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AP: Cal prof’s judicial appointment doomed

By Josh Richman
Tuesday, December 21st, 2010 at 12:01 pm in Obama presidency, U.S. Senate.

It looks as if President Barack Obama’s nomination of a Cal law professor to the 9th U.S. Circuit Court of Appeals is dead, and will stay that way. (ed. note: Or not; see the update below.)

Goodwin LiuThe Associated Press reports today that the nomination of Goodwin Liu, associate dean and professor at the University of California, Berkeley Boalt Hall Law School, is one of four on which Senate Democrats have committed not to seek a vote in return for Senate Republicans lifting a blockade on at least 19 other judicial nominees.

The President nominated Liu in February, and although there was GOP opposition right out of the gate, the Senate Judiciary Committee held a confirmation hearing in April and voted 12-7 along party lines in May to send Liu to the full Senate for confirmation. But amid threats of a filibuster, the Senate sent the nomination back to the President in August, refusing to debate and vote before adjourning for its month-long recess. The president resubmitted his nomination in September, and the Judiciary Committee once again voted 12-7 that month to send the nomination to a floor vote.

The GOP didn’t care for Liu’s liberal credentials – he chairs the progressive American Constitution Society’s board of directors; he’s a former member of the boards of the American Civil Liberties Union of Northern California and Chinese for Affirmative Action; and he served on the Obama-Biden Presidential Transition’s education policy and agency review teams – or for his belief that judges should interpret the Constitution not according to “how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.”

UPDATE @ 3:03 P.M.: Not dead yet, apparently.

“Professor Liu is an outstanding nominee and it is most unfortunate that my Republican colleagues are blocking an up-or-down vote on his nomination,” U.S. Sen. Barbara Boxer, D-Calif., said this afternoon. “I will keep fighting until he is confirmed.”

That jibes with Senate buzz that Liu is likely to be re-nominated in 2011, and Democrats – though lesser in number, still in the majority – will strive to get him confirmed. Liu reportedly has had some good meetings on Capitol Hill in the past two months, making some ground with rank-and-file Republicans who might be more inclined to confirm him next year, when the clock hasn’t run down so far.

Richard Painter, who was President George W. Bush’s chief ethics lawyer and now is a University of Minnesota law professor supporting Liu’s confirmation, blogged last month that Liu – and all other judicial nominees – deserved an up-or-down vote rather than obstructionism, a stance many Republican Senators have taken in the past.

Richard Painter“I think it’s just crazy,” Painter said today. “He’s not an activist or an extremist at all, he’s quite mainstream, he’s more liberal than the Republicans might prefer… but I don’t think he’s at all outside the mainstream. I think this is very disappointing.”

“If this doesn’t work this time, what we need to do is have people read what Goodwin Liu has actually written and focus on who he really is, not just what people are saying about him,” Painter added. “I think if people do that they will reach the same conclusion that I did, that he’s well within the mainstream.”

Painter believes Senate Republicans, er, painted Liu as an arch-liberal activist mainly because he’d spoken out against the confirmations of Supreme Court Chief Justice John Roberts and Supreme Court Associate Justice Samuel Alito. Painter worked on Alito’s confirmation on the Bush White House’s behalf, and said Liu “wasn’t even on the radar screen, nobody sweated what he was saying at the time,” but times have changed.

“This whole thing is a tit-for-tat … It’s, ‘If you came after our guys, we’re coming after your guys,’” Painter said. “I think that might’ve made him a lightning rod … but it’s all politics, it has nothing to do with whether he’s an extremist or not.”

Painter also blogged just last week about Associate Justice Antonin Scalia meeting privately with the Congressional Tea Party Caucus.

“There is a danger of over-politicization of the judiciary. Certainly the politicization of the confirmation process, politicization of the selection process has gotten worse over the past 20 or 30 years, and I think judges have gotten more political – not all judges but some,” Painter said today, noting Scalia flirted with an appearance of partisanship before by going hunting with Vice President Dick Cheney even as the court prepared to hear a case involving Cheney. “We do have a problem with a politicized judiciary, but I don’t think you’re going to get it from Goodwin Liu.”

UPDATE @ 9:16 P.M.: The office of U.S. Sen. Dianne Feinstein, D-Calif., sent her statement about an hour ago. “There has been a full scale attack by the opposition on Professor Liu and I very much regret it is a one-sided review that does not take into consideration the exemplary qualities that this man would offer to the federal judiciary as an Appellate Court judge on the 9th Circuit Court of Appeals.”

UPDATE @ 8:46 A.M. WEDNESDAY: Asian American law groups are angry, and blame both parties.

Paul Hirose, president of the National Asian Pacific American Bar Association, says Liu and U.S. Magistrate Edward Chen of San Francisco – whom the President nominated to the trial-court bench, and who’s now in the same boat as Liu – “are both eminently qualified to serve, and the Senate has done both nominees and the Asian Pacific American community a grave disservice in failing to give them a long overdue floor vote in the Senate.”

Karen Narasaki, president and executive director of the Asian American Justice Center, said her organization is “deeply disappointed in the Senate and its failure to act with fairness towards these two well-qualified Asian Pacific American judicial nominees. Senator Reid should have brought both of these candidates up for a vote much earlier this year and Senator McConnell and his Republican colleagues should stop preventing the rest of the Senate from voting. The Republican leadership should stop blocking women and minority candidates and slowing down progress in increasing the diversity of the federal judiciary.”

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  • RR, Uninvited Columnist

    Dr Liu’s “belief” about applying contemporary conditions to old law is not a “progressive” position per se. Precedent cannot be ignored but nor can it be used to prohibit new applications of the law, at least in America’s experience. Dr. Liu has no judicial background; indeed, his experience seems mainly to consist of special pleading for “progressive” causes.

  • http://www.pandell-law.com Jerome Pandell

    Professor Liu is more than qualified to serve as an appellate judge. Before becoming a professor and associate dean at U.C. Berkeley Law, much like Chief Justice John Roberts, he served as an an appellate litigator at O’Melveny & Myers in Washington, D.C., arguing cases before federal courts just like the one on which he’ll serve. He clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit. He also served as special assistant to the deputy secretary of the U.S. Department of Education and as senior program officer for higher education at the Corporation for National Service (AmeriCorps).

    Sorry, RR, but Liu has the bona fides just as John Roberts and Samuel Alito did. Senators are entitled to vote against confirmation, but he deserves an up-or-down vote.

  • Mike F.

    I said this before, so I’ll say it again. Per Mr. Liu’s profile at UC Berkeley website he graduated in 1998, so that’s only 12 years of job experience. He’s been on faculty at UCB since 2003, so that’s only 7 years of non-academic work. Geez, let him do some work at the County DA’s office or as a public defender. I want to know that he’s got adequate courtroom experience before he works at a high judicial post. Why can’t the administration find someone with at least 20 years experience that’s dealt with a wide variety of issues.

  • John W

    Mike F — Seems to me that Kenneth Starr, who endorsed Liu, has at least as good a feel for his qualifications as any of us on this blog. You say you want someone with at least 20 years experience. You mean like Clarence Thomas, whose legal experience consisted of 3 years as Missouri Assistant Attorney General (that’s what all the staff attorneys are called) and 3 years in corporate law prior to Bush 41 appointing him to the Court of Appeals? Or like Scalia, whose legal experience (other than being a law professor at Virginia and Chicago) consisted of 6 years in corporate law and two years in President Ford’s Office of Legal Counsel, during which his only courtroom experience consisted of arguing one case before the Supremes? I suspect your real concern is that he’s from UC Berkeley and that he doesn’t have the Federalist Society seal of approval. If he were a Bush appointee, Republicans would call him a brilliant rising star constitutional scholar.

  • RR, Uninvited Columnist

    Justice Scalia went hunting with Dick Cheney and didn’t get shot in the face? Great!

  • Violet

    @Jerome Pandell: You assert that Liu, “served as an an appellate litigator at O’Melveny & Myers in Washington, D.C., arguing cases before federal courts just like the one on which he’ll serve.” This implies that Liu argued many cases, as did both CJ Roberts and J Alito.

    Fact: Liu served as a junior associate at O’Melveny for a total of 19 months. He argued ONE case, a pro bono asylum case, which he lost. So his court record is 0-1, pretty undistinguished. The Democrats have built up quite a myth about how great Liu is, but there is simply no factual basis to compare Liu to John Roberts, who was an outstanding (and experienced) advocate when he took the bench.

    Even more galling: that Liu launched broadside attacks against the nominations of Chief Justice Roberts and Justice Alito, testifying before the Senate that Alito was “outside the judicial mainstream,” and that presented grounds to deny confirmation. Liu should be held to the exact same standard he himself sought to apply to Roberts and Alito.

  • Ralph Hoffmann

    RR, you and I both know why you’re uninvited!

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