Idea of the Day: Judicial Nominees Criticized Unfairly

May 24, 2011

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Yesterday, 52 percent of the Senate voted to allow professor Goodwin Liu’s nomination to a federal appeals court to move forward—which, in the bizarro world that is the filibuster-driven Senate, means that his nomination is effectively dead for the time being. Despite controlling only a minority of the Senate, Liu’s conservative opponents had more than enough seats to keep him from becoming a judge.

It’s not entirely clear why Liu earned such widespread condemnation from Senate conservatives. There is nothing in his record suggesting that he was anything other than an exceptionally brilliant and mainstream nominee. Indeed, conservative legal lion Ken Starr—yes, that Ken Starr of Clinton impeachment fame—called Liu an “extraordinarily qualified nominee” who will serve as a judge “with great distinction.” Liu’s colleague John Yoo—yes, that John Yoo of the Bush administration’s torture memos—called Liu a “very well qualified” nominee who will be a “good judge on the bench.”

Yet if you spent just a few minutes listening to Liu’s opponents, you would think he was the second coming of Mao Tse-tung. Sen. Chuck Grassley (R-IA) literally accused Liu of wanting to make America more like “communist-run China.” Other senators fixated on a pair of law review articles Liu wrote as proof that Liu would use a position on the federal bench to create all kinds of new welfare programs and somehow seize control of America’s schools.

None of these claims are true, but they highlight an unfortunate new reality for judicial nominees. Once upon a time, senators examined a nominee’s record and supported the nominee unless they found some good reason to keep the nominee off the federal bench. This is essentially what Starr and Yoo did when they considered Liu’s career and his scholarship and, finding him to be an entirely mainstream nominee, both made public statements that he should be confirmed.

Yet Liu was held to a very different standard by the Senate. The question was no longer whether Liu belongs on the bench—he unambiguously does—but whether his opponents could find a way to distort his many pages of legal scholarship in order to paint him as some kind of radical. And because Liu is a very prolific scholar, he gave his opponents a whole lot of material to distort.

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• Don't Speak by Ian Millhiser