Obama Court Nominee Focus of Brewing Partisan Battle

May 18, 2011 -- Absent a surprise vacancy on the Supreme Court this spring, the most heated debate over one of President Obama's judicial nominees this year will involve Goodwin Liu, a Berkeley University law professor who has been nominated for a seat on the 9th Circuit Court of Appeals.

The Senate on Thursday is set to hold a procedural vote on Liu's nomination. To survive the key vote, Liu will need the support of at least seven Republicans. But if any Democrats oppose Liu, then he will need even more GOP support. Sources on both sides of the aisle predict the vote will be very close.

Critics of Liu have seized on his record on some divisive social issues to argue that he is outside the mainstream of judicial thinking.

"He's never tried a case, he's very inexperienced, he's a very liberal activist lawyer," Alabama Sen. Jeff Sessions, a top member of the Judiciary Committee, told ABC's "Top Line."

Session said Liu's vision of the role of a judge is not as an "independent adjudicator of disputes," but one that allows "personal political views to be part of their decision making process," Sessions said.

White House counsel Robert Bauer today accompanied Liu to meet with key Democratic senators.

Liu was initially nominated in February 2010, but was re-nominated twice amid Republican concerns with his judicial philosophy.

In his confirmation hearing he told senators, "The duty of a circuit judge is to faithfully follow the Supreme Court's instructions on matters of constitutional interpretations not any particular theory. So that's exactly what I would do, I would apply the applicable precedents to each case."

His supporters say that Republicans are afraid that if Liu reaches the 9th Circuit, it could pave the way for him to one day become the first Asian American Supreme Court nominee if President Obama were to have another vacancy on the high court.

Liu is the son of Taiwanese immigrants.

"The problem Republicans have with Goodwin Liu isn't that he's not good enough to be a judge, it's that he's too good. " said Nan Aron, the president of Alliance for Justice. "The circuit courts require judges who are the best of the best, and thoughtful, fair-minded people seeking a strong, open-minded, and constitutionally faithful judiciary should be eager to have Goodwin Liu on the federal bench."

Edward Whelan III, the president of the conservative Ethics and Public Policy Center, has written extensively on Liu's record. Whelan is concerned with Liu's broad approach to the law and the fact that he would be placed on what is regarded one of the most liberal appeals court in the country.

"Liu presents a volatile mix of aggressive left-wing ideology and raw inexperience. He's the rare nominee who would threaten to make the 9th Circuit worse than it already is," says Whelan.

"Goodwin Liu's record shows that he is an aggressive left-wing ideologue eager to entrench his own policy preferences in the guise of constitutional law" Whelan argues.

But Aron calls such criticism of Liu unfounded and sparked by the fact that major issues such as health care, immigration and same sex marriage are wending their way through the federal court system.

"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.