So Berkeley Law Professor Goodwin Liu has asked president Obama to withdraw his nomination to be a judge on the 9th Circuit Court of Appeals, following a Republican filibuster of his nomination last week.
Republicans had a number of political reasons to blocks his nomination — not the least of which was that Liu was a possible future Supreme Court contender. But the reason they settled on publicly was that Liu had harshly criticized the nomination of Supreme Court Justice Samuel Alito, which supposedly made his nomination the sort of “extraordinary circumstance” justifying a filibuster in spite of the 2006 “Gang of 14” compromise.
The truth, though, is that in the past few years, this type of obstruction has become the norm rather than the exception. Obama has had the lowest confirmation rate for judicial nominees since Richard Nixon. Executive branch nominees have been confirmed slowly as well — often because of reasons as absurd as a nominee’s opposition to torture or a n opposing torture or a belief that terror suspects should be tried in federal court.
The problem remains the filibuster itself. With Liu’s nomination down, Democrats have every incentive to do what Republicans did in 2006 — cut a deal that allows some progress in the short term and then turn around and exploit the filibuster as much as possible when they’re back in the minority. As long as the filibuster remains in place, adn the structural incentives reward obstruction and discourage cooperation, nothing is going to change.