You're familiar with Godwin's Law, described by Mike Godwin in 1990:
"As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1 (100%)."
I write today about "Goodwin's Law," which is defined after the jump.
We had surprisingly little discussion here in the past two weeks about the Senate Republicans' rejection of the nomination of Goodwin Liu for a seat on the Ninth Circuit Court of Appeals, given the importance of the story. (The best came on the May 19, the day that a cloture for on his nomination failed: see this diary by Armando and this FP story by Joan on Grassley's red-baiting him and this story from Joan chronicling the cloture vote itself, though tequilamockingbird's critical comparison of the Liu nomination and the nomination of Robert Bork is worth reading.) Then this literal perversion of Justice sort of fell off of the radar. I don't think that the Republicans stopped talking about Democrats blocking the nomination of Miguel Estrada quite this quickly.
I've read several analyses in the meantime worth sharing. This was one of the top political stories of the month, after all, if not the year.
Goodwin Liu was the "anti-Clarence Thomas" -- just as young but brilliant and progressive -- and everyone knew it. The story of why he was blocked from the federal appellate bench demands our attention. Follow me after the gnocchi.
This is my tentative (subject to your improvement) formulation of "Goodwin's Law":
"As the age of a progressive federal court nominee becomes lower, the probability of Republicans finding an absurd and indefensible basis for blocking it approach 1 (100%)."
The Age of Viability
I'm primarily indebted in this analysis to this story in Slate by U of Virginia Law Professor Micah Schwartzman, with the Academy-Award-for-Adianoeta-worthy title of "Not Getting Any Younger." If judicial nomination politics interests you, you should top off your lazy holiday (if you're lucky enough to be having one) by reading the whole thing. The subtitle explains -- placing some responsibility on President Obama for not playing hardball enough politics with these nominations -- "President Obama's penchant for older judges scuttled Goodwin Liu."
I must add right away: I'm not blaming Obama for the failure of Liu's nomination. It was a good nomination and it's a credit to him that he made it. The point is: if he wants to be able to nominate the sorts of federal judges that Republicans least want to see -- brilliant young ones who may be in office for decades, which is what the Republicans do -- he'd better flood the field with them, because that's the only way that any of them are going to pass. Otherwise he will quite literally "not get any younger" judges appointed.
I've known of and rooted for Prof. Liu since back when I clerked on the Ninth Circuit and he was a recent Yale Law School grad who had already clerked for the legendary Judge David Tatel and for Justice Ruth Bader Ginsburg (starting at age 29.) There's a game people like my then-colleagues like to play called "Who's Eventually Going to Be on the Supreme Court?", and if there were a fantasy league for it Goodwin would have been a star quarterback. The Republicans knew this too -- and that's what doomed him. To the Slate article:
Had Liu been 59 years old, instead of 39, he would not have been filibustered. Consider that Liu was the President's youngest judicial nominee—younger than the next oldest nominee by nearly four years. And given his relative youth, he would have been an obvious candidate for elevation to the Supreme Court. Even if he weren't elevated, he might well have spent the next 30 to 40 years serving on the 9th Circuit.
That much most informed observers knew. What I didn't know came next:
Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45. On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush. But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans. Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees. By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats. For decades now, and as a matter of strategy, Republicans have been nominating younger judges. The real question is why Democrats have been doing just the opposite.
What Democrats seem to have missed is that judicial age matters. The list of the 50 youngest appellate judges appointed since the Reagan presidency—all nominated under the age of 45—reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few. That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42). By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.
Reading that led me to scream out the strongest curse word I know, which I will translate here as "Jeepers!" WTF and How In Hell? How can the Republicans been playing this game while Democrats have not? To see that list is to realize that whatever President Obama has been doing with his judicial nominations, it has to stop. It has to change tracks. Letting them get away with this while we play the game the old-fashioned way is madness.
The Pretext for Protest
I hate to show you a long cite from Wikipedia -- oh, who am I kidding, I love to do that -- but if you want to get a sense of what has been lost here, there's no better way to do it (and at the link you'll find cites!):
In addition to his academic work, Liu gained wide attention for his outspoken opposition to the nominations of John Roberts and Samuel Alito to the Supreme Court. In a 2005 op-ed for the Bloomberg news service, Liu argued that "a Supreme Court nominee must be evaluated on more than legal intellect." He criticized Roberts for having "applied his legal talent to further the cause of the far right" and said that Roberts had "a right-wing vision antagonistic to important rights and protections we currently enjoy." In response to the defense that Roberts' opinions as a government attorney could not be attributed to Roberts himself, Liu argued that those positions "cohere with other aspects of his background" and indicate that Roberts would be "a social, political, and economic conservative and, importantly, not a judicial conservative" on the Court. Later, in testimony before the Senate opposing Alito's nomination, Liu said that, despite Alito's "exceptionally talented legal mind," he was "at the margin of the judicial spectrum, not the mainstream." In flamboyant language, Liu said that Alito "envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse" and "where a black man may be sentenced to death by an all-white jury for killing a white man, absent [an] analysis showing discrimination," concluding that Alito's America "is not the America we know. Nor is it the America we aspire to be."
OK, I'm not done yet, but if you smoke you might need to take a break for one at this point.
Liu's nomination was harshly criticized by conservative legal blogger and former Department of Justice lawyer M. Edward Whelan III on National Review Online. Whelan argued that Liu has been a strong proponent of judicial activism in his legal writings, a claim rejected by supporters such as Liu's faculty colleague Jesse Choper and former Bush White House counsel Richard Painter. His arguments against the Roberts and Alito nominations also were an issue, with Whelan terming them "shoddy and demagogic," while Liu's supporters such as Painter argue that lawyers should "feel free to speak their minds about Supreme Court and other judicial nominations without fear of retribution." Although Liu said at his nomination hearing that his statements about Alito were "unduly harsh" and "not an appropriate" description of Alito, one opposing senator described this as a "semi-apology" for "shameful remarks" and a "nomination conversion" that was unlikely to represent Liu's true views.
Liu was also criticized by Senate Republicans for allegedly failing to disclose 117 of his more controversial writings and speeches. On April 6, 2010, Liu submitted the 117 requested items to the committee as a supplemental to the original questionnaire. The committee hearing had been postponed twice particularly due to Republican concerns over Liu's judicial qualifications and record. On April 6, 2010, a letter was sent to the Senate Judiciary Committee Chairman Patrick Leahy by the seven committee Republicans to request a third postponement, which was subsequently rejected. Liu was also criticized for lack of trial-level experience. Prior to his nomination, Liu had not served as a judge and had argued only one case at the appellate court level as a lawyer.
"Shoddy and demagogic" is apparently Republican-speak for "having the temerity to tell the truth." I'm sorry that Liu had felt it necessary to back down from them at all, but I don't blame him -- that's how the process works. (Note that the "never had any judicial experience didn't turn out to block Elena Kagan from the highest court; one big reason for it is that, of course, George Bush occupied the Presidency for the eight years after Liu left Justice Ginsburg's chambers. Brilliant legal academic thinkers -- Felix Frankfurter being perhaps the prototypical example -- have long been eligible for the federal court.)
(I'm skipping Grassley's red-baiting of Liu because Joan and Armando already covered it quite well in the diaries at the first two links above.)
The best comparison of Liu's horrible, horrible comments -- such as saying that Alito favored the outcomes of cases where he was on record as favoring the outcomes -- is a quintet of conservative Judges, two unsuccessful, three successful: Robert Bork, Clarence Thomas, Miguel Estrada, John Roberts and Samuel Alito. As this diary is (per my custom) already overlong, I'll just give a bit of background on each and leave expansion of the thoughts to appropriate size to a later diary (ideally one written by someone else.)
Bork: Bork denied the existence of a justiciable right to privacy, period. Let me let Ted Kennedy tell the story:
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice
Organizations including the NAACP, the Urban League and the National Organization for Women opposed the appointment based on Thomas's criticism of affirmative action and suspicions that Thomas might not be a supporter of Roe v. Wade; NOW and the NAACP had also protested Bush's previous Court appointee, David Souter. Under questioning during confirmation hearings, Thomas repeatedly asserted that he had not formulated a position on the Roe decision....
Clarence Thomas's formal confirmation hearings began on September 10, 1991. Thomas was reticent when answering Senators' questions during the appointment process. Four years earlier, Robert Bork, a law professor, had expounded on his judicial philosophy during his confirmation, and he had been refused confirmation. Whereas Thomas's earlier writings had frequently referenced the legal theory of natural law, during his confirmation hearings Thomas limited himself to the statement that he regards natural law as a "philosophical background" to the Constitution. Thomas himself later asserted in his autobiography that in the course of his professional career, he had not developed a judicial philosophy.
(By the way, I had originally accepted that the elder Bush deserved the right to Thomas -- but when Thomas claimed not to have formed an opinion on Roe, I somehow intuited that he might be a liar and therefore not appropriate for the bench. Then came the Anita Hill issue, and bigger reasons to oppose him.)
Estrada: Estrada was the Republicans' hope to be the Hispanic Clarence Thomas. Democrats blocked his nomination to the prestigious DC Circuit Court of Appeals in 2001, in the move most closely resembling the rejection of Liu's nomination. (By the way: he had neither served as a judge nor, unlike Liu, did he have a history of academic papers to indicate his thinking.) So was this just "tit-for-tat"? Let's take a look at why Democrats opposed Estrada:
In his testimony before the Senate Judiciary Committee, he claimed he had never thought about Roe v. Wade even while serving as a Supreme Court clerk at a time when the first Bush Administration had asked the Court to reconsider it. Also while as Justice Kennedy's clerk, he interviewed potential candidates for the clerkship. In an article published in The Nation magazine Jack Newfield alleged that Estrada had disqualified candidates who were too liberal. When questioned about this by Sen. Charles Schumer at the confirmation hearing, Estrada changed his recollection of the incident during his testimony. Democratic Senators also objected to the refusal by the Office of the Solicitor General to release samples of Estrada's writings while employed there, although such a release of confidential documents would have been precedent-setting. Minority Leader Tom Daschle was quoted by the Associated Press as saying, "The stumbling block to Miguel Estrada's nomination all along was the administration's refusal to allow him to complete his job application and provide the Senate with the basic information it needed to evaluate and vote on his nomination."
Liu, by contrast, cooperated with the nomination process and took pains to present his full record.
Alito professed reluctance to commit to any type of ideology, stating he would act as an impartial referee. On the abortion issue, he stated that he would look at that with an open mind but would not state how he would rule on Roe v. Wade if that issue were to come up before the court. Some pro-life activists, however, claim Alito's confirmation as a victory for their cause....
The American Civil Liberties Union (ACLU) formally opposed Alito's nomination. The ACLU had only taken this step two other times in its entire history, the last time being with the nomination of Robert Bork who was rejected by a 58–42 vote in the Senate. In releasing its report on Alito, ACLU Executive Director Anthony Romero justified the decision saying that "At a time when our president has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely, America needs a Supreme Court justice who will uphold our precious civil liberties. Judge Alito's record shows a willingness to support government actions that abridge individual freedoms."
He was confirmed -- for the Supreme Court, too -- at a relatively young 55.
Liu withdrew his nomination this past week, after spending more than a year in appointment limbo, unable to steer towards his preferred future or any good second choice. The Republicans won.
That they won, and how they won, is a scandal. We need to keep it easily accessible in our minds. That is why I have proposed the term "Goodwin's Law" -- anything we can do to move the federal courts back towards the center will be opposed with a powerful vigor and lack of principle. We have to fight as hard as they do -- and to be able to explain why we are doing so.
We must overrule Goodwin's Law.