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June 17, 2011



Prof Koh is correct that the governmental attorney faces a dilemma between representing his administration’s position and following his conscious. This observation is not ground breaking. Let’s remember that an attorney is obligated to zealously represent his client; it is the attorney’s ethical obligation. At the higher levels of governmental legal representation most attorneys are political appointments or are hired as a result of political patronage; to a certain degree politics are an inherent part of the legal representation.

The nominations of Liu and Johnsen should have been fully considered because both candidates are qualified for their respective positions. Their nominations as well as all others are considered in a political forum. Politics are at the heart of the nomination process. One person might believe that the Republican’s roadblock to the Liu and Johnsen nomination represented a failure of the system. This conclusion is not supported by well settled American political theory. The rejection of these appointments was the results of the checks and balances inherent in the nomination approval process. Democracy if it is to be effective and fair must be administered from all political spectrums.


I hesitate.....but here goes...

I would guess that many of those 14 Senators, including those who supported Liu, would disagree with you. There are those who believe Lie behaved imprudently and injudiciously over the last several years...years when it was clear he was on a track for a federal judicial appointment. And I would guess that those of the "Gang" who did not support a vote on Liu's nomination did not believe he fit the criteria for a straight up or down vote; criteria that was the basis of their pact.

Finally, isn't it up to the Senate itself, particularly those 14 Senators, to conduct their business as they see fit? In any event, seeing the lust for "payback" on a site as sophisticated as this doesn't bode well for the future of civil debate or otherwise addressing the huge banquet of intractable problems we face.

My only point about Bork was to try to point out that the fixation on "payback" has led and will continue to foster a never ending cycle of revenge seeking that reminds one of watching "The Godfather" trilogy.

BTW.....I concede it is likely that Obama has a very good chance at winning reelection (despite the fact that history indicates otherwise).....but it is unbecoming and presumptuous of his supporters to presume and pronounce it......


"Both parties need to grow up and reject nominees only if they are truly incapable"

That sounds all well and good, but sadly that will likely never happen...Yes, democrats blocked some of Bush's nominees, but please Google "Clinton judicial appointment controversies"..Over 40 of his judicial nominees failed for various reasons..Also, Clinton had to seek Hatch's blessing to even nominate Ruth Bader Ginsburg...Clinton gave Hatch a list of nominees, and Ginsburg was way down on the list...Ginsburg probably wasn't even in Clinton's top 10...

As far as Mr. Bork, that is a classic conservative canard..Mr Bork had his FULL senate vote, 6 republicans voted NO on his confirmation....Bork left a paper trail a mile wide and a mountain high, he was an unapologetic right wing idealogue....He was not fit for a SCOTUS appointment....


Rick, this is not solely a Republican tactic. Democrats did the same thing to many of George W. Bush's judicial nominees, including the eminently qualified Miguel Estrada.

There should not be any payback for any of this behavior. Both parties need to grow up and reject nominees only if they are truly incapable of doing the job.



I don't know how long you've followed the confirmation processes of federal judicial appointments by the Senate, but as to the Democrat Party extracting "payback"for Professor Liu.....there are those who might recall Judge Bork's confirmation process at your obvious frustration....


All i ask is for Democrats to one day payback republicans for what they did to Goodwin Liu...

Since the Gang of 14 Compromise no longer applies, democrats owe the republicans payback for Liu, (and probably others) by the time Obama leaves office in Jan. 2017...

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