Obama Court Nominee Focus of Brewing Partisan Battle


"All the political game-playing over judges coincides with the fact that the stakes in the federal courts have never been higher," she says.

" I don't think that's a coincidence. The health care cases are just one part of the bigger picture of an attempt by right-wing and corporate interests to take over the courts, something that's playing out very clearly in the Supreme Court. That's really what the fight about Goodwin Liu is about."

Although Liu has never argued a Supreme Court case, he has written extensively on constitutional law and civil rights. His scholarly work -- touching on controversies including affirmative action, the death penalty, welfare rights and same-sex marriage -- provides his critics with an unusually long paper trail. He clerked for Supreme Court Justice Ruth Bader Ginsburg in 2000 and later told the Los Angeles Times that Bush v. Gore, the decision that settled the 2000 presidential election, was "utterly lacking in legal principle."

Liu outlined his judicial philosophy in a book he co-authored, "Keeping Faith with the Constitution." In the book, Liu writes that the Constitution should be interpreted by adapting its broad principles to the conditions faced by successive generations.

The philosophy aligns him with more liberal justices on the Supreme Court, such as Justice Steven Breyer, and puts him at odds with conservatives like Justice Antonin Scalia, who as an "originalist" believes that in analyzing the constitutional text, one must give the text the meaning it had when it was adopted.

Liu has gained the support from some conservatives including Ken Starr, president of Baylor University and former Whitewater prosecutor, who wrote a letter on his behalf to the Senate Judiciary Committee.

Starr singled out an article Liu wrote in the Fordham Law Review in 2005 defending of school vouchers.

"The article provides a careful and candid review of the evidence on how vouchers have worked in practice, and it responds to the critics of vouchers in a direct and forceful way," Starr wrote. "We are fairly sure that this piece did not win Goodwin any friends in the liberal establishment, but it reflected his sincerely reasoned view about one way to improve the life chances of some of our most disadvantaged children."

The controversial vote comes just as Democrats and Republicans have made some progress in breaking the recent gridlock on judicial confirmations.

So far this year 24 appellate and district court judges have been confirmed. Democrats are quick to point out, however, that 16 of those nominees were held over from last year.

In February. White House Counsel Bob Bauer gave a rare speech addressing the high number of judicial vacancies nationwide. He pledged then to work with Congress to reverse the "slow crawl" of confirmation.

According to the administrative office of the U.S. courts currently 87 of the 874 federal judgeships appointed by the president under Article III of the Constitution are vacant and 35 of those are in districts considered "judicial emergencies" because of overwhelming caseloads.

ABC's Matt Jaffe contributed to this report.

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