Blue Monday, "Ma" Rainey edition

I don't know if Ruth, Sonia, and Elena ever visit this place, but if you do, this one's for you:

The right to "stand your ground"

Apparently, some have that right more than others.

Police in Sanford, meanwhile, said they will return the Kel-Tec 9mm pistol used to kill Trayvon Martin to George Zimmerman.

My heart goes out to the Martin family.

By any measure, it's been a tough few weeks for the rights of African Americans in this country.

Originalism

Wow.  Go read.

All hail the vegetarian state

This has to overcome my self-imposed bloggedy silence -- Justice Ginsburg is truly a national treasure.

Freedom from an intrusive government

While you can't tell the fate of the individual mandate or the ACA from the musings of a couple of justices in oral arguments, it is surely heartening that while they are troubled by the intrusive hands all over my freeeeeedooom to not have health insurance, they got no problem with strip searches for unpaid fines.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures. 

Justice Ginsburg will be 79 years young

Another example of how vast the "dime's worth of difference" is in this election -- Dahlia Lithwick points out how crucial this election is.  If a Republican wins, he will have the opportunity to turn a right-leaning Supreme Court into the most solidly conservative one in a hundred years.  If you don't like corporations being equated with "people," if you think money is not the same thing as "speech," then this election should matter very much to you.

For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right, thereby fulfilling Edwin Meese’s dream, laid out in his famous 1985 speech before the American Bar Association, of reshaping the Court around one coherent “jurisprudence of original intention.” Meese, who was then Ronald Reagan’s attorney general, wanted nine conservative constitutional originalists on the Court. He may soon get his wish. A 2008 study by Richard Posner, a federal appeals court judge, and William Landes, a law professor at the University of Chicago, examined the voting records of seventy years of Supreme Court justices in order to rank the forty-three justices who have served on the Court since 1937. They concluded that four of the five most conservative justices to serve on the Supreme Court since 1937 sit on the Supreme Court today. Justice Clarence Thomas ranked first.

Read, ya know, the whole thing.  If there is one thing both Bill Clinton and Barack Obama have failed to do in their administrations, it is matching the focus on the courts -- both the Supreme and the Appellate courts -- that Reagan and the two Bushes exhibited.  And we are a poorer, less equal, and less free as a result.

"Flat, flabby and vague"

Adam Liptak reviews the writing coming out of the Roberts court.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

And it increasingly does so at enormous length.

Brown v. Board of Education, the towering 1954 decision that held segregated public schools unconstitutional, managed to do its work in fewer than 4,000 words. When the Roberts court returned to just an aspect of the issue in 2007 in Parents Involved v. Seattle, it published some 47,000 words, enough to rival a short novel. In more routine cases, too, the court has been setting records. The median length of majority opinions reached an all-time high in the last term.

Critics of the court’s work are not primarily focused on the quality of the justices’ writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.

[...]

The court decides perhaps 75 cases a term these days, down from about 150 in the mid-1980s.

Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said.

There was a time when justices were keenly sensitive to keeping it short. Justice Lewis F. Powell Jr. wrote a memorandum to his law clerks in 1984 saying that “a frequent and justified criticism of this court is that opinions are too long” and “are overburdened with footnotes.” This can, he said, “leave lower courts and lawyers in doubt as to the law.”

These days, the writing emanating from the court can be bureaucratic and unmemorable.

Blame in part goes to the clerks who write the justices' opinions for them, but I suspect that specious reasoning -- a hallmark of this court -- leads to vague, flabby and flat opinions.

Supreme Court Update

Linda Greenhouse reviews how we are increasingly ruled by 5-4 decisions.

Almost as soon as Justice O’Connor left, for example, the court jumped into an issue she had resisted: whether school boards trying to prevent re-segregation can take race into account in student assignment plans. Despite the absence of any conflicting lower court decisions — the primary marker of a case the Supreme Court deems worthy of its attention — the court agreed to hear challenges to race-conscious plans in Louisville and Seattle. In its ruling on these cases, known collectively as Parents Involved, the court voted 5 to 4 to invalidate the plans.

The court thus began a rightward and almost entirely 5-to-4 march through its precedents that prompted Justice Stephen G. Breyer to declare from the bench on the final day of the 2006 term, “It is not often in the law that so few have so quickly changed so much.”

Read on.

Once again proving, we're in a post-racial America

Maybe his supervisor was just trying to tell him how young he looks.

Last month, for the third time and in the face of a 2006 rebuke from the United States Supreme Court, the federal appeals court in Atlanta said there were no racial overtones when a white supervisor called an adult black man “boy.”

“The usages were conversational,” the majority explained, repeating what it had told the trial court after the Supreme Court ruled, and “nonracial in context.” Even if “somehow construed as racial,” the unsigned 2-to-1 decision went on, “the comments were ambiguous stray remarks” that were not proof of employment discrimination.

Two Alabama juries had seen things differently.

They had heard testimony from another black Tyson worker, Anthony Ash, who recalled sitting in the cafeteria at lunchtime when the plant’s manager said, “Boy, you better get going.” Mr. Ash said the manager’s tone was “mean and derogatory.”

Mr. Ash’s wife was there. “He’s not a boy,” Pam Ash shot back, according to her husband. “He’s a man.”

Ms. Ash testified that the manager, Tom Hatley, “just looked at me with a smirk on his face like it was funny.”

Mr. Ash explained to the jury why the remark stung.

“You know,” he said, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

Mr. Hithon testified that Mr. Hatley had once summoned him by calling out, “Hey, boy.”

Mr. Hatley denied using the term and said he had good reasons for hiring the two white managers that had nothing to do with race.

In 2002, the first jury awarded Mr. Hithon more than $1 million, but a unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit in 2005 ordered the case retried. In the process, it made an interesting distinction.

“The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent,” the panel said. But “the use of ‘boy’ alone is not evidence of discrimination.”

Even the Roberts Court wasn't buying that one and sent it back.

The Supreme Court unanimously reversed that decision, suggesting that the real world was the right modifier. “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,” the justices said in an unsigned opinion.

And still, the Appeals court overturned the jury verdict awarding the man $1 million, twice.

Supremely political

Adam Liptak looks at how Supreme Court Justices have increasingly hired clerks exclusively from one end of the political spectrum or the other, depending on their own ideological leanings.

This is important because clerks have increased their influence over the Court's decisions in recent years.

“The reason why the public thinks so much of the justices,” said Justice Louis D. Brandeis, who served from 1916 to 1939, “is that they are almost the only people in Washington who do their own work.”

These days, respect for the court must be grounded on other factors. Opinion writing is largely delegated to clerks, and Chief Justice Rehnquist candidly acknowledged that the justices’ chambers were “a collection of nine autonomous opinion-writing bureaus.”

With the departure of Justice Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks.

A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.

“We have created an institutional situation where 26-year-olds are being given humongous legal authority in the actual wording of decisions, the actual compositional choices,” Professor Garrow said.

The justices forbid their current clerks to talk to the press, and most former clerks refuse to discuss the work they performed for living justices in any detail. But Artemus Ward and David L. Weiden received responses from 122 former clerks to a question concerning the drafting of opinions for their 2006 book “Sorcerers’ Apprentices.” Thirty percent of the clerks said their drafts had been issued without modification at least some of the time.

Reviewing the book in The New Republic, Judge Posner, a close student of the court, wrote that “probably more than half the written output of the court is clerk-authored.”

Kick the poor

Though mind-numbingly dull, there were some high moments in todays edition of "Kagan: Confirmation Conflation!" Such as this moment when learn that Senator Kyle really fucking hates the poor, the disenfranchised, the defenseless, etc.

But there are some gems to be gleaned from some of the mini-speeches senators have delivered. Greg Sargent, for example, highlighted some fascinating comments from Senate Minority Whip Jon Kyl (R.), in which the right-wing Arizonan took on the very concept of judges looking out for the defenseless.

"Judge Sotomayor explicitly rejected the 'empathy' standard espoused by President Obama -- a standard where 'legal process alone' is deemed insufficient to decide the so-called 'hard cases'; a standard where the 'critical ingredient is supplied by what is in the judge's heart.'

"Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have 'a keen understanding of how the law affects the daily lives of the American people ... and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.' [...]

"Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog."

I suppose I'm not the target audience here, but this reads like praise to me. President Obama thinks jurists should "a keen understanding of how the law affects the daily lives of the American people"? That sounds like a principle with real value. "Powerful interests must not be allowed to drown out the voices of ordinary citizens"? Sign me up. Looking at the courts as champions of those "unprotected by every other organ of government"? Preach it, brother. Thurgood Marshall had an "unshakable determination to protect the underdog"? No wonder he's a national hero.

Except, of course, Kyl meant all of this as a condemnation. What I perceive as compliments were intended as derision. Kyl was repackaging progressive principles and commitments to protect the defenseless as concepts to be ignored and rejected. Indeed, the subtext wasn't subtle -- to embrace these ideas makes one unsuitable for the bench, at least as far Kyl is concerned.

Now you can see why a Republican senator's apology to BP would fail to really have any consequences for him. Comments like these reflect Congressional Republicans' world view.

Supreme Court requirements

John Cole has compiled a useful list of the requirements that an aspiring Supreme Court justice must now meet.

Not Harriet Miers

Will Elena Kegan be a good justice? Yesterday I was not so sure, but this reminder is encouraging. Nevertheless, whether you think she will successfully halt the Court's drift to the right or not, comparing her to Harriet Miers is just dumb. Jane Hamsher's slide into irrelevancy is a sad sight to see.

Kagan

I have to say I'm sympathetic with this view.

Apparently, Elena Kagan will be nominated for the Supreme Court. I will go into more detail about this later, but there shouldn’t be any sugarcoating — it’s a poor choice. One way of seeing this is to examine Marty Peretz’s attempted defense. Boil off the usual add homienems and you’re left with no actual real credentials for the position attributed to Kagan. He doesn’t try to argue that Kagan — who has no judicial experience, very limited political experience, and no record of influential scholarship — is a better choice than Diane Wood or Sidney Thomas, because the proposition is pretty much indefensible. When you’re reduced to noting that a prospective nominee for the highest court in the land is a “brilliant conversationalist” and that other Harvardites think she’s good people. one has pretty much conceded that the pick is Ivy League nepotism of the worst sort. An the idea that the complete absence of evidence about her constitutional vision is no big deal is something that’s easy for someone who will never be denied an abortion, be discriminated against by an employer, etc. to say, but for people who actually take such things seriously it’s rather important.

I'm not surprised by the choice, but if we thought the Obama administration was going to stop the Court's long drift to the right, we're likely to be disappointed. Who knows, though (assuming she's confirmed), maybe she'll show more progressive values than her centrist credentials would predict.

Constitutional scholar

Linda Greenhouse's column today, on her interpretation of Pres. Obama's "activist judges" remarks on Air Force One recently, is way too nuanced and interesting to be excerpted, but...whatever.

In that 2001 Chicago radio discussion, State Senator Obama observed that although people often described the Warren court as radical, “it wasn’t that radical.”

He continued: “It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way — that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you; it says what the federal government can’t do to you; but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that.”

When the audio of those remarks suddenly and mysteriously appeared on YouTube during the 2008 presidential campaign, the right-wing blogosphere echoed with faux shockwaves along the lines of: “Obama says Warren court not radical enough.”

It is certainly possible to take issue with the president’s view of civil rights history. In fact, the civil rights movement was not fixated solely on the courts; a great deal of legislative work went into achieving such landmark statutes as the Civil Rights Act and the Voting Rights Act, which the Supreme Court had the wisdom to uphold against non-trivial challenges. The progress of those years might be seen in retrospect as a rare and indispensable partnership among the three branches of government.

In any event, those days are gone, and the next chapter of Supreme Court history is about to unfold. The president doesn’t think the Warren court was insufficiently radical, and he doesn’t think that all judicial activism is the same. That’s his version of the framers’ original intent, and at this moment, his view is the one that counts.

Though, really, read the whole thing. I have no clue as to who Obama will choose to replace Justice Stevens. I am confident, though, he'll choose someone who shares his overall constitution (pun intended) -- a non-ideological progressive (yes, there are such things), pragmatic, with an un-romantic view of the role of the Court. Not everyone on the left will like him or her (and, predictably, no on the right will), but I trust he'll make a solid choice.

Antonin Alfalfa

Earlier today, we saw an example of Scalia using his own personal history -- and empathy for his own preferred Bronze Age religious symbolism -- to argue that of course the families of Jews killed in combat would have no problem with a cross on their loved one's tombstone. Now we get an example of something that I have never seen or heard addressed. Scalia is considered an intellectual lion on the Supreme Court. Today we see that besides the fact that his "intellectualism" rests on a single chord, he's just not very interested in learning about the subjects he will be passing judgment on.

As expected, this week's Supreme Court oral arguments on Monsanto had much less to do with the pros and cons of genetically modified (GM) seeds than it did with the ins and outs of environmental regulation.

On that point, the justices who actually spoke seemed fairly skeptical of the Ninth Circuit's decision to completely halt the sale of Monsanto's Roundup Ready alfalfa seed, rather than just sending the question back to USDA to re-decide.

That said, we did get some insight into how the justices are thinking about GM agriculture. In particular, we learned that Antonin Scalia does not think that cross contamination between conventional/organic crops and GM crops is "the end of the world."

To which the attorney for Geertson Seed Farms, one of the plaintiffs, offered the entirely appropriate and accurate rejoinder: "I don't think we bore an end-of-the-world burden, Justice Scalia."

At one point, Justice Sotomayor did jump in with the fact-based question of how GM contamination could reasonably be expected to occur out in the fields. She asked an attorney whether farmers in the U.S. often rent equipment from vendors to cut their fields. The suggestion is that farmers have a legitimate worry that tools used to cut a Roundup Ready alfalfa crop on one day might leave behind some modified seeds in a conventional field the next. Scalia admitted that sure, perhaps, that could, in theory, happen. And perhaps, sure, those farmers would find their crops unsellable in GM-unfriendly Europe. But here, Scalia was convinced that the market would solve things! In every agrarian nook and cranny of the United States! "You don't think that the free market would produce companies that advertise 'We only cut natural seed fields?'" Scalia went on to answer his own question. "I'm sure it would happen."

Yes, the riches that lie out there for farm-related support industries is massive, so competitors would sprout up like...alfalfa plants in no time.

Sotomayor obviously did her homework. Not only do farmers rent their equipment, carrying all sorts of detritus to their fields, if a modified crop from one of those seeds does indeed grow, the farmer can be liable to copyright infringement suits brought by Monsanto if the farmer then saves and replants or sells the resulting seeds from the contaminated crop the farmer harvests.

Scalia could care less, brushing off a significant issue with a "the free market will solve it" laziness that would be shocking if it weren't so typical of this incurious, pompous ass.

Activist judge

I'm certain that Justice Scalia can point to the specific passage in the Constitution that lays out the "Founders' Intent" on this one.

Peter J. Eliasberg, a lawyer with the American Civil Liberties Union of Southern California, said many Jewish war veterans would not want to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Antonin Scalia responded that the symbol in the context of a war memorial carried a more general meaning. “The cross is the most common symbol of the resting place of the dead,” he said.

Mr. Eliasberg said, “There is never a cross on the tombstone of a Jew.”

Justice Scalia, who is usually jovial even in disagreement, turned angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

And it would also be outrageous to conclude that Scalia's Catholicism has no bearing on his decisions whatsoever. Empathy be damned.

Progressive jurists need not apply

Dahlia Lithwick on how conservatives control the judicial nomination process.

I have also been asked how it's possible that both Garland and Solicitor General Elena Kagan have managed to make it through prestigious professional careers without offending, insulting, or alienating a soul. Good genes? Gentle hearts? Raised by tender Buddhists in secret underground labs?

These are good questions to which I have no answers. But the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration. Let me be clear that Garland, Kagan, and Diane Wood all have admirers and enthusiasts. But for a generation of law students that has grown up revering American Constitution Society stalwarts such as Dawn Johnsen, Eric Holder, Pamela Karlan, John Payton, Laurence Tribe, Goodwin Liu, David Cole, and my own partner in crime Walter Dellinger, among others, the absence of most of these names from even the long shortlist is demoralizing.

They understand that it's a foregone conclusion that there will be no risky pick for the court. They just aren't sure what makes their heroes so risky. Supreme Court savant Tom Goldstein has laid out better than anybody why the Obama White House has no interest in picking a fight about the Stevens seat this summer. Emily Bazelon has argued that the White House may not even have the stomach to tap Diane Wood if it means offering up red meat to antiabortion groups. Liz Cheney contends that Elena Kagan's participation in a broad national effort to ban military recruiters from campuses because of "don't ask, don't tell" makes her a "radical." By calling even Obama's moderate shortlisters unhinged, conservative judicial activists have knocked any genuine liberal out of play in advance of the game.

This has political implications, certainly, but my concern here is with the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House. Look at the speakers list of the last national Federalist Society conference and tell me the word filibuster would have been raised if John McCain had tapped most of them. Not likely, because they're all perceived as smart, well-respected constitutional scholars and judges.

So can someone please explain to America's progressive law students why most of the liberal speakers at their national conference are already confirmation war punch lines? Is there some kind of false equivalency between the two groups that makes ACS "outside the mainstream" while the Federalist Society not only represents the mainstream but renders anyone outside of it hysterical? Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?

The national debate about the courts has become so wildly unbalanced in recent years that a whole generation of young progressive law students has watched the teachers they revere sent up as constitutional buffoons. Whether it's Harold Koh (trashed in the media on phony charges of wanting to bring shariah law to the United States) or Goodwin Liu (torn apart with cartoonish claims that he wants to reshape all of America using the Constitution as his weapon of choice), these nominees are revered by their students precisely because they have been willing to talk and write in bold ways about liberal jurisprudence. That shouldn't be a disqualifying proposition, just as Justice Antonin Scalia's conservative jurisprudence was not.

Conservative judicial activists have been emboldened to take the position that any liberal who has ever offered a strong and persuasive defense of a nonoriginalist, nontextualist methodology is both dangerous and unserious. The lesson for many progressives is that the only way to be taken seriously as a viable nominee is to be either perfectly opaque or perfectly silent. I don't know how many times you need to see your heroes lampooned as crazies on Fox News before you begin to see the value in never speaking or writing another controversial word. It's not clear how it serves the country or the judiciary to have one whole side of the debate grow up cowed and embarrassed to voice their views.

The other implication is that the Supreme Court and public opinion on many, many issues are moving in opposite directions.

Ben Domenech is into diapers and baby powder

Or so I've heard.

Make no mistake, this is not just an effort to humiliate a potential Supreme Court nominee, it's also a calculated -- if rather pathetic -- attempt to infuse social conservative emotion into the process. That emotion has been lacking lately; "reverse racism" wasn't the powerful punch creeps like Gingrich thought it would be in opposing Sotomayor. But maybe the intersection of "activist judge" and "gay marriage in the courts" will gain more traction among the religious base of the Republican party.

Lines in the sand

It seems that Republicans in the Senate want to make sure that they set the boundaries for judicial picks.

“I promise a fair hearing, and I promise that the nominee will have a chance to explain any criticisms that are raised,” Mr. Sessions said on NBC’s “Meet the Press” on Sunday. “But if a nominee is one that is so activist like Goodwin Liu that’s just been nominated — who’s written that, that the Constitution requires welfare and health care to individuals — if it’s somebody like that, clearly outside the mainstream, then I think every power should be utilized to protect the Constitution. We’ll not confirm somebody like that.”

Supporters of Mr. Liu, nominated for the United States Court of Appeals for the Ninth Circuit, in San Francisco, argue that critics have exaggerated his writings to portray him as an ideologue. A 2008 Stanford Law Review article by Mr. Liu about welfare rights, which Mr. Sessions referred to, focused on small-scale disputes over Congressionally enacted programs — like “invalidating statutory eligibility requirements” — not creating welfare programs based on judicial fiat.

Still, Mr. Liu has been more open in expressing liberal political views — like support for affirmative action and same-sex marriage — than Mr. Obama’s other appeals court nominees. In that sense, he is arguably the first Obama nominee who is the equivalent of some of the most controversial nominees by Mr. Bush, several of whom Democrats delayed or blocked.

Mr. Liu also earned conservative enmity by criticizing Mr. Bush’s two Supreme Court appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. And a book he co-wrote argues that judges should interpret the Constitution “in light of the concerns, conditions and evolving norms of our society” — an approach some conservatives say enables judges to impose their own political values.

Born to Taiwanese immigrants, Mr. Liu, 39, earned degrees from Stanford and Yale Law School. A Rhodes scholar, he was a Supreme Court clerk and worked briefly at a law firm before becoming a law professor.

The Obama administration sought to focus on Mr. Liu’s biography and the fact that he would be the only Asian-American judge on the federals appeals bench. But Republicans twice managed to delay his hearing, giving conservatives extra time to mine his record for ammunition and build opposition.

M. Edward Whelan III, a former Bush administration lawyer who analyzes Democratic nominees’ legal writings for National Review, recently wrote that Mr. Liu’s record “represents a volatile mix of aggressive left-wing ideology and raw inexperience.”

And in a recent memorandum to “the conservative movement,” more than a dozen conservative leaders — including Curt Levey of the Committee for Justice, Gary Bauer of American Values and Wendy Wright of Concerned Women for America — characterized Mr. Liu as “unfit” to be a judge because he had an “extreme liberal agenda that he would impose from the bench.”

Mr. Liu’s defenders object to that characterization. They pointed to statements of support from a handful of other conservative figures, including several who called him open-minded because he supports allowing students in low-quality public schools to use vouchers to study elsewhere.

Kenneth W. Starr, the dean of Pepperdine’s law school and former Whitewater prosecutor, co-wrote a letter saying Mr. Liu should be confirmed because he “is a person of great intellect, accomplishment and integrity, and he is exceptionally well-qualified to serve on the court of appeals.”

So, if support for same-sex marriage (in the 9th Circuit, no less) is an example of "liberal overreach," it's going to be an interesting debate over a Supreme Court nominee and a reawakening of the Culture Wars. Yippee.