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Judicial confirmations and nuclear disarmament

By Jack M. Balkin

I noticed with great interest that President Barack Obama signed an important treaty with Russia on nuclear weapons the same week that his nominee to the Ninth Circuit, Professor Goodwin Liu was savaged by Republicans seeking to prevent the President from being able to name anyone unacceptable to the GOP to the federal judiciary. I was remined of an article that David Law (now at Washington in St. Louis School of Law) and I co-authored several years ago an article tellingly titled ?Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments.? We argued both that there were not obvious persons to negotiate with and, even more to the point, no way of making the negotiators comply in the future with whatever they happened to agree to, not least, of course, because they might disappear from the political scene and their particular political parties might become ever more resistant to any kind of "compromise."

It obviously remains to be seen whether the Democrats will have the backbone to stand up to Republicans, including invoking the "nuclear option" of eliminating filibusters. As it happens, I think that the case for filibustering judicial nominations is considerably stronger than the case for filibustering "ordinary legislation," given the importance of lifetime appointments, so I have decidedly mixed feelings about the "nuclear option." But, obviously, one can't tolerate ubiquitous filibustering. Elections should have consequences, including the packing of the federal judiciary with judges sympathetic to the President's broad constitutional vision.

Of one thing I am confident: If Goodwin Liu is successfully blocked, then, then Republicans get back into power, all Democrats will expect their/our champions to be equally ruthless and to prevent any Republican president from picking anyone not "acceptable" to them. The only way to bring this particular "war" to an end--[ADDITION: or, as David Law has suggested, achieve what might be a more stable equilibrium--end is to amend the Constitution and to require a two-thirds vote for confirmation (similar to Germany), which would require inter-party negotiation over any and all nominations unless one of them actually manages to get 67 seats in the Senate.

Goodwin Liu is an essential test for the Obama administration. He is indeed the equivalent of Antonin Scalia, Frank Easterbrook, Richard Posner, and the host of other able conservatives placed on the courts of appeals very early in the Reagan Administration, who provided the "bench" from which Reagan and Bush could draw for the Supreme Court. (To an astonishing degree, Clinton seemed to draw no lessons from the strategy of his Republican predecessors. One of his most distinguished nominees, Guido Calabresi, was clearly too old to be a credible Supreme Court nominee. He did, of course, make some other excellent appointments, including Diane Wood to the Seventh Circuit and Margaret McKeown to the Ninth Circuit, both of whom would make excellent justices.) If Obama and the Democrats in the Senate capitulate on the Liu nomination (the way they shamefully did on Dawn Johnson's nomination to head OLC), then, I submit, Dahlia Lithwick is altogether right to describe the mood among Obama supporters as approaching "despair" with regard to regaining control of the judiciary.

Full post as published by Balkinization on April 18, 2010 (boomark / email).