Goodwin Liu: Right Result, Wrong Process
Senate Democrats failed to invoke cloture on Goodwin Liu’s nomination to the Ninth Circuit yesterday, meaning that his nomination is effectively dead. Liu is a hard-left activist, as I earlier reported, who would, among other things, insert welfare rights into the constitution (via decisions, of course, not an actual amendment).
So this is good news, but I'm not suggesting we celebrate the judicial nomination process. Rather, I agree with Jonathan Adler of the Volokh conspiracy that we'd be better off if all judicial nominees went straight to an up-or-down vote. But under the current rules of engagement, nominees have to overcome a filibuster and ideology is fair game to oppose a nominee. Nobody knows this better than Prof. Liu who did his best to torpedo the nominations of both Alito and Roberts. It would be utter folly for Republicans to show deference to Obama's nominees when Democrats continue to "bork" every Republican nominee.
The Left of course, is shocked -- shocked! -- that a nominee could be defeated by filibuster. Shortly after the Liu cloture vote (reports Adler), the left-wing Leadership Conference for Civil and Human Rights denounced the “use of partisan filibuster” against Liu’s confirmation. This would be the same organization that, during the Bush Administration, “applauded” and praised the “leadership” of those who filibustered Miguel Estrada and celebrated those Democratic Senators who filibustered Priscilla Owen. And the same organization that, in a 2005 letter, declared that a nominee who could not overcome a filibuster was presumptively unqualified for the federal bench.
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Jun '10
Re: Goodwin Liu: Right Result, Wrong Process
In wars, and in royal succession (which is what court appointments have become,) you have to fight by the Devil's rules.
Apr '11
Re: Goodwin Liu: Right Result, Wrong Process
An eye for an eye and a judicial filibuster for a judicial filibuster.
May '10
Re: Goodwin Liu: Right Result, Wrong Process
The loss of a welfare-rights advocate on the Ninth Circuit is bad news for adult babies everywhere.
May '10
Re: Goodwin Liu: Right Result, Wrong Process
I loathe the judicial filibuster but until the parties agree on the rules of engagement, they have to stand. Republicans traditionally fight with one hand behind their back on this issue because of the blatant hypocrisy of outfits like the Leadership Conference for Civil and Human Rights and those that adhere to their doctrine.
I'm all for agreeing to no more filibusters for judicial nominees but until the Democrats are willing to do the same, no dice.
Sep '10
Re: Goodwin Liu: Right Result, Wrong Process
I have never understood the objection to filibustering judicial nominees. Or any nominees, for that matter, who are subject to the "advise and consent" process of the senate. Why is an "up or down vote" any better? The (successful) filibuster is essentially a down vote, right?
Re: Goodwin Liu: Right Result, Wrong Process
My view is that the filibuster is a strongly anti-majoritarian procedure, within a chamber that is already anti-majoritarian (ie, Delaware counts as much as California in the Senate). Its real purpose is to prevent situations like Obamacare, where a bare majority tries to ram through important and complex legislation without debate. That's not the case with a nomination. The Senate's decision should be confined to: is this guy qualified? There's no need for extended debate, and you can't propose amendments to a judicial nominee. The filibuster allows outside groups to mount PR campaigns. I concede that in my streamlined version, a Goodwin Liu might prevail. But we would have had Robert Bork rather than Anthony Kennedy on the Supreme Court for the past 25 years, for which I would trade a dozen Goodwin Liu's.
Edited on May 20, 2011 at 1:15pmMay '11
Re: Goodwin Liu: Right Result, Wrong Process
It seems like the GOP was able to rally around the filibuster because of Liu's obstructionist behavior toward other nominees. This is fine. The GOP had the political coverage and will most likely not do the same for the next nominee. Sometimes you have to draw a line and join the fight to prevent more in the future.
Jan '11
Re: Goodwin Liu: Right Result, Wrong Process
Dead Horse Beating Alert: This system of "advise and consent" was created before political parties. If you knew nothing about parties, and you were asked to advise and consent on a nominee, you would inevitably and naturally restrict your advice to the nominee's personal qualifications.
This is yet another example of the fact that the Constitution was designed as a competition between branches of government, chiefly between the executive and legislative functions. Managing that competition was the rationale behind the Constitution's design. In other words, the game was designed for one set of players, but the parties have replaced those. The game, therefore, is no longer designed for the appropriate players.
For the bulk of our history, the system was flexible enough to work through the problems. But the arteries are starting to harden, and the system is locking down.
Re: Goodwin Liu: Right Result, Wrong Process
The unconstitutional judicial filibuster must be wielded by Republicans until the Democrats agree to jettison its use. Much as the left perceived the manifest flaws in the independent counsel statute only after it was used against President Clinton.
Aug '10
Re: Goodwin Liu: Right Result, Wrong Process
Disagree. There are two broad types of nominees. Those who serve to advise and execute the policies of the President, and those who get to interpret the laws for the entire country for life.
Generally, I hear they ought to be treated the same out of deference to the election of the President, but they ought not be - because their roles within our government are fundamentally different.
I will concede that the President needs a team that he can work with and for any political appointee who will end up working in the executive branch the simple standard of "is he qualified" is sufficient.
Courts are a third branch of government and the sole checks on their power is Confirmation, Ammendment, and Impeachment of these powers, only Confirmation is pre-emptive in nature. Ammendment is not used, because it is so drastic and congress is legally dissuaded from using Impeachment. Yet, the confirmation of jurists innately hostile to our way of life causes harm to citizens at large for extended periods of time and must be avoided.
Right Result, Sole Process.