Senate GOP Marks a First - Blocking an Obama Judicial Nominee

Goodwin Liu holds his son in the Senate Judiciary Committee room. (FNC Photo/Lee Ross)

Democrats needed 60 votes to move the nomination forward to final passage. Senate Republicans on Thursday toppled the nomination, 52-43, of controversial University of California-Berkeley law professor Goodwin Liu, nominee for the Ninth Circuit Court of Appeals, a first in President Barack Obama's presidency.

In the end, only one Republican voted for the nominee, Sen. Lisa Murkowski of Alaska. Nebraska's Ben Nelson was the lone Democrat to oppose Liu. Orrin Hatch, R-Utah, a former chairman of the Judiciary Committee, chose to vote "present," a sign of his long-time opposition to judicial nominee filibusters. Democrats needed 60 votes to move the nomination to final passage.

GOP Leader Mitch McConnell said the nominee'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." And though the Kentucky senator said he has "nothing against (Liu) personally, "Earning a lifetime appointment isn't a right, nor is it a popularity contest."

But Judiciary Committee Chairman Patrick Leahy, D-Vt., decried the filibuster, arguing that right-wing judicial nominees had received an up or down vote when Republicans were in power. "I listened to the speeches....I sometimes wonder who everyone's talking about," Leahy said. "No question, his intellect and qualifications, he should be treated with respect and admiration, not maligned."

Leahy also cited Liu's Taiwanese immigrant heritage as a reason for confirmation, noting, "There are no Asian-Pacific Americans on the bench."

Majority Leader Harry Reid, D-Nev., argued unsuccessfully for a straight up or down vote, saying, "The record is clear. Any claims Goodwin Liu is undeserving of our confirmation is simply wrong." The leader called out Sens. Lamar Alexander, R-Tenn, Johnny Isakson, R-Ga., and Orrin Hatch, R-Utah, among others, citing their past opposition to filibusters of judicial nominees.

But senior Republicans had launched an all-out push to quash the nomination, urging their entire conference to support a GOP-led filibuster.

"(Liu's) record reflects a carefully honed and calculated philosophy that he developed and advanced over the course of his brief career in the ivory towers of academia and which threatens the American tradition of limited constitutional government," Sens. Charles Grassley of Iowa, top Republican on the Judiciary Committee, and senior panel member Jeff Sessions of Alabama, wrote in a letter, obtained by Fox News, to their GOP colleagues Wednesday.

In a most ominous sign, former GOP members of the so-called "Gang of 14," who narrowly averted a judicial crisis back in 2005 that nearly shut down the Senate, are lining up against Liu, as well.

The somewhat undefined threshold developed by the bipartisan group back then stated that a nominee should be filibustered only under "extraordinary circumstances."

"The nomination of Mr. Goodwin Liu does rise to a level of 'extraordinary circumstances,' and therefore McCain will seek to filibuster the nomination," read a statement by the office of former gang member John McCain.

Same goes for McCain's fellow gang member, Sen. Lindsey Graham, R-SC., who said Liu's words "ring of an ideologue," adding that Liu should, rather, "run for Senate, run for President. Don't sit on the court...In Mr. Liu's world, I think he has a very small view of the law."

Graham took pains to say, however, he did not see Thursday's defeat of Liu as precedent-setting. But that was hardly salve to Liu's supporters, including home-state Sen. Barbara Boxer, D-Calif., who warned colleagues, "I think the ramifications, and I feel very strong about this, I don't say this very often on the floor, I think the ramifications of this filibuster are going to be long and difficult for those who cause this good man to be filibustered."

The nominee, who has endured a rare two confirmation hearings with more than five hours of testimony, enjoyed bipartisan support outside Congress, including famed former prosecutor Ken Starr. Still, but opposition in the Senate came on a number of fronts, with most Republicans accusing the nominee of wanting to make law, not interpret it. Some viewed Liu, 40, as too young for a lifetime appointment to the bench, fearing he might soon be propelled to the Supreme Court.

But it was Liu's scathing critique of then-Judge Samuel Alito, President George W. Bush's nominee for the High Court, that appeared to sting the most.

Paralleling the late Sen. Ted Kennedy's dress-down of failed Supreme Court nominee Robert Bork, Liu said at the judge's confirmation hearing that in Alito's America "police may shoot and kill an unarmed boy" and "the FBI may install a camera where you sleep," and he went on to say in that America "a black man may be sentenced by an all-white jury for killing a white man absent analysis showing discrimination."

Liu apologized numerous times for the comments, calling them "inartful," but Republicans balked.

"I'm not going to vote for that," Sen. Johnny Isakson, R-Ga., told Fox News Wednesday, "It's the perfect definition of 'extraordinary circumstances'. I was here when the confirmation hearings of Judge Alito were going on. You know, I can understand a difference of philosophy, but there should be an evenness of temperament. Judicial temperament, to me, is the most important thing a judge can possess, and I think in that circumstance alone, he demonstrated less than what I would consider appropriate judicial temperament."

Chairman Leahy reminded his colleagues recently that Liu received the highest ranking from the American Bar Association, a unanimous "well qualified," a coveted endorsement in GOP circles that also includes an evaluation of temperament.

In a last ditch attempt to show support, Senate Majority Leader Harry Reid, D-Nev, brought the nominee in for a meeting Wednesday with a handful of Democratic senators and White House Counsel Bob Bauer. The media were invited in to take pictures, with Reid saying the nominee deserved to be confirmed.

The White House appeared to know the vote tally in advance. No centrist Republican said he or she was contacted for a follow-up visit with the nominee or for a last-minute conversation with a high-ranking Administration official courting support.

Though Liu's backers consistently touted his impressive educational credentials, a Yale Law School graduate and Rhodes Scholar, as proof of his intellectual prowess, the wave of opposition to Liu proved too great.