Tit For Tat

Goodwin Liu

Remember when Republicans were adamant about ensuring that judicial nominees received an "up or down" vote?  In those days the Democrats had been using the filibuster effectively to thwart some of George W. Bush's more extreme judicial appointments.  As People for the American Way point out, Republicans, including twelve current Senators, argued back in 2005, that use of the filibuster in such circumstances was not just wrong, it was unconstitutional.  They threatened to employ the so-called "nuclear option," which would have changed the Senate rules to preclude filibusters for judicial nominees.  Of course, the Democrats blinked.  Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances."  In practical terms, this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him.  Thus, five nominees who had originally been filibustered, and several other conservatives, became federal judges, and, perhaps most significantly, Samuel Alito's nomination to the Supreme Court was permitted an up-or-down vote.  He was confirmed by a vote of 58-42, with enough Senators voting against him to have successfully filibustered and prevented a vote on his confirmation.

That was then, this is now.  Goodwin Liu's nomination to sit on the Court of Appeals for the Ninth Circuit was successfully filibustered today, with only one Republican voting to end debate on the nomination and allow an up or down vote.  As The New York Times wrote, in a editorial from the last time Liu's nomination was blocked, Liu, is an "exceptionally well-qualified law professor and legal scholar who would be the only Asian-American serving as an active judge on the Ninth Circuit," and that "his potential to fill a future Supreme Court vacancy seems to be the main thing fueling Republican opposition to his nomination."

Republicans cannot legitimately argue that Liu is unqualified.  By all accounts he has a brilliant legal mind.  He is a law professor at Berkeley, a Yale Law School graduate and a Rhodes Scholar.  The American Bar Association gave Liu its highest possible rating.  He also has been endorsed by liberals and conservative legal alike.  As Steve Benen notes, prominent conservatives  such as Richard Painter, White House ethics lawyer under Bush who worked on Roberts and Alito’s nomination, as well as Ken Starr urged his confirmation.

So, what the Republicans have seized on is Liu's strong yet truthful testimony opposing Justice Alito's nomination to the Supreme Court.   The Legal Times reports that Senators McCain, Isakson and Graham all cited Liu's 2006 testimony as a reason for blocking him.  Lindsay, one of the original Gang of 14, stated:  “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.”

There you have it.  Republicans are refusing to allow Liu's nomination to receive an up or down vote because, as Adam Serwer puts it, "Liu was awful mean to Justice Samuel Alito."  Graham cited Liu's Alito testimony as providing the "extraordinary circumstances" to support a filibuster.  But what is truly extraordinary is how petty and unprincipled the Republicans are and how the Democrats will continue to do nothing about it.