Key Senators to Support Filibuster of Goodwin Liu

Updated at 4:21 p.m.

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.

Comments

[Rick]

Well, the following republicans just went from the Hypocrisy Hall of Fame to the First Team all WORLD hypocrisy team...Check out their past statements on judicial filibustering....

http://www.pfaw.org/press-releases/2011/05/flashback-gop-senators-claim-filibusters-of-judicial-nominees-are-unconstitut

[Bob Manzi]

The Democrat Party should be changed to the Hypocrat Party. How fast Shumer and company forget how they went after Bork, Thomas, Gonzalez and others. Gonzales was especially a concerted effort to defeat a conservative hispanic who might someday have been a Supreme Court nominee. Totally useless Senators like Boxer(how this idiot keeps getting elected is a wonder) and Reid should be totally disregarded. Liu should be denied appointment at all cost.

[Rick]

Liu's seat i think is for a judicial emergency as well...So republicans are going to block a nominee after the Gang of 14 compromise, in a seat that is deemed a judicial emergency..

I'm confident the democrats can't wait to "unleash payback" next time there is a republican president..

President Obama has named moderates (w/exception of John J McConnell perhaps) as his judicial nominations and democrats allowed ALL of Bush's far right idealogues (Brown, Pryor, Southwick, Sutton, Owen, etc.) an up/down vote...This is a real kick to the lower section what the republicans are doing...

But shame on Senator Reid for not bringing up the nomination when we had 59 democrats in the senate...Goodwin Liu would be seated on the 9th. Circuit today had Reid done his due dillegence...

[Bob]

So, what I think Dave (comment below) is missing about the modern confirmation battles is that actually, it was *Republicans* who stepped up the level of blockades -- at least, against lower-court nominees -- under Clinton. No president had ever seen so many court of appeals nominees blocked until Clinton became president. He basically spent his entire second term paralyzed by Republican leadership that blocked, among other things, two nominees to the DC Circuit (one of whom was Kagan), and a bunch of nominees to the Fourth. It was appalling. So, Democrats then paid Bush back -- with interest -- even though most of Bush's controversial nominees still got through anyhow because of the Gang of 14. Now, blocking Liu is *so* stupid. Why? Because it just gives Democrats more ammo for when there's a Republican president and a Republican Senate, at some point in the future. And it strips GOP senators of the lone defense that they had pre-the Gang of 14 ("every nominee deserves an up-or-down vote"). Those words will come back to haunt them all.
One final note: Lindsey Graham blocking this vote is particularly obnoxious, since Obama has worked with him to pick nominees from SC that Lindsey would support, including Lindsey's old buddy Henry Floyd. And GOP senators in general blocking a California senator's COA pick also is stupid, since it was DiFi's Senate Judiciary Committee vote that allowed controversial Bush COA nominee Leslie Southwick to go through in 2007. If Liu is blocked, I'm guessing she do that kind of bipartisan move again. Nor will any Democratic senator..........

[John Franks]

When speaking about Roberts he said:

Before becoming a judge, he belonged to the Republican National Lawyers' Association and the National Legal Center for the Public Interest, whose mission is to promote (among other things) ``free enterprise,'' ``private ownership of property,'' and ``limited government.'' These are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.

Granted as a Berkley law professor he probably hasn't read the constitution but any person holding such blatantly unconstitutional ideas should be kept as far away from public office and the bench as possible.

This is just a window into the soul of the person that nominated him.

[Abhi]

Snowe, Collins, Brown and Murkowski will certainly vote for cloture. Kirk will not want to vote against, so that makes it 58. That is where it will be I guess. Lugar, Thune, etc are never going to go with this. The only options are Alexander and Chambliss both voting for cloture, which is very unlikely.

[Dave]

Sen. Reid's comment further suggests that he needs a lesson on Constitution law and the roles of the 3 branches of government.

The modern day nasty confirmation battles started with Robert Bork and continued with Clarence Thomas and others (e.g., Miguel Estrada, Janice Brown). Those of you who bemoan the alleged unfair treatment of Mr. Liu should look in the mirror and ask yourself how Justice Ginsburg was confirmed if all Republicans are idealogues.

[Rick]

Antonin Scalia is not exactly known for his temperance, yet that never kept him from being on the SCOTUS...So that ridicolous argument that Liu was too mean to Sam Ailito is utter non-sense..Scalia is abraisve, condasending, arrogant, obnixious, etc., then again, different rules apply for judges nominated by a republican president than a democratic one...The Gang of 14 Compromise ONLY applies when a republican makes a judicial nomination...

I hope democrats take advantage of the serious payback they'll be entitled to next time a republican president makes a judicial nomination(s), assuming Liu is blocked...The first candiate to belong to the Federalist Society, or who wrote a piece that appeared on the Hertigage Foundation, or even a nominee who went to a right wing university like Notre Dame, etc., or someone who leans even the slighest to a pro-life stance, than that nominee should be filibustered...

[David]

If that nominee was supported by some of the most left-wing legal advocates out there (the equivalent of John Yoo, Ken Starr, Bob Barr, etc.), I think Dems would have a hard time trying to characterize him/her as so extreme as to be unworthy of an up-or-down vote, even if s/he had said mean things about Kagan and Sotomayor.

I do think Liu regrets his words about Alito, though I don't think I can convince you what he feels in his heart. The only thing I'd submit to you is that it was certainly out of character, if you look at the broad sweep of his writings and speeches. The last thing he is is intemperate or injudicious.

As dKos points out, the real crime is that he wasn't nominated with nine more just like him. It's one thing for the right to insist on picking off a couple nominees, it's another to turn back the only real attempt made to meet a judicial emergency of empty seats.

[Jack]

If they need Brown and have no committment yet, they're in rough shape.

Does anybody doubt how Democrats would react had a Republican law school teacher spoken out similarly against Justices Breyer, Ginsburg, Sotomayer? I doubt, had a conservative scholar been so out front in trashing a nominee of a Democrat President, he would even be nominated.

Finally, it is obvious Liu has long been on a career track aiming for a federal judicial appointment(s). It's one thing to have a law review article come back to haunt you. One has to question Liu's prudence and judgment in denouncing a Supreme Court nominee so harshly. Reading the testimony is one thing. Watching the video is even more striking. I got the sense he just couldn't contain himself; almost like he was speaking at a political rally. And I wonder if he's the best choice for a federal judgeship. I don't sense that he regrets that he was intemperate or injudicious; just that he's frustrated it may be ruining his chances at an appointment to which he is entitled.

Finally, Bob (above), of course makes an excellent point about the miscalculation in not having addressed the appointment last year. The same can be said of many things. The reality is that a lot of time was wasted in 2009 and 2010. They shot their wad on health care.

[David Lickiss]

The best path to breaking a filibuster is for Obama to do what Clinton did to get RBG onto the SCOTUS. Clinton complied a list of desired appointees, then asked Hatch and other leading opponents to strike the ones they would be guaranteed to oppose. RBG was about 1/2 way down the list. She got 92 votes. Obama could learn a lot from Clinton.

[Kirk Michael]

Is it a telltale sign that while Senate Majority Leader Harry Reid (D-Nev) praised Liu’s intellect and at the same time said, “The court of appeals is where law is made,...."?

Would that provide the reason good enough to filibuster this nominee?

By the way, what the job Harry Reid is doing at the Senate? Not lawmaking?

[David]

I'm afraid that's how I see it too. Getting those first six requires optimism and getting any one of the last four requires blind faith (especially if they'd be the deciding vote).

[Bob]

One theoretically can still get to seven with Mark Kirk, Scott Brown, Olympia Snowe, Susan Collins, Lamar Alexander, Murkowski and then one of Thune, Chambliss, Lugar or Hatch.
But, I don't any longer think Liu's going to get seven GOP senators' votes for cloture, though; the GOP really wants a scalp here, and there's going to be endless pressure on all GOP senators to whack Liu, "principles" (about up-or-down votes) be damned. There won't be cloture tomorrow. Obama and Reid made a huge mistake here; they should have filed for cloture on Liu last year when they could have mustered 60.

[David]

Yeah especially since these three were all members of the gang, and they've declined to hold up their end of the bargain.

But before it comes to that, can anyone see seven Republicans? I'm reaching to find five (Collings, Snowe, Brown, Kirk, Alexander). Ayotte? Murkowski? Lugar won't, facing a primary.

And with Webb bolting, Dems can only afford one more defection before Liu loses the up-or-down vote anyway!

[Rick]

Then do what the republicans would have done if the Gang of 14 Compromise wasn't formed, use the Nuclear Option...

[David]

So what is the path to breaking a filibuster here? Can anyone count to seven (Republican Senators who will vote to end debate) without these three?