Late last week, Senate Republicans successfully filibustered President Obama’s nomination of Goodwin Liu to the federal bench. This marked the first Republican block of one of Obama’s judicial nominees, and the first block of any judicial nominee since 2005. Democrats, obviously, are quite upset by this, claiming that Liu deserved a straight up-or-down vote.
In order to understand the context here, it is necessary to turn back the clock to 2005. Between 2003 and 2005, former President Bush had nominated a total of ten candidates to fill federal judicial vacancies. Democrats filibustered all ten nominees, rather openly admitting they were doing so because they could. It was a classic case of petty politics. In response, the Republican majority threatened to change Senate rules to remove the right to filibuster judicial nominees: this was called the “nuclear option.” In response, a group of 14 moderate Senators from both parties reached an accord in which they agreed to pull the “nuclear option” off the table in exchange for giving up filibusters except “under extraordinary circumstances.”
Until now, this arrangement has benefited President Obama (sort of, in that many nominees are still stuck in committee.) All his nominees who have made it through committee and made it to a vote have been confirmed. About 14 others are still awaiting a vote. Liu is the first candidate since 2005 to have been filibustered. Democrats are up in arms, claiming the Republican side of the 14 broke their agreement. The Republicans are countering with the argument that the agreement allowed for “extraordinary circumstances”, and Liu’s nomination falls under that umbrella.
What makes Liu so special?
Goodwin Liu is an Associate Dean and Professor of Law at UC Berkeley. He is very well regarded as having a keen legal mind and being an excellent legal educator. According to the ABA, he is “well-qualified” as a candidate for the federal bench. Liu is also very outspoken. As far as the Republicans are concerned, he has two very serious strikes against him. The first is that his personal politics and jurisprudence are very liberal, far more so than Justices Kagan and Sotomayor (who did not get filibustered.) Liu has made certain statements on the record regarding his interpretation of the Constitution which fall outside the realm of generally-accepted Constitutional law. I saw one report stating he believes that the Constitution mandates a protection of gay marriage, universal health care and job-related skills training. Mainstream judicial thought argues whether these are state or federal matters, but they are generally not considered Constitutional rights or protections. The long and short of it is, Liu would be poised to be the most liberal member of the nation’s most liberal circuit court, and by a wide margin.
The second, and more serious, strike also reflects his outspokenness. He was a strong opponent to the appointments of John Roberts and Samuel Alito to the Supreme Court, accusing Roberts of being a judicial activist. His remarks regarding Samuel Alito were downright offensive:
Alito “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, absent [an] analysis showing discrimination”
Whether or not one agrees with a judicial candidate’s jurisprudence, this sort of grandstanding does not reflect well on the speaker, especially if the speaker has judicial aspirations of his own. I must also note (with some irony) that while he accused Roberts of judicial activism, his own scholarly writings advocate (liberal) judicial activism.
So… promise broken or kept?
As I mentioned previously the Group of 14 had agreed not to filibuster except “under extraordinary circumstances.” Until now, the Republicans had held up their end of the bargain, allowing Obama’s nominees to enjoy an up-or-down vote, and clearing the way for two liberal-leaning Supreme Court justices (in all fairness, though, Kagan’s appointment was mostly a formality, since the hard work had already been done when she was voted in as Solicitor General.) Liu’s nomination was the first to meet a procedural obstacle, and the Republican members of the 14 were quick to point out that Liu was, in fact, an extraordinary case. His sworn statements before Congress and his published writings paint a picture of an activist judge with an overtly liberal agenda. Republicans were concerned that he would not vote based on established case law and generally-accepted jurisprudence, but would apply his own standard that is not in line with accepted Constitutional law. They were also deeply concerned about his remarks toward Roberts and (especially) Alito. Ultimately, they found he was too liberal, too extreme and too activist to allow a confirmation vote. The same arguments that applied to Robert Bork apply to Goodwin Liu, they say.
Democrats feel betrayed. There is a difference between one’s legal philosophy as outlined in a classroom and what one actually does in a court of law. Many judges are able to put aside their political opinions and instead rule based on the law as written, so why should Liu be any different? The ABA’s endorsement was unanimous, and his professional record is impeccable. As far as the Democrats are concerned, the Republicans walked away from the deal when it became inconvenient.
I find myself having to agree with the Republican Senators on this one. The agreement was not that the right to filibuster would be waived, but rather that it would be used sparingly, with restraint, and only when there were serious questions about whether the nominee deserved to be on the federal bench. Complaints about petty politics are well-received: Liu is a liberal rock star, the sort of person progressives really want to see elevated to the federal judiciary (and the sort conservatives really do NOT want to see on the federal bench.) My own limited knowledge of his jurisprudence leads me to associate him with being a William O. Douglas-type of legal scholar (I do think Liu’s family life is a little more stable.) But I also think he’s given off some very serious warning bells. His published writings and statements demonstrate a political bias that raises serious questions as to whether he can be an impartial jurist. His statements regarding the Constitution raise red flags as to whether he interprets the Constitution correctly. And his statements regarding Roberts and Alito make some of Justice Scalia’s opinions seem downright congenial.
The role of the Senate in examining a candidate for the federal bench is not to ask, “does this candidate agree with my political ideology?” It is to ask, “would this candidate make a good judge? Will this candidate properly interpret the Constitution and the laws we have passed? Can this candidate rise above the politics and be an excellent jurist?” Just as it is improper for a political party to block a candidate because they can, it is also improper for a political party to abdicate their responsibility to ask these questions because they are in the minority. When a prospective judge talks about getting “our ideas and the progressive vision of the Constitution and of law and policy into practice,” there is a very real danger of judicial activism, and such candidates should face much tougher scrutiny.
At the end of the day, it was not Republicans breaking promises that torpedoed Liu’s chances at an appointment to the federal bench. These same Republicans had allowed 24 other nominees to reach a confirmation vote, and let two qualified progressives onto the Supreme Court. The record shows that Republican treatment of Liu was the exception, not the rule. Ultimately, it was Liu himself who was his own undoing. His vehement, vocal and incendiary comments regarding Roberts and Alito and his copious unabashed left-leaning writings and interpretations gave Senate Republicans all the information they felt they needed to state conclusively that Liu would not be a good federal appeals judge. Every judge has a bias, but every good judge can put that bias aside. They clearly felt that was something Liu couldn’t do.
