Update: Apparently, the administration is going to try again. The blogger known as the Brew City Brawler seems to think there is some inconsistency between this post and comments I made to a reporter at the Wisconsin Law Journal. Tom Foley wonders as well. For the three people who care, I respond below.*
The nomination of Louis Butler to the United States District Court for the Western District of Wisconsin has been returned. This means that he must be renominated and perhaps he will be.
I am not much impressed by the argument that Butler should not be approved for the federal bench because he lost two statewide elections. Federal judges are appointed by the President and it is hardly a surprise that President Obama would nominate judges with the views close to those held by former Justice Butler. If the voters wanted a different type of federal judge, they should have voted for John McCain. (As I spent some considerable time in the fall of 2008 arguing.)
Nor is there a competency question. Louis Butler is a very smart lawyer; clearly possessing the professional qualifications to sit on the federal bench.
The reason to oppose his nomination, if there is one, is that one disagrees with his judicial philosophy and political presuppositions. And I think that's what's been happening. The opposition to this nomination is yet another reverberation of the Court's 2004-05 term.
Whether the nomination is sent back to the Senate will depend, I suppose, on how much capital the administration wants to expend.
* In the WLJ, I was quoted as saying that “[w]hile one could argue that a person who has twice lost a statewide judicial race ought not to be elevated to the federal bench, I doubt that argument will carry a great deal of weight with the senators or the White House ...” This, according to Mr. Brawler, was a puerile attack on Butler's nomination and wonders whether I have flip-flopped.
I had forgotten that I commented to the WLJ on this. It is not clear to me why Mr. Brawler would regard those remarks as an attack or why he would be surprised that I am not impressed today by an argument that I said then would not carry much weight with the White House or Senate.
BCB wonders if I was misquoted or if other remarks were left out. It turns out that I e-mailed these comments to Jack Zemlicka so I know precisely what I said. I was not misquoted, but there was a sentence that Jack (quite justifiably) did not choose to print), After praising the nomination of my former partner, Bill Conley, I said:
"Justice Butler is also an excellent nominee in a Democratic administration.
While one could argue that a person who has twice lost a state wide judicial
race ought not to be elevated to the federal bench, I doubt that argument
will carry a great deal of weight with the Senators or the White House."
My point is that, if you want a judge with Justice Butler's legal philosophy, he is an excellent choice. As readers of this blog know, I have also said that he is a jurist of integrity and intelligence, albeit one that I often disagree with and who, for that reason, probably wouldn't be my choice. But when you elect a candidate like Barack Obama, this is more likely to be the type of candidate that will be nominated. If you don't want that, don't elect liberal Democrats to be President.
To belabor the obvious, there is absolutely nothing wrong with Jack Zemlicka omitting the sentence reproduced in bold. He obviously thought it more newsworthy to report a view that the election issue - which was being raised by a number of people at the time - would not carry much weight. That strikes me as a reasonable journalistic judgment.