Truce After Goodwin Liu's Failed Nomination To U.S. Court? Unlikely

May 20, 2011

While the ashes still smolder from President Obama's failed nomination of Goodwin Liu for the 9th Circuit Court of Appeals, it's probably worth asking, how can the Senate get past the cycle of retribution that makes it resemble the Appalachian feud the Hatfield and McCoys?

Jonathan Adler, a law professor at Case Western Reserve University who blogs over at the conservative-leaning Volokh Conspiracy made a suggestion earlier this week that seems worth considering.

As I've blogged before at some length, I believe that the Senate should be quite deferential to a President's judicial nominees, and do not believe that ideological differences are sufficient grounds to oppose, let alone filibuster, a judicial nomination. Indeed, I do not believe that Presidential nominations should ever be filibustered, and would prefer all such nominations to receive an up-or-down vote. The problem is that such a norm of conduct cannot be maintained if it is not reciprocal — unilateral disarmament does not create a stable equilibrium — and tactics adopted by one party (if not forsworn) will be adopted by the other. It's only a matter of time.

Perhaps one day Senate leaders will realize that the downward spiral of politicization that infects the judicial confirmation process is bad for the judiciary and bad for the country, and agree to stand down. Neither side will want to do so if they will know it will work to the benefit of the other party's nominees. But a deal should be possible to, for instance, agree to end filibusters and and obstruction of nominees after a date certain, such as after the next Presidential election. I discussed this briefly in a post last year. Alas, I doubt the Senate is any closer to such a deal.

Seems like a good idea. But Adler is probably right about it being more likely that the filibustering of judicial nominees continuing.

Such a truce isn't likely to appeal to interest groups on either side of the political divide. The groups use these nomination fights to fundraise and energize their members. So the filibuster battles serve a practical as well as ideological purpose.

Meanwhile, it would be asking the Senate minority to give up some of the little leverage it has in the chamber. Don't hold your breath on that one.

So the Hatfields and McCoys feud, Senate style, will probably continue, at least on the more controversial judicial nominations. The failure of Liu's nomination to win an up-or-down vote probably guarantees that.

Meanwhile, the failed Liu nomination fight will could become a cautionary tale for law professors called to testify against future Supreme Court nominees.

Part of what made Liu anathema to many conservatives was what they said were harsh and personal comments he made during the Justice Samuel Alito's nomination hearing including the line: "Judge Alito's record envisions an America where police may shoot an unarmed boy to stop him from running away with a stolen purse..." Copyright 2011 National Public Radio. To see more, visit