As legal groups on the left and right make a late push to influence the U.S. Senate's upcoming vote on appellate court nominee Goodwin Liu, there may not be many senators up for grabs.
The Senate is scheduled to vote Thursday on whether to end debate on Liu’s nomination for the U.S. Court of Appeals for the 9th Circuit. Liu’s supporters need 60 votes to break a potential filibuster, meaning they must get at least seven Republicans to cross party lines to allow a final vote on one of President Barack Obama’s most controversial judicial nominees.
Senators considered a similar question as recently as two weeks ago, when they voted on whether to end debate on a nominee for federal district court. Business groups lobbied strongly against John “Jack” McConnell Jr., a Rhode Island trial lawyer, but 11 Republican senators voted to help break a potential filibuster.
Curt Levey, executive director of the conservative Committee for Justice, said some of those 11 Republicans, including three New England moderates, are unlikely to filibuster Liu. But Levey said he’s focused on persuading others in that group that Liu is an extraordinary case, especially because Liu would sit on an appellate court.
“I think we will probably prevail,” Levey said, according to a tally he took last week. “I think it will be close, but I think we will prevail.”
Among his targets: Republican Sens. John McCain (Ariz.), Johnny Isakson (Ga.), Saxby Chambliss (Ga.) and John Thune (S.D.), all of whom have relatively conservative records but have been reluctant to filibuster judicial nominees. Freshman Sen. Mark Kirk (R-Ill.) is a question mark, Levey said.
(Update: McCain, Isakson and Sen. Lindsey Graham (R-S.C.) are supporting a filibuster of Liu.)
Marge Baker, executive vice president of the liberal People for the American Way, would not discuss which senators her group is contacting. But among their talking points is that many Republicans have been on record as opposing filibusters of judicial nominees since at least George W. Bush’s presidency.
“It’s a question of how principled people are going to be on the vote,” Baker said.
Still, many Senate Republicans who opposed filibusters during the Bush administration have already reversed themselves on that question, most recently on the McConnell vote, so they’re unlikely to feel compelled to oppose a Liu filibuster. Republicans have said that Democrats opened the door to filibusters of judicial nominees, allowing them to use the tactic, too.
At the heart of debate is the 2005 compromise on judicial filibusters by the so-called Gang of 14, a coalition of Senate moderates at the time. The group said it would oppose judicial filibusters except in “extraordinary circumstances,” a standard it did not define.
McCain was a member of the Gang of 14. So was Sen. Lindsey Graham (R-S.C.), who has harshly criticized Liu but hasn’t said whether he would support a filibuster. Three of the seven Republicans who were in the Gang of 14 are no longer serving.
Liu, a professor and associate dean at the University of California at Berkeley’s law school, is scheduled to be on Capitol Hill today. Accompanied by White House Counsel Robert Bauer, Liu is set to appear at a photo opportunity with Senate Democrats.