The Senate on Thursday blocked President Obama’s pick for the federal appellate bench, using the first filibuster of a judicial nominee in six years to prevent the chamber from voting on University of California at Berkeley law professor Goodwin Liu. Senators voted 52-43, eight votes short of the 60 needed to hold a vote on Liu’s nomination to the 9th Circuit Court of Appeals. It was the first defeat of one of Obama’s judicial nominees.
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The filibuster harkened back to the administration of George W. Bush, when Democrats stood in the way of a string of conservative judicial appointees who never made it to the bench, including Miguel Estrada, who had the support of a majority in the Senate, but not the 60 votes needed to overcome a filibuster.
Estrada’s blocked nomination led to an informal agreement among a bipartisan group of senators, called the “Gang of 14,” that they would not use the filibuster to block future nominees unless there were “extraordinary circumstances.”
On Thursday, Republican senators, including those who were part of that agreement, outlined why Liu’s nomination fit that exception, pointing to Liu’s writings and committee testimony that they said portray him as someone who holds beliefs about the law and the Constitution that fall far outside the mainstream.
Liu, Republicans argued, would use the bench to make policy and interpret the Constitution, rather than strictly follow it.
Sen. Lindsey Graham, R-S.C., a member of the Gang of 14, also cited Liu’s committee testimony in 2006 opposing the nomination of Supreme Court Justice Samuel Alito. Liu said at the time that 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,” and “where a black man may be sentenced to death by an all-white jury for killing a white man.”
Liu has since apologized for the tone of his testimony, but Graham said it nonetheless cost him his vote.
“These words were designed to destroy and they ring of an ideologue who should be running for office, not sitting on the court,” Graham said.
Liu’s supporters, including Sen. Joe Lieberman, I-Conn., defended Liu’s criticism of Alito as “a statement made in the heat of an argument.”
Democrats praised Liu’s extraordinary credentials and education. He was a Rhodes scholar and top student at Stanford, Oxford and Yale Law School. He is the son of Taiwanese immigrants who was captain of his high school tennis team.
“He’s just a star at anything he’s ever done,” Sen. Barbara Boxer, D-Calif., said of Liu.
Democrats frequently noted that Liu’s nomination is supported by conservatives like Kenneth Starr, the independent counsel who investigated the Monica Lewinsky scandal in the Clinton White House.
But Republicans noted that Liu, 40, has no experience as a litigator, leaving them with only his writings and committee testimony to try to surmise his competency for the bench.
Those writings, Senate Minority Leader Mitch McConnell, R-Ky., said, “might fly in a left-wing classroom, but it’s cold comfort to those who look to the courts to uphold the law.”
