Ethics & Public Policy Center

Unsound and Unfit

Published in National Review Online on March 24, 2010



This afternoon, the Senate Judiciary Committee is scheduled to conduct its confirmation hearing for Berkeley law professor Goodwin Liu. Liu, who was nominated by President Obama to the U.S. Court of Appeals for the Ninth Circuit, presents a volatile mix of aggressive left-wing ideology and raw inexperience. It's the rare nominee who could threaten to make the Ninth Circuit — long the laughingstock of the federal appellate courts — even worse, but that's exactly the threat that Liu embodies.

Let me first acknowledge what is not at issue: Liu is clearly very bright and talented, and he has compiled an impressive list of achievements, including a Rhodes Scholarship and a clerkship with Justice Ginsburg. As the son of Taiwanese immigrants, he has an inspiring life story. And he possesses a pleasing demeanor.

But as Liu himself stated in his testimony against the confirmation of Justice Alito, “Intellect, however, is a necessary but not sufficient credential.” Nor, of course, do an inspiring life story and a pleasing demeanor go to the core of the judicial role. Rather, what ought to be of central concern, as Liu rightly put it, is “the nominee's 'judicial philosophy,' a somewhat amorphous term that encompasses his perspective on the role of the courts in a constitutional democracy.”

The record of the typical nominee reveals only indirect — though often highly probative — clues about the nominee's judicial philosophy. But in Liu's case, we are not limited to the broad set of inferences that can reasonably be drawn from, say, his longtime membership on (and current chairmanship of) the board of directors of the American Constitution Society — which calls itself “one of the nation's leading progressive legal organizations” — or from his service on the boards of directors of such organizations as the ACLU of Northern California, the National Women's Law Center, the Public Welfare Foundation, and Chinese for Affirmative Action.

Beyond such indirect evidence, we have the nominee's own lengthy confession of his views — his self-indictment. Take, for example, the book, pleadingly titled Keeping Faith with the Constitution, in which Liu and his two fellow-lefty co-authors try to slap the deceptive label “constitutional fidelity” on the shoddy “living Constitution” gambit that proponents of liberal judicial activism have used to redefine the Constitution to mean whatever they want it to mean. In malleable terms that would make Bill Clinton a model of marital fidelity, Liu explains, “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.” Liu is able to attack originalism — the genuinely faithful method of constitutional interpretation — only by misrepresentations and distortions.

Wonder of wonders, Liu's freewheeling constitutional approach yields a plethora of extreme left-wing results, including his support for the invention of a federal constitutional right to same-sex marriage. Also noteworthy is his denunciation of the traditional American principles of “free enterprise,” “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections” (see point 3 here).

Perhaps most striking, in part because Liu presents his position as so modest, is his law-review article “Rethinking Constitutional Welfare Rights,” which argues that judges (usually in an “interstitial” role) may legitimately invent constitutional rights to a broad range of social “welfare” goods, including education, shelter, subsistence, and health care. To be sure, it's easy to be numbed by Liu's soporific rhetoric in passages like this one:

My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society….I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices.

Or this one:

The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.

But the vast discretionary judicial role that Liu urges — one that reduces Congress and the state legislatures to quasi-administrative bodies — fundamentally misunderstands (to restate Liu's test of judicial philosophy) “the role of the courts in a constitutional democracy.” And the recklessness Liu would show in wielding judicial power is evident from his breezy conclusion that his proposed approach to constitutional welfare rights would invalidate Congress's method for allocating federal funds to states for the education of low-income children and would also strike down California's system of school finance.

It gets even worse. Some folks have evidently misconstrued Liu's position on school choice as an exception to his hard-Left record on constitutional issues. But Liu supports only those school-choice programs that advance his goal of racial quotas in schools, and he views even those programs as a second-best alternative to his preferred means of direct judicial imposition of interdistrict racial-balancing orders. (Busing, anyone? Ah, yes, that's the cure to our educational ills. Just make those four-year-olds spend three hours a day on the bus.) It's highly doubtful that Liu considers any other sort of school-choice program to be constitutionally permissible.

Liu is pressing to revive “the idea of remedying societal discrimination as a justification for affirmative action,” an idea that, as Justice Powell warned in 1986, would result in forever “imposing discriminatory legal remedies that work against innocent people.” To Liu, the innocent victims of racial preferences count for nothing. As he bluntly puts it, “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” For Liu, concerns that “remedying societal discrimination…has no foreseeable endpoint” are nothing more than (as he quotes Justice Brennan) “a fear of too much justice.” Hence also his call for all Americans to make sacrifices as reparati
ons for slavery.

Liu's woeful inexperience compounds his deficiencies of judicial philosophy. He is only 39, and he has even less experience than his age might suggest. He has been a member of the bar for less than eleven years, and he practiced law for less than two years. Under a neutral application of the ABA's rules — i.e., “a prospective nominee to the federal bench ordinarily should have at least twelve years' experience in the practice of law,” and “substantial courtroom and trial experience as a lawyer or trial judge is important” — Liu would presumptively receive a “not qualified” rating and be very fortunate to eke out a “qualified.” But somehow the ABA's process was jiggered to give Liu the ridiculous rating of “well qualified.”

To top it all off, Liu made a wildly distorted and incompetent, if not deliberately dishonest, attack on John Roberts's nomination to the Supreme Court, and he offered demagogic testimony against Samuel Alito's nomination. Those facts alone ought to be enough to disqualify a nominee, yet they haven't kept Liu from eagerly plotting his path to a Ninth Circuit seat as a stepping-stone to his goal of a Supreme Court nomination.

Goodwin Liu has amply shown that he has an unsound judicial philosophy and that he cannot be trusted with judicial power. His nomination should be vigorously contested and defeated.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's “Bench Memos” blog, where he has written extensively about the Liu nomination.

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