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Maybe It’s Easier For Law Profs to Become Senators Than Judges?

This week, former Obama administration official and consumer advocate Elizabeth Warren announced her candidacy for the United States Senate.  Warren, the Leo Gottlieb Professor of Law at Harvard Law School, took leave from her academic career to help build the Consumer Financial Protection Bureau and advise President Obama and Treasury Secretary Timothy Geithner.  Like other law professors whose government appointments got caught up in the political malaise, Warren never got the chance to direct the department she built from the ground up.  Instead, sensing gridlock, Obama appointed former Ohio Attorney General Richard Cordray.

Some critics site Warren’s jump into the political fray as an unmeasured response to the setback she experienced in Washington .  Maybe, but one thing is for sure—in the last two years of service she gave to the country, Warren had a front-row seat to witness Congressional power plays and persistent deadlock.  Perhaps even more importantly for those who put family and academic life on hold, she observed how other law professors’ prospects of judicial appointments withered on the vines while partisan politics overtook the judicial-appointments process.

Whatever the unspoken motivation may be for her Senate run, Warren’s campaign launch begs consideration of how law professors fare in the political process.  Sure the president is a former law professor.  But, he is an exception; after all he was elected and spared the nomination and hearing processes.  Indeed, it is quite possible that Obama might have failed the sniff test or his candidacy might have become mired in partisan bickering had he been nominated for a judicial post.

Consider a random sampling of the field: Janet Levit, dean of Tulsa Law School, was under consideration for the 10th Circuit Court of Appeals.  But her nomination and hearing process may have been derailed by Tom Coburn, an outspoken critic of incorporating foreign precedent into U.S. judicial opinions.  Levit is an international law scholar.

Remember Goodwin Liu, the law professor from Berkeley whom Obama nominated for the 9th Circuit Court of Appeals?  Professor Liu is now a justice on the California Supreme Court, but his nomination process for the federal court of appeals played out in the most disenthralling manner.  Despite stellar academic and legal credentials, a mainstream approach on many issues, and endorsements by conservative icons like Kenneth Starr, his candidacy was derailed by those in Congress who perceived Liu as being too far to the left.  Eventually, Professor Liu withdrew his nomination, apologizing in a letter to President Obama, noting that the prospect of his ascension to the 9th Circuit seemed unlikely.

Dawn Johnsen, a law professor at the Indiana University’s Maurer School of Law,  suffered a similar fate.  She withdrew her nomination to head the Justice Department’s Office of Legal Counsel more than a year after receiving a nod from Obama to lead the department.  Critics pointed to her former employment as director of NARAL Pro-Choice America, her views on abortion, and criticism of the Bush administration’s policies on terrorism as collectively disqualifying her for the post.

Like Liu, Johnsen lamented that her nomination was met with the type of “lengthy delays and political opposition that threaten that objective and prevent OLC from functioning at full strength.”   These law professors are not the only nominees to come under significant scrutiny and seemingly unsurpassable obstacles on the road to senior government service—Obama’s had a difficult time filling many vacant positions. Peter Diamond, the Nobel Prize laureate who teaches at MIT withdrew his nomination for the Federal Reserve after delay and pushback.

That said, perhaps Professor Warren is on to something—maybe the electorate will be far less captured by special interest groups and beholden to party politics in her bid to unseat Massachusetts Senator Scott Brown.  Men and women of Massachusetts will directly cast their ballots, basing their votes on the candidates’ qualifications rather than having their votes filtered through a Congress that currently stands at an abysmally low approval rating.  According to the most recent Gallup Poll, the job approval rating for Congress is 15 percent—up from 13 percent in August.  Ironically, the President, who nominated Liu, Johnsen, Diamond, and others, has a 40-percent approval rating, but the fact that the public is more confident in his abilities than Congress’ does not translate to a smooth hearing process.  In fact, over 220 of Obama’s nominees have not received a hearing.

So, what’s a law professor to do? According to Elizabeth Warren, “work my heart out to earn the trust of the people.”  That’s a good lesson for Congress too.

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