There has been a lot of buzz about President Obama appointing Scott Matheson, Jr, to a vacancy on the 10th Circuit Court of Appeals at the very moment when he and Nancy Pelosi are leaning on Matheson’s brother, Jim Matheson of Utah, to switch his vote on Obamacare. Some have not hesitated to suggest that Obama may be selling judgeships for health care votes.
As to the Matheson nomination, I think the criticism is not well-founded. That doesn’t mean that Obama didn’t have one eye on Congressman Jim Matheson when he selected Professor Scott Matheson for the 10th Circuit. No one will ever know, probably. But Professor Matheson would be an ideal choice for Obama even if he didn’t have a brother in Congress. He is a law professor at the University of Utah, a graduate of Stanford, Oxford and Yale Law School, a professor (briefly) at the Kennedy School at Harvard, an unsuccessful Democratic candidate for Governor of Utah, and a former U.S. Attorney for the District of Utah. His credentials are unimpeachable and, more important, comprise the sort of resume that Democrats love. Best of all, Professor Matheson has just written a book on Presidential usurpations of constitutional authority–my paraphrase–titled Presidential Constitutionalism in Perilous Times, which contrasts President Obama favorably with George W. Bush and generally offers up a conventionally liberal view on the powers of the executive.
Thus, President Obama could not have found a more suitable nominee, from a liberal Democratic perspective, than Scott Matheson. It would be unfair to assume that he selected Matheson in order to influence his brother; on the contrary, if Matheson had no siblings at all he would be an ideal liberal judicial candidate. So I think we must acquit President Obama of that charge.
What is sad, however, is that Matheson will replace Judge Michael McConnell, who resigned from the 10th Circuit to teach law at Stanford. Judge McConnell is a friend, or acquaintance anyway, and is one of our great conservative legal thinkers. Among other things, he is without a doubt the foremost expert on church and state under the American Constitution. Elections have consequences, and one of them is that brilliant conservative judges like Michael McConnell are replaced by competent liberal judges like Scott Matheson. Beyond that, though, we have no basis to criticize the Matheson nomination.
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