In what has increasingly become a proxy for Elena Kagan's nomination to the Supreme Court, the Senate Judiciary Committee voted along party lines today to endorse the nomination of Goodwin Liu to a federal appellate judgeship.
Liu's nomination to the U.S. Court of Appeals for the 9th Circuit has drawn more intense Republican opposition than any of President Barack Obama's other lower-court nominations. No GOP senators have said they’ll support him, and opponents have cited his relative inexperience and his writings on constitutional interpretation.
Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, made the most direct attempt of any senator so far to tie Liu’s contentious nomination to Kagan’s.
“In Solicitor General Kagan, President Obama has chosen another academic who has focused on policy the majority of her career, including in the Clinton White House, and who has never been a judge or seriously practiced law,” Sessions said.
Liu, 39, is a law professor and associate dean at the University of California, Berkeley, whose litigation experience consists largely of two years in the Washington office of O’Melveny & Myers. He has sometimes been mentioned as a future Democratic nominee to the Supreme Court. Kagan, 50, was until a year ago a law professor and dean of the Harvard Law School, whose litigation experience before becoming solicitor general consisted largely of two years at the Washington firm Williams & Connolly.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) noted that Republican presidents, including George W. Bush, frequently picked nominees who had not sat on the bench.
“With the 24 Bush nominees who went on the court of appeals without having been judges, I never heard one single objection from the Republican side,” Leahy said.
In supporting Liu, Democrats have cited his academic record (Stanford, Rhodes Scholar, Yale Law), his clerkships for Justice Ruth Bader Ginsburg and D.C. Circuit Judge David Tatel, and his academic work on education policy. Liu has also been active in liberal legal groups, such as the American Constitution Society, and in 2006 he testified against the confirmation of Justice Samuel Alito Jr.
Sen. Dianne Feinstein (D-Calif.) highlighted three appellate judges who came from law schools and who were in their 30s when nominated by a Republican president: Frank Easterbrook of the 7th Circuit, Kimberly Moore of the Federal Circuit, and J. Harvie Wilkinson III of the 4th Circuit.
“Here are three very young people, all Republicans, with no bench experience, that are now circuit judges. So what’s sauce for the goose is sauce for the gander, as well,” Feinstein said.
Republicans also seized on a comment Liu made during his April 16 confirmation hearing, when he said, “Whatever I may have written, in the books and articles, would have no bearing on my role as a judge.” They said Liu’s comment was inconsistent with the fact that much of his writing related to how judges should interpret statutes and the constitution.
“He tells opponents to ignore his record. He tells supporters to look at his record,” said Sen. Orrin Hatch (R-Utah). “That record,” Hatch added, “consistently and strongly allows judges to find the meaning of the constitution anywhere they want to look.”
With a 12-7 vote by the Judiciary Committee, Liu’s nomination will head to the full Senate. A confirmation vote could be months away, and Republicans have not ruled out a filibuster.