As bmaz reports, Cal-Berkeley School of Law associate dean Goodwin Liu will get a confirmation vote for the 9th Circuit Court of Appeals on Thursday. His nomination has foundered since February 2010, and he had to be renominated at the beginning of this year by the Obama Administration. Finally, Reid will invoke cloture, which will require 60 votes, on the Liu nomination.
The backstory here is that, with Congress basically flatlined, the Senate has done little other than confirm Presidential appointees and judges for the first several months of the year. They had quite a backlog of nominees, and no shortage of votes to hold. They started by getting out of the way nominees with unanimous or near-unanimous support, and a couple dozen nominees got confirmed in this way. But this was limiting, because the nominees who had majority support in the chamber weren’t getting a chance at confirmation.
That changed with the confirmation vote on Jack McConnell, a district court nominee in Rhode Island. Republicans had concerns about McConnell and held up his vote for months. Finally, Reid invoked cloture, arguing that filibustering a district court judge would be extraordinary. And Republicans blinked. Cloture was invoked with 63 votes. The final vote for confirmation was 50-44, meaning that several Republican Senators switched their votes from yes on cloture to no on confirmation, to register their dissent but not hold up McConnell.
Buoyed by this success, Reid and company will try again with Goodwin Liu. But the stakes are considerably higher here. First, Liu is being confirmed to the 9th Circuit Court of Appeals, not a US District Court. Second, Republicans really are motivated to stop him. He’s seen as a liberal golden boy, someone who could ascend to the Supreme Court one day and battle Scalia and Roberts with his intellectual firepower. Both times Liu was reported out of the Senate Judiciary Committee, he got a straight party-line vote.
So while there’s precedent for a so-called “controversial” nominee to get through this Senate, that doesn’t mean Liu will succeed. What’s the strategy here? First, Reid tried in his remarks announcing the Liu cloture vote to play past Republican statements against them:
Several years ago we faced a confirmation crisis in the Senate. The majority at the time, the Republicans, were frustrated with the inefficient way the Senate was performing our Constitutional duty of confirming the President’s nominees.
Many of my colleagues on the other side of the aisle passionately argued that all judicial nominees deserve an up-or-down vote on the Senate floor.
In the heat of this battle, several courageous senators agreed to a standard that would preserve the traditions of the United States Senate. They ensured the Senate could still provide the President its advice and consent, as the Constitution requires.
The agreement was significant, but simple. It was this: except in extraordinary circumstances, those nominated to be federal judges would get an up-or-down vote. The minority would not stand in the way of that vote. The agreement was grounded in common sense.
So far, in most cases, both sides have generally upheld that agreement. The nomination before us, however, is not one of those cases.
Consistency is not really the strong suit of Republicans, so I don’t think they’ll give up on cloture out of the goodness of their hearts. Reid also appealed to the fact that Republicans not in the Senate have given Liu high marks.
I think President Obama was wise to appoint him to the Ninth Circuit. So do a lot of Democrats – and so do a lot of Republicans.
Ken Starr, the former Whitewater special prosecutor, called Liu, who served in the Clinton Administration, ‘a person of great intellect, accomplishment and integrity.’
Former Congressman Bob Barr, a very conservative former federal prosecutor, also reviewed Liu’s writings. He came away impressed with, as he said, ‘his commitment to the Constitution and to a fair criminal justice system.’
And one of President Bush’s former White House lawyers said Liu’s views ‘fall well within the legal mainstream.’
Pretty sure the unnamed White House lawyer in question here is John Yoo. As Ian Milhiser writes, a fair reading of Liu’s record shows someone committed to fairness and justice.
But the more important move may be a meeting and photo-op tomorrow, between Liu, White House Counsel Bob Bauer, Reid, Senators Feinstein and Boxer (from Liu’s home state of California), and importantly, Senators Akaka and Inouye of Hawaii. There are currently no Asian-Americans serving on the 9th Circuit, which has jurisdiction over an area that is 10% Asian. Democrats clearly want everyone to know this by having the two highest-ranking Asian-Americans in the country appear with Liu, a son of Taiwanese immigrants, tomorrow. They want to get that picture in every Asian-American paper in the West. They want to make it difficult for Republican Senators to alienate the Asian-American vote. As the Asian-American Justice Center President Karen Narasaki notes, May is Asian-American Heritage Month. “Actually voting to stop him from getting an up or down vote will actually be viewed as very hostile,” Narasaki said.
I don’t know if that will work either. But we’ll find out come Thursday. More from Confirm Goodwin.