A reasonable approach to pending judicial nominees

As with so many other issues, the matter of judicial confirmations is going down to the wire in this session of Congress. At issue are 38 pending nominees. They fall into three categories: (1) 19 who are considered reasonably non-controversial, (2) four who are considered outside of the mainstream by a critical mass of Republican Senators (and quite possibly a few Dems), and (3) 15 who only recently cleared the Judiciary Committee during the lame duck Congress.
As I understand it, the Republican leadership has agreed in negotiations to the confirmation of the 19 nominees in the first group. But it does not agree to pave the way for the four highly controverial nominees, the most notorious of whom is leftist law professor Goodwin Liu, a nominee for the Ninth Circuit. And Republicans are also resisting the 15 who recently cleared committee.
This position seems reasonable. Senate precedent, established mainly by the Democrats, supports efforts to block nominees considered by one side to be too extreme. And there is no reason why Republicans should support rushed consideration of nominees who, due to inaction either by the majority or the president, have only just cleared committee. These nominees can receive due consideration next year, including consideration of whether they may be too extreme to warrant the support of conservative Senators.
Naturally, the editors of the New York Times disagree. They call the Republican position “a disservice to the legal system.” But their only statements that might pass as argument pertain to Liu, whom they describe as a “an exceptionally well-qualified law professor and legal scholar who would be the only Asian-American serving as an active judge on the United States Court of Appeals for the Ninth Circuit.” The Times claims that Liu’s “potential to fill a future Supreme Court vacancy seems to be the main thing fueling Republican opposition to his nomination.”
Liu is, indeed, a respected law professor and legal scholar. But he is also a hard-core leftist, which makes his confirmation problematic under existing Senate practice (and under the standard Liu argued for during the confirmation processes of John Roberts and Samuel Alito). Moreover, Liu’s race should be irrelevant to his confirmation prospects, just as Miguel Estrada’s nationality was when Democrats blocked his nomination (I don’t recall the New York Times citing it as a reason for confirming Estrada who, unlike Liu, had a distinguished record as an appellate lawyer).
Finally, the Times gives Republicans too much credit for restraint when it claims that Liu’s “potential to fill a future Supreme Court vacancy” is driving their opposition. Given Liu’s leftist approach to the law, Republicans might well oppose his nomination to fill a district court vacancy.
But Liu’s problem isn’t just with Republicans. As Carrie Severino notes, Liu, who was nominated almost a year ago, is among that small number of nominees “so politically dangerous to red-state Democratic senators that Majority Leader Reid has slow-walked them into oblivion so as to not force these senators into having to cast a public vote.” Few, I imagine, will be more relieved to see him fall by the wayside than Sen. Tester, a Democrat from Montana which is encompassed by the Ninth Circuit.
UPDATE: Ed Whelan points out that a member of the New York Times editorial board, Lincoln Caplan, is the husband of one of the nominees who cleared the Judiciary Committee this month. Caplan, a liberal, writes about legal affairs for the Times.
His wife is Susan Carney, a deputy general counsel at Yale. According to Ed, she received a mediocre ABA rating of substantial-majority “qualified”/minority “not qualified” on her nomination to the Second Circuit. She also received three committee votes against her nomination, apparently because of her dearth of litigation experience.
Carney seems to exemplify the kind of nominee who needs to be considered carefully by the full Senate, not rushed to a vote at the same time Senators are rushing to complete their business, which includes a major arms treaty, a sea-change in policy towards gays in the military, and a massive spending bill.


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