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Commentary: Partisan Judicial Confirmation Wars Far from Over

Federal appeals court nominee Sri Srinivasan (see Gavel Grab) may have “an apparently easy path” to confirmation in the Senate, but that would offer little reassurance that partisan wars over judicial nominees are past, columnist Michael McGough writes in the Los Angeles Times.

McGough cites Republican filibusters of appeals court nominees Caitlin Halligan and Goodwin Liu, along with Democrats’ filibuster of Miguel Estrada, a George W. Bush nominee, to argue for an “end to partisan gamesmanship on judges.”

The confirmation wars have occurred “out of partisan spite or as part of a long game to take out potential Supreme Court appointees of the other party,” McGough suggests. But Halligan and Lieu deserved confirmation, he says, “because 1) they were well qualified, 2) they inhabited a broad philosophical mainstream and 3) they were being nominated for inferior courts that are bound by the Supreme Court’s interpretation of the Constitution and laws.” McGough concludes:

“It’s reassuring that Srinivasan seems on track to be confirmed, but the system is still not operating the way it should. Presidents of both parties should be given considerable deference when they propose professionally well-qualified candidates for the federal courts, Read more

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Goodwin Liu Transitioning Seamlessly to California Supreme Court

After losing a grueling battle to gain an up-or-down floor vote by the Senate for a seat on the federal bench, former law professor Goodwin Liu is making a seamless transition as a justice on the California Supreme Court. Liu was labeled a “liberal activist” by conservative lawmakers in Congress, but he has been anything but an extremist on the California high court, a Los Angeles Times article says.

California Gov. Jerry Brown appointed Liu to the state Supreme Court in 2011, leading him to an unlikely political resurrection. Considering his young age (Liu is 41), he could have a significant impact on California law through a long tenure, the article says.

Liu has remarked in interviews that a career in the law was never the plan. He was accepted to medical school initially, saying that the California Supreme Court was “not even on my radar.”

When asked about his decision making process on the bench, Liu says he favors unanimity. “I come to the case with some view about it, but I am definitely open to being convinced otherwise.” Appellate lawyer Jon Eisenberg states that Liu’s opinions as a justice “demonstrate a very non-activist judicial philosophy.” Read more

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Opinion Hits Obama Failure to Nominate Voting Rights Scholar

President Barack Obama’s failure to nominate a leading expert on voting rights law for an appeals court judgeship, after the scholar had been selected by his transition team among potential picks, was roundly criticized by Ian Milhiser in the liberal Think Progress blog.

Legal scholar Pamela Karlan of Stanford “said the White House asked her in February 2009 if she was interested in being considered. She said yes but never heard back,” a New York Times article reported recently. The article examined Obama’s lagging behind his predecessors  in getting judges named to the federal bench in his first term (see Gavel Grab).

“Obama’s decision not to nominate Karlan when his party enjoyed an enormous supermajority in the Senate is heartbreaking,” Milhiser wrote for Think Progress blog. “Karlan is not simply one of the nation’s top constitutional thinkers, she is both a leading expert in voting rights law and one of the nation’s most skilled advocates for preserving the franchise.”

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Critical Period Looms for Obama's Judicial Nominees

President Obama faces a crucial period for winning confirmation of judicial nominees in upcoming months, as  about 90 U.S. judgeships are vacant and workloads are mounting for sitting judges.

A Reuters article offered that assessment and the further analysis that while getting judges confirmed always is a challenge for presidents, “Obama is on track to perform even worse than his predecessor, due to particular rancor in Washington and, some critics say, because the White House focus has been on other priorities.”

“The question will be, over the course of Obama’s first term, did he do as well as George Bush?” said analyst Russell Wheeler of  the Brookings Institution.

Here are some of the telling numbers: about 200 appeals and district court judges won confirmation during President George Bush’s first term, compared to 97 of Obama’s picks to date. Bush gained confirmation in his first term of about 87 percent of his judicial nominees, compared to Obama’s rate of about 62 percent so far.

There is political pressure because winning confirmation of nominees typically becomes more difficult as the clock ticks down in a presidential election year. The president now has about 55 judicial nominees pending, and he is expected to nominate more. Nationwide, 37 judicial vacancies are found in courts where judicial emergencies have been declared. Read more

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In a 'Mere 36 Days,' Liu Sails to Confirmation in California

For more than a year, Goodwin Liu failed to receive an up-or-down Senate vote after he was nominated by President Obama to the Ninth Circuit Court of Appeals. Yesterday, Liu was confirmed to the California Supreme Court after, in Liu’s words, “a mere 36 days.”

Liu,   a professor at the University of California, Berkeley, School of Law, was confirmed by the state Commission on Judicial Appointments, barely a month after he was nominated by Gov. Jerry Brown (D). “It has been a long journey for my family, and it has definitely ended with the most pleasant, enjoyable confirmation,” Liu said, according to a Los Angeles Times report.

The contrast with Liu’s federal nomination process was glaring. He withdrew his candidacy in May, after Senate Republicans threatened a filibuster to prevent a confirmation vote. Justice at Stake advocates reduced partisanship in the federal nomination process, and urges that candidates be given a confirmation vote in all but the most extreme instances.

To learn more about Liu’s failed federal nomination, see this Gavel Grab post.


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Smooth Confirmation Expected for Liu

Goodwin Liu is expected to be confirmed without fanfare to the California Supreme Court on Wednesday, according to the San Jose Mercury News.

Governor Jerry Brown nominated the UC Berkeley law professor to the state’s highest court in July, shortly after Liu’s nomination to the 9th Circuit Court of Appeals was filibustered by Senate Republicans.

In stark contrast to his nomination to the federal appeals court judgeship, Liu’s appointment has garnered only nominal opposition.

On Monday, the high court released the state bar’s rating of Liu along with letters for and against his confirmation. The state bar has awarded Liu their highest rating of “exceptionally well-qualified,” the LA Times has reported.

Read more coverage about Goodwin Liu on Gavel Grab.

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Monday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Supreme Court Justice Stephen Breyer, keynote speaker Saturday at the ABA annual meeting in Toronto, emphasized the importance of lawyers, judges and other legal professionals teaching civility to help alter the tone of government and politics, according to a Thomson Reuters News & Insight article.
  • Ted Abrams, a former Tucson (Ariz.) City judge, was suspended by the state Supreme Court from practice law for two years. He had resigned from the bench, and an investigation showed sexually harassed women attorneys, the Arizona Republic reported.

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Wisconsin Senators Address Judicial Vacancies

In Wisconsin, where a new Republican senator has blocked an appeals court nomination, he and the state’s Democratic senator are giving different views on judicial nominations.

Republican Sen. Ron Johnson (photo at left) contended in a Milwaukee Journal Sentinel column that law professor Victoria Nourse, nominated to the Seventh U.S. Circuit Court of Appeals, was not qualified. She did not get a license to practice law in Wisconsin until December 2010, he wrote, and in addition, the Democratic-controlled Senate Judiciary Committee never held a hearing on her nomination after she was nominated in July 2010.

Johnson, who is newly elected, has blocked consideration of her nomination and protested that he should have been consulted by President Obama. Some legal experts have taken a different view (see Gavel Grab).

Democratic Sen. Herb Kohl (photo at right) wrote a column published in the Milwaukee newspaper the same day, about the success of the Wisconsin Federal Nominating Commission for judges. “Our commission process has enabled Wisconsin’s nominees to stay above the political skirmishes about judges regardless of the party in control of the Senate or the White House,” he maintained. Read more

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Goodwin Liu Nominated for California Supreme Court

Legal scholar Goodwin Liu, whose nomination to a federal appeals court was successfully filibustered by Republican senators, was nominated today to sit on the California Supreme Court.

Democratic Gov. Jerry Brown announced his nomination of Liu, 40, a professor at the University of California, Berkeley, School of Law.

Liu, who had been mentioned as a potential Supreme Court justice, ran into stiff opposition from some conservatives after President Obama nominated him for the Ninth U.S. Circuit Court of Appeals. Critics cited what they regarded as his extreme liberal writings and his testimony opposing the confirmation of Samuel Alito to the Supreme Court (see Gavel Grab). After Senate Republicans filibustered and blocked an up-or-down floor vote, he withdrew his nomination.

“Professor Liu is an extraordinary man and a distinguished legal scholar and teacher,” Brown said, according to a Sacramento Bee article. “He is a nationally-recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state supreme court.” Read more

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Renewal of 'Judicial Wars' Ahead?

The Senate Republicans’ successful filibuster of federal judge nominee Goodwin Liu signals a truce is “busted,” and heightened “judicial wars” in Washington might resume, a Denver Post editorial warns.

“It is a shame it has come to this,” the editorial says about the Gang of 14 truce from 2005, and its “dissolution.”  A bipartisan group of senators agreed in 2005 that judicial nominees should receive an up-or-down majority vote unless extraordinary circumstances applied.

Liu, a law professor at the University of California-Berkeley, was opposed by some Republicans for what they regarded as his extreme liberal writings and his testimony opposing the confirmation of Samuel Alito to the Supreme Court (see Gavel Grab). After Senate Republicans filibustered and blocked an up-or-down floor vote, he asked to withdraw his nomination to the Ninth U.S. Circuit Court of Appeals.

The editorial acknowledges its authors “aren’t crazy about” some of Liu’s positions, but they consider him qualified for the job and deserving of an up-or-down vote:

“Elections have consequences, and those include the president getting to choose judicial candidates, even if they are controversial.

“A return to the so-called judge wars in an effort to block the president’s power to fill vacancies on the federal bench ultimately will serve neither party.” Read more

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