[Update: Recess appointment? In the past, I questioned the legitimacy of recess appointments of judges to get around filibusters or such. Didn't really change my mind. Not sure how useful it would be to recess appoint Liu, which could only make things worse in the confirmation wars. Bush made two recess appointments of appellate judges, one who didn't get a permanent appointment; it's a pretty big step and I doubt Obama really would do it anyways. I doubt I really want him to. We shall see.]
I cited Orin Kerr (special adviser of Sen. Cornyn during the Supreme Court nominations) of Volokh Conspiracy noting that Liu had fair notice that his strong opposition of Roberts and Alito would result in a backlash. I found it distasteful, particularly given Kerr's not totally uninterested role, that he blandly said that and that it would be "reasonable" to oppose his confirmation given (1) the b.s. involved in the opposition and (2) the issue at hand is a filibuster, not confirmation, so he should be talking about if it was reasonable to filibuster. Avoiding that issue allows him to be artificially above the fray.
Another person at the blog, who often is more partisan and knee-jerk (Orin Kerr has his passive aggressive moments), Jonathan Adler sympathized with the opponents (disputed on the merits by various comments) but stated he opposed ideological opposition on principle. He would just focus on "qualifications" and avoidance of "cronies." Was John Marshall, Adams' Secretary of State and supporter in Congress a crony? What does "qualified" mean, exactly? Ideology is a factor when determining who a President appoints. Why can't the Senate take that into consideration? So, I sympathize with his principal support of a Liu up/down vote and confirmation, but find his test questionable.
The rule here seems to be that if you are a law professor type or advocate in general, you can't really be too strongly against even swing votes on the Supreme Court, including if you build your case by citing case law and so forth. That is, "don’t write too much, write on non-controversial topics, and watch what you say at speaking events." It is quite true that Republican nominees have also got in trouble for their views, though repeatedly they were confirmed anyways. Some blowback on the failure of Liu to be allowed an up/down vote here. A nod to Lisa Murkowski (who is labeled "R" even though she lost her primary) for voting for cloture. Ben Nelson (snark removed) did not.
This whole affair is depressing but not surprising. It is a small victory, if looked at optimistically. Overall, I'm unsure how many people are paying attention to what they do with some lower court judge. It is largely an issue the base cares about and since many of them are in safe districts or districts that honestly don't care much about some potential 9th Circuit. judge, what consequence would they have? The fact Democrats filibuster too also makes it not a clean issue. If we are left with looking at statistics of who is worse, well, that's a lost cause. Wrong or not, that is going a bit far into the reeds for the general public to care about it.
Obama re-nominated Liu after he was blocked the first time. Reid forced a vote here of an attractive candidate that Democrats can show had various conservatives on his side. They don't like the result. Like Ted Olson on same sex marriage, things like this can show a fracture in their cause, however small. He will be a calling card for the base and others on Republican hypocrisy and obstructionism. The efforts the Republican put out on him will make it somewhat harder for them to block someone else prominent. And, the media has put Liu out there in a positive light. Big picture, not bad.
Bottom line, with the Supreme Court stable for the moment, the Administration needs to continue to work with Senate Democrats to fill slots in the courts. We need more Liu type judges out there, even if Goodwin Liu himself remains in academia.
I cited Orin Kerr (special adviser of Sen. Cornyn during the Supreme Court nominations) of Volokh Conspiracy noting that Liu had fair notice that his strong opposition of Roberts and Alito would result in a backlash. I found it distasteful, particularly given Kerr's not totally uninterested role, that he blandly said that and that it would be "reasonable" to oppose his confirmation given (1) the b.s. involved in the opposition and (2) the issue at hand is a filibuster, not confirmation, so he should be talking about if it was reasonable to filibuster. Avoiding that issue allows him to be artificially above the fray.
Another person at the blog, who often is more partisan and knee-jerk (Orin Kerr has his passive aggressive moments), Jonathan Adler sympathized with the opponents (disputed on the merits by various comments) but stated he opposed ideological opposition on principle. He would just focus on "qualifications" and avoidance of "cronies." Was John Marshall, Adams' Secretary of State and supporter in Congress a crony? What does "qualified" mean, exactly? Ideology is a factor when determining who a President appoints. Why can't the Senate take that into consideration? So, I sympathize with his principal support of a Liu up/down vote and confirmation, but find his test questionable.
The rule here seems to be that if you are a law professor type or advocate in general, you can't really be too strongly against even swing votes on the Supreme Court, including if you build your case by citing case law and so forth. That is, "don’t write too much, write on non-controversial topics, and watch what you say at speaking events." It is quite true that Republican nominees have also got in trouble for their views, though repeatedly they were confirmed anyways. Some blowback on the failure of Liu to be allowed an up/down vote here. A nod to Lisa Murkowski (who is labeled "R" even though she lost her primary) for voting for cloture. Ben Nelson (snark removed) did not.
This whole affair is depressing but not surprising. It is a small victory, if looked at optimistically. Overall, I'm unsure how many people are paying attention to what they do with some lower court judge. It is largely an issue the base cares about and since many of them are in safe districts or districts that honestly don't care much about some potential 9th Circuit. judge, what consequence would they have? The fact Democrats filibuster too also makes it not a clean issue. If we are left with looking at statistics of who is worse, well, that's a lost cause. Wrong or not, that is going a bit far into the reeds for the general public to care about it.
Obama re-nominated Liu after he was blocked the first time. Reid forced a vote here of an attractive candidate that Democrats can show had various conservatives on his side. They don't like the result. Like Ted Olson on same sex marriage, things like this can show a fracture in their cause, however small. He will be a calling card for the base and others on Republican hypocrisy and obstructionism. The efforts the Republican put out on him will make it somewhat harder for them to block someone else prominent. And, the media has put Liu out there in a positive light. Big picture, not bad.
Bottom line, with the Supreme Court stable for the moment, the Administration needs to continue to work with Senate Democrats to fill slots in the courts. We need more Liu type judges out there, even if Goodwin Liu himself remains in academia.