At NRO this morning, I argued that it was important to keep an eye on judicial nominations other than Elena Kagan's to the Supreme Court:
[I]n 1986, the Democrats in the Senate were so focused on attacking William Rehnquist -- whom Ronald Reagan had chosen to elevate to chief justice of the Supreme Court -- that they made nary a noise about Reagan's pick to succeed Rehnquist as an associate justice. Thus it was that Antonin Scalia was confirmed to sit for life on the highest court in the land with 98 senators in favor, and none against.
It's incumbent on those of us who care about the judiciary to keep this in mind as the nation's attention focuses on Elena Kagan. Only a tiny fraction of cases decided by the appellate courts are granted review by the Supreme Court, which means that those lower appellate benches are usually the courts of last resort in the federal system. And because so many cases never make it even that far, federal trial courts wield enormous power, too.
I focused on three nominees of concern:
- Goodwin Liu, my law school classmate (see previous posts on this site);
- Louis Butler, of Wisconsin Supreme Court lead paint and med-mal fame (see ealier posts here); and
- Jack McConnell, the plaintiffs' lawyer who was Senator Sheldon Whitehouse's symbiotic partner in Rhode Island's $3 billion-lead-paint-verdict fiasco (see posts here, and earlier writings here and here).
Liu's nomination was voted out of the Judiciary Committee today on a straight (12-7) party-line vote.
Our readers may recall that Butler's nomination also passed out of Judiciary last year on a 12-7 party-line vote but wasn't acted upon by the full body; and that the president resubmitted his nomination this January.
McConnell's hearings before Judiciary were scheduled for this afternoon. As Carter reported, the U.S. Chamber of Commerce came out strongly against this nomination on Tuesday, and my piece today in NRO was joined by critical editorials in the Washington Times and American Spectator.