Quit stalling on these judges

Los Angeles Times - - Opinion -

Pres­i­dent Obama’s nom­i­na­tions to the fed­eral bench have been stalled by Repub­li­cans in con­tin­u­a­tion of a par­ti­san feud that dates back, depend­ing on who’s count­ing, to the Ge­orge W. Bush, Clin­ton or Rea­gan ad­min­is­tra­tions. Three Cal­i­for­nia nom­i­nees are em­blem­atic of the prob­lem. They were all ap­proved by the Se­nate Ju­di­ciary Com­mit­tee months ago and re­ceived stel­lar eval­u­a­tions from the Amer­i­can Bar Assn., but it’s pos­si­ble they won’t be con­firmed by the Se­nate (or will be re­jected, though that would be a travesty) be­fore the 111th Congress winds down.

Two of the nom­i­nees are for the U.S. District Court, the la­bor-in­ten­sive front line of the fed­eral ju­di­cial sys­tem. Both Ed­ward M. Chen, nom­i­nated for the North­ern District of Cal­i­for­nia, and Kimberly Mueller, cho­sen for the East­ern District, are cur­rently fed­eral mag­is­trate judges. Both were unan­i­mously rated “well qual­i­fied” by an ABA panel. Chen was first ap­proved by the Ju­di­ciary Com­mit­tee in Oc­to­ber 2009; Mueller was ap­proved in May of this year. No se­ri­ous ob­jec­tions have been raised to ei­ther nom­i­na­tion, though some con­ser­va­tives have com­plained, out­ra­geously, about Chen’s past af­fil­i­a­tion with the Amer­i­can Civil Lib­er­ties Union.

The third can­di­date whose nom­i­na­tion has been lan­guish­ing is UC Berkeley law pro­fes­sor Good­win Liu, se­lected for a seat on the U.S. 9th Cir­cuit Court of Ap­peals, which has ju­ris­dic­tion over Cal­i­for­nia and eight other Western states. Liu was ap­proved by the Ju­di­ciary Com­mit­tee first in May and again this month af­ter Obama re­sub­mit­ted his nom­i­na­tion. He also was unan­i­mously rated “well qual­i­fied” by the ABA panel.

Repub­li­cans com­plain that Liu is out of the main­stream — code lan­guage for the fact that he is more lib­eral in his ju­di­cial phi­los­o­phy than other nom­i­nees. A book Liu coau­thored did ar­gue that the Con­sti­tu­tion should be in­ter­preted “in or­der to sus­tain its vi­tal­ity in light of the chang­ing needs, con­di­tions and un­der­stand­ings of our so­ci­ety.” But in em­brac­ing that ap­proach, Liu is more in the philo­soph­i­cal main­stream than some con­ser­va­tive judges who base their de­ci­sions on a nar­row in­ter­pre­ta­tion of the Con­sti­tu­tion’s “orig­i­nal mean­ing.” And the chief ar­gu­ment against him — that he be­lieves judges should find eco­nomic rights in the Con­sti­tu­tion — re­sulted from a mis­read­ing of one of his aca­demic ar­ti­cles.

Repub­li­cans are free to op­pose these and other Obama nom­i­nees. But they shouldn’t pre­vent up-or-down votes on their nom­i­na­tions. Cal­i­for­nia’s two sen­a­tors need to press — and, if nec­es­sary, shame — their col­leagues on the other side of the aisle to let the full Se­nate have its say.

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