Two New Options for Goodwin Liu

To the surprise of exactly no one, Senate Republicans will filibuster Goodwin Liu’s nomination to the 9th Circuit Court of Appeals. As I argued yesterday, this really shouldn’t matter if the administration’s eventual goal is to appoint Liu to the United States Supreme Court: many of the greatest justices had no or virtually no judicial experience before coming onto the high bench. But if the administration really believe that Liu has to have some judicial experience beforehand, there are a couple of other options:

1) Give Liu a recess appointment to the Ninth Circuit. This will last until the end of the current Congress. With more than a year and a half of experience on the federal bench, Liu will have more judicial training than John Marshall Harlan, Clarence Thomas, or Elana Kagan. Temporary Article III judgeships are going to be more and more common as long as Senate Republicans have decided to make the Senate dysfunctional. (It’s bad for the judiciary as an institution, but the GOP doesn’t care about institutions.).

2) Prevail upon California Governor Jerry Brown to appoint Liu to the open seat on the California Supreme Court. It says something not-so-great about the legal profession and legal academia that state supreme courts are not regarded as having the same or greater prestige than intermediate federal appellate courts. For the most part, state supreme courts have control over their dockets, unlike the federal circuit courts, and they are the last word in their own jurisdictions. State supreme court justices elevated to the US Supremes have a pretty good track record — Souter, Brennan, and Holmes immediately come to mind. Why would Brown do this? Why not? Liu would be a highly effective judge. And besides, given California’s ongoing fiscal crisis, it would be really good to have friends in Washington high places who owe you a favor.

[Cross-posted at Same Facts]

Jonathan Zasloff

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