Radical Obama Judicial Appointee Faces Key Senate Vote Today

Posted: May 19, 2011 8:19 AM

Meet Goodwin Liu, a Berkeley law professor and President Obama's nominee to the Ninth Circuit Court of Appeals.  The Wall Street Journal calls him "perhaps the most left-wing judge ever."  Why?  Count the ways -- from the Journal's editorial calling for a filibuster against Liu:

On his vitriolic opposition to Justice Samuel Alito's Supreme Court nomination -

"Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse," Mr. Liu said in written testimony. Charming stuff. Mr. Liu has since kinda-sorta suggested contrition by saying his statements were perhaps "unduly harsh and provocative," but he isn't disowning the legal analysis.

Professor Liu blasted Justice Alito because "[h]e approaches law in a formalistic, mechanical way abstracted from human experience." Such stodgy fealty to the law isn't Mr. Liu's idea of good judging. In a 2008 Stanford Law Review article, Mr. Liu wrote that judges should "determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine."

On his imagined Constitutional "rights" and reverence for international law -

That broad legal discretion has led the professor to find a constitutional right to welfare and gay marriage, and to read the 14th Amendment as providing a right to health insurance and child care. On using international law as a precedent in U.S. courts, Mr. Liu has said "The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world."

On his open hostility to free market capitalism -

When Mr. Liu was opposing John Roberts, he wrote for Bloomberg that "'free enterprise,' 'private ownership of property,' and 'limited government' . . . are code words for an ideological agenda hostile to environmental, workplace, and consumer protections." This is the Founders as Oppressors school of modern legal politics.

Some context is important here.  Democrats launched a slate of unprecedented judicial filibusters against well qualified, majority-supported judicial nominees during the Bush administration.  As Senate Republicans contemplated triggering the so-called "nuclear option" in 2005 (which would have done away with judicial filibusters), a bipartisan "Gang of 14" intervened to protect upper chamber precedent.  The judicial filibuster would remain intact, they determined, but would only be applied under "extraordinary" circumstances.  Two of the original 'gang' members who were excoriated by conservatives at the time for siding with Democrats -- Senators John McCain and Lindsey Graham -- have both publicly stated that Liu represents such a case.  Both men will vote 'no' on cloture.  That makes Harry Reid's math harder.  Reid needs all 53 Democrats plus seven Republicans to advance Liu's nomination to an up-or-down vote.  The cloture vote is expected later today.  It could be very close:

University of California at Berkeley law professor Goodwin Liu, President Obama’s embattled nominee to serve on the U.S. Court of Appeals for the 9th Circuit, will face a “very tight” vote before the Senate on Thursday, Sen. Dianne Feinstein (D-Calif.) predicted.

“I think this is kind of a jump ball,” Feinstein, a Liu backer, told reporters Wednesday afternoon. “I don’t think we know.”

Some Republicans are predicting the nomination will be defeated:

“I don’t think he’ll be confirmed,” Sen. John Cornyn a Republican from Texas said. “I think there is some sense that circuit court judges are different than district court judges and so you won’t find those divisions now that we have a circuit court judge, somebody who’s eligible for the Supreme Court.”

Republicans John McCain of Arizona, Lindsey Graham of South Carolina and Mark Kirk of Illinois — all of whom helped Democrats confirm Jack McConnell to a Rhode Island district court earlier this month — said Wednesday they would not support Liu’s bid.  The other eight GOP senators who voted earlier this month to support McConnell did not offer a clear response on how they plan to vote on Liu.

If Liu does in fact go down in flames, President Obama won't have a leg to stand on if he tries to protest Republicans' methods.  Senator Obama was an eager supporter of judicial filibusters and actively participated in an unsuccessful filibuster of Justice Alito.  Of course, it's entirely conceivable that Obama will try to explain away his previous actions using the same excuse he invoked for his 2006 vote against raising the debt ceiling:  "It was political."
Many conservatives strenuously objected to Democrats' obstructionist tactics on this front during the Bush years, arguing that Congress was abusing its "advice and consent" role in the nomination process.  Nowhere does the Constitution state that a Senate supermajority is required to confirm a presidential appointment to the third branch.  In fact, James Madison once argued that a supermajority should be necessary to block a president's pick.  Undeterred, Democrats charged ahead with their ideology-driven obstruction, pushing the Senate to the brink of "nuclear" confrontation.  Now that the roles are reversed, Republicans should avail themselves of the precedent established by their colleagues across the aisle, no matter how distasteful it may seem.  Democrats made this bed.  Let them lie in it.  
Defeat Liu.

UPDATE - Senate Republican aides tell me the cloture vote is expected in the mid-afternoon today.