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Commentary: Judicial nominations – then and now

So President Obama has appointed UW law professor Victoria Nourse to replace retiring Judge Terence Evans on the Seventh Circuit.

Needless to say, it’s not a choice I would make. For me, the simple fact that she wrote an article in the California Law Review last year entitled “A Tale of Two Lochners,” in which she asserts that Lochner v. New York, 198 U.S. 45 (1905), was incorrectly decided, is sufficient reason for me not to like the nomination.

But, inasmuch as not a single judge on the Seventh Circuit believes Lochner was correctly decided, this is certainly no reason to oppose the nomination either.

On the contrary, she appears to be a very distinguished law professor. She teaches real substantive law courses and produces legitimate scholarship; she’s not some con artist from the critical legal studies racket. I read her article on Lochner, and she didn’t use the word “hegemony” once.

In short, she appears very well qualified for the position, and there is no reason to believe she will not make a fine judge. I look forward to meeting her.

But that last sentence bothers me: “I look forward to meeting her.”

My guess is that it bothers many of you, too.

If President Obama had nominated any of the other three candidates: U.S. District Court Judge Lynn Adelman; Milwaukee County Circuit Court Judge Richard Sankovitz; or Attorney Dean Strang; we wouldn’t be saying, “I look forward to meeting him.”

We’d all be saying, “I know him well. He’s an excellent judge/attorney. He’ll make a great addition to the Seventh Circuit.”

I’m familiar with their work, and I respect them all. I expect that every attorney in Milwaukee, whatever his or her legal philosophy, would say the same, and would have supported any of their nominations.

I’m reminded of a summer I spent 20 years ago working for a PAC in Washington, D.C. I had a great gig — defending the constitutional rights of artists to display paintings of nude women on government-owned property, and that sort of thing. Right up my alley, as you can imagine.

But the intern I shared office space with had a much different gig. Her job was to destroy U.S. District Court Judge Kenneth L. Ryskamp (S.D. Fla.), who, at the time, had been nominated to the Eleventh Circuit Court of Appeals.

She would call civil rights attorneys (for plaintiffs, keep in mind) in Miami who had appeared before him, looking for dirt. Every day, I’d hear the same complaint from her: “Every one of these attorneys tells me what a great judge he is, and what a horrible, evil person I am for trying to destroy him.”

The PAC could have concluded from this that maybe he was a great judge, and backed off; instead, they just doubled their efforts. In the end, despite the absence of support from any civil rights attorneys in Florida who were actually familiar with his work, they convinced the Senate Judiciary Committee that he was just Bull Connor with a gavel, instead of fire hoses and dogs, and he never made it to the full floor.

I was young and insensitive at the time, so I didn’t give it much thought; the nightlife in Georgetown interested me more than the reputation of some obscure Article III judge in Miami. But now, 20 years later, it bothers me to have worked for an organization that played such an ignoble role in this shameful episode in American history.

In any event, President Obama did not nominate a judge or attorney who is well-known to all of us, the way Judge Ryskamp was to the attorneys in Florida back then. No PACs will be calling up attorneys looking for dirt on her.

And we won’t get to tell underpaid PAC interns, “Adelman/Sankovitz/Strang is an excellent judge/attorney, and you should go pound sand down a rathole instead of trying to destroy the nomination!”

But I suppose that reading law review articles critical of Lochner — which is what the poor interns will be doing rather than calling us for dirt — will feel a lot like pounding sand anyway.

And so I say instead: “She appears very well qualified for the position, and there is no reason to believe she will not make a fine judge. I look forward to meeting her.”

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