Goodwin Liu is Obama’s nominee to fill a created seat on the 9th Circuit Court of Appeals. A cloture vote is scheduled for today. There are actually two issues here- whether judicial nominees should be filibustered, and the second issue is Liu himself. Lets take the filibuster question first.
Thinking back to the Bush Administration, the filibuster was a common tactic used against Republican nominees. At one point, the so-called “nuclear option” was discussed and it took the Gang of 14 to avoid it and move several nominees along. My memory may be wrong here, but the use of the filibuster for judicial nominees was never taken off the table, but could be used for extraordinary circumstances with the definition of that left to individual Senators.
Recently, Richard Painter, a Bush White House official who handled many judicial nominees, wrote in Politico that Liu deserves his “day in court” and an up or down vote by the Senate. In short, he is arguing against a Republican filibuster and, citing comments by Republican Senators during the Bush Administration, insinuating that Republicans are, today, acting hypocritically. With all due respect to Mr. Painter, perhaps he is under the mistaken impression that all judicial nomination filibusters are taken off th table, but that was not my understanding of the dynamics under the Bush Administration and not how it works now.
After impeachments and declarations of war, perhaps the most important items the Senate takes up is the confirmation of Federal judges. Some items specifically require a 2/3 vote- impeachment, treaties, constitutional amendments. Judicial appointment confirmations do fall in the category of a Constitutionally-mandated supermajority. However, that makes them no less important. Once confirmed, these individuals serve for life and rightfully so. They will be sitting on the bench long after the Presidents who appointed them and the Senators who confirmed them have moved on. Lifetime appointments are an insurance policy against placing judicial decisions at the whim of the politics of the day. Make no mistake- I am all for lifetime appointments for judges. But because they are lifetime, they take on added importance and should, at least at the Appellate level, be elevated to supermajority approval and, thus, be subject to the filibuster. Painter states that somehow the Senate is abrogating its Constitutional “advise and consent” duties through judicial filibusters. But that same Constitution says that each chamber of Congress can make their own rules. These filibusters will be a fact of life as long as the cloture rules exist so Mr. Painter needs to get over his idealistic view of how he thinks Congress should act.
As to Mr. Liu himself, Painter says he is qualified to sit on the 9thCircuit Court of Appeals. I will admit that he has fine academic credentials with numerous scholarly papers published. He also clerked under Justice Ginsberg and in the DC Circuit. But, I also know that he has argued exactly ONE case before an appellate court in his entire life and that he has absolutely NO experience as a judge. I will admit that people have to start somewhere, but at the Appellate level? In the Ninth Circuit of all places? I will also admit that being a lower court judge is not a necessary prerequisite for elevation to the appeals court, but being a District Court judge first, or even a traffic court judge is preferable. At least Elena Kagan had experience before the courts in her capacity as Solicitor General and Sotomayor was on the Circuit Court of Appeals before joining the Supreme Court. Whether Liu is “preeminently qualified” based simply upon academic credentials is questionable and premature.
Finally, his writings and his comments regarding Justice Alito during his confirmation hearings are a guide. Although he has apologized, the cat is out of the bag, sort of like saying “I am sorry” after being caught in an affair. A simple analysis of his writings indicate that he would be a liberal activist judge on the appellate court. His writings have been in favor of affirmative action, abortion rights and gay marriage. He has questioned the legality of enhanced interrogation techniques and the Constitutionality of the death penalty. Even when he writes in favor of school voucher programs and charter schools, he does so in furtherance of “racial diversity” as the primary goal of those programs. To paraphrase his critique of the hypothetical America under Alito, Liu’s America would be one where the color of one’s skin, their gender, or their ethnicity would put them at the front of the line despite qualifications, young girls would be granted the right to abortion on demand with no parental notification, courts would decide the definition of marriage and the will of voters be damned, and heinous criminals would be coddled and housed by the state for life. He is your protypical liberal, activist lawyer and academic egghead living in a false utopia forcing his view, through judicial fiat, down the throats of the people. It would be an America where the government would dictate to business what is best for them and where social engineering would be the norm and a regulatory, nanny state would be judicially approved.
During the Kagan nomination hearings, I argued against the filibuster along some of the lines that Painter now expresses. I was taken to task by several RedState readers and, quite honestly, I stand by my statements then as concerned Kagan. With her, there was no serious paper trail to indicate that she should be filibustered by mere virtue of being a Democratic nominee. However, with Liu there is a serious difference. Although Kagan was most likely a liberal wolf in sheep’s clothing, she possessed the academic and intellectual abilities for the task and she had appellate experience as Solicitor General. If we cannot say with100% certainty that the nominee is a liberal judicial activist, then in the interest of fairness they should be afforded the up-or-down vote vote confirmation. That was my view with Kagan. But, the Liu nomination is vastly different. The whole body of evidence indicates that Liu is A WOLF IN WOLF’S CLOTHING and makes no attempts to indicate otherwise. For that, his nomination needs to be blocked. When even Democratic Senators question is motives and his possible judicial temperament, it is time for Obama to withdraw his name for consideration.