Disqualifying Excellence

The Powerful and the Privileged Must Not Have Veto Power over Judges

Ian Millhiser calls out Senate conservatives for taking their marching orders from corporate lobbyists on judicial nominations.

Professor Goodwin Liu testifies on Capitol Hill in Washington before the Senate Judiciary Committee hearing on his nomination to be U.S. Circuit Judge for the Ninth Circuit. Senate conservatives treated Liu’s reams of insightful legal commentary as a jackpot of out-of-context quotes that can be lifted to falsely paint him as a radical. (AP/Charles Dharapak)
Professor Goodwin Liu testifies on Capitol Hill in Washington before the Senate Judiciary Committee hearing on his nomination to be U.S. Circuit Judge for the Ninth Circuit. Senate conservatives treated Liu’s reams of insightful legal commentary as a jackpot of out-of-context quotes that can be lifted to falsely paint him as a radical. (AP/Charles Dharapak)

A rare display of cooperation on judicial nominations erupted in the Senate yesterday when its members voted 63 to 33 to end a filibuster blocking the nomination of Jack McConnell to a federal trial court in Rhode Island. McConnell, who has been recognized as one of the “Best Lawyers in America” by a survey of his peers, should have cruised through the Senate without incident. Instead, it took nearly an entire year to overcome filibuster threats in order to hold the final confirmation vote.

This never should have happened. Beyond his top-notch legal reputation, McConnell is a district court nominee—the lowest rank of federal judgeship—and district judges had never been the victims of Senate obstructionism before President Barack Obama took office. Indeed, according to the Congressional Research Service, there have only been three attempts to filibuster a district court nominee in American history, and all three of these attempts failed.

So it’s not surprising that many senators’ objections to McConnell bordered on the comical. Sen. Jeff Sessions (R-AL) actually criticized McConnell because he once agreed to donate all of his earnings from a high-profile case to charity. Sen. John Cornyn (R-TX) falsely accused McConnell of perjury, despite the fact that the only document Cornyn was able to cite in support of this outrageous accusation actually proves the opposite.

One concern, however, consumed nearly every single one of McConnell’s conservative opponents—they really don’t like that McConnell represented victims of lead-paint poisoning and fought against the tobacco industry before being nominated to the bench last year.

Conservatives’ concerns originated from a predictable source—corporate lobbyists. In a letter to the Senate promising to count a vote for McConnell as a black mark against senators running for reelection, the U.S. Chamber of Commerce warned that McConnell committed an unforgivable sin by representing the victims of lead-paint poisoning, and even declared him unfit because he devoted his entire career to representing ordinary Americans instead of business interests.

The 63 senators who ignored the Chamber’s demand for a permanent filibuster—including 11 Republicans who agreed to give McConnell the up-or-down vote his nomination deserved—all should be given credit for preventing a very dangerous precedent from being set. The federal judiciary’s job is to provide fair and impartial justice to all Americans, so it would be absolutely unacceptable to give the Chamber—or any other wealthy and well-connected interest group—a veto power over judicial nominees. This concern is doubly true when, as was the case here, the Chamber’s opposition to the nominee appears to be little more than payback for representing clients trying to hold corporate America accountable to the law.

Sadly, however, conservatives are becoming increasingly vocal in their desire to disqualify anyone from the bench who has worked for clients they disapprove of. Two other district court nominees, Ed Chen and Michael Simon, faced conservative opposition in the Senate Judiciary Committee solely because they once did legal work for the American Civil Liberties Union.

So far, no senator has gone so far as to claim that all law professors must also be excluded from the federal bench, but their treatment of one of President Obama’s most outstanding nominees sends a clear message not to nominate legal scholars in the future. Professor Goodwin Liu is easily one of the most talented attorneys ever nominated to the federal bench. A former Supreme Court clerk and Rhodes Scholar, Liu is a professor at one of the nation’s top law schools at the University of California-Berkeley and is a prolific and widely cited constitutional scholar.

Sadly, however, Senate conservatives treated Liu’s reams of insightful legal commentary as a jackpot of out-of-context quotes that can be lifted to falsely paint him as a radical. One of Liu’s law review articles, for example, can best be described as trying to reconcile the judiciary’s role in protecting federal welfare rights with the need to ensure judges behave in a way that is consistent with our fundamentally democratic values. Liu envisions judges as subservient to the Constitution and the laws our elected leaders enact. In Liu’s words, “it is only through democratic adoption of a program of mutual aid that that a welfare right plausibly comes into being for courts to recognize.”

Liu’s belief that the judiciary must protect certain people’s access to social welfare programs is far from radical. In Saenz v. Roe, the Supreme Court struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. Justice Antonin Scalia, one of the Court’s most conservative members, was in the majority in Saenz.

Nevertheless, Senate conservatives have touted this article as proof that Liu would wrest control of our democracy from elected officials and use his judgeship to create massive new welfare programs by judicial fiat. This kind of willful distortion of Liu’s scholarship pervades the arguments against his confirmation. Several of his opponents have even pointed to an article where he expressly states that he “do[es] not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education” as proof that he would do something conservatives apparently view as appalling—hold that the Constitution actually guarantees every American child an adequate education.

Liu’s mistreatment will only encourage presidents to nominate more “stealth” nominees who lack a long paper record that can be easily distorted by their political opposition. Anyone who has actually opined at length about the Constitution will be effectively disqualified from drafting judicial opinions interpreting the Constitution.

Simply put, America cannot afford an obstructionist Senate minority that wants to render thousands of exceptionally talented and tremendously qualified attorneys ineligible from serving on the federal bench. Our country is facing a judicial confirmation crisis fed in no small part by these senators’ arbitrary refusals to confirm excellent nominees. Indeed, thanks in no small part to their obstructionism, the Senate is not confirming new judges fast enough to keep up with current judges retiring at a faster pace—a trend that is gradually emptying out the federal bench and forcing thousands of Americans to wait far too long for basic justice.

In many jurisdictions, the pain of an increasingly empty bench is already acute. As Texas federal Judge W. Royal Furgeson recently told a Brookings Institution panel, he was assigned to a court where each judge had to hear five times the normal caseload just to keep up with its exploding criminal docket. As a result:

I was able to give them about as much attention as I could see those traffic judges giving their — the defendants before them attention when the fines were about $100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they’re doing, especially in sentencing. And I don’t think there’s a federal judge in American that will tell you — that will disagree with this statement. The hardest job we have is to sentence human beings. You know, it’s something to judge another human being. And it’s a very hard job. And to feel like you’re not being able to give it near the attention it deserves creates a desperate sense of failure on your part.

Americans deserve the best judiciary in the world and we all depend upon a system where judges can take the time to fully consider each case that is before them in order to reach the correct decision. All Americans should be terrified of a future where every federal judge is too overworked to be confident in his or her own binding legal orders.

That is why Congress should be expanding the number of federal judgeships and moving quickly to confirm the men and women President Obama nominates to these new posts—instead of allowing a small minority of the Senate to disqualify entire segments of the legal profession simply because they are opposed by wealthy and powerful interest groups, or because they have actually written down somewhere what they think about the Constitution.

Ian Millhiser is a Policy Analyst and Blogger at the Center for American Progress.

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Ian Millhiser

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