Professor Goodwin Liu

The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

In the 2004 law review piece, as Painter notes, Cornyn wrote:

Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

He concludes:

To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

Visit JudicialNominations.org to get the latest news and commentary on the judicial nominations process.

By Adam Winkler, Professor of Law, UCLA School of Law

Does Goodwin Liu’s stalled nomination to the federal bench signal the end of judicial nominations for academics? Law professors have never been the darlings of the Senate Judiciary Committee – or even of presidents considering appointments to the federal courts. What’s happening with Goodwin Liu may yet further reduce the likelihood of law professors receiving nominations in the future.

Law professors aren’t natural choices for federal judgeships to begin with. Nominations for the lower federal courts often come from the senators in the state in which the vacancy arises, and law professors don’t tend to be politically connected players close with elected officials. As a general matter, we don’t make much money, contribute much to campaigns, or raise much for candidates. So when senators recommend nominees to the president, they are more likely to be partners at big firms than professors from big schools. (The Supreme Court is an obvious exception; over the past century, the Court was filled with law professors, from Frankfurter and Douglas to Scalia and Kagan.)

Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.

Of course, not all law professors will face the same difficulty. Elena Kagan was confirmed despite being a former law professor. Kagan, however, had written only a handful of scholarly articles and most of them argued for broad free speech rights – a position that both Republicans and Democrats could accept. When staffers went out to search her articles for statements they could use against her, the only “gotcha” they found was her criticism of judicial nominees who refuse to discuss their views. 

It’s no longer just the nominee’s writings that matter. Before Kagan was named, ACS Board member Pamela Karlan, of Stanford Law School, was one name bandied about as a potential nominee. But it was easy to go on YouTube and find videos of Karlan, who speaks at numerous events, making sarcastic, biting remarks on nearly every hot-button issue of the day. Though those who see her in person know that her most outrageous statements are meant to be humorous -- Karlan gets more laughs than any other law professor I know -- they are easy fodder for opponents.

The message for law professors from these examples is clear: if you want to become a judge one day, don’t write too much, write on non-controversial topics, and watch what you say at speaking events. The world is watching.