POSTED: 6:17 a.m. HST, May 19, 2011
LAST UPDATED: 3:35 p.m. HST, May 19, 2011
WASHINGTON >> President Barack Obama lost his first vote on a judicial nominee today, as Senate Republicans derailed the nomination of a liberal professor who leveled acerbic attacks against two conservative Supreme Court nominees — both now justices.
Democrats fell short of the 60 votes they need to end a filibuster and give Goodwin Liu an up-or-down vote on his nomination to the San Francisco-based 9th U.S. Circuit Court of Appeals. Liu, a 40-year-old legal scholar at the University of California's Berkeley law school, could someday be a dream Supreme Court nominee for liberals.
The vote was 52-43 to end debate, leaving Democrats eight votes short.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., had been pushing for a vote on Liu, who had been nominated three times for the appellate post.
Republicans have made Liu their prime example of a judicial nominee who, in their view, has been so unabashedly liberal in his writings and statements that he does not deserve an up-or-down vote.
The politics were reversed in 1987, when Democrats defeated Republican Supreme Court nominee Robert Bork by citing his conservative writings. Liberals said Bork was a conservative extremist, just as conservatives now say Liu is a liberal extremist. Bork's nomination was defeated in an up-or-down vote 58-42.
In both cases, opponents argued the nominees would take their views with them to the bench, allowing those views to trump the Constitution.
To most Democrats and liberal backers, Liu is the type of nominee they want for a lifetime appointment on the federal bench. He supports liberal social issues such as gay marriage and affirmative action. He was given a top rating of unanimously well-qualified by the American Bar Association. He was a Rhodes Scholar and clerked for Supreme Court Justice Ruth Bader Ginsburg. He received numerous awards for academic and legal achievements, including the highest teaching award at his law school.
The Senate rejection comes after Hawaii's two Senate Democrats expressed strong support for the nominee. Sens. Daniel Akaka and Daniel Inouye said they met with law professor Goodwin Liu in advance of today's vote. The California-based 9th U.S. Circuit Court of Appeals' jurisdiction includes Hawaii.
Akaka said he's supporting Liu as "a shining example of the American dream" that will help the court better reflect the population it serves.
Liu would have been the only Asian-American among the court's 29 active judges.
To most Republicans and conservative allies, he's a judicial activist who made insulting remarks about the Supreme Court nominations of John Roberts, now the chief justice, and Samuel Alito.
Two senators favoring a continued filibuster were Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C. Both were part of a group of 14 senators who previously pledged not to filibuster judicial nominees except under extraordinary circumstances.
"The nomination of Mr. Goodwin Liu does rise to a level of extraordinary circumstances and therefore McCain will seek to filibuster the nomination," McCain's office said in a statement Wednesday.
Graham said: "His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue. Goodwin Liu should run for elected office, not serve as a judge. Ideologues have their place, just not on the bench."
Leahy told the Senate that the senators from the group of 14 are failing to uphold their own principles of filibustering only in extraordinary circumstances.
"None of them said there are extraordinary circumstances here," Leahy said. "Well, let's be responsible. Let's bring it to a vote."
Sen. Chris Coons, D-Del., said, "The notion that somehow professor Liu is an ideologue ... is belied by his actual record."
Coons added: "Why on earth this record of this exceptionally qualified man would justify a filibuster is utterly beyond me and suggests that unfortunately we've been mired in partisanship."
Republicans and conservatives believe Liu expressed his true judicial philosophy in a radio interview after Obama's election. He said then that liberals "have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice."
Liu had said Alito's vision was an America "where police may shoot and kill an unarmed boy ... where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance ... where the FBI may install a camera where you sleep ... where a black man may be sentenced to death by an all-white jury for killing a white man, absent ... analysis showing discrimination."
Liu told his confirmation hearing before the Senate Judiciary Committee that this "was not an appropriate way to describe Justice Alito." He described his own language as "unduly harsh," and added, "If I had it to do over again, I would have deleted it."
Writing about the chief justice as a nominee, Liu said that "with remarkable consistency throughout his career, Roberts ... applied his legal talent to further the cause of the far right."
Liu told the committee that "whatever I may have written in the books and the articles would have no bearing on my action as a judge."
Sen. John Cornyn, R-Texas, said on the Senate floor: "Well, Professor Liu waited four years to provide that semi-apology to Justice Alito for the shameful remarks. And like so many nominees who come before the Senate Judiciary Committee, they seem to undergo a nomination conversion that changes the tone and the nature of their remarks and their attitudes, and frankly we just can't depend on this conversion sticking."
Leahy has consistently criticized Republicans, saying they have been too slow to agree to confirmation votes for positions where judges are desperately needed. So far this year, Obama has nominated 75 judges; 38 have come out of committee, with 24 of them confirmed and 14 pending before the Senate. Thirty-seven remain in committee.
The ranking Republican on the Judiciary Committee, Sen. Chuck Grassley of Iowa, disputed that. "It seems that the more we work with the majority on filling vacancies, the more complaints we hear," he said.