Calm down on Matheson, folks...

When I first read that President Obama had appointed Utah law professor Scott Matheson to a position on the 10th Circuit court of appeal, I was as suspicious of the timing as most Republicans, given that Matheson's brother (Jim Matheson) is one of the Democratic Congressmen who has previously voted "no" on the healthcare reform bill pushed by the President and Speaker Pelosi. Coming in the midst of a major arm-twisting movement by the House leadership to pass the Senate version of the healthcare bill, it certainly had a certain aroma of pay-off to it, particularly when considered in conjunction with Admiral Sestak's apparent admission that the Obama Administration offered him a high-level job in return for withdrawing from a primary election challenge, allegations surrounding former Gov. Blagojevich, and similar incipient scandals.

But having read Prof. (former Judge) Paul Cassell's Volkh Conspiracy post on Scott Matheson's appointment, I am convinced that there's nothing to see here. Cassell confirms, from personal knowledge, that the vetting process for Matheson has been underway for several months now. Since he is a colleague of Matheson's, Cassell was contacted by the ABA as part of their evaluation process in mid-January. As Cassell notes: "Given that the ABA was evaluating Scott in roughly January, one would expect an announcement roughly six weeks later – exactly as happened here." Cassell also notes that he considers Matheson exceedingly qualified and as moderate of a judicial temperament as one could ever expect to be nominated by a Democratic president.

Cassell is not the only person in the world who would be familiar with the normal delay between ABA evaluation (which happens after the FBI background check) and public announcement of the appointment. The mere fact that the vetting process had begun so long ago is a solid indication that the nomination is no attempt at bribing Rep. Matheson.

Moreover, failing to make the public announcement would look even worse. Imagine that the healthcare vote were to happen in 2 weeks, and THEN Matheson's brother was formally nominated. If Matheson had switched his vote to "yes" just days BEFORE his brother's appointment, then the cries of payoff would be outrageously loud. Somebody, probably the GOP staffers for the Senate committee on judicial appointments, would be aware that the nomination was held up longer than the normal process, and that would be used as evidence that the President was keeping it in his back pocket to ensure compliance by Rep. Matheson.

So, having started the vetting process in January, or perhaps before, Pres. Obama was then in a damned-if-you-do, damned-if-you-don't situation. If he waited to release the nomination until after the healthcare vote, that would have looked like a pay-off (if Rep. Matheson switched his vote to yes), and if he released it now, it would still have looked like a pay-off (the only difference in the two cases being which party to the bribe bears the risk of the other party not fulfilling his end).

Prof. Cassell's insight and analysis has convinced me there's nothing to see here, and those opposed to Obamacare passing should keep their powder dry for other, more important issues.