The nomination of Goodwin H. Liu, a law professor with strong education-policy ties, to be a federal appeals court judge was blocked in the U.S. Senate on Thursday when Democrats failed to come up with the votes to end a Republican filibuster.
The Senate voted 52-43 in favor of a cloture motion, short of the 60 votes needed to end debate over the nomination of Liu, a professor at the University of California-Berkeley law school.
Liu, 40, was first nominated in the last Congress by President Barack Obama to a vacancy on the U.S. Court of Appeals for the 9th Circuit, in San Francisco. He was renominated this year when the first try languished. He would have been the first Asian-American judge on the 9th Circuit.
Liu served as a policy aide in the U.S. Department of Education under President Bill Clinton, and he has written widely about education law and policy. A bipartisan group of education policy experts endorsed Liu’s nomination in a letter to the Senate Judiciary Committee last year. The letter was signed by former Secretary of Education Richard W. Riley, who served under Clinton, as well as Republican policy experts such as Christopher T. Cross and Michael J. Petrilli.
On the Senate floor Thursday, Sen. Barbara Boxer (D-Calif.) cited Liu’s education law experience and an award from the Education Law Association, among his other accomplishments, in urging her colleagues to give the nominee an up-or-down vote.
“He is considered in this nation one of the leading constitutional law and education law experts—but not in this chamber,” Boxer said.
Liu faced opposition from Republicans in large part over his outspoken opposition to President George W. Bush’s nominations of John G. Roberts, Jr., and Samuel A. Alito, Jr., to the U.S. Supreme Court.
But Republicans also repeatedly said they were concerned about a 2008 Stanford Law Review article in which Liu suggested a re-examination of “welfare rights,” which Liu construed as including education, shelter, and health care, as federal constitutional rights.
Citing the Stanford article, Senate Minority Leader Mitch McConnell of Kentucky said on the Senate floor Thursday: “Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job of a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want.”
Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, said: “Professor Liu believes judges have the right and, indeed, the duty, to rewrite laws written by Congress when they think those laws are inadequate or when the judge, without the traditional limits of legal standards, decides the case on what the judge thinks is fair.”
The Republican opposition was too much for Liu to overcome, and he became the first of President Obama’s judicial nominees to be defeated.
A version of this news article first appeared in The School Law Blog.