The nomination of Goodwin Liu to the 9th Circuit gets a vote in the Senate today, and the prospects are pretty bleak. President Obama nominated Alaska Supreme Court justice Morgen Christen to the 9th Circuit (which has four vacancies) yesterday, drawing praise from Lisa Murkowski. Perhaps this was part of a deal to get Murkowski’s vote for Liu. Other than that, I haven’t seen much of a strategy to get this accomplished, other than trying to force Republicans to be as good as their past statements about filibustering judicial nominations.
Senator Saxby Chambliss (GA): “I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).
Senator John Cornyn (TX): Judicial filibusters are “offensive to our nation’s constitutional design…. [S]eparation of powers principles strongly suggest that the Senate may not—and especially not by mere Senate rule—enhance its own power in such a manner without offending the Constitution” (2004).
Senator Mike Crapo (ID): “[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).
Senator Jim Demint (SC): “[D]enials of simple votes on judicial nominees” are “unconstitutional” (5/22/05).
Senator Lindsey Graham (SC): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).
Senator Orrin Hatch (UT): Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).
Senator Kay Bailey Hutchison (TX): “[T]he Constitution envisions a 51-vote majority for judgeships…. [Filibustering judges] amend[s] the Constitution without going through the proper processes…. We have a majority rule that is the tradition of the Senate with judges. It is the constitutional requirement” (4/28/05).
Senator Johnny Isakson (GA): “[T]he Constitution require[s] an up-or-down vote” on judicial nominees. “I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).
Senator Jon Kyl (AZ): “The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate’s obligation under the Constitution to act on those nominees” (4/10/08).
Senator Jeff Sessions (AL): “[The Constitution] says the Senate shall advise and consent on treaties by a two-thirds vote, and simply ‘shall advise and consent’ on nominations…. I think there is no doubt the Founders understood that to mean … confirmation of a judicial nomination requires only a simple majority vote” (7/27/03).
Senator Richard Shelby (AL): “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).
Senator John Thune (SD): Filibustering judicial nominees “is contrary to our Constitution …. It was the Founders’ intention that the Senate dispose of them with a simple majority vote” (4/21/05).
Unfortunately, consistency isn’t the Republicans’ strong suit. Graham, Isakson and McCain – and in all likelihood, Kyl, Hatch, Sessions and the other Judiciary Republicans as well – will vote against cloture today.
The White House called attention to this editorial from the LA Times, urging confirmation of Liu, saying that “Republicans — and Democrats — inclined to oppose Liu’s nomination are free to vote against it. But they would do an injustice to Liu and the Senate by refusing to allow his nomination to come to a vote.” In addition, Politico has an op-ed from Liu supporter Richard Painter, a former lawyer in the George W. Bush White House:
Liu is well suited for the bench. He is a highly regarded constitutional law professor at the University of California, Berkeley, School of Law. His nomination is supported by Whitewater prosecutor Ken Starr, Goldwater Institute lawyer Clint Bolick and other leading conservatives — as well as by moderates and liberals.
Liu has not been afraid to speak out about public policy – even when his views don’t agree with those of leading Democratic politicians and interest groups. He opposed the Supreme Court nominations of Chief Justice Roberts and Justice Samuel Alito, but has also not been afraid to acknowledge the few instances when, in retrospect, he should have chosen different words.
Most important, Liu has demonstrated in both scholarly writings and in extensive Senate testimony that he knows the difference between making law — the job of elected officials — and interpreting law — which is the job of a judge.
While Republicans want to keep a bright, young judicial scholar off the bench in case he gets a stepping stone to the Supreme Court, some Republican Senators will literally vote against Liu because he was mean to Sam Alito. And in our polarized politics, that’s probably enough to sink him. We’ll know today.