The Senate confirmed Elena Kagan last week, making her President Barack Obama’s second Supreme Court nominee to reach the bench.
But her appointment may have come at a price. Kagan was confirmed by a vote of 63-37, failing to gain the support of one Democrat and all but five Republicans. She received the fewest votes of any Democratic Supreme Court nominee in American history.
Kagan’s rocky Senate evaluation could be bad news for several other contested court nominees currently stranded in legislative limbo.
“The Democrats are really scared over what’s going to happen in the election. And the most controversial ones [court nominees] they have, like [Goodwin] Liu and [Robert] Chatigny in particular, I think they may be afraid to push them through because they don’t want another controversy,” Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, told The Daily Caller.
Goodwin Liu, a professor at the University of California at Berkeley School of Law, was nominated by Obama for the Ninth Circuit Court of Appeals in March. Liu has faced heated criticism from Senate Republicans who charge that he’s inexperienced, having only argued one case before a court.
Republicans also branded Liu a left-wing extremist. Liu has written that the courts need to recognize “constitutional welfare rights” that entitle Americans to material goods such as health care and housing. He’s also been harshly critical of conservative Supreme Court Justices John Roberts and Samuel Alito. Alabama Republican Sen. Jeff Sessions called Liu “the very vanguard of what I would call intellectual judicial activism.”
“[Liu] very clearly takes the position that the Constitution and its provisions are something that are just in the way of the kind of progressive positions he wants to push,” said von Spakovsky.
Republican criticism of Liu intensified during his confirmation hearings when he failed to submit 117 of his speeches and writings to the Senate Judiciary Committee for review.
Robert Chatigny, nominated for the Second Circuit Court of Appeals, could pose an even more serious problem for election-wary Democrats. Chatigny has faced steep criticism for his role in trying to prevent the execution of Connecticut serial killer Michael Ross.
Determined to save Ross’ life even though the killer himself wanted to die, Chatigny called Ross’ lawyer, T.R. Paulding, and threatened to go after Paulding’s law license. Many Connecticut Republicans later called for Chatigny, then a Hartford judge, to be impeached.
Chatigny told senators that he regretted his conduct toward Paulding. “My choice of words was terrible. It’s a situation where I believed then and believe now that I did the right thing but went about it the wrong way,” he said.
Chatigny also ruled that Connecticut’s sex offender registry was unconstitutional, a decision that the state’s attorney general, Richard Blumenthal, called “dead wrong and dangerous.” The Supreme Court later overruled Chatigny unanimously.
Both senators from Connecticut, Joe Lieberman and Chris Dodd, support Chatigny’s confirmation.
Liu and Chatigny were both approved by the Senate Judiciary Committee on party-line votes. But Senate Republicans invoked a procedural rule before the August recess that effectively derailed the confirmations of several nominees, including Liu and Chatigny. Obama will now have to decide whether to renominate both judges.
Other casualties of the Republican maneuver include federal magistrate Edward Chen and Rhode Island litigator Jack McConnell. Republicans attacked Chen for his former employment by the ACLU. McConnell came under fire for his litigation against tobacco and paint companies.
Spakovsky said Senate Democrats often get spooked over liberal judicial nominees.
He pointed to Dawn Johnsen, nominated by Obama to head up the powerful Office of Legal Counsel last year. Johnsen came under scrutiny for her strong pro-abortion views and criticisms of the Bush administration.
Johnsen made it out of the Judiciary Committee, but never had a confirmation vote. Obama declined to renominate her.
Spakovsky said it’s unlikely any contentious nominees would see votes during the lame duck session after the midterm election. It’s even less likely they’ll get a shot before the election.
“Even though [Senate Democrats] have the votes to basically confirm anyone, if anyone generates enough controversy, they may not get through,” he said.