If there's one place where what goes around comes around, it's the U.S. Senate. Goodwin Liu, the Berkeley law professor nominated by President Obama to the 9th Circuit Court of Appeals, is the latest to learn that lesson.
Liu's nomination was blocked recently by a Republican filibuster -- the first successful filibuster against a judicial nominee since Democrats stopped all 10 of George W. Bush's appeals court nominees from 2003 to 2005. Although no one back then could have predicted that today's fight would be about Liu, everyone knew it was going to happen sometime. Once Democrats crossed the line to filibuster those Bush nominees, you could bet Republicans would strike back. And now they have.
Liu was as good a target as any for the GOP. A legal scholar who has never been a judge and has little experience practicing law, Liu occupies a place on the far left side of the legal spectrum. To take just one example, Republicans are fond of repeating Liu's assertion that the Constitution guarantees the right to "expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit."
"I must have missed that," Republican Sen. John Cornyn, a former Texas state supreme court justice, said dryly in floor remarks just before the filibuster vote.
It wasn't just Liu's legal positions that did him in. Republicans were particularly rankled by the professor's testimony during the 2006 confirmation hearings of Supreme Court Justice Samuel Alito. Appearing to model his remarks on Ted Kennedy's infamous 1987 "Robert Bork's America" speech, Liu said Samuel Alito's America would be one in which cops kill young suspects over minor crimes, all-white juries send black men to their deaths, and federal agents terrorize innocent civilians. After his own nomination, when he had gotten a taste of criticism himself, Liu apologized, saying his language had been "unduly harsh." But the damage was done.
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In debate before the filibuster vote, some Republicans went out of their way to say it wasn't personal. "Goodwin Liu is a stellar individual, no question about it," said GOP Sen. Tom Coburn, who also called Liu a "stellar scholar," a "genuine great American," and a "great human being." But Coburn still concluded, "That does not qualify him to be on the Ninth Circuit Court of Appeals."
Of course, a few years ago, Coburn and other Republicans were decrying the Democrats' unprecedented use of the filibuster against judicial nominees. In the Bush years, minority Democrats stopped well-qualified nominees like Miguel Estrada and Priscilla Owen for purely political reasons -- to keep conservative judges off the courts and deny Bush possible future Supreme Court candidates. Democrats accused Estrada, Owen and others of being "divisive" and "controversial."
There was a revealing moment in 2005, as the filibuster fight was nearing its climax, when mild-mannered Republican Sen. Robert Bennett asked Sen. Harry Reid, who was then the minority leader, "if any number of hours of debate would be sufficient" to move the Owen nomination forward. Reid's answer was quick and sharp. "There is not a number in the universe that would be sufficient," he said.
The message was clear. Democrats would kill all the nominees they wanted. Period. Finally, Republicans threatened to use their majority to put an end to judicial filibusters altogether -- the so-call "nuclear option." A bipartisan group of senators, known as the Gang of 14, convened to seek a compromise.
In the agreement that followed, the "nuclear option" was shelved and Democrats caved on most -- but not all -- of the filibusters. In addition, senators pledged not to filibuster future judicial nominees unless there were "extraordinary circumstances." It was left up to each senator to define "extraordinary circumstances."
So now Republicans, who have allowed many liberal Obama nominees to proceed to Senate confirmation, say Liu is an "extraordinary circumstance." Democrats protested -- they appear to be suffering from total amnesia about what they did just a few years ago -- but in the end fell far short of the 60 votes needed to stop the GOP filibuster.
By the way, Obama has little standing to criticize the Liu filibuster, As a senator, Obama tried unsuccessfully to filibuster the Alito nomination.
So now Republicans have taken up the judicial filibuster, although they've done just one to the Democrats' 10. But there might be more in the future. When it comes to judicial confirmation fights, the rule in the Senate is always an eye for an eye.
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