GOP senators might filibuster Obama’s ‘most controversial judicial nominee’ Update: GOP filibuster successful

posted at 11:06 am on May 19, 2011 by Tina Korbe

The Senate votes today on whether to close debate on the controversial nomination of University of California-Berkeley law professor Goodwin Liu to the Ninth Circuit Court of Appeals — and GOP senators have indicated they just might block an Obama judicial nominee for the first time:

Senior Republicans launched an all-out push to quash the nomination, urging their conference colleagues to support a GOP-led filibuster.

“(Liu’s) record reflects a carefully honed and calculated philosophy that he developed and advanced over the course of his brief career in the ivory towers of academia and which threatens the American tradition of limited constitutional government,” Sens. Charles Grassley of Iowa, top Republican on the Judiciary Committee, and senior panel member Jeff Sessions of Alabama, wrote in a letter, obtained by Fox, to their GOP colleagues Wednesday.

In a most ominous sign, former GOP members of the so-called “Gang of 14,” who narrowly averted a judicial crisis back in 2005 that nearly shut down the Senate, are lining up against Liu, as well.

That’s a good thing — because, as at least one reporter has suggested, Liu just might be President Obama’s ‘most controversial judicial nominee’ — and that’s saying something, given the president’s many questionable nominations.

Consider judicial nominee Jack McConnell, now a federal district court judge in Rhode Island, who donated $700,000 to Democrats in the two decades before President Obama tapped him for his current position. Or, even better, Supreme Court justice Elena Kagan, who, as we found out yesterday, might have helped to craft a legal defense of Obamacare, yet likely won’t recuse herself from the case against its constitutionality when it comes before the Court.

But Liu just might outdo the whole slew.

For starters, Liu does not even meet the standard for federal judgeships outlined by the American Bar Association, which requires substantial courtroom and trial experience and at least 12 years practicing law. Liu has no experience as a trial lawyer. He hadn’t even been out of law school for 12 years when he was nominated.

Ed Whelan of The Ethics and Public Policy Center corroborates:

Liu’s woeful inexperience compounds his deficiencies of judicial philosophy. He is only 39, and he has even less experience than his age might suggest. He has been a member of the bar for less than eleven years, and he practiced law for less than two years. Under a neutral application of the ABA’s rules — i.e., “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law,” and “substantial courtroom and trial experience as a lawyer or trial judge is important” — Liu would presumptively receive a “not qualified” rating and be very fortunate to eke out a “qualified.” But somehow the ABA’s process was jiggered to give Liu the ridiculous rating of “well qualified.”

Liu has very little experience, but he definitely has an opinion as to the role of the courts. Here’s Liu himself, in his book ironically titled Keeping Faith with the Constitution:

What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.

Or, again, in a paper entitled “Rethinking Constitutional Welfare Rights“:

The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.

Seems to me “the problem for courts” is to determine what the law says. If our “collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine,” then the legislature can enshrine those collective values in new law. Until then, judges have no reason to worry about whether “a judicial decision may help forge or frustrate a social consensus.”

But we have reason to worry about Liu, an evidently activist judge, who, according to Whelan, has eventual Supreme Court aspirations. In general, as the “Gang of 14″ established in 2005, senators should filibuster a nominee only in “extraordinary circumstances.” This qualifies. Democrats only need seven Republicans to keep Liu’s nomination alive. Let’s hope that those GOP senators who’ve indicated they’ll filibuster actually do — and that those senators who vote in Liu’s favor will consider what that will say to those of us who think fidelity to the Constitution means … fidelity to the Constitution.

Update: Republicans this afternoon successfully filibustered Liu’s nomination, defeating the motion to end debate. The motion needed 60 votes to pass, but received just 52 votes.

“This nominee was over the line,” Sen. Jeff Sessions (R-Ala.) said immediately after the vote on a conference call with bloggers. “It wasn’t even close. If I can’t believe a judge will be faithful to the Constitution, I’m not going to vote for him. … I do think [the filibuster] says to [the president] that Congress is not a rubber stamp. Most Republicans are more reluctant than Democrats to filibuster [but] this nominee did not need to be confirmed.”

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