A Senate Republican filibuster blocked Democrats from getting the 60 votes necessary to proceed to a vote to approve law professor Goodwin Liu to a lifetime appointment as a judge on the Ninth Circuit of the U.S. Court of Appeals, the first of Mr. Obama’s judicial nominees to go down in defeat.
Democrats needed all of their members, plus seven Republicans, to cut off debate, also known as cloture, and move to a final vote on the Liu nomination. Only Sen. Lisa Murkowski, R-Ala., did so, while Democratic Senator Ben Nelson of Nebraska voted against cloture. Four senators, including Montana Democrat Max Baucus, did not vote, and Utah Republican Orrin Hatch voted present. The final tally was 52-43.
Opposition to the vote has opened up a debate over judicial nominees last seen in 2005, when Democratic filibuster threats to George W. Bush’s judicial nominees were overcome by a compromise forged by the Gang of 14 – seven Democrats and seven Republicans who agreed to only filibuster nominees under “extraordinary circumstances.”
Sen. Patrick Leahy, D-Vt., Chairman of the Senate Judiciary Committee, argued that there weren’t extraordinary circumstances that warranted a block on Liu’s nomination — and that conservative nominees were allowed an up-or-down vote under similar circumstances under the Gang of 14 agreement during the Bush administration.
“The partisan filibuster of Goodwin Liu’s nomination is another example of Republicans’ shifting standards on judicial nominations,” Leahy said after the vote. “The partisan filibuster of Goodwin Liu’s nomination is another example of Republicans’ shifting standards on judicial nominations. “
Republicans who opposed a vote on Liu made clear that they were troubled by his judicial philosophy and some of his statements before the Senate Judiciary Committee in 2006, when he served as a witness who opposed to nomination of Justice Samuel Alito for the Supreme Court.
Sen. Lindsey Graham, R-S.C., who was a member of the Gang of 14 in 2005, cited Liu’s criticism of Alito as evidence that Liu is an ideologue not fit for the bench:
“Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be,” Liu said in 2006.
“These statements about Judge Alito and the decisions he’s rendered and his philosophy are designed to basically say that the people who have the philosophy of Judge Alito are uncaring, hateful and really should be despised. That is a bridge too far. Because I share Judge Alito’s philosophy,” Graham said on the Senate floor. “Goodwin Liu should run for elected office, not serve as a judge. Ideologues have their place, just not on the bench.”
Democrats cited Liu’s credentials as a well-respected legal scholar as reason to allow a vote on his nomination. Senate Majority Leader Harry Reid, D-Nev., highlighted praise for Liu from other conservatives.
“His integrity has been praised by Democrats, and praised by Republicans — not just one or two, but by many. Former Congressman Bob Barr commended Liu’s commitment to the Constitution. One of President Bush’s former lawyers said Liu falls well within the mainstream. Even Ken Starr — the Whitewater special prosecutor — endorsed this man who served in the Clinton administration,” Reid said on the Senate floor.
Much of the debate centered around whether there were “extraordinary circumstances” that would warrant a filibuster of Liu’s appointment.
Reid highlighted statements from Republicans who had previously vowed to not block nominees. His counterpart, Minority Leader Mitch McConnell, R-Ky., argued that Liu was a judicial activist who would use his position to enact a liberal political agenda.
“Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution, but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want,” McConnell said Thursday.
Liu, Associate Dean at the University of California Berkley School of Law, was a clerk for Supreme Court Justice Ruth Bader Ginsburg and a Rhodes Scholar. He was first nominated for the judgeship during the previous Congress, but the nomination did not come up for a vote.
The Ninth Circuit has jurisdiction over federal appeals cases in the western region of the country, including California, Oregon, Arizona, Alaska and Washington.