- The Washington Times - Thursday, April 7, 2011

The Senate Judiciary Committee approved a controversial appeals court nomination Thursday, setting up the first big battle in this Congress over an Obama judicial nomination.

The panel’s party line 10-8 vote in favor of University of California at Berkeley law professor Goodwin Liu portends a tough partisan struggle in the full Senate, where Republicans are in position to successfully filibuster his pending confirmation — a move that would hand President Obama a high-profile judicial defeat.

“While I have pledged — and indeed demonstrated — cooperation in moving forward on consensus nominations, there is no doubt that Mr. Liu does not fall into that category,” said Sen. Chuck Grassley of Iowa, the committee’s senior Republican.

Conservatives say Mr. Liu is far too liberal — he’s a past chairman of the progressive American Constitution Society and a former board member of the American Civil Liberties Union of Northern California. They also complain he lacks judicial experience.

Supporters counter the professor, a former Rhodes scholar, is a more-than-qualified candidate and has been unfairly demonized by the political right.

“In Professor Liu’s case, I believe the views expressed in his writings fall far outside the mainstream of the traditional American view of law and judging, going so far as to distort the meaning of plain words beyond reality,” said Sen. Jeff Sessions, Alabama Republican and member of the Senate Judiciary Committee.

Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, accused Republicans of playing politics with the nomination, saying they opposed Mr. Liu even before hearing him testify before the panel.

“Professor Liu’s answers under oath and his reputation as a well-respected constitutional law professor with sterling credentials paint a very different picture than the caricature created by the attacks from pressure groups that came as soon as he was nominated,” Mr. Leahy said.

The Vermont Democrat also said Republicans were using a double standard with Mr. Liu by demanding “a level of specificity” about how he might rule as a judge they’ve deemed inappropriate for nominees nominated by Republican presidents.

President Obama tapped Mr. Liu more than a year ago to fill a vacancy on the U.S. Court of Appeals for the 9th Circuit, which includes California and much of the rest of the West. His nomination stalled in the Senate amid Republican opposition, and Mr. Obama renominated him for the post in January.

The Liu debate extends far beyond Capitol Hill, as liberal and conservative groups see the nomination fight as a crucial test of the president’s ability to put his stamp on the nation’s judiciary.

Curt Levey, executive director of the conservative Committee for Justice, called Mr. Liu “the worst of Obama’s nominees at all levels of the federal courts.”

Nan Aron, president of the liberal Alliance for Justice, in contrast called Mr. Liu “one of the finest legal minds of his generation” who deserves a swift yes vote on the Senate floor.

Whether that vote happens, however, is uncertain. Democrats control only 53 of the Senate’s 100 seats — seven fewer than needed to guarantee an override of a Republican filibuster. A handful of moderate Democrats facing tough re-election battles also may be tempted to join a GOP filibuster of Mr. Liu.

Senate Democrats successfully used the filibuster tactic to block appeals court nominees by President George W. Bush but Republicans have yet to do the same with any of Mr. Obama’s appellate nominees.

Senate Majority Leader Harry Reid, Nevada Democrat — eager to avoid putting politically vulnerable members of his caucus up for a vote that could be used against them during re-election campaigns — may decline to even bring the Liu nomination up for a floor vote.

It’s also uncertain whether new nonbinding rules regarding Senate conduct would be enforced if the Liu nomination hits the chamber floor. In a gentlemen’s agreement reached in January, Senate Minority Leader Mitch McConnell, Kentucky Republican, vowed to use the filibuster less in exchange for a promise by Mr. Reid to allow Republicans more opportunities to offer amendments to legislation.

Spokesmen for the two Senate leaders didn’t respond to a request for comment on the Liu matter.

Meanwhile, Senate Democrats and the president are under pressure from liberal and minority groups to press hard for Mr. Liu’s confirmation.

“There is a tremendous lack of diversity on the federal appellate bench,” said Karen K. Narasaki, president and executive director of the Asian American Justice Center.

“Professor Liu not only has the right intellect and temperament to be an outstanding judge, he would also be only one of two active Asian Pacific American federal appellate judges in the entire country and the only one in the 9th Circuit.”

• Sean Lengell can be reached at slengell@washingtontimes.com.

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