From the diaries by Erick

“Unless there’s a surprise Supreme Court vacancy this year, this is the big fight of the year,” said Curt Levey, executive director of the conservative Committee for Justice. Levey and many other conservatives argue that Liu is an extraordinary circumstance. – David Ingram, Legal Times (5/17/11)

This excerpt summarizes the showdown that will occur tomorrow when Senate Democrats force a cloture vote on Ninth Circuit nominee Goodwin Liu, President Obama’s most radical judicial nominee and the man whom Obama would dearly like to make the first Asian-American Supreme Court justice.  Liu’s left-wing agenda and outrageously activist view of the law makes this showdown a classic test of the bipartisan “extraordinary circumstances” standard for when judicial nominees can be filibustered.  The standard originated in the 2005 Gang of 14 agreement.

Liu is a 40 year old Berkeley law professor whose vocal and unabashed championing of judicial activism has made him a star on the legal left.  Liu “envisions the judiciary … as a culturally situated interpreter of social meaning” and believes judges should create constitutional rights to “distributive justice,” including welfare rights to “education or housing or medical care.”

Liu has expressed left-wing views on virtually every hot-button issue likely to come before him on the bench, including the view that Americans are obligated to pay reparations for slavery, an obligation he would likely read into the Constitution.  Liu is too far to the left for even Rahm Emanuel, who advised the President against making this nomination.

If Senate Democrats succeed in getting the 60 votes necessary to force cloture, Liu will almost surely be confirmed to the Ninth Circuit, putting this darling of the Left just one step away from the Supreme Court.  If, instead, cloture fails, Liu’s nomination will effectively be dead.

If all 53 Democratic senators follow the party line and vote for cloture, they will need to add seven Republican votes to prevail.  The key to this vote are the 11 GOP senators who voted for cloture on Rhode Island district court nominee John McConnell earlier this month.  They include Sens. Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune.

Several of these GOP senators justified their vote for cloture by arguing that the President’s district court nominees deserve more deference or that McConnell did not quite meet the “extraordinary circumstances” threshold.  The former argument is not available for appeals court nominee Liu.  The latter argument, if applied to Liu, would logically require a GOP senator to answer the question “If Obama’s most radical nominee is not extreme enough to meet the extraordinary circumstances threshold, when would it ever be met?”  If the answer is “never,” because the senator believes that judicial filibusters are never justified, that senator must then explain why Republicans are obliged to unilaterally disarm no matter how atrocious the nominee is.

Fortunately, Liu’s defeat is likely.  But the vote will be very close. Those concerned about this radical nominee should contact the key GOP senators immediately.

Cross-posted at the Committee for Justice blog.