CNN
Obama judicial nominee faces crucial Senate vote
By Bill Mears
May 18, 2011

Washington (CNN) — Liberal demagogue or mainstream intellectual? The Senate faces a Thursday showdown to force a floor vote on what could be President Barack Obama’s most controversial judicial nominee.

Senate Democrats have scheduled a cloture vote for Goodwin Liu, tapped for a seat on the 9th U.S. Circuit Court of Appeals, based in San Francisco. Some Senate Republicans have delayed for months an up-or-down vote, and the cloture maneuver would require 60 senators to end debate and move ahead for final confirmation.

Liu has become a political lightning rod over his liberal views and testimony given at confirmation hearings last year. Lawmakers on both sides traded barbs over his qualifications and his past statements on a variety of hot-button topics such as same-sex marriage and health care reform.

If confirmed, Liu — a professor at the University of California, Berkeley — would be only the second Asian-American currently on the nation’s federal appeals courts, the level just below the Supreme Court. Obama nominated him in February 2010.

The fight is also the latest test case over the political and ideological battle over judges, and whether Liu represents the “extraordinary circumstances” to justify a filibuster.

“At the very least, he undoubtedly deserves an up-or-down vote,” Majority Leader Harry Reid, D-Nevada, said on the Senate floor Tuesday. “But Senate Republicans have already forgotten the lessons of the ‘nuclear’ option. Today they are threatening to block this highly qualified nominee.”

A bipartisan group of senators — called the Gang of 14 — reached a 2005 compromise agreement during the Bush years to prevent divisive filibuster tactics some have labeled the “nuclear” option. Nominees then and now were to be given a floor vote except under “extraordinary circumstances.” Some conservatives say Liu fits that category.

“This will be a defining battle for the remainder of President Obama’s term,” said Edward Whelan, president of the Ethics and Public Policy Center. “If Republicans fold here with this nominee and his aggressive left-wing policy views, the door will be wide open for the president to ram through anyone he wants. Republicans standing strong will have a disciplining effect on any future such nominees.”

Republicans in the Senate had promised that Obama’s “consensus” judicial nominees would receive swifter consideration in the new Congress. Two GOP members of the original Gang of 14 — Sens. John McCain, R-Ariz.ona, and Lindsey Graham, R-South Carolina — became the first senators to announce they would vote “no” on cloture, supporting the filibuster. McCain said the nominee was “outside the mainstream.”

As of this week there were 87 vacancies in the 857 federal district and appeals court judgeships, amounting to about 10%. Just 74 names have been currently put forth by Obama in the new Congress, many of them renominated — but never confirmed — from the past two years. Twenty-four candidates have received confirmation since January. The administrative office of the U.S. courts predicts at least 23 more vacancies this year.

Republicans had been criticized for delaying floor votes on many nominees in the president’s first two years in office, but the White House, too, has come under fire for not moving quickly to fill growing bench vacancies. The president’s two Supreme Court choices — Sonia Sotomayor and Elena Kagan — received relatively swift consideration.

Some moderates from both parties have long lamented threats of delays and filibuster attempts of most presidential appointments. They say ongoing unfilled vacancies have created a crisis in many federal courts, with bulging dockets being handled by too few judges. The circuit seat Liu would fill has been declared a “judicial vacancy” that the court says requires urgent consideration.

“The danger of this naked ideological fight by the right is the effect it will have on the judicial system,” said Doug Kendall of the liberal Constitutional Accountability Center. “Polls continue to show Americans are appalled at the continuing gridlock and obstructionist tactics in Congress. If Republicans mount a filibuster, the public will respond unfavorably to such partisan tactics.”

During separate testimony this past March and last year, the 40-year-old Liu apologized for omitting 117 items from a committee questionnaire on his background. The items were eventually submitted.

Republicans and other conservatives had questioned whether Liu was purposely withholding certain information on his background. Republicans said the material included statements on affirmative action and the effect that Obama’s 2008 presidential win would have on the Supreme Court.

Opponents say he lacks prior experience as a judge or practicing attorney, and has spent most of his career in academia.

Democrats strongly defend Liu’s record, saying opponents are unfairly characterizing his words and qualifications. He had assured lawmakers that despite some provocative statements he made as a law professor, he would act impartially as a judge.

“My personal beliefs have no role in the act of judging,” he said. As an example, he noted, “I would have no difficulty or objection of any sort to enforcing the law as written in enforcing the death penalty.”

Many court watchers view the Liu nomination as a political test case of sorts for the next Supreme Court nomination. Many liberals hope the president, if given the chance, would choose a strong liberal high-court nominee, and see Liu as a potential candidate for that exclusive bench some day.

Liu’s supporters point to his years of scholarship, and especially his personal background. He was born to Taiwanese immigrant parents, attended public schools, then Yale Law School and was a Rhodes scholar. He later clerked at the Supreme Court for Justice Ruth Bader Ginsburg.

The nominee met on Capitol Hill Wednesday with Democratic lawmakers, accompanied by White House Counsel Bob Bauer.

Republicans have made much of Liu’s statements in support of same-sex marriage and affirmative action. A recent book he co-authored supports the idea of the “living” Constitution, which conservatives have long disdained. Liu said judges should interpret the Constitution “in light of the concerns, conditions and evolving norms of society,” which many on the right deem a playbook for activist liberal judges.

Liu also openly opposed President George Bush’s 2005 nominations of Chief Justice John Roberts and Justice Samuel Alito. Sen. Jon Kyl, R-Arizona, told Liu his nationally televised remarks during Alito’s Senate hearing were out of line.

At that time Liu said, “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 a black man may be sentenced to death by an all-white jury for killing a white man… this is not the America we know. Nor is it the America we aspire to be.”

“This calls into question your judicial temperament,” said Kyl at Liu’s own hearing. “I see it as very vicious, and emotionally and racially charged, very intemperate and to me it calls into question your ability to approach and characterize people’s positions in a fair and judicious way.”

The 9th Circuit on which Liu would sit is by far the largest appeals court in the United States and includes cases arising from the states of California, Washington, Oregon, Hawaii, Alaska, Nevada, Arizona, Idaho, Montana, and the Pacific territories. It is also considered the most liberal federal appeals bench, with 16 full-time judges named by Democratic presidents and 10 by Republicans.

Most of the cases accepted by the Supreme Court come from the 9th Circuit, a sign in part that the conservative majority on the high court has concerns with the appeals court’s rulings.