Elections Matter

One of the sorriest stories about the White House and the 111th Congress is that they've been so tied up over the economy and over health care reform, very little else has been done. Oh, President Obama made a raft of "recess appointments" last week while the Congress was on Spring Break, but those appointments are essentially short lived and didn't put even a small dent in the list of his appointments just hanging out there waiting for Senate approval.

Among those appointments are nominees for the federal bench, and the federal judiciary is screaming for judges to be named, approved, and installed. One of those nominees is Goodwin Liu for the U.S. 9th Circuit Court of Appeals. Mr. Liu has gotten the stamp of approval from the American Bar Association. Amazingly, Kenneth Starr also feels he is well qualified for the position.

So what's the problem? In a word, Republicans. Led by Sen. Sessions, the Republicans have made it clear they will fight this nomination because Mr. Liu is considered too far out of the mainstream to qualify for the federal bench. What really bugs Mr. Sessions is that a Democratic president has proposed him, not that Mr. Liu is actually out of the mainstream. Even the "center-left" editorial board of the Los Angeles Times recognizes the "Just Say No" impetus behind Mr. Sessions bombast, the same bombast he used against Supreme Court Justice Sotomayor, hardly a liberal firebrand.

Yes, Mr. Liu is young, and yes, he hasn't any judicial experience, but it's not like the Republicans, when in power, haven't proposed similar nominees, as the Times editorial pointed out:

Because he is an academic, Liu has a long paper trail of views about the Constitution and constitutional interpretation that's unusual in a judicial nominee. He's also very young. But so were some notable appeals court appointees of Republican presidents. For example, Alex Kozinski, now the chief judge of the 9th Circuit, was 34 when President Reagan named him to the appeals court. Kenneth W. Starr, the future Whitewater special prosecutor, was 37 when Reagan placed him on the U.S. Court of Appeals for the District of Columbia Circuit. ...

Like his Republican forerunners, Liu represents a departure from the usual practice of filling appeals courts with middle-aged lawyers with previous judicial experience or long careers in private practice. The question for outspoken academics (and politicians) who ascend to the bench, however, is not how old they are, but whether they can trade the role of advocate for that of arbiter. An additional question for appellate judges is whether they will apply Supreme Court precedent even when it conflicts with their own constitutional vision. In Liu's case, that would mean that he couldn't get ahead of the Supreme Court on whether to recognize education, shelter or subsistence as constitutional rights. The American Bar Assn. obviously has concluded that Liu can satisfy both obligations. It has rated him "well qualified." We agree.

So, why isn't Harry Reid forcing the issue?

Who knows. It's clear that the Republicans have no intention of keeping their powder dry on any issue presented by the Democrats and by the President. Neither should the Democrats, especially after 8 years of making nice to the Republicans gave us a Supreme Court laden with troglodytes. And it's not like the Democrats have all the time in the world to flesh out the President's agenda. November is closing in on them, and the mood of the country, all across the political spectrum, is ugly, especially when it comes to incumbents.

It's time for Senate Democrats, particularly Harry Reid, to remind the Republicans that elections matter, and that the last one was won by the Democrats.