Three Republicans who have rarely supported filibusters of judicial nominees said today they will vote to filibuster appellate nominee Goodwin Liu, a bad omen for Liu a day before a crucial Senate vote.
Republican Sens. Lindsey Graham (S.C.), Johnny Isakson (Ga.) and John McCain (Ariz.) said they plan to vote against ending debate on Liu’s nomination. The vote is scheduled for 2 p.m. on Thursday, and Liu needs 60 votes to advance to a final confirmation vote. A judicial nominee of President Barack Obama has never been successfully filibustered, but Liu may be the first.
In separate comments, the three senators all cited the same reason for opposing Liu: the law professor’s 2006 testimony against the confirmation of Justice Samuel Alito Jr.
“When Mr. Liu came to the Judiciary Committee and said that, basically, Judge Alito’s philosophy judicially takes us back to the Jim Crow Era, that to me showed an ideological superiority or disdain for conservative ideology that made him in my view an ideologue,” Graham told reporters off the Senate floor.
Graham added: “Basically, Mr. Liu went after Alito’s character and [said] that people with a judicial philosophy like Judge Alito’s must want America to go backwards. Well, I sure don’t want America to go backwards, so that’s why I’m voting no.”
At least one Democrat, Sen. Jim Webb (Va.), said he would vote against Liu’s confirmation if it comes to a final vote because of Liu’s comments about Alito and his writings supportive of affirmative action. Webb said, however, that he would not support a filibuster of Liu’s nomination to the U.S. Court of Appeals for the 9th Circuit.
Liu, during two appearances before the Senate Judiciary Committee, has apologized for the concluding paragraph of his Alito testimony and said it showed poor judgment. In the paragraph in question, Liu said Alito’s record “envisions an America” where, among other tragedies, “police may shoot and kill an unarmed boy to stop him from running away with a stolen purse.”
Some of Liu’s supporters have defended the testimony, saying it was based on real cases that Alito heard as a 3rd Circuit judge, but to Graham and others, the concluding paragraph was a personal attack. Graham said it did not matter to him that Liu has apologized.
Liu, a law professor and associate dean at the University of California at Berkeley’s law school, has been waiting for a confirmation vote since he was nominated in February 2010. His biggest booster, Sen. Dianne Feinstein (D-Calif.), said today she’s not giving up hope that Liu can overcome the threatened filibuster.
“I think it’s very tight, and I think this is kind of a jump ball. I don’t think we know,” she said about the vote, after meeting with Liu off the Senate floor. Feinstein said that Vice President Joe Biden, a former Judiciary Committee chairman, has been making calls on Liu’s behalf.
Senate Majority Leader Harry Reid (D-Nev.) praised Liu’s intellect after meeting with him. “The court of appeals is where law is made, and we need the finest minds in the world for that,” Reid said. Liu studied as a Rhodes Scholar and was a clerk to Justice Ruth Bader Ginsburg.
Liu’s nomination won’t be the first time Graham, Isakson and McCain have voted to filibuster a judicial nominee. All three voted in November 2009 against ending debate on Judge David Hamilton’s nomination for the 7th Circuit. (Hamilton was confirmed anyway.)
But all three senators have said judicial filibusters should be rare. Two weeks ago, they voted to break a filibuster against judicial nominee John “Jack” McConnell Jr. In contrast to Liu, McConnell was a nominee for a district court judgeship, and all three Republicans cited Liu’s testimony against Alito as a main concern.
“I was around when he did what he did during the confirmation of Judge Alito, and I’m a big believer that you can have differences of opinion on philosophy but judicial temperament absolutely is key to the bench and I don’t think he exhibited it,” Isakson said in an interview.
Liu’s supporters said the Republicans are contradicting statements they’ve made against judicial filibusters since at least the George W. Bush administration. Glenn Sugameli, who follows judicial nominations for Defenders of Wildlife, pointed to a statement Isakson made two weeks ago as reported by the conservative Web site CNSNews.com.
“As I said repeatedly during the years President Bush was in office, I believe every president deserves an up-or-down vote on their judicial nominees,” Isakson told the Web site. “In addition, the U.S. Constitution says it is the Senate’s responsibility to give ‘advice and consent’ to the president’s judicial nominees, and the way to comply with the Constitution is to have an up-or-down vote on these nominees.”
Isakson and McCain today called Liu an “extraordinary” case, invoking the language of the 2005 compromise on judicial filibusters hammered out by the so-called Gang of 14.
Sen. John Cornyn (R-Texas), who voted to filibuster McConnell, was optimistic about defeating Liu. “I think we have the votes,” Cornyn said.
National Law Journal photo by Diego M. Radzinschi.