In one of the most important votes on Obama’s lower court judicial nominees, Democrats were unable to overcome the filibuster of Ninth Circuit Court nominee Goodwin Liu in a vote in the U.S. Senate this afternoon.
It takes 60 votes to end a filibuster under the Senate rules, and the final vote was only 52 in favor of cutting off debate, 43 opposed, one senator voting “present” (Sen. Orrin Hatch), and four not voting. Democrat Ben Nelson of Nebraska crossed party lines to oppose Liu, making it the first successful bipartisan filibuster since Abe Fortas. (Lisa Murkowski, the former Republican from Alaska who ran as an independent in her reelection bid last November, joined with Democrats in voting in favor of Liu.)
Liu is one the most radical and unqualified judicial nominee in decades. His views are so extreme, that even Republican members of the “Gang of 14,” who in 2005 said they would not filibuster judicial nominees except in “extraordinary circumstances,” voted to support a filibuster of Liu. This included Lindsey Graham and John McCain, and even the two Republican senators from Maine — Olympia Snowe and Susan Collins — who are considered by many to be the two most moderate Republicans in the Senate.
Senator Charles Grassley, the ranking Republican on the Senate Judiciary Committee, issued his own extraordinary statement prior to the vote, stating that Liu’s “record reflects a carefully honed and calculated philosophy that he developed and advanced over the course of his brief career in the ivory towers of academia and which threaten the American tradition of limited constitutional government.”
Grassley’s reference to Liu’s “brief” career is right. Liu had no courtroom experience and has spent almost his entire career at the Berkeley School of Law in California. He had dismissed a textual reading of the Constitution, saying that the judicial function properly seeks “an awareness of the evolving norms and social understandings of our country” and that a judge should act “as a culturally situated interpreter of social meaning.” Liu believes there is a constitutional right to welfare and that “societal discrimination” should be solved by imposing racial quotas in education, employment and contracting.
There simply is no question that, based on his record, he would have been a liberal activist judge who would have done untold damage to the Constitution and the rule of law if he had been confirmed to lifetime tenure on the federal bench. In fact, hard as it is to imagine, Liu would have pulled the Ninth Circuit to the left, despite the fact that it is already the most liberal (and out of control) court of appeals in the nation – almost 90 percent of its cases are overturned by the Supreme Court on appeal.
Today’s vote is a victory for everyone who believes that we are, and should remain, a nation of laws and not men. It is also an important result because if he had been confirmed, there is no doubt that Liu’s radical views would have made him an attractive candidate for consideration by President Obama if another vacancy were to occur on the Supreme Court. And finally, the vote sends an important signal to the White House that conservatives will not unilaterally disarm on the filibuster when the President nominates individuals who would do serious damage to the Constitution and the rule of law.