Keen observers of the White House political machine may have noticed by now that Pres. Barack Obama’s mistakes often conveniently coexist in time-space with other events that might create trouble with his base liberal constituency. In the battle for the “Winning the Future,” the judicial branch is coveted territory and Democrats ceded a crucial piece of ground when a key judicial nomination was effectively defeated last week.
The effective defeat of Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of Appeals last Thursday represents a near-total reversal in the momentum of fortune of a perpetually-embattled White House, coming only two weeks after administration officials perhaps felt they had turned a corner with a major national security coup.
In the week following the successful killing of al Qaeda mastermind and murderer of thousands Osama bin Laden, Pres. Barack Obama’s approval numbers gushed upward in a sharp surge that GOP insiders quietly worried could be as difficult to contain as the Deepwater Horizon spill.
Nevertheless, persistent hardship in the economic experience of average Americans – most notably felt by stubbornly high gasoline prices and the sudden supermarket sticker shock many are noting on their weekly trips to the grocery – put downward pressure on Obama’s bump in the polls.
Obama’s inexplicable decision last week to hit the reset button on U.S.-Israeli relations – the one foreign relationship of ours that did not require a reboot – will finish the job of capping a surge that might have carried him all the way to re-election.
Drowned out by the noisy interchange on the questions of whether and why Obama chose to decree that the world’s only Jewish nation-state should be forced to its knees, most Americans missed an important event in the U.S. Senate. Lost in the shuffle was a harbinger of impending doom for Obama’s political fortunes.
It is almost certain that Senate Majority Leader Harry Reid’s (D-Nev.) decision to bring Liu’s nomination to the Ninth Circuit Court up for a cloture vote was a calculated swan dive, slotted into a crowded news cycle for maximum cover. The failure of the cloture motion by a vote of 52 ayes to 43 nays, timed to coincide with a major announcement of a shift in U.S. foreign policy, suggests the Liu vote was a form of humane euthanasia for Obama’s hope to place another solid liberal judge in a key spot in the federal judiciary.
The defeat of Liu’s nomination will be a footnote in many political histories of the 44th President of the United States. But the quiet, dignified demise of this single, symbolic judicial nomination may have a purpose of concealing from Obama’s liberal base of support the possibility of a broader pandemic, one that threatens the entire Presidential legacy project – the effort to expand government’s role in society by realigning the judiciary.
Significant evidence emerged from his career as a legal scholar suggesting Liu supported the concept of racial reparations, believed there is room for judges to use international law in adjudicating cases, and subscribed to the popular view among progressives that the Constitution can be adapted to produce desired social outcomes.
Who should receive the lion’s share of the credit for ensuring that the mentioning the Berkeley law professor in conversation will continue to elicit the question, “Liu who?” As with so many achievements, the final victory is only made possible by those who came before. Sen. Jeff Sessions (R-Ala.) deserves a great deal of credit for seeing the big picture surrounding Liu, and even more recognition for doggedly pursuing the issue even during a time in session when confirmation of Liu could have been used as a bartering chip.
Sessions ran a two-pronged effort, one the one hand thwarting Democratic plans to ram through confirmation, on the other running an education campaign regarding Liu’s progressive theories on the law. The elevated judicial IQ Sessions helped to create would help put Supreme Court Justice Elena Kagan’s feet to the fire during her confirmation.
Liu would almost certainly have been a key player in the ‘Hope and Change’ transformation the President assured progressives he would bring to reality. Based on Obama’s successful nomination of a thin-file applicant to the High Court (Justice Elena Kagan possessed no experience as a judge and very little litigation experience prior to being seated on the Supreme Court), the potential of appointing Liu as the first Asian-American Supreme Court justice in a possible second term must have seemed all-too tempting.
When combined with the intangible qualities a White House looks for in a successful Supreme nom – Liu possesses a mild temperament, substantial intellect and self-assuredness, as well as an inspiring personal narrative – the law professor’s confirmed radical views on the constitutional law and civil rights could have come in handy. A president’s legacy is solidified not by the legislative or executive branches, but by the judiciary, and having a friendly opinion on questions of healthcare mandates could only help satisfy Obama’s craving for permanence.
In the confirmation battleground in the Senate, the case for serious concern was best represented by Sen. Sessions while he was the ranking Republican on the Judiciary Committee. The Liu nomination is one jar of rotten pickles voters should give the junior Alabama senator significant credit keeping shut.
Though current Judiciary Committee ranking Republican Sen. Chuck Grassley (R-Iowa) played a key role in the final efforts to deflect Liu’s progress to the bench, his function may be analogous to that of Pres. George H.W. Bush’s in the defeat of Soviet communism. Much as Pres. Ronald Reagan did the heavy-lifting and expended the political capital to set the Soviet Union on a course to collapse, Bush was in charge of keeping existing policies on course and presiding over the defeat.
Sessions’ background as a U.S. Attorney was evident as he ran point among Senate Republicans on Judiciary in 2010, calling attention first to the significant errors and omissions in the materials the nominee supplied to the Committee. When Liu and the nominations staff at the Justice Department shifted to a familiar legal tactic of burying the Committee in paper with four sets of revisions and added documents, Sessions knew how to counter the maneuver.
Setting his staff to a tough schedule for reviewing every document, Sessions was well-informed about probable contradictions in Liu’s testimony. When the nominee finally appeared before Sessions and the Committee, by highlighting Liu’s deficient qualifications, and the apparently radical streak in his thinking about the law, Sessions gave Republicans a way to fight the nomination without relying only on procedural tactics.
The Liu nomination is not the only barn door Sessions’ work on the Judiciary Committee helped to keep closed. Sessions was a vocal opponent of the Obama administration’s original decision to conduct the 9/11 trials of Khalid Sheikh Mohammed and several high-profile detainees in New York City. U.S. Attorney General Eric Holder announced in early April that those trials would be held in Guantanamo.