How Democrats Lost the Courts
Every political coalition likes to talk about how its opponents are more organized, more ruthless, and better funded. As progressives plot their response to Donald Trump’s mostly successful project to remake the federal courts, they are reviewing the times they’ve been outworked, outfought, and outsmarted on judicial nominations. One not-so-familiar name jumps out: Before Merrick Garland’s stint in purgatory, before Brett Kavanaugh’s furious denial of assault allegations, before Amy Coney Barrett’s eleventh-hour confirmation, there was Goodwin Liu.
In 2010, Democrats comfortably controlled both chambers of Congress and the White House. Liu—the son of Taiwanese immigrants, a celebrated academic, the same kind of hyper-driven polymath as a certain former senator from Illinois—was up for a seat on the Ninth Circuit Court of Appeals. At the time, Liu was also the chair of the American Constitution Society, which had been founded a decade earlier as the progressive answer to the Federalist Society, the group most responsible for the conservative movement’s intellectual takeover of the judiciary. At least on paper, Liu was a top leader of what aspired to be the foremost progressive legal network in the country. He had the enthusiastic backing of the Democratic establishment—“He’s as sharp as they come,” Senator Dianne Feinstein told the Los Angeles Times—and court watchers considered him papabile as a Supreme Court justice. If progressives had had a well-oiled judicial-appointments machine like the one associated with the Federalist Society, Liu’s nomination would have been a cinch.
But well-oiled, the progressive machine was not. Republicans set the narrative on Liu: Instead of a bright legal thinker, he was “far outside the mainstream,” then-Senator Jeff Sessions of Alabama said. A few years earlier, Liu had harshly criticized soon-to-be Supreme Court Justice Samuel Alito’s permissiveness toward policing, comments that were “vicious and emotionally and racially charged, very intemperate,” then-Senator Jon Kyl of Arizona said. Liu’s nomination languished, held hostage—along with nearly two dozen others—by Republican procedural maneuvers. In the end, it was the Obama administration that sold out its star: With
