On Judicial Nominees, Sen. Coburn's Crusade Goes Interstate

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Now the Oklahoma senator is refusing to approve federal nominees from around his state because they are well-versed in international law


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Reuters

For nearly eight months now, Sen. Tom Coburn (R-Okla.) has prevented the good citizens of the state of Oklahoma from getting the services they need and deserve from the federal courts of their state. He has resolutely blocked the judicial nomination of a Yale-educated, Native-American lawyer named Arvo Mikkanen, an eminently qualified federal prosecutor, whom President Obama named to fill a long-vacant federal trial post in the Sooner State.

Now, we learn from The Daily Oklahoman, the senator has turned his self-defeating crusade into an interstate affair; he has reportedly preempted a judicial nomination to the 10th U.S. Circuit Court of Appeals, the federal court which has jurisdiction over Oklahoma, Colorado, New Mexico, Utah, Kansas, and Wyoming. This time, he has blocked the nomination of Janet Levit, a Yale Law School graduate and dean of the University of Tulsa School of Law.

"The Constitution means nothing if you can't get a court date to have a judge recognize your rights."

Why? According to Chris Casteel's report at newsOK.com, it's because Coburn is concerned about Levit's background in international law. Levit is a member of the American Society of International Law, an organization that was founded in 1906 and chartered by Congress in 1950. Among its past presidents are Elihu Root, the Nobel Prize-winning giant of law and diplomacy; Charles Evans Hughes, a former Chief Justice of the United States, and Cordell Hull, another Nobel Prize winner who helped form the United Nations.

So it has come to this in the world of judicial nominations. A qualified judicial candidate cannot even get nominated, much less get a hearing or a vote on the Senate floor, because she is a member of a group with a mission "to foster the study of international law and to promote the establishment and maintenance of international relations on the basis of law and justice." What a terrible message that sends to the American legal community -- and to the rest of the world.

Our law schools can teach international law to their students. Our lawyers can practice international law for fun or profit (the American Bar Association announced Tuesday an international law forum in London later this month). We can pledge allegiance to the Geneva Conventions. But now an expertise in international law evidently makes a person "unconfirmable" even to our lower federal courts. Soon, I suppose, there will be a patently unconstitutional law in Oklahoma making it illegal for anyone there to apply international law. Oh wait, there already is.  

At least this time Coburn gave a reason for his intransigence. When asked this past winter why he was blocking the Mikkanen nomination, he answered: "no comment." When asked if he knew Mikkanen, the senator responded: "I know plenty. I have no comment." Eight months later, there's still no word -- and no scheduled confirmation hearing. Thus the Mikkanen nomination remains in political limbo while litigants in Oklahoma have to wait even longer to have their rights adjudicated in federal court.

The Constitution means nothing if you can't get a court date to have a judge recognize your rights. If the citizens of Oklahoma are content to wait longer than they should to have their cases and causes heard by a federal trial judge, because Coburn needs to score political points, I guess I have no cause to complain since I don't live in Oklahoma and don't plan to file any federal lawsuits there anytime soon.  

But I do live within the confines of the 10th Circuit. And now Coburn's scorn for President Obama's judicial nominees-- his continuing exercise of an effective veto-- will impact my rights as a potential litigant. The seat on the federal appeals court bench that might otherwise go to Janet Levit has been vacant since June 30, 2010. This means that the work of the 10th Circuit is slower than it ought to be. It means that the already overworked jurists who are on the 10th Circuit will be drowning even more in briefs and hearings and trials. If you don't believe me, read this

This is not acceptable on any level. The president should nominate Levit anyway, in spite of what Coburn says. And the White House, which recently announced it wanted to push harder than before on judicial nominees, should hold a press conference with Levit and Mikkanen present at the podium to illustrate and explain to the nation precisely why qualified people (like the two of them) can't get a hearing, or a vote, to fill the nation's empty benches. (There were 94 vacancies at last count).

Meanwhile, arcane Senate rules or no, Coburn should have to publicly explain why the female dean of a law school in his state, the first female dean of that law school, who clerked for the Chief Judge of the 10th Circuit and who has argued cases before it, is unworthy of a post on the court. Oklahoma may be content to settle for second-class service from its own federal courts but that doesn't mean the rest of us have to go along with the plan.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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