quick stab at journalism: a judicial nomination
May 21, 2011
Liu nomination fails in Senate, again.
Berkeley law professor Goodwin Liu failed to obtain the sixty votes required to limit debate on his third nomination by President Obama to the Ninth Circuit Court of Appeals today. At just 40 years old, the nominee worked in the Clinton administration before returning to a star career by all accounts in academia.
In a party line 52-43 vote, only Senators Lisa Murkowski [R-AK] and Ben Nelson [D-NE] voted against their entrenched caucuses.
Criticisms of Liu included reference to testimony he gave the same committee in January 2006 on the nomination of Associate Justice Sam Alito to the Supreme Court. Senator Charles Grassley [R-IA] argued that his scathing observations of Roberts were outrageous, illustrating a lack of judicial temperament. Senator John Cornyn [R-TX] called those same remarks “vicious and disgraceful,” noting that Liu had apologized for his original comments as “unduly harsh and provocative.”
Cornyn called Liu’s moderation in appearances during his own nomination to the federal appeals court in California a “true conversion,” going on to point out Justice Sonia Sotomayor’s own assurances during her hearing on gun rights were soon contradicted by a dissenting opinion in her first term on the bench. Even then, Cornyn and others contended, Sotomayor had prior experience as a judge and a record beyond academic ruminations.
As an academician, Liu had also written controversial papers from which passages seemed to indicate a clear progressive but who, in Coburn’s opinion, had clearly advocated for the use of “foreign law to interpret the U.S. Constitution.” A more recent standing criticism of Democrat nominees, the Supreme Court itself has issued opinions that seemed to indicate a willingness in that direction.
With a “well qualified” rating from the American Bar Association, which Senator Tom Coburn [R-OK] criticized as meaningless during debate on Thursday, Liu had appeared twice before the Senate Judiciary Committee in the last Congress. Saying that “due diligence is lacking” at the ABA, Coburn stated that their rating had meant nothing to him in years, that they were “no longer trustworthy” and “hadn’t been for some time.”
At a time when Senate Majority Leader Harry Reid [D-NV] has had repeated success with cloture on nominees the last two weeks – ten confirmations by votes or consent – and the House was not in session, leaving the Senate to consider Liu and politicized oil production legislation, floor consideration seemed ripe. Reid had kicked off debate in calling up the nomination by referring to the Gang of Fourteen’s 2005 agreed aversion to judicial filibusters, closing debate by naming Republican senators who had signed on to that promise and a “gentleman’s agreement” at the beginning of the 112th Congress to reiterate that stance.
However, Senator Lindsay Graham [R-SC], a member of the Gang who had voted for Sotomayor, regretted that Liu’s attack on Alito was “a bridge too far.” Senator John McCain [R-AZ] concurred that Liu’s consideration was the kind of “extraordinary circumstance” set by the Gang of which he was also a part because of Liu’s “clear belief that judges have vast powers to shape and even rewrite the law,” together with the absence of time as a judge.
But it was precisely Liu’s academic record, government service and good references that Democrats picked up on to argue for closing debate on this third round. Home state Senators Barbara Boxer [D-CA], who was “honored and privileged” to praise his nomination, and Diane Feinstein [D-CA] repeated his numerous awards as a student and as a professor at Boalt Hall; Boxer remarked that “everything this man touches turns to gold.” Following the attack by Grassley, Feinstein opened her half-hour statement: “I have never heard a harsher statement about a brilliant young man than I have just heard.”
A graduate of Stanford University, Liu was co-president of the student body. He had received the university’s highest honor for outstanding service, later attending Oxford University on a Rhodes scholarship. After earning a master’s degree in philosophy and physiology, he went to Yale Law School, where he was an editor of the Yale Law Journal. He clerked for Judge David S. Tatel on the U.S. Court of Appeals for the DC Circuit and Justice Ruth Bader Ginsburg on the U.S. Supreme Court.
Calling Professor Liu one of the “leading legal academics of his generation,” Senator Sheldon Whitehouse [D-RI], a former Rhode Island federal prosecutor, quoted Liu about the scholar’s role, “to question the boundaries of the law [and] to raise new theories,” saying that “the scholar’s role is different from the role of a judge.”
Boxer argued that the immense Asian-American demographic in California was in disaccord with having just one Asian judge on the federal bench. The son of Taiwanese immigrants, Boxer reminded the Senate of the pride that would spread throughout that community in Liu’s presence in a federal district now classified as a “judicial emergency” for lack of judges – a circumstance which the Gang had agreed not to filibuster.
Reid stated that, “he even helped to launch AmeriCorps.” With endorsements from former Whitewater prosecutor Kenneth Starr and one-time Libertarian presidential candidate Bob Barr, Reid and Boxer regretted “that it has come to this.” It was not clear if Obama would send Liu’s nomination up a fourth time.
