That Merrick Garland Nomination-- Yuck!

Despite fulsome praise from the carefully orchestrated Democratic lapdog organizations, progressives are anything but impressed with Merrick Garland... although many progressives are impressed with President Obama's revitalization of his multi-dimensional chess game against the Senate Republicans. The video from Fox News above is important to watch if you want to follow and comprehend this kabuki theater as it unfolds over the next few months. As Fox's "senior judicial analyst," Judge Andrew Napolitano, explained above, "Garland is the consummate Washington, DC insider [and] the most conservative nominee to the Supreme Court by a Democratic president in the modern era." By "modern era," he's talking about in any of our lifetimes.

Now everyone will be-- should be-- asking why Obama backed away from the already bad enough Sri Srinivasan-- who he had, after all, told all his allies he had decided on-- to choose Garland? Perhaps he is figuring (or something) that President Hillary-- or, most certainly President Bernie-- will not re-nominate him after the clumsy and hyper-partisan Republican Senate braggarts stumble awkwardly into rejecting him. Had Obama selected his first choice-- Srinivasan-- after the Republicans killed that nomination, Hillary wouldn't have had much choice other than to re-nominate him if she were elected along with a Democratic Senate. If progressives put up at least a bit of a fight against Garland's conservatism during the debate-- if there is a debate, which there should be-- she can safely pass over him and nominate someone much younger and more-- dare I say-- liberal... although more liberal than Garland covers a lot of ground.

It might be Hillary's inclination to go for, say, California Supreme Court Justice Goodwin Liu, husband of long-time close Hillary crony Ann O'Leary. Some think, in fact, that it is that threat of Liu-- and his 40 liberal years on the Court, that may well lead to Grassley and McConnell changing their tune on the obstructionism dance they've been doing. So far two very at risk Republican senators, Kelly Ayotte (NH) and Mark Kirk (IL) plus Susan Collins (ME), have announced they will be meeting with Garland and giving his nomination due consideration. Republicans aren't obligated to confirm him but they are insane to treat him with any disrespect given his position as the Chief Justice of the DC Circuit Court which makes so many of the important decisions they care most about. McConnell, Hatch (who actually suggested Garland just last week), Flake, Graham, Cornyn and Grassley-- if not vicious ideologues and clods like Cruz, Sessions and Lee-- know better than to piss the guy off for no reason. I had to laugh when I read a statement from the Congressional Record-- albeit an old one-- from Iowa Governor Terry Branstad to Grassley: "I am writing to ask your support and assistance in the confirmation process for a second cousin… Merrick Garland has had a distinguished legal career."

Don't expect DWT to be supportive of Garland-- although, obviously we respect the process. The White House and its lapdogs can fight this battle on their own while we highlight all Garland's horrible conservative decisions that have been so harmful to real people. It's important for progressives-- if not professional Democrats and those Beltway lapdogs of theirs, to make it clear to Hillary and Democratic senators that we expect more in a nominee, a lot more than Merrick Garland. Obama's fine in making the Republicans look like the unreasonable jackasses they are... so long as we don't get stuck with Garland in the process.

Bernie seems to be playing along. This was his statement a couple of hours ago: "Judge Garland is a strong nominee with decades of experience on the bench. My Republican colleagues have called Judge Garland a 'consensus nominee' and said that there is 'no question' he could be confirmed. Refusing to hold hearings on the president's nominee would be unprecedented. President Obama has done his job. It’s time for Republicans to do theirs. I call on Sen. Grassley to hold confirmation hearings immediately and for Leader McConnell to bring the nomination to floor of the Senate if Judge Garland is approved by the Judiciary Committee."

UPDATE: Don't Let Anyone Tell You Garland Is A Progressive

Mark Plotkin isn't high on President Obama's nomination of Merrick Garland and points out that a nominee's acceptability to Republicans-- with Garland has aplenty-- shouldn't be what motivates "a president to choose someone in particular. A president who takes that path is denigrating the process and making this most important appointment nothing more than a political deal." But what Plotkin is all worked up over is a case many people have never heard of, Alexander v. Daley.

The basis of the legal argument put forth by American University law professor Jamin Raskin, Assistant D.C. Corporation Counsel Walter Smith and attorneys Charles Miller, Evan Schultz and Tom Williamson of Covington & Burling-- as noted in a law review article co-authored by Raskin in Human Rights Brief-- was that the "denial of the D.C. community's right to be represented in the U.S. Congress violates the rights of Equal Protection, Due Process, a republican form of government, and the privileges and immunities of national citizenship-- all critical democratic guarantees of the U.S. Constitution."

What Garland did, along with another judge, was to rule against the citizens of D.C. In a tortured and simplistic opinion, he said that since D.C. was not a "state," its citizens should not be accorded the same rights as every other U.S. citizen. This opinion was the moral equivalent of Plessy v. Ferguson (1896), saying that "separate but equal" was legal.

In my opinion, it was a classic illustration of voter suppression, using a phony legal justification for denying the vote to an entire group of U.S. citizens-- in this case, citizens of the nation's capital. That decision alone should disqualify him from consideration to the highest court in the land.

It is my opinion that Garland did not want to go out on a limb and favor anything so radical as providing the vote to over 600,000 disenfranchised citizens (76 percent of whom are registered as Democrats). You see, this opinion would be viewed as controversial and too liberal, and the last thing Garland wanted was to have those monikers attached to him.

So he carefully positioned himself on the "right" side so he could be viewed as viable if a chance for the Supreme Court ever presented itself. When it came to this decision, Garland, with all his impressive educational and professional credentials, chose to think of his own judicial advancement first.

At the very top of the Supreme Court, emblazoned in stone, are these simple words: "Equal justice under law." Merrick Garland decided to ignore and violate that sacred principle.

Can Harry Reid Break The GOP Filibuster On Goodwin Liu? Today's The Day

Goodwin Liu was first nominated to the 9th Circuit Court of Appeals on February 9, 2010. Today he'll finally be voted on... kind of. What will be voted on is a cloture resolution triggered Tuesday evening by Harry Reid after a year and a half Republican filibuster of the nominee. In order to get a vote, Reid will need 60 votes, which means at least 7 Republicans (if conservative shill Ben Nelson votes to shut down the debate).

Liu is widely regarded as the most brilliant progressive judicial star and a future Supreme Court nominee who could help balance extreme right radicals and corporate whores on the Court, Antonin Scalia, John Roberts, Sammy Alito and Clarence Thomas. And he's only 39. That's why the radical right is more opposed to him than to any of Obama's other nominees. I assume the only way this filibuster is going to get broken is if Reid made a deal to not bring up the Ryan budget in return for the opportunity for a straight up-or-down vote on the nomination. Remember, even wingnuts-- outside of political circles-- say Liu's "qualifications are unassailable." Interestingly, retiring conservative Democrat, Jim Webb (VA), announced that he wouldn't join the GOP filibuster, but that if he gets the chance, he'll vote against Liu's confirmation. Even Kenneth Starr and John Yoo have endorsed Liu's confirmation. (Watch the video below.) Lindsey Graham and John McCain, on the other hand, are both sticking with the filibuster. We'll report the results right here as soon as the Senate votes... later today.



UPDATE: Time For A Recess Appointment

Reid failed to break the Republican filibuster of one of the best-qualified and most brilliant jurists nominated for a judgeship in over a decade. Even Republicans who have long held that filibustering judicial nominations was unconstitutional, voted against the cloture call. The only Republican brave enough to break with the obstructionist GOP leadership was Lisa Murkowski (R-AK). But that didn't bother Miss McConnell, who knew his tireless ally Ben Nelson was in the bag. Nelson was the only Democrat to cross the aisle in the wrong direction. Bear in mind that when the DSCC fundraises on how horrible the Republicans are to block all the president's nominations, a portion of every single dollar you send them, goes to reelect... Ben Nelson. In the end the cloture resolution failed 52-43.

Nelson and the Republicans justified their filibuster by claiming Liu is so terrible that his nomination constitutes the “extraordinary circumstances” benchmark developed by the Gang of 14 as part of the compromise that averted the Republicans’ use of the so-called "nuclear option" to ban the filibuster altogether. Bizarre, considering the Democrats didn't pull that out of the hat for psychotic Bush nominees like Texas extremist Priscilla Owen; William Pryor, who called Roe v Wade “the worst abomination of constitutional law in our history” and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act; Thomas Griffith; and Janice Roger Brown. Senate Democrats are such suckers... or worse.

Obama Hasn't Been As Bad As Bush For The Judiciary... But That's A Pretty Low Bar

This morning James Oliphant's L.A. Times report had some disheartening news for progressives, especially for progressives disappointed with Obama's mediocre performance of healthcare reform, Wall Street reform, civil liberties, party politics and Afghanistan who at least felt the former law professor would get the judiciary right. He hasn't.

An early chance for the Obama administration to reshape the nation's judiciary-- and counter gains made in the federal courts by conservatives-- appears close to slipping away, due to a combination of White House inattention and Republican opposition.

During President Obama's first year, judicial nominations trickled out of the White House at a far slower pace than in President George W. Bush's first year. Bush announced 11 nominees for federal appeals courts in the fourth month of his tenure. Obama didn't nominate his 11th appeals court judge until November, his 10th month in office.

Moreover, Obama nominees are being confirmed at a much slower rate than those of his predecessor, largely because of the gridlocked Senate.

Key slots stand without nominees, including two on the D.C. Circuit Court of Appeals, the body that reviews decisions by federal agencies and a court that is considered second in importance only to the Supreme Court. Federal judicial vacancies nationwide have mushroomed to well over 100, with two dozen more expected before the end of the year. To date, the Obama administration has nominees for just 52 of those slots, and only 17 have been confirmed.

Last week, writing in the Wall Street Journal's Law Blog, Ashby Jones pointed out that Obama's newest-- and best-- nomination, Law Professor Goodwin Liu to the Ninth Circuit, has garnered more immediate trumped up controversy than any federal appellate-court nomination in living memory. Jeff Sessions (KKK-AL), himself a failed judicial nominee and firm believer that only wealthy white males belong on judicial benches, led the charge against Liu. In an interview last week on Fox News, Sessions, said that Liu “believes the Constitution is something judges can manipulate to have it say what they think culture or evolving standards of decency requires on a given day.”

But regardless of Sessions' predictable racist jihad, even staunch conservatives (see video below) admit, as much as they hate to, that Liu's qualifications are "unassailable."

Born to Taiwanese immigrant parents, Liu didn't learn English until he went to school in rural Florida. His parents nudged along his math skills during summer vacations by leaving problems on the kitchen table before they left for work. He wasn't a good reader, he concedes, and had to bone up on vocabulary during all-nighters with the dictionary to get an SAT score good enough to get into Stanford.

But like the marathon runner he has become in recent years, Liu might have been pacing himself.

In the mere dozen years since he graduated from Yale Law School after earning a biology degree and a stint as a Rhodes Scholar, Liu has clerked for Supreme Court Justice Ruth Bader Ginsburg and federal Circuit Judge David S. Tatel. He's worked in private practice for one of the country's biggest law firms, O'Melveny & Myers, and for two government offices during the Clinton administration. He earned tenure, a distinguished teaching award and promotion to associate dean at UC Berkeley's Boalt Hall School of Law, consulted for San Francisco Unified School District and served on the boards of Stanford, the Public Welfare Foundation, the Alliance for Education and the National Women's Law Center. He has also chaired the American Constitution Society and co-written a book on theories of constitutional interpretation.

President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals crowns a legal resume that for most lawyers would span four decades. If confirmed by the Senate, Liu, 39, would become the 28th active judge on the court and the youngest by 16 years. He would also be the only Asian American among the nation's 175 federal appellate judges.

Colleagues describe him as brilliant, indefatigable and likely to apply the law as determined by the Supreme Court even when he disagrees with it. Nevertheless, they expect a rigorous confirmation process when his nomination goes before the Senate Judiciary Committee.

Those who are at least somewhat heartened by President Obama's nomination of Goodwin Liu to the Ninth Circuit may want to head over to ConfirmGoodwin.com to get involved. As you can see from this post, the right wing noise machine is already working in overdrive to try to keep Liu from the bench, so now more than ever it's imperative for progressives to stand up for someone like Liu who would make for such an outstanding federal judge.