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May 20th, 2011 8:40 pm
In Liu of a Straight-Up Defeat

My friend Jack Park, lawyer extraordinaire who has worked for the Alabama Attorney General’s office, for a federal IG’s office, and at the Heritage Foundation, among other places, explored what would likely happen if, down the line, horrible judicial nominee Goodwin Liu — blocked this week via filibuster (i.e. a “no” vote on cloture) — were to receive a straight up-or-down vote on the Senate floor. The nomination is so problematic — i.e., Liu is so radical, that Park thinks he might go down anyway. Here’s what Park writes:

With all of the focus on Democrats’ inability to cut off debate on the nomination of Goodwin Liu for a seat on the Ninth Circuit Court of Appeals, one wonders whether this very controversial nomination might have gone down to defeat on the merits if it had come to that.  It would certainly have been close.

The vote on cloture was 52-43, with those opposed including Senator Ben Nelson (D-NE), a very likely “No” vote on final passage as well.  Next, three Republicans (Hutchison, Moran, and Vitter) did not vote; count them for 46.  While Senator Hatch may have voted “Present” consistently with his views on the propriety of judicial filibusters, he would certainly have voted “No,” so, count him for 47.  Senator Jim Webb (D-VA) voted to cut off debate, but the Wall Street Journal reported that he would vote “No” on the merits; he makes 48.  Senator Murkowski (R-AK) was the only Republican who voted not to cut off debate; one would hope that she would not vote to give Liu any say over Alaska; count her as 49.

Senator Reid would have had to keep all of the remaining sheep in line but one in line.  If the vote came down 50-50, Vice President Biden could have broken the tie, but he would have had to have been somewhere other than an important beer summit or at a foreign leader’s funeral.

Still, Senator Reid would have to hold folks like Senators Baucus and Tester, both Democrats from Montana, which lies in the Circuit, in line.  It is one thing to inflict a nominee like Liu on another Circuit, but, as with Murkowski, it is another to give him a lifetime appointment in yours, where you have to answer to the voters.  Baucus did not vote on cloture, and Tester is up in 2012.  Plus, Senators McCaskill (D-MO) and Bill Nelson (D-FL) are both up in 2012.  Either of them or Tester might well have wandered off.

Finally, even if Senator Landrieu (D-LA) is not up for reelection until 2014, she would have to be careful about her voting record.

In short, it would have been very close.

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