President Obama's penchant for older judges scuttled Goodwin Liu.

President Obama's penchant for older judges scuttled Goodwin Liu.

President Obama's penchant for older judges scuttled Goodwin Liu.

The law, lawyers, and the court.
May 26 2011 6:04 PM

Not Getting Any Younger

President Obama's penchant for older judges scuttled Goodwin Liu.

Goodwin Liu. Click image to expand.
Goodwin Liu

Goodwin Liu is out. Nominated to the 9th Circuit Court of Appeals more than a year ago, Liu was filibustered by Senate Republicans. This week, he asked President Obama to withdraw his judicial nomination. Critics in progressive circles have charged Republicans with hypocrisy over use of the filibuster. But Liu's nomination was always vulnerable to obstruction, and not only because of his political or judicial outlook. His age was a crucial factor. Had Liu been 59 years old, instead of 39, he would not have been filibustered.

Consider that Liu was the President's youngest judicial nominee—younger than the next oldest nominee by nearly four years. And given his relative youth, he would have been an obvious candidate for elevation to the Supreme Court. Even if he weren't elevated, he might well have spent the next 30 to 40 years serving on the 9th Circuit.

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Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45. On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush. But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans. Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees. By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats. For decades now, and as a matter of strategy, Republicans have been nominating younger judges. The real question is why Democrats have been doing just the opposite.

What Democrats seem to have missed is that judicial age matters. The list of the 50 youngest appellate judges appointed since the Reagan presidency—all nominated under the age of 45—reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few. That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42). By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.

That fact was not lost on Liu's opponents. Republican senators immediately pointed to Liu's youth and lack of experience as a disqualifying factor, even though they had previously defended similarly inexperienced Republican nominees. During Brett Kavanaugh's nomination, Sen. Orrin Hatch, R-Utah, actually lauded his youth as a plus: "There are many examples of judges who were appointed at an age similar to Mr. Kavanaugh, who is 39 years old, and have had illustrious careers." He noted that all three judges for whom Kavanaugh had clerked were themselves in their 30s when nominated to the federal bench, including Justice Anthony Kennedy, who was even younger than Liu when nominated at age 38 to the 9th Circuit Court of Appeals. Sen. Hatch concluded, "I think many of my colleagues would agree that age is not a factor in public service, other than the constitutional requirements."

But when it came time to apply that same generous standard to Liu, Hatch balked. Noting that the ABA had unanimously rated Liu as well qualified, Hatch said: "That is more than a little baffling since the ABA's own criteria state that nominees should have at least 12 years of actual law practice and substantial trial experience as a lawyer or trial judge. Professor Liu has none of that."

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Youth became a disqualifying factor in Goodwin Liu's case precisely because it made him such a strong candidate for eventual elevation to the high court. "The bigger concern is that he'll wind up on the Supreme Court," Curt Levey of the conservative Committee for Justice told the Associated Press. And in the National Review Online, Ed Whelan explicitly noted Liu's age, denounced his inexperience, and suggested that Liu was a "plotting his path to a Ninth Circuit seat as a stepping-stone to his goal of a Supreme Court nomination."

Nor did this fast-track to the court for young judges go undetected on the left. As Adam Serwer already noted, "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."

Republicans long ago recognized the fact that younger judges can be intellectual path-breakers and aggressive leaders, which is why they tap them by the handful. If the president is going to nominate younger judges—who are certain to be targeted for filibusters—it makes sense to nominate more of them at the same time. As the Senate Republicans just demonstrated last week, it is not all that difficult to filibuster a single, relatively inexperienced and controversial candidate. But it is much more difficult to filibuster a dozen of them.

Recall the judges filibustered by the Democrats in George W. Bush's second term, leading up to the compromise reached by the Gang of 14 in 2005. Democrats considered these nominees to be extremely controversial, but they were unable to filibuster all of them. For example, had they been isolated cases, it is doubtful that Janice Rogers Brown, William Pryor, or Priscilla Owen would have been confirmed. But there was safety in numbers. With a large group of controversial nominees, some of them were bound to make it.

The same is true today. But so far, the Obama administration has not adopted the strategy of the last three Republican administrations. Instead of nominating more judges with profiles like Goodwin Liu's—young, smart, talented, and politically engaged—the president has opted largely for nominees who are older, more experienced, and well-known to the legal establishments in their home states. They tend to be state court or federal district court judges, federal prosecutors, or accomplished private practitioners. Even when subject to unprecedented delays, most of them have passed through Senate confirmation with overwhelming majorities or even unanimous votes. Taken individually, they are almost entirely unobjectionable.

But as a group, we might still wonder whether something is missing from this pool. Goodwin Liu was controversial because he represented a younger generation, the potential of new leadership on the 9th Circuit, and a bolder vision for the future of the federal judiciary. It was precisely because he was so different from the other nominees that he drew so much attention, and his relative youth was a critical component of that. Because Liu looked like a lightning rod, it was always unlikely that his nomination would succeed. Instead of focusing their attention solely on the Republicans who blocked him, progressives who are upset about Liu's defeat would do better to ask why his nomination was an outlier for this administration. They should be asking: Why aren't there lots more like Goodwin Liu?