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Monday, May 03, 2010

Are Courts Wasted on the Young?

At The New Republic, Mark Greenbaum has a solid article discussing the problems the Senate has with talented young nominees for federal appeals courts.  He draws parallels between a currently struggling nominee, Goodwin Liu, and a similarly situated Republican nominee, Miguel Estrada, whose own nomination failed, at incidental but great personal cost.  Greenbaum reminds us -- I suspect readers of Prawfs need no reminding, but he does it well -- that the problem with these nominees, especially those, like Estrada and Liu, who also bring powerful life stories and racially diverse backgrounds with them, is that the Senate understands that these young individuals are being queued up for potential future nominations to the Supreme Court, and members of the opposing party therefore line up to stop them from progressing even to the first step.  I have no great interest in young judicial nominees, as I've written here before, but I think Greenbaum is largely right.  The qualification I would add is to remind him that some nominees have had equally rough rides in the recent past, even when they were not unusually young; Pickering, for instance.  But I think he tells an accurate story about why young and promising nominees face special difficulties.  

The real problem, I think, is not the effort to block those nominees; I'm not thrilled with it, but it's par for the course.  The problem is the lack of candor.  Because the opposing side realizes full well that these young and talented nominees with sterling and diverse (along some dimensions only, of course) backgrounds are, well, young and talented with sterling and diverse backgrounds, and quite reasonably expects them to be fairly set in their judicial politics, they are determined to stop them.  But because of the utter poverty of publicly acceptable rhetoric surrounding judicial nominations, they are unable to say so in honest terms.  No Senator will get up and say, "Young nominee X is a brilliant nominee.  Accordingly, and because I disagree with his or her views, I'm going to block him or her."  Instead, they are reduced to arguing on the basis of flimsy, pseudo-procedural excuses.  Goodwin's views, for instance, are well-papered, and opposing his nomination because he provided 20,000 pages of documentation but failed to provide an additional 1,000 pages is silly.  

Similarly, everyone knew what they were getting with Estrada, and the fact that he refused to provide some memos from his time in the SG's office, a refusal that was supported by a bipartisan group of former SGs, didn't change that.  Or they argue in unhelpful terms, like arguing that the nominee is "out of the mainstream," which is generally false; both Estrada and Liu seem fairly confirmed in their ideologies, and neither of those ideologies is out of the "mainstream."  Or they argue in terms that are really only about the possible future Supreme Court nomination, not the current one.  Both Estrada and Liu would be clearly constrained by their role on intermediate courts, although both would tend toward their side of the debate, but their opposition acts as if either or both would ignore any constraints, effectively treating them as the Supreme Court Justices they fear they will one day become.  Or they attempt to demonize the nominee, just as their supporters do their best to underplay the nominee's ideology -- which, of course, is one of the reasons these people were nominated in the first place.

I would be perfectly happy with a relatively procedurally even approach in which Senators are willing to approve any self-evidently brilliant and qualified nominee without regard to their ideology.  I would also be content with a system under which Senators make clear that they are unwilling to vote for people who would be effective champions of a liberal/conservative judicial approach without resorting to transparently false attacks on these nominees' qualifications or character; of course, the reason these nominees are so hotly opposed is because they have strong qualifications and characters.  We do see some of the latter language, but not enough, and too often it's couched in incredibly unhelpful terms that demonize the nominees: that a nominee is "out of the mainstream," that he or she will be not simply a conservative or a liberal, but an unmitigated disaster, a threat to the Constitution, and so on.  But a public dialogue under which Senators feel that they can only publicly justify their opposition to particular nominees in language that never mentions their actual reasons for opposing these nominees cannot be a healthy one. 

Posted by Paul Horwitz on May 3, 2010 at 03:29 PM in Paul Horwitz | Permalink


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Lanny Davis suggested in a recent op-ed that Obama could really advance a truce in the confirmation wars if he were gutsy enough to address his own votes against Roberts, Alito, etc. Davis suggests an outright apology, and while that will never happen, it'd be huge. But if he admitted that he was just calling ideological shots, and that he can't blame the other side for doing the same, it would reduce the falsity of the current game, where the opposition claims its about providing more papers or whatever.

Obama and Liu have this in common: both face the consequences of being players in the judicial wars. Obama, unlike Clinton or either Bush, has his own Senate votes to live up (down?) to, and that has to have an effect on his former colleagues. It would be nice to get a GOP Senator to do something similar, but nothing would have the impact that an Obama statement would.

Liu also faces payback for being a player. Let me be clear: I don't think Liu (or Estrada) deserves opposition for being "out of the mainstream," as our current legal debates embrace both the ACS and Federalist views as mainstream. But Liu deserves at least some criticism for his attacks on Roberts, which included outright misstatements about opinions and other cheap shots.

I don't want all young legal geniuses to "go stealth" early, and avoid exploring hot issues to stay confirmable, but shouldn't they avoid joining the mudslinging? If, somehow, the GOP avoided intemperate attacks (sigh), and focused more on Liu's own intemperate attacks in earlier rounds, would that be a bad thing? It might discourage the young geniuses on both sides from using their skills in service of the low road, and that would be good for all.

Posted by: dreamer | May 4, 2010 11:43:29 AM

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