Judge Goodwin Liu and the Downward Spiral

Senate Majority Leader has filed a cloture petition on the pending nomination of University of California at Berkeley law professor Goodwin Liu to a seat on the U.S. Court of Appeals for the Ninth Circuit. A vote to end debate on the nomination could come as early as tomorrow.

Professor Liu is among the most controversial of President Obama’s judicial nomination, in part for his prominent role in opposing the confirmation of Samuel Alito to the Supreme Court. The pending vote sets up a confirmation in the Senate and will reveal whether Senate Republicans are willing to follow the precedent set by Senate Democrats some years back and filibuster an appellate judicial nominee. Already members and commentators are debating whether Professor Liu’s nomination presents the sort of “extraordinary circumstance” referenced in the “Gang of 14″ deal that ended Democratic filibusters of several Bush nominees. As Senate Democrats will need at least seven Republicans to vote for cloture, it could be close. I have several posts on the Liu nomination from last year: here, here, here and here, and my overall view of the nomination has not changed. I believe Liu is qualified, and would vote to confirm him were I in the Senate, but I also understand why many Republicans are not willing to extend this courtesy to this nomination.

As I’ve blogged before at some length, I believe that the Senate should be quite deferential to a President’s judicial nominees, and do not believe that ideological differences are sufficient grounds to oppose, let alone filibuster, a judicial nomination. Indeed, I do not believe that Presidential nominations should ever be filibustered, and would prefer all such nominations to receive an up-or-down vote. The problem is that such a norm of conduct cannot be maintained if it is not reciprocal — unilateral disarmament does not create a stable equilibrium — and tactics adopted by one party (if not forsworn) will be adopted by the other. It’s only a matter of time.

Perhaps one day Senate leaders will realize that the downward spiral of politicization that infects the judicial confirmation process is bad for the judiciary and bad for the country, and agree to stand down. Neither side will want to do so if they will know it will work to the benefit of the other party’s nominees. But a deal should be possible to, for instance, agree to end filibusters and and obstruction of nominees after a date certain, such as after the next Presidential election. I discussed this briefly in a post last year. Alas, I doubt the Senate is any closer to such a deal.