Goodwin Liu for the Supreme Court?

Goodwin Liu is a 39-year-old professor at Berkeley Law School, whom President Obama has nominated to the Ninth Circuit Court of Appeals. Like the vast majority of Obama appellate judicial nominees, Senate Republicans have filibustered him.

Is this because Liu is liberal? Perhaps, but Adam Serwer says that the stakes are bigger:

The real reason Republicans are trying to block Liu is this: Because of his youth (he’s 39), intelligence and outlook, he’d be a tempting choice the next time a spot opens up on the Supreme Court. A Liu pick would delight Obama’s liberal base and — depending on who he replaced — potentially move a conservative dominated, corporate friendly court to the left for the first time in generations.

But Liu has to make it to the federal bench first. Republicans know that. And that’s why Republicans have rallied to block his nomination.

Serwer is not alone in making this argument, but I find it incomprehensible. I see no reason why previous appellate court experience — or indeed, any judicial experience — should be a prerequisite for Supreme Court service.

Consider many of the best justices over the past century: Brandeis, Frankfurter, Jackson, Hughes (on the first run) Black, Warren, Murphy: none of them had previous judicial experience. Justice Harlan had a few months on the Second Circuit, which hardly constitutes experience. Indeed, I could argue that prior judicial experience is a strike against prospective justices: living in cloistered judicial chambers begins to narrow the vision and breed a kind of formalism that undermines the Court as an institution.

If Obama thinks that Liu should be on the Supreme Court, then he should nominate him at his next opportunity. Somehow, I think that a tenured member of the Berkeley Law faculty with a distinguished record of scholarship and public service will be able to allay any fears about his ability to do the job. And if Senators don’t like his politics, then a few years on the Ninth Circuit won’t change matters.

[Cross-posted at Same Facts]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.