Wednesday, March 18, 2009

Ninth Circuit Going to the Liu?

Law students generally don't get a chance to see the Recorder, so I thought I'd point out an article that may be of interest (it is available online too, but for subscribers only [EDIT: Patrick provides a link]). The Ninth Circuit currently has two vacancies--one seat transplanted from the D.C. Circuit (which is considered a "Calfornia slot"), and a second that is actually a disputed seat between California and Idaho.

So whose name is the first brought up by the Recorder as a "likely aspirant" for the vacancy? None other than Boalt's own Goodwin Liu. Could Prof. Liu really become a Ninth Circuit judge at the tender age of 38? I don't think anyone doubts his intellectual ability, and he certainly has the credentials. Having been in a seminar of his a few years back, I can vouch for his intellectual curiosity, willingness to countenance all sides of a debate, and a patient temperament well suited to the judiciary (he would be a welcome balance to fiery personalities like Kozinski or Reinhardt).

This begs the question, though, as to whether he could be confirmed. It is not just that Prof. Liu has very progressive views on controversial topics (including race and education)--it's that he has written widely on these views, and has often been quoted in newspapers, legal publications and on television. He also testified against the confirmation of Justice Alito. While I believe Prof. Liu would be a cautious and thoughtful judge, it is easy to imagine conservatives making an example out of someone with his track record and paper trail.

Which is why, if Liu truly does want to be a judge, now may be the time to go for it. Despite (or maybe because of) the current economic climate, Democrats' political capital will never be higher, and so now would seem to be Liu's best chance for confirmation. Not to mention that if he becomes a judge in the next couple years, his government pension will kick in when he is only in his mid-fifties.

The Recorder does point out that current district court judges are the most likely to be appointed, so it is difficult to say at this point whether Liu truly is a potential candidate. Irregardless, I hope Liu stays at Boalt, and all the better if it is in the same role as Prof./Judge Fletcher.

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Blogger Patrick said...

Also find discussion about this in an article at today's

3/18/2009 12:40 PM  
Blogger Max Power said...

Ah, thank you Patrick. It is actually the exact same article. Glad you can get it for free. I also want to call attention to this paragraph:

"Among other factors, candidates like Liu and Streeter would add to the diversity quotient on the federal bench. . . . [T]here are no Asian-Americans among active appeals court judges nationwide. The last on the 9th Circuit was Judge Wallace Tashima, who is now on senior status."

3/18/2009 12:44 PM  
Anonymous Anonymous said...

Max Power: Why is that important?

The Ninth Circuit has had many Asian judges (Choy, Tang, and Tashima), so it's not like the White House has been invidiously discriminating against Asian judges.

Would you have been pleased if G.W. Bush had appointed Yoo to the Ninth like he appointed Bybee?

3/18/2009 1:46 PM  
Anonymous Anonymous said...

Not sure if three constitutes "many", especially given the population. And two of the three are dead, and have been so for quite some time.

3/18/2009 2:06 PM  
Blogger Max Power said...

No, I don't want Yoo on the Ninth Circuit. I want him on the Supreme Court.

This post was about whether Liu may get nominated and confirmed. I may or may not care about the lack of Asian-Americans on the bench---but I bet Obama cares. That's why the Recorder wrote that paragraph, and that's why I quoted it.

3/18/2009 2:28 PM  
Anonymous Anonymous said...

Irregardless? Really?

3/18/2009 2:45 PM  
Anonymous Anonymous said...

Uh oh, you just said "begs the question." Watch out, the language snobs are on their way.

3/18/2009 2:45 PM  
Anonymous Anonymous said...

don't misuse "begs the question" around Armen once he's had too many expressos -- he really loses it.

3/18/2009 3:23 PM  
Blogger Dan said...

Here's the thing with irregardless: it is obviously not a word. BUT, I have heard not one, not two, but THREE Boalt Hall professors use it. This has prompted me and some friends to start using it, at first ironically, but now just out of habit.


This is the danger of playfully using "irregardless."

Also, I remember the day I fist used "begs the question" on this blog. I call it "the day the music died."

3/18/2009 3:42 PM  
Blogger Patrick said...

You didn't "use" the phrase, Dan. You misused it.

As your mod-mate and brethren son of the intermountain west, I died a little inside on that day, too. :)

3/18/2009 3:46 PM  
Blogger Dan said...

Ah, apparently we played out the irregardless debacle on the last post. Sorry I missed that. I still say it's not a word, and no amount of "dictionaries" is going to convince me otherwise.

3/18/2009 3:49 PM  
Anonymous Anonymous said...

what does it mean to have a disputed seat between california and idaho?

3/18/2009 4:00 PM  
Blogger Armen said...

4:00, officially, under 28 U.S.C. § 44(c), "In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state in that circuit." Unofficially, each of the Circuit Judgeships are divided among the States (and Puerto Rico?) in the Senate for such things as blue slips, etc. When Judge Trott (a Californian) went senior status, President Bush nominated N. Randy Smith of Idaho. Senator Feinstein balked. Judge Smith is now on the 9th because he was renominated when a judge from Idaho went senior.

3/18/2009 4:23 PM  
Blogger Max Power said...

And won't that State's senators get to make recommendations to Obama? I don't know how good Liu's Idaho connections are.

3/18/2009 4:35 PM  
Anonymous Anonymous said...

It isn't that hard people. There are many phrases that are interchangeable with "raises the question." There is only one commonly used phrase for the particular logical fallacy that is question begging. And don't start with the evolving usage nonsense. Sure, we can say "green" when we mean "blue" but we already have "blue."

3/18/2009 5:07 PM  
Anonymous Anonymous said...

On Armen's comment about Judge Trott and Idaho, the history is a bit more complicated. Trott was a Californian; he was a prosecutor in California for many years. After being appointed to the federal bench, he decided to locate his chambers in Idaho. That upset those in Idaho, who saw him as a transplant, not as a judge properly appointed to the circuit from Idaho. That helps explain the tussle when Trott took senior status and his shoes were filled.

3/18/2009 8:02 PM  
Anonymous Anonymous said...

Irregardless! Irregardless of Liu's appointment, he has already decided not to hire Boalties as clerks because of their repeated use of the word "irregardless" in their Con Law exams. E.g. "Irregardless of the Executive privilege, John Yoo's legal memos are in grave derogation of established legal principles."

Now THAT can't go in a bench memo.

3/18/2009 8:10 PM  
Anonymous Anonymous said...

irrespective of irregardless, it'd be great if prof. liu were on the bench. i took his class during my time at boalt, and even though he's progressive, i personally came away with a better understanding of both sides of the con law issues. sure he has his own views (don't we all), but he was open to all ideas. hopefully, conservatives will see that.

3/20/2009 7:34 AM  
Anonymous Anonymous said...

irregardless? ouch

9/30/2009 9:57 AM  

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