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?
Conservatives cite a Stanford Law Review article, "Rethinking Constitutional Welfare Rights," to argue Liu may find a court-mandated fundamental right to shelter, subsistence, health care and more. Yet the article -- I read it so you don't have to -- noted that lawmakers must act first. To wit: "we cannot hope to change our law without first doing the hard work of changing our politics." Good.
Minnesota law professor Richard Painter, who served as Bush's chief ethics lawyer, concluded, "There are real left-wingers in academia. He's not one of them."
Liu recognizes that legislators, not judges, write laws that create entitlement benefits; then in their "interstitial role," courts can identify and interpret criteria -- a view Liu calls "conservative." But he leaves open a door to mischief.
In citing areas where the bench "can legitimately foster evolution of welfare rights," he refers to "California's antiquated and inequitable system of school finance." I felt the cold brace of another pricey Ninth-Circuit-Court-acting-as-Sacramento decision.
UC Berkeley Law Professor Jesse Choper told me, "I do believe that he will make an honest attempt to figure out what the circuit (court) precedent or the Supreme Court precedent is."
I buy that. But what happens when the precedent is insufficient? What about the precedents for overturning well-deserved capital sentences, for which the Ninth Circuit is infamous? This may well be a case of right man/wrong court.
As Scheidegger told me, "I am more worried about a nominee like this before the Ninth Circuit than I would be with another circuit. One off-the-wall judge in a circuit (court) generally full of people with good sense doesn't cause that much damage. But a judge added to a court that is already way off in left field can cause considerably more damage."
Now, do the math. Barring a bonehead misstep that that won't happen, Liu has the votes to pass out of the Judiciary Committee, then a Senate floor vote. Only a filibuster can stop him.
Scheidegger argued for the filibuster. "The Republicans have to take the position that they can't unilaterally disarm, as much as they don't like the filibuster," he said. And: "If one side uses it and the other side doesn't, we're going to end up skewing the courts in one direction."
But a filibuster cannot and should not happen. It would take all but one of 41 GOP senators to sustain a filibuster. Too many Republicans have argued passionately against that trick to change course now.
Painter found the filibuster option "really unacceptable. I'm just not willing to say the Republicans should do the same thing. It gets circular, and they (the Democrats) will do it when we want to get our people in."
And the day that the Republicans will want to get their people in may come sooner than expected.