Senate Democrats have failed to muster the 60 votes needed to cut off debate on the nomination of Goodwin Liu to the 9th Circuit Court of Appeals. It was nearly a straight party-line vote.
The 40-year-old Liu has waited more than a year for a vote, and with no realistic prospect that he will ever get an up-or-down vote, he is widely expected to withdraw his nomination and allow President Obama to name another nominee to the vacancy.
Indeed, the White House issued a statement Thursday, speaking of the nomination in the past tense: "Goodwin Liu would have brought sterling credentials, great intellect, and a compelling life story to the bench. His mainstream views earned him high praise from Democrats and Republicans alike. But unfortunately his nomination today fell victim to persistent and serious misrepresentations of his record."
Had he been confirmed to the San Francisco-based court, Liu would have been a hot prospect for a Supreme Court appointment if a vacancy occurred. He also would have been the only actively serving Asian-American judge on an appellate court in a jurisdiction that covers 40 percent of the Asian-American population in the United States.
A law professor and associate dean at University of California, Berkeley, Liu is the son of immigrants and was a Rhodes scholar. His nomination was praised by liberal and conservative scholars alike, and he received the American Bar Association's highest rating. Nobody seriously questioned Liu's qualifications, but Republicans did question his ideology as too liberal, activist and extreme.
Democrats, however, repeatedly compared Liu to Michael McConnell, a brilliant conservative scholar nominated to an appellate court by President George W. Bush. They noted that Professor McConnell had written articles critical of the Supreme Court's Roe v. Wade decision and critical of a decision denying tax-exempt status to a racially discriminatory college. McConnell, like Liu, testified that the role of a judge is different from the role of a law professor, and Democrats noted that they had accepted that observation from McConnell, as well as his assurance that he would follow the Supreme Court's instructions. They asked for a similar deference to Liu from Republicans.
Despite all the talk about Liu's liberal legal views, though, what clearly stuck in the craw of almost all Republican senators was Liu's testimony against the Supreme Court nomination of then-Judge Samuel Alito. At Alito's 2006 confirmation hearing, Liu testified that Alito's lower court rulings showed a vision of an America "where police may shoot and kill an unarmed boy ... where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance ... where a black man may be sentenced to death by an all-white jury for killing a white man."
"These were not an off-the-cuff set of remarks or temporary lapse in judgment," said Texas Republican Sen. John Cornyn, "but they were a product of carefully scripted and prepared testimony." Cornyn said he didn't believe Liu's apology this year for the tone of those remarks, calling it a "confirmation conversion."
Utah Republican Sen. Mike Lee called Liu's 2006 remarks "misleading and ... an unwarranted personal attack on a dedicated judge and public servant."
Connecticut independent Sen. Joseph Lieberman tried to calm the GOP fury about Liu's testimony at Alito's confirmation hearing, saying it has the "ring of an advocate" making an argument with "more zeal" than he realized at the time. Lieberman noted that he was among the so-called Gang of 14 senators who agreed in 2006 to allow up-or-down votes on all judicial nominees except in extraordinary circumstances.
"To me," said Lieberman, "a disagreement about a statement made in the heat of an argument, or even the substance of an article published, is not strong enough to prevent this nominee from having what I think is his right, or the president's right, to get a vote up or down."
But Republican Sen. Lindsey Graham of South Carolina, also a member of the Gang of 14, disagreed, saying, "These statements are designed to basically say that people who have the philosophy of Judge Alito are uncaring, hateful and really should be despised. That is a bridge too far."
In the end, the vote was 52 to 43, with Alaska's Lisa Murkowski the only Republican voting to end the filibuster, and Utah's Orrin Hatch voting "present." Nebraska Sen. Ben Nelson was the only Democrat to vote for the filibuster.
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