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One Year and Waiting -- The Nomination of Edward M. Chen

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In August 2009, President Obama nominated U.S. Magistrate Judge Edward M. Chen to the federal bench in San Francisco. Over a year later, his nomination remains stalled amid Republican opposition.

It's easy to see why Judge Chen is a tantalizingly easy target: For 16 years, he served as an ACLU staff attorney taking on causes that are anathema to conservatives. He has also made public statements that earned the ire of the conservative blogosphere. For example, in the immediate aftermath of September 11, he said that he had a "sickening feeling in [his] stomach" that racism and nativism would bear upon innocent Muslims in the United States.

The Senate Judiciary Committee has twice held hearings on his nomination and voted on him favorably, but Judge Chen has yet to provide an up-or-down vote on the floor of the Senate. The Senate has twice returned his nomination to the White House without any action, but President Obama will likely renominate Judge Chen once again, triggering another judicial face-off.

Republicans may feel emboldened to continue their opposition of Judge Chen, especially in light of their likely gains this fall. But it would not be in the long-term interest of the Republicans or the country to engage in a de facto filibuster of Judge Chen.

Both parties bear some blame for the politicization of the judicial nomination process. Denying an up-or-down vote for Judge Chen would only reinforce this vicious cycle of partisan warfare over the third branch. District court nominees, in particular, should not be stymied because they, unlike their appellate brethren, typically are not the last word and do not shape the law. As trial court judges, they represent the nuts-and-bolts of the judicial system, ensuring that litigants have their day in court.

None of the arguments offered in opposition to Judge Chen's nomination, when examined closely, has merit.

First, many conservatives claim that Judge Chen will be a judicial activist, pointing to his affiliation with the ACLU. Conservatives should oppose such guilt-by-association. It's no more valid here as it is when liberals invoked the specter of the Federalist Society to oppose Republican nominees. A far better barometer of Judge Chen's judicial qualifications is his nine-year record as a federal magistrate judge. No one has objected to Judge Chen's opinions, and he has been praised by local lawyers as a diligent and fair jurist. That speaks volumes.

To be sure, Judge Chen's philosophy leans to the left and a Republican President would not likely nominate him. In fact, Judge Chen's name had been floated as a potential nominee during the Bush Administration, but he obviously was not nominated. But elections have consequences. President Obama should generally be entitled to a high level of deference in his appointments. As long as the nominee is not out of the mainstream and has the proper character, he or she should be confirmed, or at the very least, receive an up-or-down vote.

Second, Judge Chen's comments after September 11 perhaps could have been better phrased, but the gist of his message is no different that what President Bush cautioned after 9/11 when he implored the country "to make sure that every American is treated with respect and dignity during this period of - during any period, for that matter - of American history, particularly during this time." And to the credit of the American people and the Bush Administration, there was no spate of violence against Muslim Americans or an executive order curtailing their rights.

Finally, many Republicans believe that this is payback for Democrats' orchestrated stonewalling of President Bush's highly qualified appellate nominees such as Miguel Estrada, Peter Keisler, and Carolyn Kuhl. Even a well-regarded district court nominee, James Rogan, was deep-sixed.

The GOP frustration is understandable. And that's why Republicans have relished targeting a darling of the left, Berkeley Law professor and Ninth Circuit nominee Goodwin Liu. Perhaps President Obama would be wise to extend an olive branch by renominating one of the Bush nominees, much like President Bush did with President Clinton's judicial candidates. But the unfortunate treatment of the Bush nominees shouldn't be a license for the GOP to do the same.

Republicans don't have to vote for Judge Chen's confirmation because no nominee is entitled to a coronation. But they should at least provide him with an up-or-down vote. It's only a matter of time before there will be another Republican in the White House, and conservatives will then want an up-or-down vote for all nominees.

Kenneth K. Lee is a lawyer in private practice in Los Angeles. He previously served as an Associate Counsel to President George W. Bush and helped oversee the judicial nominations in the U.S. Court of Appeals for the Ninth Circuit.

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