This is a rush transcript from "Special Report," May 19, 2011. This copy may not be in its final form and may be updated.


SENATE MINORITY LEADER MITCH MCCONNELL, R-KY.: Mr. Liu said he believed that the last presidential election gave liberals, as he put it, quote, "a tremendous opportunity to actually get their ideas and the progressive vision of the Constitution and of law in to practice." This is repugnant.

SEN. BARBARA BOXER, D-CALIF.: I don't say this 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.

UNIDENTIFIED MALE: On this vote the yeas are 52, the nays are 43. The motion is not agreed to.


BRET BAIER, HOST: Stanford law professor Goodwin Liu, a nominee for Ninth Circuit Court of Appeals fell eight votes short today, was not able to break the filibuster, and thereby the nomination failed in the Senate. What about this, the politics of it going forward? We're back with the panel. Jonah?

GOLDBERG: I think it says a significant thing. I think he should have been filibustered. I think could have probably and would have probably lost in an up and down vote anyway.

Where I come down on this, there are certain practices or rules or laws that Democrats love when they are useful weapons against their enemies and then decry when used against them -- independent council laws, sexual harassment laws, and the filibuster in the Senate.

The way to get rid of it -- if you don't like the practice, get rid of it by using it against the Democrats so they realize the folly of their ways. I think Republicans were right. Goodwin Liu was as partisan and left wing nominee as we have seen in a long time.

BAIER: Juan?

WILLIAMS: I think the American Bar Association said this guy was highly qualified.

GOLDBERG: Oh, then I change my mind on everything.

WILLIAMS: I'm just telling you. The thing about it is, he is someone who sees rights in the Constitution in terms of things like gay marriage or healthcare for all, and Republicans didn't like it.

And then the idea is he led the opposition on Chief Justice Roberts as well as Justice Alito and in some cases used language he later regretted and said it was provocative and unduly harsh in talking about Alito's stance -- not only that he said Alito's way of judging cases was formulaic, mechanical -- he said that he though in his America people would be unfairly treated and people who are suspects might be, you know, again beaten up, and all the rest.

And it was language used in the court of political stand that has come back to bite him because even in the course of making that case he said at one point you have to look at more than the legal qualifications of a candidate. His qualifications are terrific. This is a brilliant lawyer.

BAIER: What about Barbara Boxer's threat it will come back to haunt those who filibuster the nominee?

KRAUTHAMMER: It will. But then again what happened today is the Democrats having their own practice of this, which happened over and over again in the Bush years, come back to haunt them. The Democrats are the ones who have done this over and over again and rejected conservative justices, appeals court nominees.

Juan, the reason this man was rejected is not because of the occasional extreme language or untoward language or words. It's because of his extreme political philosophy and judicial philosophy. This is a man who uses the words "limited government" and puts it in quotation marks and says it's simply a right-wing code word for being hostile to individual rights.

If that is how you see limited government, free enterprise, and other words he puts in quotation marks, you have a guy who is radical for the Ninth Circuit, which the most liberal in the country.

I think the Republicans were absolutely right in saying this man is too extreme, and also right in saying to the Democrats you are rank hypocrites. You used this. If you want to abolish it, let's agree and we won't use it again. But we're not going to be the patsy on your side.

WILLIAMS: Every judge has political opinions. They are not up there like they have been neutered. The idea that he has strong political opinions should not disqualify him, a brilliant mind, from serving as a judge in this country.

KRAUTHAMMER: He believes in a living constitution, i.e, anything that lives in his head will become the Constitution.

WILLIAMS: This is payback, that is what it is.

BAIER: We're not more than 20 years after the Robert Bork hearings. Does this judicial hearing --process changing?

GOLDBERG: It is a completely rational response to how we have made the courts a third legislative branch of -- or second legislative branch of government. If you view that much power in it, then it's absolutely rational you have the fights over things. The "Borking" of Bork is what set off the process. If Democrats think that the courts should be this powerful, should legislate from the bench, then Republicans have to get in the game.

BAIER: That is it for the panel.

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