Standards for Assessing Judicial Nominees
A question raised by the Sotomayor nomination that is an issue for all judicial nominees is what standard should be used to determine whether someone is too extreme or “outside the mainstream” to be confirmed. (For purposes of discussion, let’s exclude issues about ethical problems or a lack of credentials.) The main problem that I have with these confirmation fights is that I don’t know what standard is being applied.
One approach would say that if you think that a particular method of judging is right and a nominee does not conform to that method, then that person should not be confirmed. Under this premise, though, you would probably have to oppose most of the judges nominated by a President of the other party (at least in an era, like today, where the parties differ sharply on how judges should judge). The burden of proof would be on the President to persuade a senator from the other party that a given nominee shares (to a sufficient degree) that senator’s world-view. (Maybe this is only true for circuit judges and Supreme Court Justices, who have more interpretive latitude and power than district court judges).
Another approach would ask whether the nominee has views that are an outlier in comparison only to those who do share the President’s outlook on judging. In this case, the assumption would be that the President should get his choice unless the nominee’s views are rejected by a significant number of her “fellow-travelers.” That requires a more diligent analysis of the nominee’s record, as it is often obvious whether somebody shares your judicial method, but it ‘s harder to show that her attitudes are significantly different from those who follow a similar approach.
Which standard you choose makes a difference. For example, Ed Whelan (over on “Bench Memos”) has written a number of critical posts about the nomination of Goodwin Liu for a seat on the Ninth Circuit. (As I mentioned in a prior post, I know Goodwin and think that his selection is excellent). Whelan seems to be using Standard #1 — he is not convinced that the nominee shares his judicial philosophy and is therefore skeptical about confirmation. I think that I am using Standard #2 — I am not persuaded that Professor Liu’s views are inconsistent with how most Democrats (including the President) see the role of judges.
Now this does not answer the question of which standard is better, though I would point out that Standard #2 does show more respect for the fact that the President is elected in part because people share his view of how judges should act. Moreover, if you adopt Standard #1 I don’t see on what grounds you can complain about the rejection of your favored nominees on ideological grounds.