It might be far afield from Louisiana, but the defeat of a California law professor for a seat on the federal appeals court in the West is instructive about how politics is distorting the understanding of the Founding Fathers about America's judiciary.
Law professor Goodwin Liu asked President Barack Obama to withdraw his nomination to the 9th Circuit court after senators could not break a filibuster against his nomination. Liu is by all accounts a liberal, nominated by a liberal president. But his supporters who include prominent conservatives in California feel he would be an asset to the bench.
As is typical of the U.S. Senate these days, the hypocrisy is fully bipartisan.
In 2005, Republicans declared it was unconstitutional for Democrats to filibuster conservative nominees of conservative President George W. Bush. Now, with Liu, the GOP has taken up the shabby tactics of the Democrats then.
A vote to overcome the filibuster won the support of 52 senators, including one Republican, but 43 others voted no, Republicans and one Democrat. The Senate requires 60 votes 10 more than majority rule to cut off debate, and stop the threatened filibuster.
We commend U.S. Sen. Lisa Murkowski, R-Alaska, for her view: I stated during the Bush administration that judicial nominations deserved an up or down vote except in extraordinary circumstances, and my position has not changed simply because there is a different president making the nominations.We wish U.S. Sen. David Vitter, R-La., shared that consistency.
Ian Millhiser, of the Center for American Progress, has outlined in The Los Angeles Times how critics of Liu distorted his prolific production of law review articles and other writings. While Liu might be a loss to the bench, its the lessons of the debacle that Millhiser focused on.
Future presidents of both parties will learn that if they nominate someone with a body of published work no matter how moderate that work will inevitably contain out-of-context statements that can be used to embarrass the nominee and the White House, he said. Thus, the lesson for presidents is clear: Don't nominate anyone who actually has had something to say about the Constitution.
This is also a lesson for potential nominees.
Brilliant young lawyers will learn equally harsh lessons: Keep your mouth shut, dont write anything down and never, ever say anything critical of a powerful official, even if the criticism is true, Millhiser wrote. Because presidents will no longer nominate anyone who speaks out, the brightest, most promising legal minds will learn to keep silent.