The filibuster is designed primarily to protect minority interests against persistent and overbearing dominance by an entrenched majority. Because excessive use of the filibuster would enable a minority of senators to paralyze both the Senate and the United States government, it has traditionally been used quite sparingly, usually only in exceptional circumstances.
Filibusters is the subject of a monograph in the Center’s Constitutional Spotlight Series, “Bench Brawl, Judicial Confirmations and the Constitution."
Yesterday, 42 Senate Republicans (joined by one conservative Democrat) used the filibuster to block the Senate's consideration of Goodwin Liu. Although 53 senators voted to invoke cloture, the minority succeeded in preventing the Senate from even voting on the nomination.
So, who is this Goodwin Liu whom Republicans are so determined to defeat? He has been described variously by conservative senators and pundits as a "dangerous judicial activist," an "extremist," a "radical," and an "aggressive left-wing ideologue." Such characterizations of profoundly disserve our nation. They exemplify the sort of mindless and irresponsible partisanship that does serious damage to America's political culture and has brought Congress itself into disrepute.
Who really is Goodwin Liu? He is a graduate of Yale Law School, a Rhodes Scholar, and a former law clerk to Justice Ruth Bader Ginsburg. He worked for several years in the U.S. Department of Education and as senior program officer for higher education at AmeriCorps. After a stint in law practice, he joined the faculty of the University of California (Berkeley) School of Law, one of the most distinguished law schools in the nation. At forty years of age, he is now Associate Dean of the law school and a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. He has published important and influential scholarly work in such distinguished law journals as the Stanford Law Review, the Yale Law Journal, and the New York University Law Review. He has won acclaim both as a scholar and teacher, and he has served on the boards of Stanford University, the American Constitution Society, the National Women's Law Center, and the Alliance for Excellent Education. In 2008, he was elected a member of the American Law Institute - a rare honor for one so young.
But is Goodwin Liu nonetheless an "extremist," a "radical," and an "aggressive left-wing ideologue," as his detractors assert? To answer that contention, listen to some of his conservative supporters, who include a virtual Who's Who among the nation's conservative legal community: Kenneth Starr lauds not only Liu's "obvious intellect and legal talents," but also his "openness to diverse viewpoints as well as his ability to follow the facts to their logical conclusion, whatever its political valence may be." John Yoo praises Liu as "a very good choice," Clint Bollick strongly supports Liu's nomination because of his "fresh, independent thinking and intellectual honesty," and Richard Painter describes Liu as "an outstanding nominee whose views fall well within the legal mainstream." I could go on, but you get the point.
Although Liu's right-wing critics lift carefully-selected passages out of context from his writings to distort his positions, those who actually understand - and, more importantly, care to understand - his views are universally respectful of his positions, whether they agree with them or not.
It is true, of course, that Liu is a "liberal," just as Antonin Scalia is a "conservative." Senators may legitimately vote against nominees if they strongly disagree with their views (note, however, that every Democratic senator voted to confirm Scalia in 1986), but the use of the filibuster to prevent a straight up-or-down vote on a nominee like Goodwin Liu is entirely inappropriate.
To justify their behavior, some Republicans invoke the Bork nomination battle as a relevant precedent, but their thinking on that score is completely wrong-headed. Bork was not the target of a filibuster. He was defeated in a straight up-or-down vote of 58 against and 42 in favor. If Liu were given such a vote, he would clearly be confirmed. The distance we have travelled over the past twenty-five years is a good measure of the extent to which we now live in a world of partisanship run amuck.