Standards for Assessing Judicial Nominees

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Spencer Waller says:

    I guess I take a modified version of Standard 1. Elections matter, some benefit of the doubt should be given to the President in all appointments matters. However, I have no problem with a Senator who explicitly says that a judicial appointee’s views are so diametrically opposed to their own that they will oppose them regardless of their professional qualifications. My problem is that virtually no Senator has ever been that forthright.

  2. How about a modified, special-situation Standard #1 – you give the President the same amount of deference that he gave his predecessor…do you think our current President would sign on to that?

  3. Gerard Magliocca says:

    Oh, I think that the President was totally wrong in voting against Roberts and Alito. We shouldn’t be following his example.

  4. Alan says:

    “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.”

    Well… Does that mean that the general public keeps shifting its view of how judges should act? Because the president’s view of how judges should act just keeps going back and forth:

    1968, 1972: Nixon
    1976: Carter
    1980, 1984: Reagan
    1988: Bush
    1992, 1996: Clinton
    2004: Bush
    2008: Obama

    Yes, yes, I realize you said this isn’t the only reason why presidents are elected, but instead is only one reason. But if it’s a fact that the public elects a certain president based on their agreement with that president’s judicial philosophy, then exactly which judicial philosophy is it that the public has?

    I don’t think the general public has any judicial philosophy to speak of (not even a very-simplistic-and-crudely-developed-but-still-substantial judicial philosophy). I think they have only a few vague (and sometimes conflicting) instincts about what judges should and shouldn’t do.

    I speculate that most people could go either way on this issue, depending on which aspects of the debate are emphasized when they’re listening.

  5. brad says:

    Does it matter if the nominee himself expressed a view on which is the appropriate standard?

  6. AnonForever says:

    The issue with the nomination of Goodwin Liu, which his supporters seem loathe to acknowledge, is that he himself elucidated precisely the first standard in his testimony against Justice Alito’s confirmation. He was the one sent up to say that Alito was outside the mainstream and should not be confirmed, and but not for that testimony there wouldn’t be the degree of resistance to his confirmation that there has been.

    This may be a bit unfair, but you reap what you sow with these things. For many people on the right, his testimony was unfair and suggested a belief that conservative legal principles are not just wrong but invalid and beyond the pale, and that the only proper mode of legal thought is mainline liberal legal thought and (implicitly) much else to the left of that.

  7. Stephen B says:

    I think it should be a combination of 1 and 2.

    I think its ok to vote against someone if you don’t agree with their judicial philosophy.

    However, I think whether or not the filibuster is used should be based on standard 2.

    So looking at Liu’s nomination I think it’s fine if Republicans refuse to vote for him, but I think it would be wrong for them to filibuster him.

  8. Gerard says:

    I’m not clear on one point. Are those of you who are unhappy that Obama (and Professor Liu) opposed Alito saying that they were applying the correct test as Democrats to a GOP nominee, or are you saying that Republicans should apply an incorrect test selectively to Professor Liu?

  9. Alan says:

    Maybe they’re saying that people should be treated the way they said others should be treated. So if X says that it’s legitimate to oppose nominees based on ideology, then X should be treated the way that X wanted nominees to be treated, while other nominees who hold a different view should be treated in accordance with their less partisan view. And perhaps (just perhaps) our country has an interest in making sure that no judgeship ever goes to a person who’s so partisan that he or she favors–on principle and in all cases–rejecting nominees who don’t share their views. Maybe reap-what-you-sow is the test itself.

    Just a half-thought.

  10. I don’t agree with either approach, and I don’t think either one characterizes Ed Whelan’s either. Indeed, I don’t think anyone actually subscribes to the first approach as it is articulated above. Whatever one thinks of the Liu nomination — and I’m on record saying I’d vote to confirm him — there’s little doubt that he is more liberal and has less practical experience than most of Obama’s nominees, so it’s very understandable why conservatives would be more concerned with his nomination than with others.

    As for myself, I don’t think the Senate should concern itself much at all with the judicial philosophy of judicial nominees. I think this is something that should be largely left to the President. Senate confirmation is required largely to prevent the appointment of cronies and unqualified hacks. So long as a qualified nominee has a basic understanding of what it means to be a judge, I believe the Senate should confirm them. [And just to anticipate one potential response: No, I don’t believe “a basic understanding of what it means to be a judge” is code for a particular judicial philosophy.]

    JHA