Liu Confirmation Hearing Erupts Into Partisan Fight Over Experience and Philosophy

The long-awaited judicial confirmation hearing today of Berkeley Law Professor Goodwin Liu erupted into open warfare today as Republicans attacked Liu on his background and perceived bias. I discussed the confirmation fight on the segment below of Rachel Maddow.

Liu promised to keep an open mind and not pre-judge cases from a liberal perspective, but Republicans attacked him for his liberal views, particularly his interpretation of the Constitution. One quote often raised by the GOP was:

“The question … is not how the Constitution would have been applied at the founding, but rather how it should be applied today … in light of changing needs, conditions and understandings of our society.”

Sen. Jeff Sessions, R-Ala., criticized Liu for his criticism of Chief Justice John Roberts and Samuel Alito. He then attacked Liu on his lack of experience, asking “Have you argued any case before the Supreme Court or the court of appeals?”

Liu has never argued before the Supreme Court and only argued once before an appellate court.

However, arguing before the Supreme Court is hardly a criteria for judicial confirmation since only a small percentage of nominees have appeared before the Court. Such arguments have little to do with the lawyers but the cases and the interest of justices in a given issue at a given time. If Supreme Court argument were a criteria, ninety-eight percent of the GOP nominees would have failed.

Committee Chairman Patrick Leahy. D-Vt., seemed genuinely ticked. He and other Democrats agreed to accept claims of impartiality from conservative GOP nominees. Yet, his colleagues are unwilling to accept the same assurance from Democratic nominees.

The hearing occurs in the aftermath of the withdrawal of Dawn Johnsen who was all but abandoned by the Obama Administration, here, and opposed by Democrats like Senator Ben Nelson over her opposition to torture policies. Liu will be the latest test of whether the White House will support a liberal for such positions.

Liu has a remarkable resume:

— an Associate Dean and Professor of Law at UC Berkeley School of Law (Boalt Hall). —- clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg
— clerked for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit
— special assistant to the deputy secretary of the U.S. Department of Education
— senior program officer for higher education at the Corporation for National Service (AmeriCorps).
— Rhodes Scholar
— Board of Trustees of Stanford University
— Chair of the Board of Directors of the American Constitution Society
— B.S., Stanford University (1991)
— M.A., Oxford University (1993)
–J.D., Yale Law School (1998)

He reminds me of Michael McConnell who was confirmed in the Bush Administration and served as a federal judge on the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. McConnell was brilliant and conservative. He was confirmed and so to should be Liu.

There is also an interesting comparison to Brett Kavanaugh who was appointed to the U.S. Court of Appeals on May 30, 2006. He also clerked on the court of appeals and the Supreme Court like Liu. He also had limited litigation experience. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. Judge Kavanaugh was a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, Judge Kavanaugh served as Associate Counsel and then as Senior Associate Counsel to the President.

Then there was the nomination of David Bunning, the son of Sen. Jim Bunning. David Bunning, 35, was an assistant U.S. attorney in Covington with a razor thin resume. He was rated as “not qualified” by the ABA due to his lack of experience but still confirmed unanimously by the Senate, here.

Then there was Michael Wallace who received a unanimous “not qualified” rating during the Bush Administration. He was supported by the GOP but eventually withdrew under opposition, here.

This is not to say that the ABA rating should be treated as dispositive either way. Academics often have difficulty on experience. The ABA gave Ronald Reagan’s judicial nominees Richard Posner and Frank Easterbrook “qualified/not qualified” ratings. Posner is arguably one of the greatest legal minds of his generation and Easterbrook is widely respected for the depth of this intellect and knowledge on the bench. Both are conservative but the bench is richer with their contributions. The same is true with Liu. If his career and writings are any measure, his contribution to the body of jurisprudence on the Ninth Circuit would be extraordinary.

For the full story, click here.

53 thoughts on “Liu Confirmation Hearing Erupts Into Partisan Fight Over Experience and Philosophy”

  1. Can you say “Recess Appointment?” …

    Cornyn: Democrats To Blame For Republican Filibuster Of Goodwin Liu

    Ryan J. Reilly | May 19, 2011, 2:57PM

    Republicans just filibustered President Barack Obama’s judicial nominee Goodwin Liu, and Sen. John Cornyn (R-TX) says Democrats should take the blame.

    “I argued that everyone should get an up-or-down vote but we lost that battle,” Cornyn told reporters just after a vote to end debate on Liu’s nomination failed 52-43.

    “Now what they want is for any Republican nominee, a nominee of a Republican President, to require 60 votes, whereas a nominee from a Democratic President get 51, and that’s just not fair,” Cornyn said. “So I think the same rules should apply. They basically rewrote the rules, and I’m saying we’ll play by the rules that they wrote.”

    “I think this is an exception, an extraordinary circumstance,” Cornyn told TPM. “I don’t think this is the norm. I don’t think you could say that because of what happened on this nominee, that’s gonna happen routinely, in fact I can assure you it wouldn’t.”

    Liu has faced opposition from Republicans because they say he’s too liberal. Supporters say the real reason for GOP opposition is because of his young age and potential as an eventual nominee for the Supreme Court.

    A bipartisan group of senators who averted a judicial crisis back in 2005 — known as the “Gang of 14” — previously agreed that judicial nominees shouldn’t be blocked unless there were “extraordinary circumstances.” Cornyn and other Republicans said that was the case with Liu.

    Democrats bashed the GOP’s opposition to Liu, who would have been the only Asian-American serving in the Ninth Circuit court, which has a 40 percent Asian population.

    “It is an outrage that Senate Republicans have blocked the nomination of Goodwin Liu, an exceptionally well-qualified and mainstream judicial nominee who is widely admired, even by leading conservative legal scholars,” Sen. Barbara Boxer (D-CA) said in a statement.

    “I believe the ramifications of this Republican filibuster will be deeply felt in California and across the country,” Boxer said. “When we deny a judicial nominee of Professor Liu’s caliber – a man of intelligence, integrity and dignity – we weaken our nation’s legal system.”

    Senate Judiciary Chairman Patrick Leahy (D-VT) said that the “partisan filibuster of Goodwin Liu’s nomination is another example of Republicans’ shifting standards on judicial nominations.”

    “Professor Liu deserved better treatment than the Senate has allowed,” Leahy said. “All Americans suffer from this filibuster.”

    Sen. Orrin Hatch (R-UT) was the sole “present” vote on the vote to end debate. He told reporters it was the “honorable” thing to do because he wrote a law review article making the case that judges should not be filibustered. But he doesn’t blame fellow Republicans for blocking Liu’s up-or-down vote.

    “They filibustered our judges, they set the standards. Nobody should try to make a case against Republicans for trying to vote against cloture or in other words to sustain the filibuster because the standard was set by the Democrats, they filibustered our judges,” Hatch said.

    “Democrats set the standard,” Hatch said. “We passed more judges for this President and for Clinton than they ever did for ours.”

    “If they’re trying to make the case that they’re righteous and Republicans are not, that’s a joke,” Hatch added.

  2. The reliably bad Ben Nelson and the newly independent Lisa Murkowski.

  3. Swarthmore mom,

    Do you the dem and the republican who voted against and for him, respectively?

  4. Only one democrat voted against him and only one republican voted for him. This further illustrates the major differences between the two parties.

  5. Well, color me SHOCKED!

    Posted at 10:54 AM ET, 05/19/2011

    GOP effort to block Goodwin Liu is all about petty revenge
    By Adam Serwer

    Senate Republicans appear poised to filibuster the nomination of Goodwin Liu to the 9th Circuit Court of appeals, and they’ve settled on their reason why: Liu was awful mean to Justice Samuel Alito. As the Legal Times reports, Senators Lindsey Graham, John McCain, and Johnny Isakson all cited Liu’s testimony against Alito’s nomination as a reason for blocking him:

    In separate comments, the three senators all cited the same reason for opposing Liu: the law professor’s 2006 testimony against the confirmation of Justice Samuel Alito Jr.

    “When Mr. Liu came to the Judiciary Committee and said that, basically, Judge Alito’s philosophy judicially takes us back to the Jim Crow Era, that to me showed an ideological superiority or disdain for conservative ideology that made him in my view an ideologue,” Graham told reporters off the Senate floor.

    This is a strange rationale. Rather than argue that Liu is unqualified — which would be difficult to do, given his ratings from the American Bar Association and his endorsements from conservative legal figures — Republican Senators have decided that payback is an adequate reason for filibustering one of the president’s nominees to the bench. It goes without saying that back when these Senators were calling for an “up or down vote” for President George W. Bush’s nominees, they would not have accepted this kind of explanation from Democrats.

    At any rate, this is the passage from Liu’s testimony against Alito’s nomination at the time that Republicans now find objectionable:

    Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some.

    The real reason Liu’s remarks are a sore spot for Republicans begins with the controversy over the nomination of Robert Bork by President Ronald Reagan in 1987. At the time, Senator Ted Kennedy issued a blistering statement: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”

    Bork’s nomination was defeated, and his name was immortalized as a political verb — to defeat a Supreme Court nominee was to “bork”him. The similarities between Liu’s remarks about Alito and Kennedy’s about Bork are inescapable — both constitute a scathing liberal indictment of the conservative vision of America, one conservatives think is grossly unfair — and likely part of the reason Republicans have reacted to them so harshly.

    So in a sense, filibustering Liu’s nomination isn’t just revenge for Alito. It’s also payback for Robert Bork. While the political reasons for blocking Liu are obvious — if he attains the bench, he could be an attractive pick for Supreme Court later — what’s more remarkable is the pettiness of the underlying rationale, which is all about revenge.

  6. I thought I read somewhere that filibustering judicial nominees was unconstitutional … I’m looking into it right now … if anyone knows off-hand, please let me know …

    By the by … Charles Grassley is an idiot who has issues with reading comprehension …

  7. Swarthmore mom,

    Thanks for the link to TPM; that sure was truth-telling on Alito!


    LOL, more truth-telling!

    The DK (failed) link highlights some other Senators who might be more open to persuasion; if anyone wants to try to keep hope alive.

  8. CEJ,

    I would, but since my Senator is David “I’m A Koch Employee, er, Sucker” Vitter, it would be an exercise in futility.

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