From msnbc.com's Tom Curry:
On some big issues, Barack Obama’s presidency remains up in the air: for example, the fate of the health care overhaul awaits a Supreme Court decision, probably next year.
But Obama’s judicial appointments will make an imprint that will endure long after he leaves the White House.
In addition to his two Supreme Court picks, the Senate has confirmed 18 of Obama’s appeals court nominees. That compares with 23 of George W. Bush’s appeals court nominees confirmed at the same point in his first term as president.
“There’s been a definite improvement; it was somewhat slow start for the administration in focusing on judicial nominations. That’s clearly attributable to the very heavy legislative load they had in the first couple of years,” said Caroline Frederickson, the head of the American Constitution Society, a progressive advocacy group.
“The president has been reasonably successful in confirming circuit court (appeals court) nominees and is on par with his predecessors,” said Nan Aron, head of the Alliance for Justice, a liberal advocacy group. “He’s lagging significantly in the district (trial) courts, though, leaving gaping holes in the judiciary and hampering the ability of Americans to receive justice.”
Obama’s most controversial appeals court nominee, Goodwin Liu, a law professor at the University of California, Berkeley, faces a vote on his nomination Thursday.
Sixty votes are needed to end debate on the Liu nomination and bring it to a final vote.
Republican senators – some of whom fought hard against Democratic filibusters of Bush’s judicial nominees six years ago – will decide whether to block a vote on Liu.
Two weeks ago, the Senate by a vote of 63 to 33 decided to end debate and move to the confirmation of John McConnell, an Obama nominee for a lower federal court vacancy in Rhode Island, despite vehement opposition from business groups.
The 11 Republican senators who voted to end a filibuster of McConnell may be a clue to the vote Thursday on Liu. “I was hoping it reflected the fact that they had reverted to the principles they stated during the Bush administration: that nominees deserve up or down votes, and that ‘elections have consequences’ and that ‘advise and consent’ is not ‘advise and obstruct.’ We’ll have to see whether or not that will be true with the vote on Goodwin (Liu),” said Frederickson, a Liu ally.
Liu formerly served on the American Constitution Society board.
Worth watching Thursday will be four GOP senators who signed a bipartisan accord in 2005 to not use filibusters to block votes on judicial nominees except in undefined “extraordinary circumstances.” The four are: Sens. John McCain of Arizona, Lindsey Graham of South Carolina, and Susan Collins and Olympia Snowe, both of Maine.
Graham said in a statement Thursday he'd vote to sustain the filibuster of Liu. He cited Liu's 2006 Senate testimony against Samuel Alito, whom Bush had nominated for the Supreme Court. In his testimony Liu said, "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse. ... This is not the America we know."
Liu told senators last year that he regretted that testimony because it was "unduly harsh" and "hurtful to the nominee."
But that apology wasn’t enough for Graham, who said Thursday, "His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue. His statement showed he has nothing but disdain for those who disagree with him. ... This episode -- along with his out of the mainstream writings -- requires me to take the extraordinary step of voting no on cloture."
In one way this battle resembles the Miguel Estrada filibuster battle of 2003-2004. Estrada was a brilliant young lawyer whom Democrat blocked after Bush tried to put him on the appeals court for the District of Columbia circuit. Some saw Estrada as a Supreme Court justice in the making.
Now some court watchers see Liu as a potential high court nominee, looking ahead to possible retirements for Justices Ruth Bader Ginsburg, 78, Antonin Scalia, 75, and Anthony Kennedy, who turns 75 in July.
As for the effect of the Obama appeals court judges who has been confirmed so far, Aron said, “It’s way too early to make definitive statements about the impact of Obama nominees, but we can get a hint from the health care cases being heard, for instance, in the 4th Circuit, where the Obama-nominated judges seemed to approach the arguments differently from the Republican appointees.”