Results matching “goodwin liu”

With the Senate heading into a month-long recess when it adjourned last Thursday, Senate rules required either a unanimous consent to hold over nominees or the nominations had to be returned to the White House. The judicial nominees who were sent back were the most politically controversial ones, objected to by Senate Republicans (as well as business groups and critics of judicial activism).

  • John J. McConnell, Jr., of Rhode Island, to be United States District Judge for the District of Rhode Island.

  • Goodwin Liu, of California, to be United States Circuit Judge for the Ninth Circuit.

  • Robert Neil Chatigny, of Connecticut, to be United States Circuit Judge for the Second Circuit.

  • Edward Milton Chen, of California, to be United States District Judge for the Northern District of California.

  • Louis B. Butler, Jr., of Wisconsin, to be United States District Judge for the
    Western District of Wisconsin.

Also returned to the President was Mary L. Smith, of Illinois, to be an Assistant Attorney General, nominated to head the tax division at Justice.

Butler, Chen (and Smith) went through the same process at the end of 2009, and President Obama renominated them all. Renomination remains the most likely course of action this time, as well, but the President could also make recess appointments -- good through the end of 2011 -- or withdraw the nominations. Recess appointments are rarely used for judicial nominees, though.

Democratic Senators defended all these judicial nominations in a series of floor speeches on July 29. (See POL, "Senate moves slowly ...") Jim Copland wrote about the Liu, Butler and McConnell nominations last May in this POL post.

Senate moves slowly ... - PointOfLaw Forum

The Washington Post today revisits a perennial story, that of the speed with which the Senate is confirming judicial nominations, "Senate moves slowly in confirming Obama's lower-court judicial nominees."

The story comes in the wake of Democrats taking to the Senate floor last Thursday, July 29, to demand confirmation votes on President Obama's federal judicial nominees. Sen. Mark Udall (D-CO) led the colloquy, starting on page S6476 of The Congressional Record.

Sen. Russell Feingold of Wisconsin praised Louis Butler Jr., the former Wisconsin Supreme Court Justice nominated for the U.S. District Court, Western District of Wisconsin. As this Wall Street Journal editorial recalls, voters in 2008 kicked Butler off the state Supreme Court, in part because of his liberal rulings against medical liability reform and his invention of "collective liability" for paint manfacturers. President Obama nominated him to the federal court in Oct. 2009 and renominated him last January.

Sens. Sheldon Whitehouse and Jack Reed of Rhode Island were also exercised about Republicans preventing a vote on John "Jack" McConnell, the Motley Rice attorney and Democratic contributor nominated to the U.S. District Court. Whitehouse attacked the U.S. Chamber of Commerce by name, posing the rhetorical question, "Do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees? That is not the tradition of this body. I again ask my colleagues: Is this the tradition they want to set? If they open the door to out-of-State special interests trumping the considered judgment of home State Senators on district court nominees, will they ever get that door closed again? I submit it is a mistake for this body to go that road."

Alternatively, do we want Senators' parochial and political interests to always trump the public's objections to judicial nominees whose qualifications are solely political? Is that the road we want to go down?

Sen. Udall asked for unanimous consent several times to move the pending judicial candidates, with Sen. Jeff Sessions (R-AL) objecting. Two other controversial nominees who were stopped were Goodwin Liu to be a Ninth Circuit judge and Robert Chatigny to be on the Second Circuit. (Page S6486.)

Addendum: Originally appointed by Gov. Mike Doyle to the state Supreme Court to fill a vacancy, Justice Louis Butler was defeated in April 2008 for a full term by Burnett County Circuit Judge Michael Gableman. The expensive, rough-and-tumble campaign offended "good government" types, and Gableman became the target of a complaint based on one truthful TV ad. Last month the Wisconsin Judicial Commission decided not to take any action.

Around the web, May 17 - PointOfLaw Forum

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.

The Kagan nomination, May 11 - PointOfLaw Forum

  • Senator Inhofe is the first to oppose Kagan, citing her anti-military stance at Harvard and lack of judicial experience.
  • Kagan's record is largely inscrutable—but she did come out in favor of less limited inquiries into Supreme Court nominees in the University of Chicago Law Review in 1995. See also Ed Meese on the nomination. But now that she's on that hot seat, Kagan has backed off of her academic position.
  • But fascinatingly, as Matt Marcotte has suggested, the "Kagan must be stopped!" fulminations have largely come from the left. This is in part because the right is largely resigned to their impotence in the Senate, but in part because folks like Greenwald, Lemieux, and Turley are being foolish: they would prefer Democrats take a huge political hit for putting an outspoken ideologue on the Supreme Court without getting anything extra from that vote that Kagan wouldn't provide. Larry Lessig understands this. (Indeed, the right has likely shot itself in the foot by being so vocal about Diane Wood, who is both considerably more moderate than Kagan and nine years older.) More generally, a nomination standard that punishes candidates for taking public stands and rewards the Robertses and Kagans with cleaner resumes is going to benefit the left more than the right, as it's much easier for a liberal than a conservative to glide through an academic and political career and proving their bona fides without alienating anyone, so it's helpful to the right that the left are the ones complaining here. (On that note, Todd Zywicki has an amusing post how partisan bickering blocking Roberts and Kagan from an additional eight years of experience on the D.C. Circuit probably helped their Supreme Court candidacies.)

    The leftists who oppose the nomination on cronyish grounds have the tiniest bit of a point about the incestuous unseemliness of the Harvard/Yale Law academic axis, but it's worth noting that some of the most influential judges on the left were (intelligent) presidential cronies. E.g., Felix Frankfurter (whose resume is a lot like Kagan's).

  • I'm less concerned than Eric Turkewitz about Kagan's two years at Williams & Connolly. While time as a BigLaw junior associate should influence one's view of civil justice (it certainly did for me), someone who's marking time until she can step on the academic or political ladder almost certainly had little say over her assignments or even the arguments she made in her briefs, if she was allowed to write briefs. As in the case of Goodwin Liu, such junior-associate experience should be treated as essentially meaningless cannon-fodder work.
  • I suggested yesterday that Kagan's academic record was mediocre. I retract that after Eugene Volokh's persuasive analysis, which also tells us a bit about Kagan's First Amendment jurisprudence.

Initial reaction to Kagan nomination - PointOfLaw Forum

I've been on the radio most of the day discussing Elena Kagan's nomination to the Supreme Court. Here's the first of several written comments I've been working on -- as Goodwin Liu would say -- interstitially.

Update: My friend Matt Marcotte corrects my interpretation of the Founders' views of the confirmation process; while my characterization is correct vis-a-vis Hamilton, others of the constitutional framers held very different viewpoints. See Matt's very interesting article discussing the history of the advice and consent power here.

Update 2/ Correction: In this instant-reaction piece, I somehow put down "48 years" rather than "38 years" as the length of time that had elapsed since a non-judge was appointed to the high bench, notwithstanding that I was born in the year William Rehnquist was nominated. And notwithstanding that I once won a statewide math contest in North Carolina (though I was working on far more sleep that day).


Now that the President has nominated to the United States Supreme Court a woman whose signature (and not inconsiderable) accomplishment in life was to serve as Dean of the Harvard Law School, I expect (with apologies to Bob Dylan) that the name of my alma mater will be invoked reverently and frequently over the next month or so.

If for no other reason than to temper the vainglorious monster that beats in the chest of every son and daughter of Harvard, it is right and meet (see what I mean?) that we be reminded that having "Harvard" on your resume does not mean that you are immune from saying or writing ill considered things.

No, this is not about Elena Kagan (I'll get to her). Nor is it about me although I suppose I could find plenty of examples. My subject is Harvard law professor Noah Feldman who suggested in yesterday's New York Times that the next nominee to the U.S. Supreme Court should be a "young person" by which he appears to mean under 40. (Professor Feldman is 39.) He has been disappointed but the point still deserves a response.

Note that the point is not that we should be open to the possibility that someone under 40 might be as suitable nominee. No, we need someone who is under 40. In support of his call for chronological diversity, Professor Felman offers up - there is no better way to say it - every brainless conceit that the young have about the ways in which they are smarter and way cooler than their elders. The reason that I know is that I used to believe such things myself.

According to Professor Feldman, we need to get past Baby Boomers for whom the internet is a "new fangled contraption" (cute choice of words) as if Pa Kettle and his old lady don't surf the web for Woodstock memorabilia or text each other about scoring some weed (actually they'd call it pot) for the next Tom Petty concert. (If you don't believe me on the latter, just go to one of those things. Breathe and you'll be high by "I Won't Back Down.")

Young people, says Professor Feldman, have lived through "not only a technological revolution but a demographic one" and so are "comfortable with people who look and think differently."

Dude, please.

Who hasn't lived through some type of social or technical revolution? Remember the Civil Rights movement? Feminism? Those were ours*, whippersnapper! Boomers may not have been assigned "Heather Has Two Mommies" for extra credit, but I seem to recall (when I can recall anything - it gets hard) a number of university administration buildings being seized in conjunction with demands for black studies programs.

Remember the aforementioned Woodstock ? Boomers have been the Kings and Queens of flying (or letting the next guy fly) that freak flag for longer than Professor Feldman has been alive. Indeed, our singular contribution to the culture may have been the notion that virtue consists in never making a judgment about anyone or anything (other than, of course, our own conviction that we are ineluctably special.)

Professor Feldman reminds us that people over 40 voted for John McCain (another old guy!). Let's pick a justice from Barack Obama's America (but not one so ancient as the President himself). In this, I suppose he demonstrates that Gen X truly is comfortable with "the other." Boomers wouldn't trust anyone over 30.

As an example of the wisdom of youth, Professor Feldman offers us Justice William Douglas who is, in his view, an exemplar of the "openness, new ideas and energy" that comes with youth. Apparently borrowing from the the then new science of thaumatury, Justice Douglas, starting with nothing but penumbras and emanations, conjured - or (in Professor Feldman's circumlocution) "devised" - "the right of privacy that gave us reproductive freedom."**

Whatever one thinks of abortion rights, Justice Douglas (who, in fairness, did retain an energetic interest in young people as he aged) was famously unimpressed in any disciplining methodology other than the wisdom of William O. Douglas. Professor Feldman might have picked a better example. Let's try Clarence Thomas who was only a bit older than Douglas at the time of his confirmation.

Justice Thomas has also been an energetic proponent of unorthodox ideas. He would not have "devised," "materialized," or even "imagined" a constitutional right to abortion, but he has tried to revitalize structural limits on Congressional authority.

And, notwithstanding the obvious fun I'm having, therein lies my point. The distinctive views of youth tend to fade over time as we gradually accept responsibility for the world and stop defining ourselves in opposition to our elders. We become who we are. To use some examples from the legal academy, there are young scholars like Noah Feldman and Goodwin Liu. There are young scholars like Richard Garnett and John Yoo. The only thing they have in common as potential Supreme Court nominees (and I suspect that each would differ in significant ways from the other three) is that they would have a chance to serve for a very long time.

Being second half baby boomer and having been a precocious little nerd, I can recall (over the rumble of the ever lengthening freight train of years) when then President Richard Nixon dipped a goose feather into an ink well and signed the Twenty Seventh Amendment lowering the voting age to 18. Pundits said that he was signing a death warrant of the Republican Party because the rising and very groovy baby boomers were never going to vote for them. Some serious people - even an Ivy League law professor like Professor Feldman - thought that we were going to usher in a "revolution by consciousness" that would create a new way of life and a New Man. So did we.

And then, dag nabbit, we went and voted for John McCain. We had some revolutions (some might say counterrevolutions), but they were lead by people like Ronald Reagan, Margaret Thatcher and the Pope. Had we known, it would have seemed, at the time, like that famous stage announcement at Woodstock (" ... the brown acid that is circulating around us is not specifically too good ...") had come to pass.

In fairness, I admire Professor Feldman's work. I enjoyed his book Divided By God and have cited it and some work he has done on the history of the Establishment Clause quite extensively. He is an accomplished and productive scholar.

But, dude, think!


Cross posted at Point of Law and Shark and Shepherd


* Actually, for people my age, it was our older brothers, sisters and cousins who tended to hog everything before we got a chance. But that's another story.

**Unless, if I may be permitted an editorial comment, one turns out to be the collateral damage of reproductive freedom.

Nina Totenberg's various Morning Edition reports this morning on the expected nomination of Solicitor General Elena Kagan to the U.S. Supreme Court included these facts.

  • Her presence would result in three female justices on the nine-member court for the first time in its history.
  • If confirmed, she also would become the third Jewish justice on the current court, which has six Catholics.
  • With Stevens' exit, there would be no Protestants.

But what clan does she belong to?

Oh, right. It's Harvard Law.

Elsewhere in controversial court nominations, the Senate Judiciary Committee will hold a hearing Thursday on judicial nominations, including that of John J. "Jack" McConnell, Jr., to be U.S. District Judge for the District of Rhode Island. McConnell, a partner at Motley Rice, is Rhode Island's leading trial lawyer, one of the original tobacco attorneys, and a generous campaign contributor to the state's Democrats. (He and his wife, $700,000 over a decade!) McConnell and then-Attorney General Sheldon Whitehouse (now a U.S. Senator) ginned up the public nuisance suit against paint manufacturers, eventually thrown out by the Rhode Island Supreme Court. (Earlier Point of Law post.)

On Friday, the Judiciary Committee is scheduled to vote on the nomination of Goodwin Liu to serve on the Ninth U.S. Circuit Court of Appeals. Republicans delayed a vote scheduled for last week on Liu. Unfortunately, the vote is being cast as a warm-up to the Kagan confirmation battle, diverting attention from Liu's far-out record, which Liu implicitly renounced at his hearing. We liked this Ed Whelan headline, "Goodwin Liu's Ambition Exceeds Even His Inexperience."

UPDATE (2:15 p.m.): Eric Turkewitz, author of the New York Personal Injury Law Blog, takes note of Kagan's thin experience in the private sector. From "Elena Kagan: The Three-Year Hole in the Resume":

Around the web, May 6 - PointOfLaw Forum

  • Senator Mark Pryor has a short memory when it comes to the role of partisan politics in judicial nominations. [Paul Greenberg]
  • Ed Whelan deconstructs Goodwin Liu's answers to Senate Judiciary Committee questions. [Bench Memos]
  • A much-sued museum talks back. If more defendants did this, we might get somewhere. [Overlawyered; Facebook; WSJ]
  • Dana Milbank doesn't quite get the idea of "limited government." [Jacobson]
  • "Biotech Defamation Case May Send Peruvian Biologist to Jail" [Reason]

  • "If the TSA Were Running New York" [Fallows]
  • Life imitates The Sopranos. [ABA Journal]

Around the web, May 4 - PointOfLaw Forum

  • Heather Mac Donald defends the Arizona immigration law. [City Journal]
  • "A Case Study in Judicial Nullification: Medical Malpractice Reform in Illinois" [von Spakovsky @ Heritage]
  • Ed Whelan rebuts Richard Painter on Goodwin Liu. [Bench Memos]
  • May 25 at the Chamber of Commerce: "U.S. Regulatory Policy and Free Enterprise: The Impact on Economic Recovery," with Chris DeMuth discussing the growth of federal regulation. [NCF]
  • "Congressional Research Service memo raises fresh constitutional questions about Obamacare" [Daily Caller]
  • Liberals discover that State AG meddling in climate science disputes can cut both ways. [Chris Mooney @ Discover]
  • Is it me, or was Chief Justice Roberts hazing Justice Sotomayor when he assigned her the lack-of-empathy-but-legally-obvious unanimous immunity opinion of Hui v. Castaneda? (And note that a Ninth Circuit panel of Reinhardt, Berzon, and Smith got it appallingly wrong.)

Goodwin Liu on judges' writings - PointOfLaw Forum

"[W]hatever I may have written in the books and in the articles would have no bearing on my role as a judge." Really? None at all? Isn't it strange to think the contents of one's writings would have no bearing on one's true convictions, or alternatively that one's true convictions would have no bearing on one's role as a judge? [Whelan]

Jonathan Adler on the Liu nomination - PointOfLaw Forum

Getting past the "we've got to confirm him extra fast because he's incredibly moderate" mythology.

P.S. Rick Garnett on some debatable New Republic assertions about "activism." And here's the happy news that Richard Epstein and Randy Barnett are confirmable after all -- we know because Dahlia Lithwick says so.

The Senate Committee on Rules and Administration Committee, one of the sleepier committees in the Senate, awakens for a hearing next Thursday, "April 22, to hold hearings to examine the filibuster, focusing on the history of the filibuster 1789-2008, 10 a.m., SR-301."

The committee is chaired by Sen. Charles Schumer (D-NY), a partisan. The committee website has not posted any information yet about witnesses.

In related news, the Senate Judiciary Committee has rescheduled its nomination hearing on the controversial Goodwin Liu to serve on the Ninth Circuit. The hearing starts at 10 a.m. today (Friday), with a webcast available.

Around the web, April 8 - PointOfLaw Forum

  • Some thoughts on regulation, politics and mine disasters [Iain Murray, NRO; Stoll]
  • Noted plaintiff's lawyers Cabraser, Blue-Baron join American Constitution Society board [BLT]
  • Will the Left oppose Elana Kagan? [Whelan, NRO and more]
  • "The EPA, Tightening Control Over the Manufacturing Economy" [Brendle, ShopFloor]
  • Lerach saga just the iceberg-tip of class action deceit [Lawrence Schonbron, HuffPo]
  • Med-mal: Westchester County, N.Y. hospital appeals $48 million verdict in delayed diagnosis of spinal tumor [Hochfelder]

Goodwin Liu nomination: gotcha-ism and substance - PointOfLaw Forum

The Ninth Circuit nominee's omission of many speaking engagements from his Senate questionnaire responses has prompted an outcry in some conservative circles. Minnesota lawprof Richard Painter -- who worked with a number of President Bush's nominees to the bench in the confirmation process, and has also been a valued friend of this site -- finds the indignation misplaced: someone in Liu's position gives a great many public talks and omission does not imply attempted concealment. "Rather than posturing over yet one more 'missing documents' episode in Washington, the Senate should perhaps look at this nomination on the merits and vote." [Legal Ethics Forum, which Prof. Painter recently joined as a new contributor] More: Ed Whelan of NRO "Bench Memos" responds.

Stuart Taylor, Jr. takes a look at the impending battle over the Ninth Circuit nomination of Goodwin Liu, who has indicated that the three decisions in question belong in history's dustbin. Milliken limited busing orders, Rodriguez found that the federal constitution does not provide grounds for school finance equalization suits, and Adarand limited racial preference by the federal government. Earlier here and here.

Around the web, March 28 - PointOfLaw Forum

  • Faster regulation, more fines, authority to pursue "aiders and abetters": "Streamlined Rulemaking for the FTC's Consumer Protection Mission?" [Consumer Law and Policy]
  • Mounting opposition to Goodwin Liu nomination spurs talk that ideology shouldn't matter so much in confirmations, but would Liu himself agree? [Adler at Volokh]
  • A milestone in Florida: "McCollum's Legislation Preventing Pay-To-Play Politics Heads To Governor For Signature" [Capital Soup; earlier here, here, and here]
  • "Big money in El Paso runoff: Trial lawyers and tort reform interests pick sides" [El Paso Inc., Texas]
  • Litigation funding outfit has a focus on Silicon Valley [Hartley]
  • Labor-green alliance to squeeze out small truckers from serving ports? [Carter at ShopFloor]


Around the web, March 26 - PointOfLaw Forum

  • Nail in tire didn't matter: jury says Cooper should pay $28 million in tread separation minivan rollover [Bloomberg, Iowa]
  • Law review symposium consisting exclusively of Iqbal/Twombly critics isn't exactly diverse [Beck et al, more]
  • Employers' hiring incentive in new jobs bill is "absurdly game-able" says one employer [Coyote]
  • "Time to Rethink What's a Crime" [Marc Levin, Texas Public Policy Foundation, PDF]
  • Appeals court overturns $3.5 M award against Queens apartment building owner over gang attack on tenant [Hochfelder]
  • Ninth Circuit nominee Goodwin Liu likes at least the rhetoric of slavery reparations, though it's less clear what he thinks of the actual litigation [Verum Serum and followup via Whelan, NRO]

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