Updated at 4:37 p.m.
In a resumption of the judge wars from last decade, Republican senators today voted for the first successful filibuster of one of President Barack Obama's judicial nominees, Goodwin Liu.
Liu becomes the only Obama judicial nominee so far to lose a vote in the U.S. Senate, and the vote was not close. Fifty-two senators voted to end debate on Liu’s nomination, short of the 60 votes that he needed. One Republican, Sen. Lisa Murkowski (Alaska), crossed party lines to oppose the filibuster.
The vote was a throwback to Democratic filibusters of some of President George W. Bush’s judicial nominees. Those battles ended in 2005, when a coalition of moderates known as the Gang of 14 headed off a driver to change Senate rules by pledging to oppose filibusters in all but “extraordinary circumstances.”
Republicans cited that standard in filibustering Liu, who they called unacceptable because of his legal ideology and his 2006 testimony against the confirmation of Justice Samuel Alito Jr. In that testimony, for which Liu apologized last year to the Senate Judiciary Committee, Liu attacked Alito’s rulings in particularly harsh language.
Sen. Lindsey Graham (R-S.C.), who was part of the Gang of 14, focused on the Alito testimony in calling Liu an extraordinary case. “These statements given to the Judiciary Committee were designed to inflame passion against Judge Alito,” Graham said.
At the same time, Graham said he has not changed his view that filibusters of judicial nominees should be rare. “I will try my best to make sure that the Senate stays on track and does not get in the habit of filibustering judges haphazardly based on ideology,” he said.
Another member of the Gang of 14, Sen. Joe Lieberman (D-Conn.), said Liu’s qualifications and experience outweighed any other considerations. “To me, I don’t think these are extraordinary circumstances, given his intellect, his varied background, the character he has and the broad range of endorsements he has,” Lieberman said.
Obama nominated Liu last year to the U.S. Court of Appeals for the 9th Circuit. A professor and associate dean at the University of California at Berkeley’s law school, Liu is a favorite nominee of liberal legal advocates. Some Republicans, including former U.S. solicitor general Kenneth Starr, have also endorsed him.
Forty-three senators voted for the filibuster, including one Democrat, Sen. Ben Nelson (Neb.). Sen. Orrin Hatch (R-Utah), who was especially vocal during the Bush administration that judicial filibusters were wrong, voted “present,” the same position he took on a similar vote two weeks ago.
White House spokesman Eric Schultz said the vote is a “truly lost opportunity for a distinguished addition” to the federal appellate bench.
“Goodwin Liu would have brought sterling credentials, great intellect, and a compelling life story to the bench,” Schultz said in an e-mailed statement. “His mainstream views earned him high praise from Democrats and Republicans alike. But unfortunately his nomination today fell victim to persistent and serious misrepresentations of his record.”
It was not immediately clear whether Liu would withdraw as a nominee or, as some Bush nominees did, continue fighting for confirmation.
Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, accused Republicans of “shifting standards” on judicial nominations. “I have not been this disappointed in a vote on a judicial nomination since Senate Republicans voted in lock step to reject Missouri Justice Ronnie White in 1999. Professor Liu deserved better treatment than the Senate has allowed,” Leahy said in a statement.
The top Republican on the Judiciary Committee urged Obama to abandon the Liu nomination. “It’s now time for the President to send to Capitol Hill a consensus nominee that the members of the Senate can agree on, instead of insisting on moving forward with controversial nominees that are completely out of the mainstream of America,” said Sen. Charles Grassley (R-Iowa) in a statement.
Before the vote, Senate Majority Leader Harry Reid (D-Nev.) read quotes from Republican senators who, during the Bush administration, denounced judicial filibusters and even called them unconstitutional. Sen. Lamar Alexander (R-Tenn.), for example, said in 2005 he “would never filibuster any president’s judicial nominee, period,” according to Reid.
But Republicans said Democrats have not been consistent. Alexander, in an interview, pointed to Reid’s role in blocking Bush nominees such as Miguel Estrada for the D.C. Circuit. “Senator Reid’s been selective in his reading of history. When the shoe was on the other foot, he was blocking President Bush’s judges,” Alexander said.
Alexander said he was following the Gang of 14’s guideline of “extraordinary circumstances,” a standard that was left undefined, in his vote to filibuster Liu. “I was not persuaded that he could put aside his own personal views and be a neutral judge,” Alexander said.