Some of President Obama's most disputed judicial nominations — including UC Berkeley law professor Goodwin Liu and San Francisco federal Magistrate Edward M. Chen — are about to expire without getting a vote in the Senate.
Dozens of Obama's judicial nominees have languished, but in the past four days, the Senate has approved 12 of them without opposition. Another seven are expected to be confirmed before the lame-duck session of Congress ends. Four others, including Liu and Chen, aren't expected to get a vote.
Their nominations will lapse after this congressional session. Although Obama could renominate them, their chances of confirmation would be even slimmer because Republicans will hold several more seats in the next Senate.
Liu, nominated to the U.S. 9th Circuit Court of Appeals, is well-regarded among liberals and legal scholars and won a "well qualified" rating from the American Bar Assn. But several Republicans contend that his liberal views put him "outside the mainstream."
They also criticize his 2006 testimony against Samuel A. Alito's confirmation to the U.S. Supreme Court. "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man," Liu said then. "I humbly submit that this is not the America we know. Nor is it the America we aspire to be."
The 9th Circuit has jurisdiction over California and eight other Western states.
Chen, nominated to be a U.S. district judge in San Francisco, also ran into solid Republican opposition. Some conservatives complain about his former affiliation with the American Civil Liberties Union. He was an ACLU attorney before becoming a magistrate.
Liberal activists pointed out that Republicans during the George W. Bush administration argued that the president's nominees deserved an up-or-down vote.
"If Republicans kept to their old playbook and allowed the Senate to vote on Goodwin Liu, he'd be a shoo-in given his stellar qualifications," said Nan Aron, president of the Alliance for Justice.
Two other district court nominees — Louis Butler of Wisconsin and Jack McConnell of Rhode Island — also face Republican opposition and are unlikely to be confirmed.
Obama will finish his first two years in office with far fewer judges confirmed than any recent chief executive.
As of Monday, the Senate had confirmed 53 of Obama's 103 judicial nominees to the federal district or appeals courts in the last two years. Another seven approvals would bring the total to 60.
By contrast, President Clinton won approval for 126 lower court judges in his first two years, when his party controlled the Senate. One hundred judicial nominees were confirmed during George W. Bush's first two years, even though Democrats narrowly controlled the Senate for most of that time.
Democrats have held a strong Senate majority in the last two years, and a judge can be confirmed with a simple majority vote. But a single senator can block a vote. Senate Republican Leader Mitch McConnell of Kentucky has done just that to prevent votes on nominees opposed by most Republicans.
Opponents also can filibuster nominees, and it takes 60 votes to cut off debate and set a final vote. Senate Majority Leader Harry Reid (D-Nev.) has been reluctant to tie up the chamber in a prolonged debate over a lower-court judgeship.
Nominees confirmed in the last four days include Albert Diaz, a North Carolina state judge who won a unanimous vote of the Judiciary Committee in January. He will join the U.S. 4th Circuit Court of Appeals in Richmond, Va.
Sacramento Magistrate Kimberly Mueller was confirmed to be a federal district judge there, and Chicago prosecutor Edmond E. Chang was confirmed as a federal district judge for northern Illinois.