Two years ago, President Obama nominated Goodwin Liu (now Justice Goodwin Liu on the California Supreme Court) to a seat on the U.S. Court of Appeals for the Ninth Circuit. Liu immediately stood out among the president’s nominees — and indeed, from most of the judges currently serving on the federal bench — for his brilliance and impeccable legal credentials. He is a former clerk to Justice Ruth Bader Ginsburg, one of the top constitutional scholars in the nation, and he enjoyed wide support from all corners of the legal community. Clinton inquisitor Ken Starr called Liu an “extraordinarily qualified nominee” who will serve as a judge “with great distinction.” Torture memo author John Yoo called him a “very well qualified” nominee who will be a “good judge on the bench.”

Senate Republicans immediately started distorting his record, and they eventually filibustered his nomination into oblivion.

About a year later, we saw this same charade play out again. President Obama nominated Caitlin Halligan to serve as a federal appellate judge in DC. Like Liu, Halligan is an absolutely brilliant legal mind and a former Supreme Court law clerk. Unlike Liu, however, she did not have a paper trial because she has never been a law professor and spent her career advocating on behalf of her client’s views rather than expressing her own. Nevertheless, Senate Republicans filibustered her, relying on the thin argument that she is unconfirmable because she once represented a client whose views disagree with those of the NRA.

So when President Obama nominated former Supreme Court law clerk Paul Watford to a federal judgeship last October, ThinkProgress worried that he too would prove too qualified to be confirmed. Sadly, our fears seem justified. Yesterday, the Senate Judiciary Committee cast an entirely party-line vote to advance Watford to the full Senate — an action which, in the past, has proceeded a GOP filibuster. Sen. Chuck Grassley (R-IA) was given the unfortunate task of devising a flimsy rationale for opposing the nomination:

I have substantive concerns regarding Mr. Watford’s views on both immigration and the death penalty.

Mr. Watford partnered with the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC) in two cases to oppose Arizona’s 2010 immigration bill. In the first case, Friendly House, a class-action lawsuit, Mr. Watford served as co-counsel for most of the plaintiffs, including the class action representative, Friendly House. . . .

With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups who opposed Kentucky’s three-drug lethal injection protocol. In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky’s three drug protocol was upheld 7-2.

So there you go. In a legal career that stretches nearly two decades, Watford worked for two clients that Grassley disagrees with, and this fact evermore disqualifies him for a seat on the federal courts.

It’s impossible to describe how dangerous this standard is. Our system of law depends on all parties having adequate representation to assert their legal claims, and this is doubly true with respect to the kind of disadvantaged clients who stand against conservatives’ preferred legal outcomes. Grassley is sending a clear and unambiguous message to the entire legal profession here — if you want to be a judge some day, don’t even think about working for the poor, for immigrants, for unions or for criminal defendants. Sadly, many bright and ambitious attorneys will hear that message loud and clear, and will remain in corporate law firms representing well-moneyed clients who will be just fine with or without their services.

Ultimately, however, it’s likely that Grassley’s real motivations are slightly different. Like Liu and Halligan before him, Watford is guilty of being the kind of exceptionally talented attorney who could be on the Supreme Court some day — and so the Senate GOP appears poised to block him even if they can’t think of a plausible reason to do so.

Later today, California’s Commission on Judicial Appointments will hold a two-hour hearing on the nomination of Goodwin Liu to the state supreme court. Goodwin is widely expected to be confirmed shortly thereafter.

Goodwin’s ascension to his state’s highest court will end an 18 month saga that began when President Obama nominated him to a federal appellate judgeship on the basis of his widespread support throughout the legal community — including numerous leading conservatives. Clinton inquisitor Ken Starr called Goodwin an “extraordinarily qualified nominee” who will serve as a judge “with great distinction.” Torture memo author John Yoo called Goodwin a “very well qualified” nominee who will be a “good judge on the bench.”

But Goodwin is also very young. And brilliant. And a former Supreme Court clerk. Senate Republicans soon envisioned a future where the Judge Liu of 2010 became the Justice Liu of 2014, and they began combing through Goodwin’s prolific scholarship searching for nuggets that could be taken out of context to discredit the nominee. Suddenly, Goodwin’s article disagreeing with a prominent liberal’s recipe for judicially-created welfare rights became proof that Goodwin actually supported a judicial takeover of welfare. An op-ed making the utterly banal point that a conservative interest group used the terms “free enterprise,”‘ “private ownership of property,” and “limited government” as code words for an ideological agenda became proof that he wants to turn America into “Communist-run China.”

As I wrote in the Los Angeles Times shortly after Goodwin withdrew his nomination, two heartbreaking lessons emerged from Goodwin’s failed confirmation:

Future presidents of both parties will learn that if they nominate someone with a body of published work — no matter how moderate — that work will inevitably contain out-of-context statements that can be used to embarrass the nominee and the White House. Thus, the lesson for presidents is clear: Don’t nominate anyone who actually has had something to say about the Constitution.

Brilliant young lawyers will learn equally harsh lessons: Keep your mouth shut, don’t write anything down and never, ever say anything critical of a powerful official, even if the criticism is true. Because presidents will no longer nominate anyone who speaks out, the brightest, most promising legal minds will learn to keep silent.

The truth, however, is that this has already happened. When I was halfway through my second year of law school, I wrote a law review note arguing that the Constitution guarantees all children a minimally adequate education. The piece won an award, but looking back at it now, many of its arguments are amateurish. Some of them fail to consider important veins of scholarship or lines of caselaw, and other parts lack a manageable limiting principle. In other words, it is exactly the kind of piece one would expect an inexperienced law student to produce as they were struggling to make sense of the rich complexity that is American constitutional law. I no longer agree with many of the arguments I wrote in that piece, but writing it and going through the very lengthy process of preparing it for publication was one of the formative periods in my legal education. It taught me how to write. It taught me how to make a difficult argument. And, in retrospect, it taught me that sometimes an argument that you desperately want to be true just isn’t going to work.

Shortly after I finished the first draft, a professor took me aside and told me not to publish the piece because, if I did, I would reveal the fact that I have political views and disqualify myself from ever serving in a Senate-confirmed position. I did not take his advice and I do not regret it, as I continue to believe that I am better off speaking openly than I am holding my tongue in the hopes that some day the President of the United States will tap me on the shoulder. The fact remains, however, that I had to choose when I was just 27 years old with no real experience in the legal profession whether I ever wanted to be a judge someday.

I know many people who were faced with the same decision and reached the opposite conclusion. A dear friend of mine chose not to apply for a job at a leading women’s rights organization because she was too scared of the future implications for her career. A talented colleague turned down an offer to do important research on corporate influence on the law because he was scared of leaving a paper trail. I myself once advised someone not to publish an article because I thought it would doom her in a future confirmation hearing. None of these people is over the age of 33.

I do not normally use my perch at ThinkProgress to vent my own career anxieties. Or refer to public figures that I know personally by their first names. Or write in the first person. I also don’t plan to make a habit of it. But the standard that now prevails in judicial confirmation fights — where a nominee is only as good as the most embarrassing statement that can be taken out of context and turned against them — is a cancer upon my profession. Everyone I know who works at the intersection of law and politics has been forced to decide whether to speak or keep silent at some point in their career, and a shockingly large number of them have learned to simply glue their mouths shut.

This is why Goodwin’s impending confirmation is such an important event. It is proof that someone who has spoken frequently and openly can still achieve the highest echelons of the legal profession. And it is proof that talented lawyers with dreams of judicial service do not need to hide themselves in corporate law firms laboring endlessly to never offend an important person. Our federal confirmations process remains deeply broken, but Justice Goodwin Liu will be a constant reminder that silence is not the only path to relevance.

California Gov. Jerry Brown just nominated Berkeley Law Professor and former Ninth Circuit nominee Goodwin Liu to a seat on the California Supreme Court. Liu, a former law clerk to Justice Ruth Bader Ginsburg and one of the nation’s leading constitutional scholars, was the subject of a blistering smear campaign by conservatives determined to prevent Obama’s youngest and one of his most talented nominees from becoming a judge:

Yet if you spent just a few minutes listening to Liu’s opponents, you would think he was the second coming of Mao Tse-tung. Sen. Chuck Grassley (R-IA) literally accused Liu of wanting to make America more like “communist-run China.” Other senators fixated on a pair of law review articles Liu wrote as proof that Liu would use a position on the federal bench to create all kinds of new welfare programs and somehow seize control of America’s schools. [...]

[T]he suggestion that Liu would somehow create massive new welfare programs by judicial fiat stems from an article where he actually called for the opposite. That article explicitly calls for “legislative supremacy” in defining the scope of welfare rights, and it explains that it would have been utterly inappropriate for the courts to second-guess Congress’s decision to roll back welfare rights in its 1996 welfare reform law.

Liu’s article also explains that the Constitution provides certain protections that ensure fair and equal access to welfare—but this view is shared by conservative Justice Antonin Scalia. Scalia joined the Supreme Court’s decision in Saenz v. Roe, which struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. In other words, if Liu’s stance on constitutional welfare rights disqualifies him from the federal bench, it also disqualifies Scalia.

Brown’s nomination of Liu will almost certainly receive the same drummed-up outrage from the right that his nomination to the federal bench triggered, but conservatives will likely be unable to obstruct Liu from taking a seat on the state supreme court. Under the California Constitution, Liu’s nomination must be confirmed by a Commission on Judicial Appointments that includes the Chief Justice, the Attorney General and a sitting court of appeals judge. Given Liu’s sterling legal credentials, this commission will have a tough time finding objectionable in Liu’s record.

It’s worth noting, however, that Liu’s appointment is only temporary unless it is confirmed by the electorate in the next general election. So there is a very real risk that wealthy right-wing interest groups will try to buy Liu’s seat on the state Supreme Court with attack ads and other campaign funding just like they dumped money into similar efforts in Wisconsin and Iowa.

In a must-read article about the broken confirmations process in the Senate, Dave Weigel quotes former Office of Legal Counsel nominee Dawn Johnsen explaining that conservative objections to her failed nomination had nothing to do with actual disagreements with her views:

“I’m not going to talk about any individual meetings with senators,” [Johnsen] says, “but the impression that I got was it wasn’t about me, that it wasn’t personal. It was political. And there were some senators who were very open about that. It wasn’t a difference in substantive views. The things I was attacked for saying about torture, for example—Lindsey Graham and John McCain have talked about that the same way.” (Neither publicly supported her nomination.) “You definitely need to look at how all the terrorism issues and nominees who dealt with terrorism issues were treated. The attempt was to describe President Obama’s approach as not sufficiently tough on terrorism, and make that a political issue.“

And Johnsen is hardly the only Obama nominee that became the focus of a smear campaign despite no legitimate objections to her fitness for public service. Sen. Chuck Grassley (R-IA) accused failed judicial nominee Goodwin Liu of wanting to use the courts to turn America into “communist-run China,” and a law review article that became the centerpiece of the conservative claim that Liu was a judicial activist was in many ways a call for judicial restraint. Similarly, while no one on the right has provided a plausible explanation for why Peter Diamond’s nomination to the Fed board needed to be blocked, Sen. Richard Shelby’s (R-AL) claim that the Nobel Prize-winning economist was unqualified is obviously absurd.

Johnsen, Liu, and Diamond can at least say that their nominations were high-profile enough that people noticed the campaign of obstruction against them. The sad truth is that many nominees simply die a quiet death as senators delay their confirmation votes into oblivion. Indeed, this silent obstructionism caused Obama to have a lower percentage of his judicial nominees confirmed during his first two years in office than any other president in American history.

Weigel’s piece concludes with an uncharacteristically smart idea by Manuel Miranda, the disgraced former Senate staffer best known for hacking Democrats’ computer servers and stealing confidential documents. Miranda proposes allowing nominees at the rank of assistant secretary or lower to begin doing their job before they are confirmed by the Senate. Doing so would be a real step towards preventing the hollowing out of government we are currently witnessing.