GOP filibuster blocks federal appeals court nominee Liu

McClatchy NewspapersMay 19, 2011 

WASHINGTON — Republicans on Thursday blocked the Senate from considering the appellate court nomination of Goodwin Liu, a University of California at Berkeley law professor whose judicial prospects are in doubt.

In a 52-43 faceoff, Democrats fell far short of the 60 votes needed to overcome a GOP filibuster. Though they can try again later, Republicans show no sign of relenting against a man they cast as a liberal activist.

"He became one of the stars of the left-wing liberal universe," declared Republican Sen. Orrin Hatch of Utah. "I'm really concerned about this nomination."

What happens next will shape both politics and the law, particularly if Liu's nomination remains stymied.

"I think the ramifications of this filibuster are going to be long and difficult," Democratic Sen. Barbara Boxer of California predicted, adding that "this is going to go down hard."

Politically, Asian-American activists contend that Republicans will pay a price for blocking one of the few Asian-Americans nominated to the federal bench. Asian-Americans hold only 14 of the nation's 874 federal judicial slots. One of these is an appellate court position.

On Capitol Hill, the Liu battle almost certainly will lead to further use of the filibuster against other judicial nominees, a once-rare practice that's now deployed on a tit-for-tat basis. Boxer all but promised that Republicans who blocked Liu would face retaliation against their own home-state judicial picks.

Hatch, in turn, underscored the generation-transcending, Hatfield-vs.-McCoy nature of judicial confirmation battles when he bitterly and repeatedly cited the long-ago Democratic rejection of Supreme Court nominee Robert Bork in 1987.

On six occasions since President Barack Obama took office in January 2009, Democrats have had to hold votes to cut off GOP filibusters against judicial nominees and move to a final vote.

"Regrettably, the Republican filibuster of Professor Liu's nomination continues the pattern they set as soon as President Obama first took office," said Democratic Sen. Patrick Leahy of Vermont, the chairman of the Senate Judiciary Committee. "This is a far cry from when Republican senators were insisting just a few years ago that such filibusters of judicial nominees were unconstitutional."

Facing partisan filibusters such as the one confronting Liu, some nominees have walked away. Bush administration circuit court nominee Miguel Estrada, for instance, endured a 29-month Democratic filibuster and repeated failed votes to cut off debate before withdrawing his nomination in 2003.

Senate Majority Leader Harry Reid pointedly called out by name four Republican senators who previously had denounced the use of filibusters.

"We will see if (they) equivocate," Reid said, setting up the Republicans shortly before the vote.

In the end, even GOP senators that the Democrats thought they had a chance with, such as freshmen Sens. Scott Brown of Massachusetts and Rob Portman of Ohio, aligned themselves with their party's majority. Republican Sen. Lisa Murkowski of Alaska joined Democrats as the only Republican to vote to end the filibuster, a day after President Barack Obama nominated an Alaskan to the 9th U.S. Circuit Court of Appeals.

"I stated during the Bush administration that judicial nominations deserved an up-or-down vote, except in extraordinary circumstances, and my position has not changed simply because there is a different president making the nominations," Murkowski said.

Other nominees have bounced back after their initial failures to escape the filibuster swamp. Deputy Interior Secretary David Hayes, for instance, fell three votes short in his initial try for 60 votes in early 2009. Republicans, having made their point, then dropped their opposition and Hayes won confirmation by voice vote a week later.

Though the vote Thursday was essentially out of Liu's control, it marked one of the few times he's fallen short in public.

Born in Georgia and raised in California, Liu excelled at Stanford University, Oxford University in England and Yale Law School.

He's now the associate law school dean as well as a professor at Berkeley.

"He is truly a brilliant mind," California Democratic Sen. Dianne Feinstein said.

Conservatives, though, question the 40-year-old professor's lack of judicial experience and his supposed activist bent, and they throw back in his face harsh comments he once made about Bush administration Supreme Court nominee Samuel Alito.

"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 (and) where a black man may be sentenced to death by an all-white jury for killing a white man," Liu once said, adding that "I humbly submit that this is not ... the America that we aspire to be."

Liu subsequently apologized, in the course of his two confirmation hearings.

So far this year, the Senate has confirmed 21 trial-level district court judges and three circuit court judges. Circuit judges tend to incite more partisan resistance, because their rulings can become binding law on multi-state regions.

On May 5, for instance, 11 Republicans, including Sens. John McCain of Arizona and Lindsey Graham of South Carolina, joined Democrats in ending a filibuster against Rhode Island district court nominee John J. McConnell Jr. None of those Republicans subsequently voted for McConnell, but by clearing the filibuster they made his confirmation possible.

Nationwide, 89 federal court vacancies remain, for which the Obama administration so far has 47 pending nominations.

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