In the Senate’s spurt of end-of-session activity, one might think that two long-languishing judicial nominees from California would finally get up-or-down votes. But it looks as if UC law professor Goodwin Liu and federal magistrate Edward Chen will remain in limbo for the rest of the lame-duck session. President Obama — and the nominees — will then face a decision about whether their nominations should be resubmitted to the next, more Republican, Senate. It’s a choice that shouldn’t be necessary.
Liu, nominated for a seat on the U.S. 9th Circuit Court of Appeals, and Chen, chosen for a federal district judgeship in San Francisco, are casualties of an understanding by Democratic and Republican leaders that only noncontroversial nominees would be voted on as the end of this Congress loomed. But they are controversial only because Republicans ignored their credentials — both were rated well-qualified by the American Bar Assn. — and chose instead to obsess over their supposed extremism.
Liu, a prominent liberal academic, is undoubtedly on the left of the legal mainstream, but he is within that mainstream as much as some of President George W. Bush’s nominees were. Chen’s problem in the eyes of his critics is that he was an attorney with the American Civil Liberties Union, a disqualification only if one is opposed to the zealous defense of civil liberties.
Some Republicans would argue that, given the political implications of many court decisions, they should feel free to oppose any nominee they consider liberal. (Some interest groups on the left took the same view when Bush nominated conservative judges.) But this approach to confirmation ignores three realities.
One is that obstructionism by one party engenders obstructionism by the other, as is evident in the years-long feud between Senate Democrats and Republicans over judicial nominations. Republicans who opposed Liu and Chen will have no right to complain when the next Republican president submits distinguished nominees that Democrats decide to block.
Second, especially on the appellate courts, the judiciary benefits from original thinkers, liberal or conservative. If Liu can’t be confirmed, what message does that send to other potential judges with provocative academic writings in their past?
Finally, over time, deference to the president’s choices promotes diversity on the bench as Republican-appointed judges join Democratic-appointed ones and vice versa. This phenomenon is most visible on the Supreme Court, but it characterizes the appellate courts as well. There is evidence, moreover, that appellate judges named by presidents of different parties often influence one another.
If senators of both parties adopted a rational view of judicial confirmation, Liu and Chen would be measuring robes, not weighing whether to subject themselves to abuse all over again.