Senate hands Obama his first defeat on a judicial nominee

The Senate rejected Goodwin Liu’s nomination to a federal court Thursday, handing President Obama his first defeat on a judicial nominee.

The 52-43 vote, which fell eight votes short of advancing Liu’s nomination, marks the revival of the war over judicial nominees that had lain dormant for the past six years and could have repercussions on future candidates for the Supreme Court.

Nearly every Republican and one Democrat, Sen. Ben Nelson (Neb.), voted to block the nomination of Liu, a law professor at the University of California at Berkeley, to the 9th U.S. Circuit Court of Appeals.

The Senate had not successfully filibustered a judicial nominee on the floor since a bipartisan group of senators known as the Gang of 14 struck a deal in 2005 to avert judicial filibusters.

The gang, which included seven Democrats and seven Republicans, agreed that nominees should not be filibustered except in the case of “extraordinary circumstances.” The group left the term vague, but in the intervening years many lawmakers have come to see it as describing an ethical problem or lack of qualifications.

Democrats on Thursday said the standard for filibustering judicial nominees has been lowered significantly as a result of Liu’s defeat.

“It’s a bad, bad precedent,” said Senate Democratic Whip Dick Durbin (Ill.), a member of the Judiciary Committee. “If this is not an extraordinarily well-qualified person, I don’t know who will be. I’m afraid the phrase ‘extraordinary circumstances’ will suffer great damage by this action if a filibuster is sustained.”

Senate Republicans have argued in recent years that filibusters of judicial nominees are unconstitutional. Democrats said Thursday that Republicans have undercut that argument significantly and that setting a threshold of “extraordinary circumstances” for future filibusters is now all but meaningless.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said as a result of Thursday’s vote it’s apparent that Republicans will only follow the doctrine of extraordinary circumstances to defend their own nominees.

“Apparently it works only if there is a Republican president, not when there’s a Democratic president, which I think is a mistake,” Leahy said.

Sen. Lisa Murkowski (Alaska) was the only Republican to vote to bring Liu’s nomination to an up-or-down vote, something Republicans have regularly argued in the past that all nominees deserved.

In a statement that implied that politics were at play during the vote, Murkowski said there were no extraordinary circumstances to warrant a filibuster.

“I stated during the Bush administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances,’ and my position has not changed simply because there is a different president making the nominations,” she said.

Republicans pointed to Liu’s harsh criticism of then-Supreme Court nominee Samuel Alito in testimony delivered to the Senate Judiciary Committee in 2006.

Liu told the committee 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” or “the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room.”

 Sen. Lindsey Graham (R-S.C.), a former member of the Gang of 14, said Liu’s testimony revealed him to be a left-wing ideologue.

 “There are boundaries. … For a man of the law to go after Judge Alito’s philosophy as being something that really is backward-thinking, un-American, deserving of scorn and fear, shows to me he is an ideologue,” said Graham, who voted for Obama’s two Supreme Court nominees, Sonia Sotomayor and Elena Kagan.

 Nelson, another former member of the Gang of 14 who faces a tough reelection next year in conservative Nebraska, left the floor immediately after voting to filibuster Liu.

 He said the definition of extraordinary circumstances is up to each individual senator.

 “It’s understood that extraordinary circumstances might be different to one person in the Senate than it is to someone else,” said Nelson, who thought Liu’s writings showed him to be a judicial activist.

 Democrats argued Liu’s legal philosophy falls well within the mainstream and touted the nominee’s impressive academic credentials as a Rhodes scholar and former Supreme Court clerk.

 Republicans said Liu’s writings and remarks endorse judicial activism and portray him as a liberal ideologue. 

Senate Majority Leader Harry Reid (D-Nev.) said Cornyn has departed from the position he held in 2004, when he penned a law review article warning that delay in selecting judges “hurts our justice system” and calling filibusters “the most virulent form of delay imaginable.”

 Thursday’s vote rounds out more than a year of partisan fighting over Liu, whom Obama first nominated for the appellate court in February of 2010. Obama renominated Liu in September 2010 and this year in January after the Senate twice returned the nomination.

 The Senate Judiciary Committee has approved him three times on straight party-line votes.

 Sen. Orrin Hatch (R-Utah) voted “present.” Four senators — Max Baucus (D-Mont.), Kay Bailey Hutchison (R-Texas), Jerry Moran (R-Kan.) and David Vitter (R-La.) — did not vote.

Hatch said he felt compelled to vote present because he authored a law review article in which he argued that judges should not be filibustered. “I wrote a law review article making a case that judges should not be filibustered, and that’s the only thing I can do to protect my honor,” he said. 

But a Democratic aide noted that a present vote is tantamount to a “no” vote because the burden is on the majority to collect 60 votes to end a filibuster, not on the minority to collect 41 to maintain one.

Josiah Ryan contributed to this report.

This was first posted at 3:40 p.m. and updated at 8:40 p.m.

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