Obama Nominates Alito Foe to Appeals Court

By Washington Post, Washington Post - February 25, 2010

President Obama on Wednesday nominated to the federal bench a California law professor who has criticized conservative legal theories and strongly opposed Supreme Court Justice Samuel A. Alito Jr.'s nomination.

The selection of Goodwin Liu, who teaches at the University of California at Berkeley, for the U.S. Court of Appeals for the 9th Circuit was announced as a group of liberal law professors urged Obama to be more aggressive in reshaping the judiciary by stepping up the pace of progressive nominations.

In a letter delivered to the White House on Wednesday afternoon, the 11 professors take Obama to task for not making transformation of the federal bench a priority the way President George W. Bush did.

"They have been playing it a little too carefully," said Geoffrey Stone, a law professor and former Obama colleague from the University of Chicago, who signed the letter. "This administration has been very cautious in terms of nominating people who are in any way subject to attack from the right. We want to make sure that he's willing to take some risks."

Stone called Liu's selection "a good sign. But it's one appointment."

In the letter, the professors note that since taking office, Obama has nominated 43 federal judges, compared with 89 nominations by Bush at the same point in his term.

"We write out of a growing concern that your Administration must act with far more energy and dispatch," the letter says.

The professors write that "after decades of Republican appointments of conservative federal judges . . . you now have an historic opportunity to reestablish our nation's commitment to the core values of our Constitution."

White House officials blamed Republican obstructionism for much of the delay in moving nominations through Congress.

"The president has nominated a steady stream of well-qualified judicial candidates from diverse backgrounds who will respect the rule of law and understand how the law impacts Americans' daily lives," said assistant press secretary Ben LaBolt. "The president has moved swiftly to fill vacancies considered to be judicial emergencies, and the pace of nominations overall has significantly increased in the new year. When brought to a floor vote, the president's nominees have passed with strong bipartisan support."

Former U.S. solicitor general Walter E. Dellinger III, who served under President Bill Clinton, called Liu "a superb academic scholar" and said the pick proves that Obama "is seeking judges of truly exceptional ability."

Liu, 39, testified against Alito at his hearings in 2006, arguing against his elevation to the nation's top court on the grounds that his appellate opinions revealed "troubling" issues.

Liu also co-wrote the book "Keeping Faith With the Constitution," which criticized modern conservative legal theories. One review said the book describes "the flaws and inconsistencies that plague originalism."

Curt Levey, the executive director of the conservative Committee for Justice, called Liu one of the leading "radical legal theorists out there."

"There's a lot of things in there that really get under the skin of people like me who believe in strict construction," Levey said of Liu's book. "Basically all the things that drive conservatives crazy."

But Liu's nomination comes with some conservative endorsements, including that of Clint Bolick, a well-known lawyer and a director of the Goldwater Institute in Phoenix.

"I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty," Bolick wrote last month to senators, supporting Liu's expected nomination.

Wednesday, Obama also nominated U.S. District Judge Robert N. Chatigny from Connecticut to the U.S. Court of Appeals for the 2nd Circuit.

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