Liu Down; Gang of 14 Not (Necessarily) Dead

The Gang of 14 agreed back during the George W. Bush administration that they would not vote against cloture on judicial nominations except in cases of "extraordinary circumstances." Yesterday, the four remaining Republicans from that agreement (which never bound anyone else) joined in voting against cloture on the nomination of Goodwin Liu to the 9th Circuit Appeals Court; cloture received only 53 votes, with only Lisa Murkowski and Ben Nelson (also one of the 14) crossing party lines.

So, is the Gang of 14 dead?

Not necessarily. Extraordinary circumstances was always intended to be self-defined, and at least to my understanding never indicated that no nominee would be blocked. What it clearly did promise was that routine nominees -- and not only consensus nominees -- could come to a vote, and that at least those Senators were committed to preserving the filibuster on judicial nominations by pledging that they would have a higher standard for voting against cloture than for voting to confirm.

So the Liu vote can't be looked at in isolation; it has to be looked at along with two recent nominations which were confirmed without having the 60 votes needed to get cloture. Particularly important is the McConnell nomination votes, in which 11 Republicans voted yes on cloture and then opposed confirmation.

In other words, we have at least 11 Republicans who believe that opposing cloture needs a higher threshold than just voting no on a nomination, and (so far) two nominees have been confirmed who fell between those standards. Liu, for 10 of those 11, did not. That's not an unreasonable position, whatever their reasons for believing that Liu was a worse choice than the other two.

The biggest caveat is that the two previous cases, McConnell and Chen, were district court appointments, not appeals court. It would be nice to see at least one appellate nominee who gets a cloture/confirm split.

The other is that the Gang of 14 solution is at best limited only to cloture. Should Barack Obama be reelected while Republicans gain a majority in the Senate after 2012, it's not clear that any of his nominees could be confirmed, especially higher than the district court level. This, of course, would be considerably worse than a filibuster problem, which could be picked by changing rules; it may just turn out to be the case that current partisanship will make the constitutional system for selecting judges unworkable with divided government.

But back to the current situation: look, we'll have to see how this goes. It seems to me quite reasonable that one of the effects of a GOP landslide in 2010 would be that the president has new constraints over who he can put on the bench; it seems not reasonable at all if the result would be that no liberal-leaning judge could be confirmed. As petty as it is, if Liu was the Republicans' revenge for previous slights...well, it stinks for him, and it's petty, but the process can continue. On the other hand, if this means that Barack Obama cannot get mainstream liberals confirmed at the Appeals Court (or Supreme Court) level given the current Senate, then that's a problem.

Sorry; I'd like to be able to either tell you that things are dire or that this doesn't matter. Sometimes, we just need to know more.