GOP Obstructionism Continues to Plague Obama's Judicial Nominees

As of July 31st, only 42.8 percent of President Obama’s judicial nominees had been confirmed. No other President in recent memory even comes close to such a dismal number. Filibusters, anonymous holds, and other obstructionary tactics have become the norm. It is all part of the strategy employed by the GOP to derail the Obama Administration. It is an unrelenting war against the President and his Administration but the President seems incapable of taking the Republicans to task. This isn't Harry Reid's job, it is the President's obligation to defend his nominees and to shame the Republicans publicly. 

President Obama did get "a bit annoyed" with Senate Minority Leader Mitch McConnell during meeting with Congressional leaders on July 27th. According to Roll Call, President Obama used the private closed door meeting to urge McConnell to “work with us” to confirm judicial nominees instead of using parliamentary procedures “time and time again to deny them.” He lamented that some have been waiting for eight months for confirmation, despite many being “voted out of committee unanimously.” Taking the GOP to task private is worthless. The President needs to roll up his sleeves and get down in the mud and fight.

Uncontroversial nominees are waiting months upon months for a floor vote, and even district court nominees—low-ranking judges whose confirmations have never been controversial in the past—are now routinely filibustered. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee. As of the end of July, there were 23 nominations that had cleared the Judiciary Committee but were still awaiting Senate action because a Senator had place an anonymous hold on the nomination. These are shameful tactics but the President by not calling the GOP out on them only further encourages the Republicans to further stall the Administration.

From the Center for American Progress:

There is a simple explanation for the sudden drop-off in confirmation rates—obstructionists in the Senate are using filibusters and holds at an unprecedented rate. And it is nearly impossible to break the filibusters and holds on Obama’s nominees.

Although a supermajority of senators can break a filibuster, once a filibuster is broken Senate rules still permit up to 30 hours of floor debate before taking a vote. Presently, 48 of President Obama’s judicial nominees await confirmation. At 30 hours per nominee, the Senate would have to spend 1,440 hours—60 entire days—to act on each of these nominations.

If Majority Leader Harry Reid (D-NV) were to cancel all recesses on August 1 and require the Senate to work 24 hours a day, seven days a week, doing nothing but considering judicial nominees, the last nominee would not be confirmed until well into autumn—and that’s assuming that the Senate passed no bills, confirmed no other nominees, and took up no other matters for this entire period!

The picture is even worse when you factor in executive branch nominees. According to the White House, President Obama presently has 240 unconfirmed nominees. Confirming each of these nominees would require a massive 300 days—10 entire months—of 24 hour work days doing nothing but confirmations.

It is easy to manipulate the Senate rules to create a crisis. If a minority of senators broadly object to the Senate’s entire agenda, then it is literally impossible to confirm more than a fraction of the hundreds of judges, executive branch officials, ambassadors, and other nominees that each president has a responsibility to appoint, even if the Senate shuts down all other legislative business to do so.

If anything, the real surprise is not that President Obama is experiencing unprecedented obstructionism. It’s that, given such dysfunctional Senate rules, it has taken so long for such a confirmation crisis to emerge.

On Friday, the Senate adjourned for a month and sent back to the White House the nominations of UC Berkeley law professor Goodwin Liu and San Francisco Magistrate Edward M. Chen. President Obama nominated Liu to the 9th Circuit Court of Appeals in February. Chen was a lawyer for the American Civil Liberties Union before becoming a federal magistrate. Obama nominated him last year to be a U.S. district judge in San Francisco.

Under a rarely invoked rule, the Senate must agree to carry over pending nominations when it goes on a 30-day recess. But Republican leaders objected to carrying over several disputed nominees, including Liu and Chen. So now the President must renominate them when Senate returns in September.

There's more...

Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

Confirm Goodwin Liu to the Court of Appeals

As I noted here last week, President Obama has nominated Goodwin Liu, a constitutional law professor of mine at the University of California Berkeley School of Law, to a position on the United States Court of Appeals for the Ninth Circuit.

Unsurprisingly, the right wing is already setting its sites on Professor Liu, just as they have on virtually all of the President's other judicial nominees. I have tried to correct some of the record with regard to Professor Liu here at MyDD. But in an effort to broaden the effort, I have created a new website in support of his nomination:

The site is already loaded with a good deal of information -- statements from academics, politicians and media outlets of all stripes, Professor Liu's biography, fact checks. The site also contains a petition so that people can register their support for the nomination.

Professor Liu would make a great federal judge. Don't just take my word for it. Ask the American Bar Association, which awarded Goodwin Liu it's highest possible rating: a unanimous "well qualified." Ask the Sacramento Bee, which recently editorialized that "it is hard to image anyone who's better qualified than Liu." Ask the officials and academics from across the ideological and political spectrum speaking out on behalf of Professor Liu's nomination. Stop by today.

Goodwin Liu Earns Highest Possible Rating from ABA

The American Bar Association, which plays an integral role in the confirmation process through its review of nominees' records, has given Goodwin Liu (my professor, whose nomination to the 9th Circuit I wrote about yesterday) its highest possible rating (.pdf): A unanimous "well-qualified." The wingers aren't happy.

According to the ABA Standing Committee on the Federal Judiciary’s explanation of its standards for rating judicial nominees, “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law.” Further, “the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.”

Ninth Circuit nominee Goodwin Liu hasn’t even been out of law school for twelve years yet (he graduated from Yale law school in the late spring of 1998), and he’s only been a member of a state bar since May 1999. His entire practice of law appear to consist of two years or so in appellate litigation, so it would appear that he has zero “trial experience as a lawyer.” Nor, of course, does he have any experience as a trial judge.

Despite all this, the ABA committee has somehow seen fit to give Liu its highest rating of “well qualified.” What a joke.

Was it "a joke" when Republican President Gerald Ford, at the urging of Ronald Reagan, nominated Anthony Kennedy, then age 38, to a seat on the Court of Appeals for the Ninth Circuit? Was it "a joke" when President Reagan nominated Alex Kozinski, then age 35 -- just 10 years out of law school -- to the 9th Circuit? How about when George W. Bush nominated the then-38 year old Brett Cavanaugh to the Court of Appeals for the D.C. Circuit? Did the conservatives speak out then? Senator Orrin Hatch, the former Republican Chairman of the Judiciary Committee, certainly did not, defending the selection of Cavanaugh by noting that many Senators "began their service in their 30's if not barely age 30." Or do age criticisms only apply to progressive, not conservative, jurists? That is, the these extra-constitutional rules (there is no age restriction for judicial nominations anywhere in the Constitution) only apply when the Democrats are in office, not Republicans?

Obama Nominates Progessive Goodwin Liu for 9th Circuit

It was rumored last night, but now it's official: Goodwin Liu, a leading progressive legal theorist (and my constitutional law professor at Berkeley Law), has been nominated to the United States Court of Appeals for the Ninth Circuit. Per release from the White House:

WASHINGTON, DC – Today, President Obama nominated Goodwin Liu for the United States Court of Appeals for the Ninth Circuit and Judge Robert N. Chatigny for the United States Court of Appeals for the Second Circuit. Mr. Liu currently serves as an Associate Dean and Professor of Law at the University of California, Berkeley School of Law. Judge Chatigny currently serves as a U.S. District Judge for the District of Connecticut.

President Obama said, “Goodwin Liu and Robert Chatigny have proven themselves to be not only first-rate legal minds but faithful public servants. It is with full confidence in their ability, integrity, and independence that I nominate them to the bench of the United States Court of Appeals.”

Goodwin Liu: Nominee for the United States Court of Appeals for the Ninth Circuit
Goodwin Hon Liu is an Associate Dean and Professor of Law at the University of California, Berkeley School of Law. An acclaimed scholar, teacher, and lawyer, with experience in both the private and public sectors, Liu is a nationally-recognized expert on constitutional law and education law and policy. In 2009, he received Berkeley's most prestigious teaching award.

Prior to joining the Berkeley faculty in 2003, Liu was an associate at O'Melveny & Myers in Washington, D.C. He clerked for Justice Ruth Bader Ginsburg in the October 2000 Term, and for Judge David S. Tatel on the Court of Appeals for the D.C. Circuit from 1998-1999. Between his clerkships, Liu served as a Special Assistant to the Deputy Secretary at the U.S. Department of Education. He has also worked for the Corporation for National Service, where he helped launch the AmeriCorps program.

Liu was born in Augusta, Georgia, to parents who emigrated from Taiwan, and he grew up in Sacramento where he attended public schools. Liu earned a B.S. from Stanford University in 1991, an M.A from Oxford in 2002 (where he studied as a Rhodes Scholar), and a J.D. from Yale Law School in 1998.

This is really great news -- it's hard to overstate this. It suggests that President Obama is starting to get it on judicial nominations -- that if the Republicans are going to mount filibusters against even moderate nominees with bipartisan support (see, for instance, the nomination of David Hamilton to the 7th Circuit last year), there is no reason not to nominate jurists with more ambitious views.

Liu is such a jurist. He is one of the brightest legal minds in the country, and what's more (and perhaps more importantly) he has the ability to articulate his views in a cogent manner. In other words, he would make a great judge. Additionally, at the age of 39, he would (if confirmed) have the ability to have a say in the direction of the law for decades to come.


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