Hypocrisy on the Right: Blocking a Qualified Judicial Nominee

By Lauren Jee, NOW Law Intern

Regrettably, University of California – Berkeley Law Professor Goodwin Liu has decided to take the higher ground and withdraw his nomination from the U.S. Court of Appeals for the Ninth Circuit. Liu’s well-written and thoughtful withdrawal letter speaks volumes about his character. Liu writes that the court crisis has become so urgent that if he must step aside and shed his judicial aspirations than so be it, because the nation’s interest comes first, not his own.

Originally nominated in early 2010 by President Obama and re-nominated twice more, Liu expressed that “with no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future.”

From this letter we see that Liu’s character is a far cry from what staunchly-opposed Republicans made him out to be. For example, Senate Minority Leader Mitch McConnell (R-Ky), claimed that Goodwin Liu’s writings “reveal a left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power.” This is just one of a number of phony arguments put forth by Republicans who successfully got their conservative Supreme Court justices approved — John G. Roberts and Samuel A. Alito Jr. — justices who are now exercising their activist impulses on behalf of corporations and those with power.

In 2006 Senate Republicans and Democrats struck a deal: only under the most “extraordinary circumstances” would senators mount a filibuster against a president’s judicial nominees.

By no measure can Liu’s nomination be considered to even approach “extraordinary circumstances.” In the past, there have been several judicial candidates whose nominations were not considered “extraordinary circumstances” even though their comments and behavior suggested otherwise.

Exhibit A: Janice Rogers Brown nominated by President George W. Bush to the District of Columbia Circuit Court of Appeals in 2003. Brown had explicitly suggested several times that Title VII of the 1964 Civil Rights Act was unconstitutional and followed her own extreme right-wing ideological views while serving as a California Supreme Court Associate Justice. Yet, the Senate was allowed to cast an up-or-down vote confirming Brown to the D.C. Circuit Court of Appeals.

Exhibit B: Thomas Griffith nominated by President George W. Bush to the D.C. Circuit Court of Appeals in 2005. Griffith was not only suspended from the D.C. Bar for failing to pay three years worth of mandatory Bar dues, but he continued to practice in the District as well as in Utah as an unlicensed attorney. Yet, he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.

Neither Justice Brown’s extreme right-wing judicial activism nor Justice Griffith’s unlicensed practicing of the law were enough to be considered “extraordinary circumstances” deserving a filibuster. But, Liu’s one-time comments criticizing Supreme Court nominee (now Associate Justice) Samuel Alito Jr are what Republicans deemed “highly inflammatory”, therefore “extra-ordinary” and more than enough to qualify Liu for a filibuster.

During the 2006 confirmation of Justice Alito, Liu remarked that Alito’s vision was of an America “where police may shoot and kill an unarmed boy … where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance … where the FBI may install a camera where you sleep … where a black man may be sentenced to death by an all-white jury for killing a white man, absent … analysis showing discrimination.”

Perhaps Liu’s language was unduly harsh which he later admitted and for which he apologized. Or he could just have encountered the purely political problem of “saying the right thing at the wrong time.”

In any event, Republicans were quick to seize upon Liu’s comments as solid evidence that he would be an activist judge with no experience and would follow his personal ideology rather than the Constitution. These arguments are baseless and eclipse Liu’s eminent qualifications.

Liu is an award-winning professor at one of the nation’s most prestigious law schools. The American Bar Association granted him their highest possible rating of “unanimously well-qualified.” A Rhodes Scholar, Yale Law School graduate and former Supreme Court clerk, Liu is a nationally-esteemed constitutional scholar. Liu’s vast experience and understanding of constitutional law are evidence that Liu holds the Constitution in the highest regard.

The real reason for blocking Liu’s nomination emanates from conservative lawmakers’ fear that Liu may ultimately become a U.S. Supreme Court nominee and now that Republicans have nearly packed the Court with conservative jurists, they certainly don’t want to risk having any ‘ideological balance’ with a liberal justice.

This latest failure to confirm Prof. Liu, one of the brightest and most qualified judicial candidates, foreshadows the obstacles facing President Obama’s remaining 47 nominations awaiting confirmation. The legacy of right-wing activism in the federal judiciary is that civil rights, reproductive rights, consumer rights, privacy and many other liberties and protections are at risk.

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