When now-Supreme Court Justice Samuel Alito faced a Senate confirmation vote in 2006, Sen. Dianne Feinstein, D-Calif., had no qualms about rejecting Alito simply because she did not agree with him. "If one is pro-choice in this day and age, in this structure, one can't vote for Judge Alito," Feinstein declared.
Feinstein went even further. When Republicans argued that simple fairness demanded a full floor vote on Alito, Feinstein, like Sen. Barbara Boxer, D-Calif., and then-Sen. Barack Obama, D-Ill., supported the use of the filibuster to prevent it. They tried, but failed to prevent a majority-rules vote.
Now that Democrats are in power, judicial philosophy doesn't matter. Before a Senate Judiciary Committee hearing on the confirmation of UC Berkeley Law Professor Goodwin Liu to the Ninth Circuit Court of Appeals, Feinstein complained to The Chronicle's Bob Egelko that Liu's critics were all "attack, attack, attack," which seemed unfair, as Liu is "exemplary."
So here is the conundrum, in two parts. Should Democrats, who have happily rejected Republican presidents' judicial nominees on philosophical grounds, complain when Republicans do the same to the Democrats' picks?
The answer is: No, but it's not as if you can stop them. And should Republicans stick to the "let a conservative pick a conservative, and then let the full Senate vote" standard when a liberal is the president and Democrats rule the Senate?
Yes, but that doesn't mean Repubs have to throw rose petals at Liu's feet. The standard I would suggest is a low bar -- that the GOP treat Liu better than he treated Alito and now-Chief Justice John Roberts who, Liu argued, were too extreme for the Big Bench.
Liu's criticism of four Alito decisions upholding capital punishment cases -- only one of which prevailed -- showed that Liu wrongly jumped "to a conclusion of racism," according to Kent Scheidegger of the Criminal Justice Legal Foundation. Scheidegger believes that if Liu becomes an appellate judge, he would overrule death penalty convictions given any excuse, no matter how far-fetched.
At the hearing, Liu told Sen. Jeff Sessions, R-Ala., "I have no opposition to the death penalty. I've never written anything questioning its morality or constitutionality. I would have no problem enforcing the law as written in this area." Liu also admitted that his language on Alito was "perhaps unnecessarily flowery." Flowery?
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