McCain Will Seek to Filibuster Obama Nominee Who Says Constitution Grants Right to Welfare

By Fred Lucas | May 18, 2011 | 6:07 PM EDT

Sen. John McCain (R-Ariz.) (AP Photo)

( – President Barack Obama's nomination of Goodwin Liu to the Ninth Circuit Court of Appeals should not come to the Senate floor for a vote on Thursday, according to Sen. John McCain (R-Ariz.), whose spokesperson said the senator would “seek to filibuster the nomination.”

McCain is a leading member of the “Gang of 14,” which in a 2005 Senate deal preserved the filibuster in judicial nomination debates.

Goodwin Liu, among other controversial positions, has written that the Constitution grants the right to government-funded health insurance, child care, public transportation and job training.

Obama nominated Liu, an associate dean at the University of California-Berkley School of Law and former chairman of the liberal American Constitution Society, in February 2010. But Senate GOP threats of a filibuster last year stopped the nomination from coming to the floor after it twice passed the Senate Judiciary Committee on a party-line vote.

On Tuesday, Senate Majority Leader Harry Reid (D-Nev.) filed a motion for cloture, which would cut off debate on the nomination and move it to the Senate floor for an up or down vote. The cloture vote could occur at noon on Thursday and needs 60 votes to pass.

But McCain believes the vote should be blocked.

“As a member of the ‘Gang of 14’ in 2005, McCain agreed that, ‘Nominees should be filibustered only under extraordinary circumstances,’” the Arizona senator’s communications director, Brooke Buchanan, told on Wednesday in a statement. “The nomination of Mr. Godwin Liu does rise to a level of ‘extraordinary circumstances,’ and therefore McCain will seek to filibuster the nomination.”

Goodwin Liu

In 2005, the Republican majority became frustrated with Senate Democrats blocking the judicial nominees of President George W. Bush and considered eliminating the filibuster. That battle prompted the “Gang of 14” deal, in which seven Republicans and seven Democrats agreed to allow up or down votes on judicial nominees except in undefined “extraordinary circumstances.”

Two weeks ago, 11 Republican senators, including McCain, voted to allow an up or down vote on an Obama district court nominee and then voted against the nomination, which nonetheless passed the full Senate along party lines. However, several of those Republicans said they would apply a different standard to appellate nominees and lower federal court nominees.

Back on Nov. 1, 2006, Liu wrote in the Yale Law Journal, “First, contrary to the conventional wisdom that ‘the Constitution is a charter of negative rather than positive liberties,’ the social citizenship tradition assigns equal constitutional status to negative rights against government oppression and positive rights to government assistance on the ground that both are essential to liberty.”

The article continues, “Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports, such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.”

“Because the Supreme Court has refused to squarely recognize fundamental rights to education, welfare, and other government aid, we are taught to believe that no substantive obligations exist in these areas,” wrote Liu.

During Liu’s 2010 confirmation hearing, Sen. Tom Coburn (R-Okla.) brought up an article by Liu published in the Daito University Law School Journal in Japan. It said, “The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The resistance to this practice is difficult for me to grasp since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.”

Also at that 2010 confirmation hearing, Sen. Jon Kyl (R-Ariz.) asked about Liu’s criticism of Judge Samuel Alito after he was nominated to the U.S. Supreme Court by President George W. Bush.

President Barack Obama. (AP Photo/Carolyn Kaster)

Liu said in 2006 that Alito’s vision of America is one “where police may shoot and kill an unarmed boy, where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance, where the FBI may install a camera where you sleep, where a black man may be sentenced to death by an all-white jury for killing a white man absent analysis showing discrimination.”

Liu told the committee that he had used “unnecessarily colorful language” and that he had the highest regard for Alito’s career.

On March 26, 2010, 42 California district attorneys wrote senators on the Judiciary Committee in opposition of Liu’s nomination.

“The paper written by Goodwin Liu in opposition to the nomination of Justice Samuel Alito shows that he would vote to reverse nearly every death sentence,” the district attorneys’ letter said. “He exaggerates minor issues in jury instructions that no one at trial thought were problems, while simultaneously brushing off the brutal facts of heinous crimes as inconsequential. He jumps to the conclusion that prosecutors are guilty of racism on scant evidence and despite the considered judgment of the state trial court to the contrary.”

The cloture vote called for by Sen. Reid may not pass, said Carrie Severino, chief counsel for the conservative Judicial Crisis Network. She added that the group is targeting red state Democrats, such as Sens. Joe Manchin (W.Va.), Claire McCaskill (Mo.), Ben Nelson (Neb.) and John Tester (Mont.), all who likely do not want to be identified with Liu.

“The only explanation I can think of for Goodwin Liu is he is being groomed for a Supreme Court nomination,” Severino told “He has no litigation experience. He has no experience as a judge. Everything he has written is wildly liberal. But he is perfect red meat for the Democratic base.”

Liu clerked for Supreme Court Justice Ruth Bader Ginsburg in the October 2000 term, according to the White House.  Liu also served as a special assistant to the deputy secretary at the U.S. Department of Education. Liu earned his J.D. from Yale Law School in 1998.