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.