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.
one wonders if this signals that recess appointments will become the norm rather than the exception. in this polarized environment, the only way to get anything controversial done in washington remains if the same party holds the white house and a super majority in the senate.
Posted by: Christopher Lee | May 21, 2011 at 05:15 AM
"Please remember the judicial wars all started in the Clinton admin."
You don't consider the attacks on Bork and Thomas to be part of the "judicial wars"?
"Only people on the far, far right actually thinks Liu was an EC."
Nonsense. If that were true, 43 Senators would not have voted against cloture. You think Senator Alexander, whose position is stated in the first comment to in this thread, is "far, far right"? Preposterous.
"Republicans stabbed the democrats in the back, now, the judicial wars will contiune."
Republican blocking of nominees in the present Administration is far less than the Democrats did in the previous one. If they had let this one through, the notion that Leahy et al. would have reciprocated when the Republican get the White House back is pure fantasy.
Posted by: Kent Scheidegger | May 20, 2011 at 06:03 PM
Anybody read the ABA guidelines for judicial nominees? It requires 12 years experience & that the nominee necessarily be a trial lawyer. That, combined with the fact that a vast majority of CA county DA's recommended against Liu, means "strike three" -- he's out!
Posted by: JD Di Giacomo | May 20, 2011 at 12:33 PM
Kent,
Please remember the judicial wars all started in the Clinton admin..Things were so bad that Clinton actually submitted a list of SCOTUS nominees he was considering to Sen. Hatch...From my understanding, Hatch refused ALOT of names, before Ginsburg was seen as accecptable...
Sure, the democrats paid republicans back, but the Gang of 14 Compromise was supposed to wipe the slate clean and start anew...Only people on the far, far right actually thinks Liu was an EC...He had too many credible conservative backers (Painter, Starr, Yoo, Bolick) Liu's detractors were from ULTRA far right blogs & newspapers..Republicans stabbed the democrats in the back, now, the judicial wars will contiune...
Quote below is from Sen. Leahy's remarks from yesterday, where he talked about some of the nominees who democrats through their good graces let be confirmed:
"The Senate invoked cloture on the nomination of Janice Rogers Brown to the D.C. Circuit. She was a nominee who had argued that Social Security was unconstitutional, saying that “[t]oday's senior citizens blithely cannibalize their grandchildren.” They agreed to invoke cloture on the nomination of Priscilla Owen to the D.C. Circuit, a nominee whose rulings on the Texas Supreme Court were so extreme they drew the condemnation of other conservative judges on that court. Alberto Gonzales, President Bush’s White House counsel and later his Attorney General, went so far as to describe one of her opinions as advocating “an unconscionable act of judicial activism.”
Posted by: Rick | May 20, 2011 at 09:11 AM
"Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man.... I humbly submit that this is not the America we know. Nor is it the America we aspire to be.” -- Liu in his testimony against Alito.
Amazing as Alito has had a couple of dissents this year that show him too be possibly the most sympathetic Supreme Court Judge.
Posted by: Herb | May 20, 2011 at 08:48 AM
If the Democrats only had let ideology stand in the way of confirmation as the Republicans have in the Liu nomination, the nation wouldn't be suffering from the atrocious Supreme Court decisions by right wing ideologues Scalia, Thomas, Roberts, and Alito.
Posted by: Richard M. Adler | May 19, 2011 at 10:11 PM
If Ken Starr can get over it, the politicians should too.
Ironically, even though federal judges owe their careers to political appointments, their responsibility to interpret the law proficiently requires them to be more perceptive (and smarter) than your usual "strategery"-oriented legislator.
Most federal district court and appellate judges do live up to this standard.
That other federal court - which routinely churns out unprecedented political strategery as if it were gold - can go unmentioned in this discussion.
Posted by: Walter | May 19, 2011 at 09:41 PM
"I CANNOT wait til the next time a republican president makes a judicial nomination and democrats filibuster him or her...."
Of course they will. They did last time the Republicans had the White House, and they will again next time. Do you think for a minute they would refrain if the Republicans unilaterally disarmed now?
"so much for that Gang of 14 Compromise"
So much? The compromise expressly provided for continued use of the filibuster in "extraordinary circumstances." This one surely fits.
Posted by: Kent Scheidegger | May 19, 2011 at 08:28 PM
The vote was "not even close"...What a farce...Only in the US senate can a side PREVAIL 52-43, yet the side with 43 wins...In the NFL, if the final score is New England 31, NYJ 28, the Jets don't win..No where else on this planet or any other, can one be on a losing side & yet be victorious..
I'd bet this travesty (so much for that Gang of 14 Compromise) will not soon be forgotten...I CANNOT wait til the next time a republican president makes a judicial nomination and democrats filibuster him or her....
Posted by: Rick | May 19, 2011 at 06:56 PM
This is indeed a case of "extraordinary circumstances." Congratulations to the Republicans who held firm.
The Ninth Circuit has an absolutely dismal record, especially in habeas review of state criminal cases. In the current term, the Ninth has been reversed in 6 of 6 habeas cases, 5 of them unanimously.
We need nominees who will make this train-wreck of a court better, not worse. Liu's attack on Alito's habeas record demonstrates that Liu is fully aligned with Reinhardt and the very worst of the Ninth Circuit judges.
Withdraw this nomination, President Obama, and nominate someone who will faithfully follow Supreme Court precedent and the habeas statutes.
Posted by: Kent Scheidegger | May 19, 2011 at 05:52 PM
Of his vote, Alexander said: “The Senate is a body of precedent. Since 2005, in the case of Court of Appeals judges or Supreme Court justices, I have followed the precedent established that year by the ‘Gang of 14’: I reserve the right to vote against allowing an up or down vote in an extraordinary case. I consider this to be an extraordinary case. I also agree with the Senate precedent never to filibuster federal district court judges.”
Posted by: Jim Jeffries, Alexander spokesman | May 19, 2011 at 04:13 PM