed to Liu’s age (40) and lack of judicial experience as reasons for opposing him, but if those factors were disqualifying, some distinguished Republican-appointed jurists never would have ascended to the bench. The real objection is that Liu is “outside the mainstream,” which for some Republicans is synonymous with liberal.

Actually, Liu is well within the mainstream of legal thinkers. But he is also a liberal, just as other academics nominated to appeals courts have been identifiably conservative. For example, Liu and two coauthors wrote: “To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions and evolving norms of our society.” That is not a formulation that Justice Antonin Scalia would be likely to endorse, but it’s hardly revolutionary either.

Republicans would be wrong to oppose Liu because of his philosophy, just as Democrats were wrong when they opposed Miguel Estrada, President George W. Bush’s unsuccessful nominee to the U.S. Circuit Court of Appeals for the District of Columbia, on the grounds that he was too conservative. Some who opposed Estrada worried that the appeals court would be a launching pad for the Supreme Court. Similar fears about Liu may figure in the opposition to him. (He would be the first Asian American to serve on the high court. )

Ideological balance is important on the appeals courts, but it’s best achieved by changes in the presidency. A Democratic president is more likely to appoint liberal judges, a Republican president conservative ones. As long as they are well qualified and in the broad mainstream of judicial philosophy, they ought to be approved. By that standard, Goodwin Liu’s confirmation should be a foregone conclusion.