(Laura Morton/For the Times )
The Senate stands on the edge of what could be the biggest fight over an Obama administration judicial nominee yet, larger than either of the conflicts over Supreme Court picks Elena Kagan and Sonia Sotomayor.
Senate Majority Leader Harry Reid (D-Nev.) has scheduled a vote for Thursday on the motion to cut off debate over the nomination of Goodwin Liu to the U.S. Court of Appeals in San Francisco. The motion requires 60 votes to pass—and its failure to do so would be, in effect, a filibuster. With 53 senators who caucus with Democrats in the Senate, at least seven Republicans would have cross party lines to allow Liu to receive an up-or-down vote on the floor.
Liu, a law professor at UC-Berkeley, is fiercely opposed by conservatives, who say he favors fashioning new individual rights in the Constitution and would tilt the Ninth Circuit appeals court, which already draws the enmity of the right, in an even more liberal direction. They also argue that he is an academic with no practical legal experience.
“With his aggressive left-wing ideology and raw inexperience, Goodwin Liu is the rare nominee who would make the Ninth Circuit worse than it already is. Senate Republicans need to unite to defeat his nomination,” said M. Edward Whelan of the Ethics and Public Policy Center, which champions conservative judicial nominees.
His supporters say Liu is a brilliant legal mind who follows judicial precedent and resides in the mainstream of American jurisprudence. And at 40, if he were to ascend to the Ninth Circuit, it’s highly possible he could be the first Asian American nominee to the Supreme Court at some point in his career.
The Obama White House generally has shied away from the kind of incendiary and partisan fights over appeals court judges that were a staple of the George W. Bush administration, preferring moderate nominees with extensive experience in the federal courts.
Indeed, while Sotomayor and Kagan were both heavily criticized by conservative groups, neither was in serious danger of being filibustered by the GOP.
But Liu could be a different story. Beyond their views of his fitness for the lifetime post, some Republicans are still smarting over Liu's testimony against Supreme Court nominee Samuel A. Alito Jr. in 2006.
“Given his exceptional credentials, first-rate legal mind, and commitment to the rule of law, he deserves an up-or-down vote and ultimately confirmation,” said Eric Schultz, a White House spokesman.
Liu cleared the Judiciary Committee in April for the third time, but by a straight 10-8 party-line vote.
In an "alert" released Wednesday by Sens. Charles E. Grassley (R-Iowa) and Jeff Sessions (R-Ala.), the current and former ranking members of the Judiciary Committee, the two said Liu, if confirmed by the Senate, "would advance his progressive philosophy for years to come, doing incalculable damage to the constitutional system of limited government and federalism envisioned by our founding fathers."
In the late 1990s, Senate Republicans delayed the nomination of Sotomayor to the appeals court in New York over concerns in part that she would ultimately reach the high court. And indeed, President Obama nominated her in 2009 to be the court’s first Hispanic justice.
Liu’s cause has been championed by interest groups, Asian American advocates, and prominent legal scholars, including former Whitewater counsel Kenneth Starr, since he was first nominated by Obama in early 2010. But until now, Reid hasn’t shown much inclination to fight for him.
Still, even though Democrats hold fewer seats in the current Congress than in the previous session, Reid seems to have found a groove with some difficult nominees. Already this month, district court nominees Edward Chen and Jack McConnell, both of whom were opposed by conservatives, have cleared the Senate, in part because some Republicans are reluctant to filibuster judicial nominees, recalling Democratic intransigence over Bush administration picks.
Republicans did try to block an early Obama appeals court nominee, David Hamilton, in 2009. Since then, the judicial wars on the appellate level have largely been quiet.
That changed Tuesday when Reid filed his cloture petition, a maneuver that was perhaps intended to catch conservative interest groups off guard. That left both sides working feverishly Wednesday on the nomination with the ultimate outcome anything but clear.