Political Animal


May 19, 2011 2:55 PM In disheartening display, Senate blocks Goodwin Liu vote

By Steve Benen

Watching the Senate is routinely frustrating, but some days, it’s just disheartening.

As of two weeks ago, it seemed as if the chamber had finally turned a corner on dealing with judicial nominees. We finally saw a Republican contingent willing to give jurists an up-or-down vote, even if they intended to vote against the nomination, suggesting some sanity had returned to the chamber.

It didn’t last.

Citing “extraordinary circumstances,” Republicans successfully filibustered their first judge nominated by President Barack Obama Thursday.

In a 52-43 vote, Democrats fell eight votes short of the 60 needed to beat back a filibuster and bring a matter to a final vote. Sen. Orrin Hatch (R-Utah) voted present.

Just six years ago, Republican leaders tried to do away with judicial filibusters altogether, but on Thursday they used the filibuster weapon that had been honed by Democrats in President George W. Bush’s first term to defeat Goodwin Liu’s nomination to the 9th U.S. Circuit Court of Appeals.

The Republicans who said they’d never filibuster a judicial nominee? They filibustered a judicial nominee. The Republican “moderates” who said they found these tactics distasteful? They filibustered Liu, too. When the dust cleared, how many GOP senators were willing to give this nominee an up-or-down vote? Just one: Alaska’s Lisa Murkowski.

The issue isn’t qualifications. Liu is a respected constitutional law scholar who teaches at Berkley, a graduate of Yale law school, and was a Rhodes Scholar. He’s also the son of Taiwanese immigrants, who would have brought some much-needed diversity to the bench.

So, what’s the problem? Liu criticized Samuel Alito’s Supreme Court nomination, and Republicans have decided to punish him for it.

Keep in mind, Liu is obviously one of President Obama’s more progressive nominees, but Liu also enjoys the backing of the American Bar Association and many prominent conservatives. Richard Painter, White House ethics lawyer under Bush who worked on Roberts and Alito’s nomination, not only called for Liu to receive a vote but also urged the Senate to confirm him. Even Ken Starr — yes, that Ken Starr — sang Liu’s praises.

If brought to the floor, Liu would have been confirmed. So Republicans refused to allow a vote.

Even by the standards of the modern, dysfunctional Senate, this was a pathetic display.

Update: Be sure to take a look at the rhetorical record of Senate Republicans who swore publicly that they’d never filibuster a judicial nominee, and in fact argued that the very idea is unconstitutional.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


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  • Stevio on May 19, 2011 3:08 PM:

    "Even by the standards of the modern, dysfunctional Senate, this was a pathetic display."

    I smell a Recess Appointment. It can't smell any more rotten than the one I'm smelling now...


  • Holmes on May 19, 2011 3:08 PM:

    Senator Saxby Chambliss (GA): “I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).

    Senator John Cornyn (TX): Judicial filibusters are “offensive to our nation’s constitutional design…. [S]eparation of powers principles strongly suggest that the Senate may not—and especially not by mere Senate rule—enhance its own power in such a manner without offending the Constitution” (2004).

    Senator Mike Crapo (ID): “[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).

    Senator Jim Demint (SC): “[D]enials of simple votes on judicial nominees” are “unconstitutional” (5/22/05).

    Senator Lindsey Graham (SC): “I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).

    Senator Orrin Hatch (UT): Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).

    Senator Kay Bailey Hutchison (TX): “[T]he Constitution envisions a 51-vote majority for judgeships…. [Filibustering judges] amend[s] the Constitution without going through the proper processes…. We have a majority rule that is the tradition of the Senate with judges. It is the constitutional requirement” (4/28/05).

    Senator Johnny Isakson (GA): “[T]he Constitution require[s] an up-or-down vote” on judicial nominees. “I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).

    Senator Jon Kyl (AZ): “The President was elected fair and square. He has the right to submit judicial nominees and it is the Senate’s obligation under the Constitution to act on those nominees” (4/10/08).

    Senator Jeff Sessions (AL): “[The Constitution] says the Senate shall advise and consent on treaties by a two-thirds vote, and simply ‘shall advise and consent’ on nominations…. I think there is no doubt the Founders understood that to mean … confirmation of a judicial nomination requires only a simple majority vote” (7/27/03).

    Senator Richard Shelby (AL): “Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).

    Senator John Thune (SD): Filibustering judicial nominees “is contrary to our Constitution …. It was the Founders’ intention that the Senate dispose of them with a simple majority vote” (4/21/05).

  • bjobotts on May 19, 2011 3:15 PM:

    Even as a minority the republicans still control the senate. Dems had a chance to change this overly abused arcane senate rule but decided to allow republicans to continue to block the entire democratic agenda. Dems never had a majority in the senate because of this rule, under the misguided notion that this will allow them someday to prevent tyranny by a republican majority (always assuming failure in advance).

  • Mitch on May 19, 2011 3:15 PM:

    Our side sorta did this to Miguel Estrada, for pretty much the same reason: we didn't want to see him nominated to SCOTUS down the road.

    What the Democrats need to do is what the GOP did in 2005: whine about this endlessly until we get all but a handful approved.

  • j on May 19, 2011 3:17 PM:

    The republican senate, since the election of a black president has become childish. irrational and petty to the detriment of the American people. Obama must feel like he is dealing with a bunch of spoiled brats who spend the day pouting and stamping their feet. The sooner we can get rid of this lot the better.

  • walt on May 19, 2011 3:17 PM:

    Liu, if he had been confirmed, would have been on a fast-track to the Supreme Court, and the first Asian American so elevated. I think that's the political calculus here for Republicans, preventing not only an historic first but a young liberal justice, too. This won't get much airplay outside blogs like this one, but I'd like to see Democrats remind Chinese Americans who did what to whom. Republicans already make Asians nervous with their braying xenophobia and Culture War. This ought to remind them why Republicans are not really their friends.

  • Coultrane on May 19, 2011 3:19 PM:

    Quite frankly, Goodwin Liu should be nominated to fill the next Supreme Court vacancy and when the GOP tries to block it saying he doesn't have the experience it can be pointed out why he doesn't.

    Right now nobody knows about this obstruction - however as a SCOTUS nominee it would be front page stuff and the GOP can rail against an Asian-American with impeccable legal credentials and an unquestioned legal mind on the front pages as well.

  • Holmes on May 19, 2011 3:20 PM:

    President Obama can use a recess appointment for Liu, which Dubya used twice.

    There are way too many vacancies on the federal bench for this kind of Republican obstructionism to contiue.

  • jjm on May 19, 2011 3:46 PM:

    This is a total disgrace.

    I do hope Obama will give him a recess appointment, affording him the 'experience' he would need to become a Supreme Court justice.

    When THE most talented people are continually squeezed out by Republicans and THE MOST MEDIOCRE and prejudiced are confirmed by them, we are in terrible shape.

    Alito's eyes are always focused somewhere above us--is he looking at or to God? or simply to principles he feels are 'above the law'? (I am citing the words of both Eichmann --he obeyed the 'principle behind the law' -- and Ollie North's record-destroying secretary Fawn Hall, who claimed her actions were lawful by adhering to a principle above the law.) And what was Alito's principle in the shoot-the-guy-who-stole-ten-dollars judgment? Property over human beings.

    Republicans and conservatives think they are very, very smart. But they simply are not.

    However, they are extremely willing to destroy those who actually are smarter than they are.

  • goterpsgo on May 19, 2011 4:00 PM:

    I wonder how these Senators can wake up in the morning and look at themselves in the mirror with a straight face...

  • HoneyBearKelly on May 19, 2011 4:45 PM:

    Miguel Estrada's only qualification was that he's a fundie nutjob.

  • POed Lib on May 19, 2011 5:24 PM:

    Yes, annoying as all hell.

    HOWEVER, I really have no sympathy for the pathetic weasels that call themselves Democratic Senators. They had the ability to remove the filibuster from judicial nominees and did not. So, at this point, since the Repukes are willing to go to the mattresses, and the Democrats will not, we will end up with more and more fascist wacks in the judiciary.

  • POed Lib on May 19, 2011 5:27 PM:

    We do NOT want recess appointments to the court. NO RECESS APPOINTMENTS TO THE COURT!!!

    The only thing we have to get anyone appointed is the pressure of spots that need filling. If a spot if filled by a recess appointment, this is EXACTLY what the Repukeliscum want. After Obama finishes, the spot will open, and then they can put a fascist corpowhore in.

  • mark l. on May 20, 2011 12:27 AM:

    "December 24, 2004|By Tom Brune, Newsday

    WASHINGTON -- Signaling that the highly partisan battle on judges will continue next year, the White House announced Thursday that President Bush will renominate 20 unconfirmed judicial candidates, including seven filibustered by Senate Democrats."

    i figure the gop gets to block 6 more to draw even...

  • Liberals are losers on June 01, 2011 8:28 PM:

    So it's ok if Dems use the filibuster to block votes but not okay if Republicans do?! Nice hypocratic double standard. My compliments for perpetuating the stereotype of a typical"do as i say not as i do" liberal!