Some Democrats fear the blocked nomination of Liu will set a new precedent. Senate GOP filibusters Liu

Senate Republicans staged the first successful filibuster of a judicial nominee since 2005 on Thursday, dealing a blow to the Obama administration on the long-stalled nomination of Goodwin Liu to the 9th U.S. Circuit Court of Appeals.

The final vote was 52-43, eight votes shy of the 60 needed to overcome the filibuster. Only one Republican joined Democrats in supporting Liu, and only one Democrat voted no to opening debate on the 40-year-old University of California, Berkeley professor’s nomination.


The filibuster will be met with disappointment from both progressives and Asian-American groups that advocated for Liu and hoped to see him seated on the Western court that covers a region of the country with a significant Asian-American population. Liu even received support from some prominent conservative legal figures, including Ken Starr and John Yoo.

The procedural maneuver also upsets a six-year détente on filibustering judicial nominations. During the George W. Bush administration, a bipartisan group called the Gang of 14 agreed to vote to open debate on every judicial nominee who came through the Senate except in “extraordinary circumstances.”

“If this is not an extraordinarily well-qualified person, I don’t know who will be,” Sen. Dick Durbin (D-Ill.) said moments before the vote. “I’m afraid the phrase ‘extraordinary circumstances’ will suffer great damage by this action.”

Alaska Sen. Lisa Murkowski was the lone Republican to support Liu on Thursday.

“I stated during the Bush administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances,’ and my position has not changed simply because there is a different president making the nominations,” Murkowski said in a statement after the vote.

Sen. Ben Nelson was the only Democrat to vote against Liu. Sen. Orrin Hatch (R-Utah) voted present. Four senators didn’t vote: Max Baucus (D-Mont.), Kay Bailey Hutchison (R-Texas), Jerry Moran (R-Kan.) and David Vitter (R-La.).

Other Republicans have maintained that Liu’s liberal views on issues like same-sex marriage and affirmative action put him outside the mainstream, pointing to his writings that additional individual rights can be found in the Constitution.

Liu also drew Republican ire over his criticism of Supreme Court Justice Samuel Alito in testimony when the conservative judge was nominated to the court.

“His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue,” South Carolina Sen. Lindsey Graham said before Thursday’s vote. “His statement showed he has nothing but disdain for those who disagree with him. Goodwin Liu should run for elected office, not serve as a judge.”

Graham, who was part of the Gang of 14, along with veteran GOP lawmakers like Arizona Sen. John McCain, cited the group’s language of “extraordinary circumstances” in explaining their “no” vote Thursday.

Earlier this month, 11 Senate Republicans helped break a filibuster on another controversial Obama pick, Jack McConnell, who was appointed to a district court in Rhode Island. Both Graham and McCain supported McConnell.

Leading up to the Liu vote, several Republicans, including John Cornyn of Texas and Lamar Alexander of Tennessee, noted the significance of a circuit court appointment, drawing a distinction with McConnell’s district court appointment.

“There is some sense that circuit court judges are different than district court judges, and so you won’t find those divisions now that we have a circuit court judge, somebody who’s eligible for the Supreme Court,” Cornyn told reporters Wednesday.

And when explaining his “yes” vote on McConnell a few weeks ago but a “no” vote on Thursday, Alexander said circuit court nominees require more scrutiny.

“District judges are trial judges,” Alexander said in a floor speech. “Circuit judges also must follow precedent but have broader discretion in interpreting and applying the law. Circuit judges’ jurisdictions are broader. Their attitudes and philosophies are much more consequential in the judicial process.”

Democrats, however, believed there were political reasons for filibustering Liu on Thursday: His academic pedigree and young age could put him on track for a seat on the Supreme Court.

This is likely the end of Liu’s bid for the spot on the 9th Circuit. Liu made the rounds on the Hill on Wednesday, meeting with senators and administration officials in a last-ditch PR effort to salvage his bid.

In a striking floor speech, Democratic Sen. Jim Webb of Virginia laid out his case for why he would not vote to confirm Liu if debate opened on the nominee, though Webb did vote to break the filibuster Thursday.

“Intellect in and of itself does not always give a person wisdom, nor does it guarantee good judgment, and the root word of ‘judgment’ is, of course, ‘judge,’” Webb said Wednesday. “And that is our duty today, to decide whether professor Liu’s almost complete lack of practical legal experience, coupled with his history of intemperate, politically charged statements, allow us a measure of comfort and predictability as to whether he would be fair and balanced while sitting in one of the highest courts in the land.”

CORRECTION: Corrected by: Alex Byers @ 05/19/2011 05:14 PM An earlier version of this story incorrectly identified Sen. Alexander as a member of the Gang of 14.