Thursday, May 19, 2011

Obama Circuit Court Pick Successfully Filibustered By Republicans

Just over a year ago I wrote about Goodwin Liu, President Obama's pick to sit on the 9th Circuit Court of Appeals. Today his nomination was filibustered in the Senate; Professor Liu will not be a circuit court judge.

I listened to Hugh Hewitt a few moments ago as he interviewed Senate Minority Leader Mitch McConnell, and the Liu filibuster was discussed at length. Hewitt's link on the subject is here, which should shortly contain a transcript of that interview so you can judge for yourself if what I present here is accurate.

There are some Democratic chickens that are coming home to roost here. Democrats, are you happy with this outcome? Senator McConnell stated that Democrats filibustered President Bush's nominations--specifically mentioning Miguel Estrada--and that Republicans effectively lost the "up-or-down vote" battle when that happened and are now merely adjusting to the new reality of the Senate. Again--Democrats, are you happy with those seeds you've sown? Hewitt stated that he thinks all nominees reported out of committee deserve an up-or-down vote; did Senator McConnell think that this could serve notice to the Democrats that maybe they should sit down with Republicans and craft some "no filibuster on judicial nominees" rule? McConnell replied that he did not see such a discussion in the near future.

What I got from Hewitt was very much a consistent, reasoned set of questions on Liu, and from McConnell an acknowledgement of Realpolitik in the Senate. I cannot remember which one said it--I guess we'll find out when Hewitt posts the transcript--but one of them said that Republicans cannot just roll over when Democrats change the rules of the game (when they started filibustering judicial nominations under President Bush) and continue to play by the old rules of comity. McConnell also said that Liu's views are very extreme, that his writings seem to imply that judges can make law up as they go along.

Both sides have now slapped. Will they consider themselves "even" and try to work these kinds of issues out together in the future, or will this escalate into a brawl?

Update: Less than two hours later the transcript is posted at the link above. I'll quote some of the highlights.
MM (Mitch McConnell): So I think the reason for it (Liu's filibuster) is quite clear. He had the view that it’s perfectly permissible, and even desirable for judges to kind of make it up as they go, in other words, to act as legislators. It probably didn’t help him any that he testified against both Chief Justice Roberts and Justice Alito, and used some rather strident language in describing both of them. But I think the core reason he was denied a vote, and therefore defeated, was because he seemed to be uninterested in what the Constitution, or even the case law, might require a judge to do, and really, pretty openly, said he believed in judges ought to do whatever they think is the right thing to do.

HH (Hugh Hewitt): Now Leader McConnell, a lot of scholars, including Ken Starr, president of Baylor, former solicitor general and D.C. Circuit judge, weighed in on behalf of Professor Liu. Was it a close call in the minds of many of the Senators in your caucus? Or was this an easy one for them to invoke filibuster on?

MM: Well, Republicans…hey, you know, in the early part of the previous decade, argued very strenuously against filibustering judges. But frankly, we lost that battle. They filibustered Miguel Estrada, an extremely well-qualified nominee of President Bush’s seven times, and hung up a huge number of his judges. And I think it just dawned on a bunch of us that that battle had been lost, and clearly, the Senate would now filibuster a judge when it deemed the judge objectionable. And so all we did today was simply follow the new norm in the Senate, and I’m pleased that with one exception, every single Republican voted against giving Mr. Liu a vote.

There's that Realpolitik I spoke of. And it was Hewitt who mentioned "rolling over":
HH: My question, Leader McConnell, is does this open the door for some kind of an amendment of the Senate rules so that all judicial nominees, both Republican and Democrats, are guaranteed up or down votes if they get out of committee? Is there a chance here to go back, because I’m one of those critics of the extra-Constitutional standard. At the same time, I don’t believe the Republicans can roll over and allow their judges to be filibustered and not pay back when the Democrats come along. Is there a chance now to perhaps reopen that and get a rule that guarantees nominees an up or down?

MM: No, I don’t think so.

Go read the full transcript; I think you'll see the differences I spoke of--McConnell's reality vs. Hewitt's "way it outta be".

Update #2: From the Washington Examiner:
Liu's nomination was blocked by a Republican filibuster Thursday -- the first successful filibuster against a judicial nominee since Democrats stopped all 10 of George W. Bush's appeals court nominees from 2003 to 2005. Although no one back then could have predicted that today's fight would be about Liu, everyone knew it was going to happen sometime. Once Democrats crossed the line to filibuster those Bush nominees, you could bet Republicans would strike back. And now they have.

If the Republicans really want to pay the insult back, they have 9 more to filibuster. Hey lefties, is this how you want your government run? No? Then maybe you need to learn to play nice.

16 comments:

Ellen K said...

There's a reason it's called the "Ninth Circus Court of Appeals" when rulings come down. Some of the wackiest and least constitutional opinions have come down from this group. What a shame, Liu would have fit right in.

Dean Baird said...

The GOP proved once again that they are the party of hypocrites. Evidence:

Senator John Cornyn of Texas wrote in a 2004 law review article: "Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate... Filibusters are by far the most virulent form of delay imaginable."

But he Cornyn good to go with the Liu filibuster. GOP=Hypocrite.

Senator Lamar Alexander said in the Congressional Chronicle in 2005: "I pledged, then and there, I would never filibuster any President's judicial nominee, period. I might vote against them, but I will always see they came to a vote."

But Alexander was good to go with the Liu filibuster. GOP=Hypocrite.

And Senator Johnny Isakson of Georgia said in 2005: "I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate."

But Isakson was good to go with the Liu filibuster. GOP=Hypocrite.

And Senator Orrin Hatch in a Senate floor statement in 2007: "We may not use our role of advise and consent to undermine the President's authority to appoint judges... It is wrong to use the filibuster to defeat judicial nominees who have majority support, who would be confirmed if only we could vote up or down. That is why I have never voted against cloture on a judicial nomination."

But Hatch was OK with the Liu filibuster. GOP=Hypocrite.

So much fear and loathing directed toward a highly-qualified nominee with bipartisan support from left, right, and center. I understand the fear among far-right extremists. Liu is a brilliant left-of-center legal mind.

The fact that he has the support of Kenneth Starr and Richard Painter is admittedly worrisome. And his support of charter schools and government-funded vouchers for private schools doesn't sit well with my friends on the left. (RotLC wants to hate this guy?)

Fortunately, Liu is young. Time is on his side. His star is on the rise.

Oh, and if you don't think the GOP just shot itself in the foot as far as Asian voters are concerned, you'll find that out eventually.

So keep trembling, right-wingers. Keep trembling. The fear goes well your hypocrisy.

Darren said...

Yes, Dean, I knew you'd go for the hypocrisy charge. McConnell handled that quite well--Republicans thought filibustering judges was wrong, but they lost that battle.

I have nothing against Liu personally--you know the guy, I don't. You can call out the hate all you want, Dean, but I remind you: chickens *will* come home to roost, and the Democrats need to learn to play nice. You can't expect the Republicans to play by Marquess of Queensbury rules forever while the Democrats take the gloves off.

Darren said...

Oh, and I *love* the Asian-American angle. Yes, let's vote for this guy because he's Asian! If we don't, all Asians will hate us! The Miguel Estrada thing didn't work against Democrats, and I doubt too many Asians will change votes because of Liu.

Dean Baird said...

The blatant hypocrisy brings attention to itself.

Goodwin Liu is not simply Asian, he's a highly-qualified, prize-winning scholar with support from Bush counsel, Richard Painter, and Whitewater's Kenneth Starr. Rated far higher than Clarence Thomas. How would you like to frame the argument to Asian voters? They might not be so eager to buy your "they did so we did" non-leadership argument.

Obama will be wise to play this card In the 2012 campaign. Not that he really has to, considering the field of Republicans who've tossed hats.

Darren said...

As you well know, I don't believe in playing racial politics. I would say he was filibustered because of his extremely liberal views, which have nothing to do with his race.

Gawd, liberals sure love the race thing, don't they?

If you want to see hypocrisy bringing attention to itself, might I suggest clicking on the "hypocrisy" label on the left hand column of my blog. Just a suggestion.

mazenko said...

So, you're simply arguing that this sort of petty behavior is OK because they deserved it ... and deserve even more of it? Somehow that doesn't sound right to me.

Dean Baird said...

One is given to wonder how anyone with "extreme liberal views" could get support among the likes of Starr/Painter.

Senators' perceptions of Liu's views are a reason to vote against his confirmation. Cloture is not that vote. This was about procedure, not about "extremism." Democratic majorities approved nominees who were far more conservative than Liu is liberal. But you know that.

Dismiss the appearance of the race issue if you like. Doing so helps to keep the GOP an effectively whites-only enterprise. You imagine liberals see race issues where they don't exist. Conservatives practice "colorblindness" by being blind to race issues when they are real. Appropriately, they don't even worry about "diversity" at Tea Party rallies. Big picture:it's a bad choice on their part that I'm OK with.

Darren said...

Mazenko, I'm arguing that the Democrats can't continue to think they can get away with that kind of behavior forever.

And Dean, Republicans voted for Sotomayor and Kagan, your baseless appeals to racial and gender politics aside. And Miguel Estrada, what was he, ethnically?

Sorry, but teary-eyed appeals to appointing the poor Asian man just aren't going to work on me. Got anything a bit more intellectual? Usually you do.

mazenko said...

And I'm arguing you should criticize the GOP for "getting away" with that behavior - especially if it is some sort of deserved payback, which you imply it is. And if the Republicans voted for Sotomayor and Kagan - which they didn't extensively - then what is the legitimate reason to vote against Liu. There isn't one.

Darren said...

They had more votes this time.

Lefties have two choices here: they can realize that their own actions have consequences, recognize their own bad behavior, and reach out with an olive branch, or they can squeal like stuck pigs and try to up the ante the next time there's a Republican president.

Which do you support? Which do you think they'll do?

Dean Baird said...

Darren, your silence regarding Lui's support from Republicans is deafening. Absolutely deafening.

These people/groups are lefties in your eyes? Kenneth Starr, Richard Painter, Bob Barr, The Goldwater Institute. Why do they choose to publicly support Liu?

Dismiss Barbara Boxer in ad hominem fashion all you like, but do better: tell me where she's wrong. Teach me, as I am eager to learn.

In the meantime, enjoy this "baseless" fact: 40% of the US Asian population resides in the Ninth Circuit's jurisdiction. The Ninth Circuit has no Asian judges. Is that because Asians simply don't have what it takes to rise to the top of this meritocracy?

Barbara Boxer on Goodwin Liu.

Again: why do Republican stalwarts support such an extreme leftie, what did Senator Boxer get wrong in her comments about Liu, and why should the Ninth be denied the service of a highly-qualified Asian judge?

Waving a "Miguel Estrada" flag doesn't address any of these questions.

Darren said...

No Dean, you're not eager to learn, and your sarcasm clearly identifies you as merely someone who wants to use high language to score low political points. If I'd heard your complaints back in Estrada's day, perhaps I'd give your argument some credence.

Liu may be eminently qualified under the old rules, but there's a new game afoot, and we can argue all day long about who started it, but it's here nonetheless.

This nomination is done. It's history. What do you want to do about the next one? More tit for tat, arguing forever about who tossed the tit and who the tat, or might we stop with these reindeer games?

I'm done. You can have the last word. How will you use it?

Dean Baird said...

Darren, any use of sarcasm on my part is hardly the introduction of a non-native species at RotLC.

Since you have no response to my questions, I will take a moment to challenge the only argument you seem eager to advance: your "actions have consequences" angle.

Here's why it doesn't hold water.

When the Republicans' nominees were being forestalled by the Democtratic minority, what was the reaction of the majority? Was it, "By my liege, we shall wreak vengeance on Democrats when the tables are turned"? No. They took to the microphones filled with sincerity and righteous indignation to wave their flag of moral superiority from their perch atop the high ground. They decried the tactics of the minority as reprehensible. They pledged they would never engage in such base behavior if they were in the minority. They beat their collective chests with unmitigated "holier than thou" rhetoric.

And now? The Republicans dropped their flags and scurried off the high ground faster than rats abandoning a sinking ship. Now the rhetoric is "Hey, they did it, so we have to do it, too!"

You can't attempt to have it both ways AND avoid the hypocrisy tag.

Anyway, thanks for the lively exchange!

mazenko said...

If "the Lefties" have to realize that "their actions have consequences," then you concede that the GOP's action is not driven by legitimate constitutional reasons but by a petty system of grudge and payback. If that is true, that is completely bush-league, and you should oppose it. But you don't, and I'm wondering why. Not really wondering - you are judging this issue on emotionally, not rationally.

Darren said...

OK, *I* get the last word. And that "word" is, you're welcome! I, too, enjoy a lively exchange.