U.S. Court of Appeals for Ninth Circuit

Goodwin Liu, nominated to the U.S. Court of Appeals for the Ninth Circuit, withdrew his nomination, citing the federal bench’s dire need for judges, after Republicans successfully blocked the nomination last week.

In a May 25 letter to President Obama, Liu wrote:

The nomination has been a source of tremendous pride for my family and community, and it would be a great privilege and responsibility for me to serve our country as a member of the judiciary.

In light of last week’s unsuccessful cloture vote, however, I respectfully ask that you withdraw my nomination from further consideration by the United States Senate. With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for use to regain the ability to make plans for the future. In addition, the Judicial Council of the Ninth Circuit has noted ‘desperate need for judges’ to fill current vacancies, and it is now clear that continuing my nomination will not address that need any time soon.

ACS Executive Director Caroline Fredrickson scored Republican senators for obstructing the nomination:

The Republican senators who filibustered the Goodwin Liu nomination did so only a few years after demanding up-or-down votes on President Bush's judicial nominees. Many of these senators even claimed that filibusters of judicial nominees are unconstitutional. But now for partisan advantage, they have abandoned their principles in favor of obstructionism.

The Senate Republicans' efforts to delay and obstruct President Obama's judicial selections are harmful to our democracy and have caused a crisis in our judiciary. Vacancies on the federal bench have skyrocketed, causing lengthy delays in our courts' ability to dispense justice. Our judicial branch is not a political plaything but an indispensable part of our system of government. It is time for Senate Republicans to rise above their party’s short-sighted gamesmanship and serve their country.

The New York Times in a recent editorial on the Senate filibuster of Liu said the “Republican argument against him was laughably thin.” It had little to do with Liu’s academic writings, the editorial noted, and more with Republicans’ need to satisfy a base instinct.

“Mr. Liu dared to criticize Justice Samuel Alito Jr. as harshly conservative before he was confirmed to the Supreme Court," the editorial states. "The filibuster was payback, and the Republican eagerness for revenge has broken faith and a clear understanding on the Senate floor [regarding confirmation of judicial nominations]. That will make it harder to fill benches during this administration and many more to come.”

In a piece for Slate, Dahlia Lithwick wrote:

Liu was caricatured as a left-wing "radical" and "activist" although he had the unconditional backing of conservatives such as Kenneth Starr and Clint Bolick. Yet Republicans who were willing to judge him in print and on the Senate floor were unwilling to put his nomination to a vote.

Following the failure of the cloture motion last week, Fredrickson said, “Those senators who voted against cloture are ushering in an era of unprecedented obstructionism, and threaten to bring our system of justice to a grinding halt.” ACS Board Chair and University of Chicago law school Professor Geoffrey R. Stone blasted Republican senators for “meritless obstruction ….” Their entire statements are available here.  

Stone also wrote about the obstruction of Liu’s nomination in a May 24 piece for the Chicago Tribune saying it shows “how destructively polarized national politics has become ….”

Follow the latest on judicial nominations and the rising number of vacancies on the federal bench at JudicialNominations.org.

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.