Recently in Judicial Selection Category

Joe Palazzolo has this post at WSJ Law Blog, titled, "Hating on the Ninth Circuit: Funny But a Little Depressing."  The topic is criticism of the Notorious Ninth by presidential candidates, the candidates' proposals, and some reaction from judges.

Some of the statements by candidates are indeed off the wall.  Newt Gingrich's idea about issuing subpoenas to judges to appear before Congress is typical Newt half-baked.  Chief Judge Kozinski says, "They don't need a subpoena. All they need to do is ask."

Two other judges comment without being named.  This comment is all too typical:

Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education.

Ah, yes.  Once again, it is the ignorant Great Unwashed who fail to understand that the judges of the Ninth Circuit are simply doing their jobs and showing "loyalty to the Constitution" when they hand down all these controversial rulings.  However, given the number of unanimous reversals of the Ninth by the Supreme Court, as we have noted many times on this blog, the lack of understanding may well be at the Ninth itself.

"And what about abolishing the court altogether?" the post asks.  The appeals do, indeed, have to go somewhere.  A "nuclear option" would be to abolish the Ninth, ousting its judges Thomas Jefferson style, and creating one or two new courts with newly appointed judges to take the appeals instead.  That would be an extreme measure, to be avoided except as a last resort. 

Electing presidents who want to fix the Ninth and put some priority on the appointments is a far better method, albeit much slower.  President Bush, disappointingly, did not put a high enough priority on the problem.  A vacancy was left unfilled for years, and some of the appointments that were made were ill-advised.  President Obama, of course, does not want to fix the Ninth.  Let's hope for change -- that the next president does better.

The Big Easy is really good at partying, but apparently not so good at disclosing exculpatory information to the defendant, as required by Brady v. Maryland, 373 U. S. 83 (1963). Last term, we had Connick v. Thompson, a civil case about failure to disclose a crime lab report.  Today we have Smith v. Cain, about failure to disclose prior inconsistent statements by the only witness who identified the defendant at trial.

This is about as pure a Brady claim as they come.  As CJ Roberts explains, the jury might have believed the witness's trial statements rather than the prior statements, but "might" is not the test.

The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.

This case is a straightforward application of settled law to particular facts that makes little new law.  Why did the Supreme Court take it up?  Wouldn't Smith have been granted relief on federal habeas from the state court's unreasonable rejection of his claim?  Isn't that why Congress adopted the compromise standard of 28 U.S.C. §2254(d), rather than getting rid of federal habeas for state prisoners altogether?

Or does the Supreme Court lack confidence that the Fifth Circuit will grant habeas relief where the 2254(d) standard requires it (i.e., clearly wrong state court decisions), just as it lacks confidence that the circuits divisible by 3 will observe that standard and refrain from second-guessing state courts on close questions, as Congress has required?

The politics of federal judicial appointments, unfortunately, results in the states that need the most federal scrutiny receiving the least and vice versa.  The voters who choose the governor who appoints the state judges, or who elect the state judges directly, also choose the senators who have large influence over the appointments of the federal district and circuit judges in their states.  Less home-state-senator influence over the circuit appointments, at least, would help balance things out.  The political realities being what they are, though, I am not hopeful that can be done.

Kent noted that confirmation nastiness has spread outside Washington, DC.  But it certainly had its origin there.  The origin, specifically, was the Ted Kennedy-led, gutter-level attack on Robert Bork.

Twenty four years ago tomorrow, Bork was voted down simply because he was a conservative.  He was, however, superbly qualified for the Court.  He was a law professor at Yale, a  former Solicitor General, and a judge on the US Court of Appeals for the DC Circuit.  It was to prove to be a preview of the even more appalling "high tech lynching" of Clarence Thomas  --  although, quite fortunately, that one failed.

The New York Times, of all things, has an op-ed spelling out, in straightforward terms, just how ruthless and unprincipled the attack on Bork was.  If a Republican wins the Presidency next year, and there is a Supreme Court vacany during his term, the scandalous nature of the attack on Bork is, I fear, something we will all have to remember  --  and be prepared to fight.

David Ingram has this post at BLT on an article in the current issue of Judicature (subscription) on the White House's judicial selection shop.

Among the topics covered in the article is the relationship between the White House Counsel's Office and outside interest groups interested in judicial nominations. The article quotes one advocate who says that, after the November elections, when Democrats lost control of the House and nearly the Senate, the administration began screening e-mails in an attempt to "clamp down" on communication.

That might be a good thing.  Given that the disastrous choice of Goodwin Liu preceded the 2010 election, whatever they were doing back then wasn't working.  Quite possibly they were listening too much to interest groups.

There is scuttlebutt going around inside the Beltway that liberals are pressuring Justice Ruth Bader Ginsburg, 78, to retire now, lest President Obama lose next year and a Republican successor might have the opportunity to appoint a (presumably conservative) replacement.

I have disagreed with Justice Ginsburg in most of her votes in criminal cases, including her disastrous votes in both halves of Booker, first finding that the Federal Sentencing Guidelines did not survive the reasoning of Blakely, and then switching sides to implement a remedy of "advisory" guidelines.  I have explained the calamitous results of that remedy here.

Having said that, Justice Ginsburg is a person of principle.  She takes law, and the idea of law, seriously, for however much conservatives disagree with most of her outcomes.  She is also a person of courage, having battled an exceptionally deadly form of cancer.  And she is a person of strength, belied by her seemingly frail build.

The pressure for her to resign is creepy and classless, as Yale law professor Stephen Carter explains in this piece.  I hope she resists, and I'm reasonably confident she will. 

Among the most lasting actions a President takes are his appointments to the federal courts.  Most of the Carter Administration is just a distant, bad memory, like a recurring nightmare that you used to have but haven't had in many years.  However, Carter's abysmal appointments to the Ninth Circuit plague the people of the Far West to this day.  Thank God and Potter Stewart he didn't get any Supreme Court appointments.

So judicial nominations really should get more attention as a campaign issue.  Tim Pawlenty has this ad touting his "conservative" appointments to the Minnesota Supreme Court.  Carrie Severino has this post at Bench Memos on the ad, and David Ingram has this post at BLT.

Of course, it is not "conservative" appointments we need but rather judges who believe in judicial restraint.  We need judges who will not graft their personal opinions on to the Constitution, declare them to be the supreme law, and "on the pretense of a repugnancy ... substitute their own pleasure to the constitutional intentions of the legislature."  "Conservative" judicial activism of the Hammer v. Dagenhart variety is every bit as bad as liberal judicial activism.  That doesn't fit in a political sound-bite, but I hope Pawlenty and the others understand the distinction.

AP reports that Goodwin Liu has formally withdrawn his nomination for the Ninth Circuit.  James Oliphant has this story in the LA Times.

The Senate has rejected, 52-43, the attempt to break the filibuster on the nomination of Goodwin Liu to the Ninth Circuit.  A 3/5 majority was required under the Senate rules.

During the Bush Administration, Senator Barack Obama supported the use of the filibuster to block judicial nominees.  Professor Goodwin Liu forcefully advocated considering a nominee's viewpoints, not just objective qualifications.  A nominee should be rejected, he said, if his viewpoints were "out of the mainstream."

Putting those two together, filibuster of this nomination is the right thing to do.  One could, of course, take the opposite of those positions.  Many Republicans did during the Bush Administration, and many Democrats have been saying similar things in the present debate.  However, it would be very wrong for one party to unilaterally disarm and allow the other to have free rein whenever it has the White House and a Senate majority while that other party shows no such restraint and blocks votes based on viewpoint alone.  Such unilateral disarmament would result in a skew of the judiciary.

The 43 Senators voting no, despite heavy pressure and groundless accusations of racial motive, did the right thing and the courageous thing.  Thanks and congratulations to them all.

Update:  Looks like Bill and I were posting at the same time. The WSJ had this article before the vote this morning.

Update 2:  ABC News' Matthew Jaffe reports:

The vote was largely along party lines, with only a few exceptions: Nebraska's Ben Nelson split with his fellow Democrats to vote against Liu, while Alaska's Lisa Murkowski voted for Liu.

Utah Republican Orrin Hatch voted present, while four senators did not vote at all: David Vitter, R-Louisiana; Jerry Moran, R-Kansas; Kay Bailey Hutchison, R-Texas; and Max Baucus, D-Montana.

Although the voting is still in progress in the Senate, it appears that Harry Reid has failed to invoke cloture, thus effectively killing, at least for now, the nomination of Professor Goodwin Liu for a seat on the Ninth Circuit.

Current results suggest that all the Republicans except for Sen. Murkowski have voted against cloture, plus Democratic Senator Ben Nelson of Nebraska.  That would leave 53 votes in favor of ending debate.  Harry needed 60.

The Ninth Circuit has been saved from being even more of an embarrassment.  Of course it needs a good deal more than that, but sufficient unto the day are the victories thereof.

UPDATE:  The final vote was 52-43, meaning that the motion to end debate failed by 8 votes.  That is a substantial margin, very likely meaning that Professor Liu is cooked for good.

David Ingram reports at BLT:

Three Republicans who have rarely supported filibusters of judicial nominees said today they will vote to filibuster appellate nominee Goodwin Liu, a bad omen for Liu a day before a crucial Senate vote.

Republican Sens. Lindsey Graham (S.C.), Johnny Isakson (Ga.) and John McCain (Ariz.) said they plan to vote against ending debate on Liu's nomination. The vote is scheduled for 2 p.m. on Thursday, and Liu needs 60 votes to advance to a final confirmation vote. A judicial nominee of President Barack Obama has never been successfully filibustered, but Liu may be the first.

In separate comments, the three senators all cited the same reason for opposing Liu: the law professor's 2006 testimony against the confirmation of Justice Samuel Alito Jr.

    The US Senate will likely vote tomorrow afternoon on cloture on the disastrous nomination of Goodwin Liu for the Ninth Circuit Court of Appeals.  This nomination needs to be stopped.

    The Ninth Circuit is the worst federal court in the country when it comes to reviewing criminal cases.  Here are a few of its decisions:

    -- It overturned, on patently erroneous grounds, the conviction of a man who had brutally raped and nearly killed a 9-year-old girl, and it did so on a basis that would have prevented retrial and put him back on the street.  Fortunately, the Supreme Court unanimously reversed.

    -- It usurped to itself the power to second-guess parole decisions of the parole board and governor in murder cases, and it did so for years until the Supreme Court finally, and without dissent, ruled that this was no part of that court's business.

    -- It overturned a conviction for premeditated murder because the defense lawyer abandoned a hopelessly weak insanity claim.  The Supreme Court unanimously reversed.

    But the wrong decisions the Supreme Court reverses are only the tip of the iceberg.  In most cases, the federal court of appeals decision is the final decision.  It is vitally important that we have good judges who understand the need for justice on these courts.  For a court as bad as the Ninth presently is, it is essential that new appointments make the court better.  Appallingly, President Obama has nominated someone who would make this court even worse.

President Obama has re-nominated radical Berkeley law professor Goodwin Liu for the already out-to-sea Ninth Circuit.  Kent, I and many others supporting resolute law enforcement have expressed more than a little doubt abourt Liu.

Perhaps we should take another look.  Part of the punishment that can (and ought more often) be ordered at sentencing is restitution to the victim.  It turns out that Prof. Liu has spoken out strongly in favor of restitution.

Of course there's a catch, as there almost always is with Obama's nominees.  Prof. Liu doesn't require that the "victim" receiving the goodies actually be a victim; being the great grandson or something is close enough.   Nor does he require that the person forced to provide the goodies be convicted of anything  --  or, for that matter, be responsible for anything.

Nope.  Liu's criterion for being ordered to pay restitution has nothing to do with an individual's behavior at all.  It has to do with being white. 

The Senate Judiciary Committee's second hearing on the nomination of Goodwin Liu, to push the Ninth Circuit even further out of the mainstream than it already is, will begin at 2:45 ET (11:45 PT) today.  A live webcast is available on the committee site.

David Ingram at BLT has this post, noting that one of the new members of the committee is Senator Mike Lee of Utah.  Lee is a former law clerk to Justice Alito, whom Liu said was too far out of the mainstream to be confirmed.  I expect he will be keenly aware that Liu is further from the mainstream than Alito and therefore should not be confirmed if judged by his own standard.

Update:  David Ingram has this post-hearing post at BLT.  Liu disavowed the rhetorically problematic last paragraph of his testimony against Alito.  However, it does not appear from the post or from the portion of the hearing that I was able to watch today that he disavowed the substance of his attack, which is the bigger problem.  See prior posts here and here.

I have previously noted that some people are so far off to one side ideologically that they lose the ability to see where the center is.  For example, there is Goodwin Liu claiming that Samuel Alito is too far out of the mainstream to be confirmed and then putting himself up for confirmation.

With this thought in mind, we read with interest this Flagpole interview with Dahlia Lithwick, who covers the Supreme Court for Slate.  The interview eliminates any doubt, if indeed any remained.  Ms. Lithwick has absolutely no concept where the middle of the road is.  Regarding judicial nominations, she says (emphasis added):

It goes to [the idea that] the center has moved. I mean, the center has moved so far to the right that anybody who's... marginally to the left of Stephen Breyer is, you know, a radical. You see that in Obama's judicial picks: one person he put up who was moderately liberal was Goodwin Liu in California, who was perfectly analogous to most of the people on the Right that Bush put up. But he's been blocked, and excoriated; his hearing was just a disaster... he's been sort of painted as [being] to the left of Thurgood Marshall: a pot-smoking, hemp-wearing hippie. And, you know, he's a renowned academic... So, I think it's that ability to say, anyone who isn't in the center--even though the center isn't even in the center--is a radical and a socialist who doesn't love this country is just another really effective way of moving the conversation to the right.

But of course the center is the center by definition.  The survey marker of the center is the median American voter, the one who had a hard time choosing between Bush and Gore in 2000.  To be "renowned" in academia when the median academic is at least one standard deviation to the left of the American center, maybe two, is not any kind of indication of mainstreamness. 

While Glenn Beck et al. do get overheated with their rhetoric, it is absurd to suggest that comes exclusively from one side.  (Has anyone on Fox News referred to a female pundit of opposing views as a "bag of meat"?  An MSNBC commentator did.)  It is absurd to suggest that attacks on judicial nominees of the present Administration are worse than the savage attacks on Clarence Thomas, Miguel Estrada, or other Republican nominees.  Indeed, it is absurd to say that attacks on Liu are even as bad as Liu's own attack on Alito, much less to say they are worse.

BTW, I haven't heard anyone call Goodwin Liu "a pot-smoking, hemp-wearing hippie."  I have heard people say he is way out of the mainstream, not moderate, mainly because that is true.  The suggestion that he is no further off center than the typical Bush appointee is preposterous.

But the real howler comes with her discussion of the Supreme Court press corps.

I mean, is it a good thing or a bad thing that we still cover the Court in the voice of Linda Greenhouse? That is, dispassionate and neutral.

Neutral?  Linda Greenhouse? That isn't just funny.  That is laugh until your sides ache with tears rolling down your cheeks funny. That is turning blue because you are laughing so hard you can't inhale funny.

Ms. Lithwick lives in an ideological Bizarro World and doesn't know it.  It is one thing to be out on the fringe and well aware you are on the fringe.  It is quite another to be unaware of your position.

The title above is the title of this post by David Ingram at BLT:

President Barack Obama today re-nominated, as expected, the vast majority of judicial nominees who were not confirmed at the end of 2010. But exactly one previous nominee is not among them: Judge Robert Chatigny for the U.S. Court of Appeals for the 2nd Circuit.

The lack of another nomination makes Chatigny the first of Obama's judicial picks to fail to win confirmation, though others, such as Goodwin Liu for the 9th Circuit, may be filibustered.

Chatigny faced heated Republican opposition because of his involvement, as a federal district judge, in a state capital case. A threat he made about a lawyer's law license had prompted an ethics inquiry, though a panel of three other federal judges cleared Chatigny.

It is good to see capital cases getting the attention they warrant in the judicial confirmation process.  These cases have a particularly strong effect in exposing the tendency of judges and wannabe judges to substitute their policy preferences for the laws duly enacted through the democratic process.