On Thursday, May 19 Senate Republicans refused to vote for cloture in sufficient numbers to allow the Senate to move to the consideration of the nomination of Berkeley Law School Professor Goodwin Liu's nomination to became a judge on the United States Court of Appeals for the Ninth Circuit.
It takes 60 votes for a nomination to move to a final debate and vote up-or-down, and there were only 52 votes in favor of doing so with Liu. One Republican voted to move Liu's nomination along --Lisa Murkowski. One Democrat voted to block it --Ben Nelson. A number of Democrats took a pass on voting at all, perhaps because Professor Liu's liberal views and past verbal assaults on Republican nominees for the Supreme Court John Roberts and Samuel Alito are not the sort of burdens they want to carry in a re-election campaign.
The filibuster is back.
The presidency of George W. Bush was marked by the abuse of the judicial filibuster by Senate Democrats when they were in the minority. Vermont's radical and erratic Patrick Leahy used his position as ranking member of the Judiciary Committee to urge his liberal colleagues to embrace this most destructive, anti-majoritarian weapon, and they did so with zeal. Among the extraordinarily well qualified judicial nominees of President Bush who became permanent victims of the Democrats wielding the super-majority: Miguel Estrada, Carolyn Kuhl, Charles Pickering, William Myers and Henry Saad. Many other judicial nominees were filibustered for long periods of time but the Gang of 14 agreement forged in May of 2005 allowed for the confirmation of some of those who had been filibustered, like Janice Rogers Brown and William Pryor. The seven Senate Democrats and seven Senate Republicans who signed on to the agreement stipulated that judicial "[n]ominees should be filibustered only under extraordinary circumstances."
Filibusters of executive branch nominees are common and deeply rooted in modern American political history. But judicial nominees have always been treated differently and for very good reasons having chiefly to do with keeping the courts separate to some degree from the political wars. Until Democrats began to abuse the procedure in the Bush years, only one judicial nominee had ever been filibustered --Justice Abe Fortas when he was nominated to be Chief Justice of the Supreme Court, and that filibuster was bipartisan and proceeded from a concern over Fortas' ethics.
Until the Democrats began abusing the filibuster, no circuit court nominee had ever been filibustered. Until the block applied to Goodwin Liu yesterday, the GOP side of the aisle had never used the weapon against a circuit court nominee.