Ninth Circuit Nominee Goodwin Liu

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By Edward Whelan

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On May 25, 2011, in the wake of a resounding defeat of the cloture petition on his nomination, Goodwin Liu requested that President Obama withdraw his nomination.

In an essay on National Review Online—”Unsound and Unfit“—and in an extensive series of blog posts on National Review Online’s Bench Memos blog, EPPC President Ed Whelan has exposed the radical record of Berkeley law professor Goodwin Liu, President Obama’s controversial nominee to a seat on the federal court of appeals for the Ninth Circuit. Immediately below is an index to a selective inventory of Mr. Whelan’s blog posts, followed by the full text of the “Unsound and Unfit” essay and of the selective inventory of blog posts:

Unsound and Unfit

President Obama’s worst judicial nominee . . . so far

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 reparations 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.

Ninth Circuit Nominee Goodwin Liu on Constitutional Welfare Rights—Part 1

February 25, 2010

In his law-review article “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008), Ninth Circuit nominee Goodwin Liu, drawing on the work of moral philosopher Michael Walzer, makes the case for what he calls an interstitial judicial role in recognizing constitutional welfare rights—i.e., “claimed affirmative rights,”as Liu quotes Frank Michelman, to “education, shelter, subsistence, health care and the like, or to the money these things cost.” Liu tries to portray that judicial role as modest, but it is so only if compared against Michelman’s extravagant theorizing, not when compared against the proper role of the judiciary in our constitutional republic. In this post, I’ll present Liu’s argument, and in the next post I’ll critique it.

Here’s the core of Liu’s own summary of his argument (pp. 203-204):

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.

On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable [i.e., judicially cognizable] welfare rights reflect the contingent character of our society’s collective judgments rather than the tidy logic of a comprehensive moral theory.

Liu addresses at some length the objection that (as he casts it (p. 247)) the judicial role that he advocates presents “an intolerable risk that judges, in the name of interpreting society’s values, will instead impose their own values on society.” He identifies two dimensions to this objection. The first dimension is the claim that “societal values are dynamic and contested.” Liu’s response (p. 254):

The problem [i.e., challenge] 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. Yet the task is familiar to common law adjudication and … pervades the interpretive work of courts on a wide range of constitutional questions.

The second dimension of the objection is the claim that “there is no reason to think that courts are better situated than legislatures to express those values.” Liu’s defense against this objection is that he “envisions a form of judicial review that is less didactic and interventionist and more dialogic and provisional” (p. 255). As he puts it, the role of the courts would be to “meaningfully assess the distributive reach of a welfare statute by focusing on the extent of legislative deliberation and democratic legitimacy supporting it rather than on its substantive rationality” (p. 263). Courts would “leverage the legislature’s own publicly stated commitment to welfare provision and then inquire whether or not apparent qualifications on that commitment comprise part of the social understanding of the commitment itself” (p. 264).

In his conclusion (pp. 266-267), Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.” First, “the interstate discrimination in federal funding [of the education of low-income children]seems overdue for legislative reconsideration”—which (as I understand it) is Liu’s way of saying that courts should compel that legislative reconsideration by ruling, dialogically and provisionally, that the existing federal program that supplements state spending on low-income children is unconstitutional because its method of allocating federal funds has no evident purpose. Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.”

Goodwin Liu on Constitutional Welfare Rights—Part 2

February 26, 2010

As shown by my Part 1 excerpts from Ninth Circuit nominee Goodwin Liu’s law-review article on “Rethinking Constitutional Welfare Rights,” Liu argues for what he calls an “interstitial” judicial role in recognizing constitutional “welfare rights” (broadly defined to include claimed affirmative rights to “education, shelter, subsistence, health care and the like, or to the money these things cost”). Liu calls for judges to engage in “socially situated modes of reasoning that appeal … to the culturally and historically contingent meanings of particular social goods in our own society” and 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.”

I promised a critique of Liu’s argument, but I confess that I’m tempted merely to say to anyone who has read the excerpts I’ve presented (or the broader article): To those who have a sober understanding of the judicial role under the American Constitution, no further explanation is necessary. To those who think Liu’s conception seems sober, no further explanation is possible.

But let me try anyway. Let’s consider some basic defects in Liu’s two-pronged response to the objection that the judicial role that he advocates invites judges, in the guise of interpreting the Constitution, to impose their own values on society:

1. The judicial role that Liu proposes—”determin[ing] … 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”—”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.” In remarkable understatement, Liu acknowledges that judicial exercise of that vast discretion is a “difficult task.”

Liu’s only defense of conferring that vast discretion on judges is that that same task “pervades the interpretive work of courts on a wide range of constitutional questions”—namely (as he discusses on pp. 236-237), the Eighth Amendment’s prohibition of cruel and unusual punishments, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and some questions under the constitutional guarantees of freedom of speech, equal protection, and due process. But the asserted judicial role in most or all of his examples is controversial and disputed—and fairly invites the charge that judges are just imposing their own values on society in deciding those questions. So it’s difficult to see Liu’s response as anything other than a verbal shell game.

2. In response to the anticipated objection that courts aren’t better situated than legislatures to express society’s values, Liu retreats to the position that the form of judicial review that he is proposing is “dialogic and provisional” and would “focus[] on the extent of legislative deliberation and democratic legitimacy supporting” the legislative judgment. In other words (as I understand it), rather than telling a legislature, “You can’t do X,” Liu’s judges would tell the legislature, “You haven’t adequately considered and explained why you have done X, and unless and until you do, you can’t do X.”

I agree that, in theory at least, Liu’s proposed form of judicial review is less absolutist and interventionist than the harder form (precisely because it leaves open the possibility that the legislature can ultimately do X). But Liu’s approach would have the courts treat Congress and the state legislatures as quasi-administrative bodies, with their reasoning and deliberation subjected to probing (but ill-defined) judicial review. Liu makes no effort to justify this radical departure from traditional separation-of-powers principles. Nor, in practice, is there any reason to believe that courts would be spare in exercising this softer form of judicial review. Indeed, the conceit that the judicial review is softer would invite its overuse. At the same time, it would take little ingenuity for judges to turn it into the practical equivalent of the harder form.

3. More broadly, Liu does not acknowledge, much less confront, the argument that irrespective of whatever one imagines to be the relative capacities of the judiciary and the legislative bodies to express society’s values, our system of representative government assigns that function, within the bounds of the Constitution, to the legislative bodies. It would seem that Liu doesn’t acknowledge that argument because he believes that the bounds of the Constitution are ultimately indeterminate, subject to “socially situated modes of reasoning that appeal … to … culturally and historically contingent meanings.” That’s not someone to be trusted with judicial power.

Goodwin Liu on a Federal Constitutional Right to Same-Sex Marriage

March 1, 2010

Given what I’ve documented about him so far (see here, here, and here), it should be no surprise that Berkeley law professor and Ninth Circuit nominee Goodwin Liu was one of 17 professors of constitutional law in California who in 2007 submitted an amicus brief to the California supreme court arguing that California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution.

It’s worth highlighting that the mode of reasoning in that brief clearly dictates that Liu and the other amici also believe that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution: As the brief puts it (p. 3), “amici rely upon their expertise in federal constitutional law to illustrate their arguments because [the California supreme court's] analytic methodology for interpreting the Constitution so often parallels analysis by courts construing the federal Constitution.” In other words, the brief argues that because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution. [Post-hearing addendum: See discussion of Liu's response (item 3 here) to a post-hearing question on this matter.]

Given that the anti-Prop 8 case will soon be on appeal to the Ninth Circuit, Liu’s position on this question is hardly academic.

Libertarians and others who imagine that the resolution to the whole same-sex marriage battle is to get the government out of the marriage business altogether will also find of interest that Liu’s brief takes the position that it would be unconstitutional for California to abolish the civil institution of marriage or to rebrand it with a new name (see pp. 20-22).

Goodwin Liu’s Keeping Faith with the Constitution—Part 1

March 3, 2010

I’ve read through Keeping Faith with the Constitution, the American Constitution Society publication (downloadable here) that Ninth Circuit nominee Goodwin Liu co-authored with fellow lefty law professors Pamela S. Karlan and Christopher H. Schroeder. (For the sake of economy, I will refer in the remainder of this post only to Liu.)

The stated purpose of Keeping Faith is to “describe and defend” a “dynamic process of [constitutional] interpretation” that Liu labels “constitutional fidelity.” “Interpreting the Constitution,” he argues, “requires adaptation of its broad principles to the conditions and challenges faced by successive generations.” His interpretive approach draws on a variety of considerations: original understandings, “the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.” Such an approach, he asserts, is “richer than originalism …, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation’s founding. Indeed, he claims, his approach “is what enables the American people to keep faith with the Constitution from one generation to the next.” (p. 2) [Post-hearing addendum: See discussion of Liu's testimony on this matter.]

If all this sounds tiresomely familiar, that’s because the tendentious and undescriptive label “constitutional fidelity” is just a rebranding of the same old “living Constitution” rhetoric that left-wing proponents of judicial activism have used to camouflage their constitutional inventions. (There would seem to be an important lesson in the fact that the Left—er, I mean “liberals,” oops, now it’s “progressives”—manages to stigmatize every label it adopts. Will it soon even ruin the term “fidelity”?)

Indeed, it’s comical to see how Liu, in back-to-back paragraphs (p. 25), purports to distinguish his approach from that of “living Constitution” advocates. The “living Constitution” approach, you see, understands the Constitution as “grow[ing] and evolv[ing] over time as the conditions, needs, and values of our society change” and contends that “such evolution is inherent to the constitutional design because the Framers intended the document to serve as a general charter for a growing nation and a changing world.” That approach maintains that “constitutional interpretation must be informed by contemporary norms and circumstances, not simply by its original meaning.” In supposed sharp contrast, the “constitutional fidelity” approach maintains that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations.” Its words and principles must be interpreted “in ways that sustain their vitality over time.” Judges must ask “how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.”

If you, unlike me, somehow discern a meaningful iota of a difference between Liu’s description of the “living Constitution” approach and his description of “constitutional fidelity,” the rest of Keeping Faith -- in which Liu defends the soundness of judicial inventions from Miranda to Roe v. Wade to Lawrence v. Texas -- should demonstrate that any difference is meaningless in practice.

Goodwin Liu’s Keeping Faith with the Constitution—Part 2

March 3, 2010

[Continued from Part 1]

Ninth Circuit nominee Goodwin Liu’s attack on originalism in Keeping Faith with the Constitution is also shoddy. Liu claims that originalists believe that “modern constitutional controversies should be resolved on the basis of what the framing generation understood the text to mean in application” (p. 25 (emphasis added)). He thus imputes to Justice Scalia and other originalists the position that original meaning is limited to actual original expected applications. As I have previously explained, Scalia’s originalism is clearly not limited to original expected applications. Rather, Scalia’s focus on the objective public meaning of constitutional text involves a hypothetical inquiry that asks how a fully informed public audience living when a particular provision was adopted would understand that provision.

To be sure, Liu states that his “view of constitutional fidelity is not at odds with originalism if originalism is understood to mean [1] a commitment to the underlying principles that the Framers’ words were publicly understood to convey, as opposed to [2] the Framers’ expectations of how those principles would have applied at the time the were adopted” (p. 35). He exempts from his criticisms those who hold the first position. But the dichotomy that he posits is a false one that excludes the vast middle ground in which original meaning is informed by original expected applications but is not limited to them.

Liu contends that “originalism as a complete and exclusive theory of constitutional interpretation founders on two decisive objections”: first, it is indeterminate, and, second, “it cannot account for many of the constitutional understandings that Americans take for granted today” (pp. 37-38).

Let’s take these objections one at a time.

First, while I believe that Liu’s misunderstanding of originalism leads him to overstate the indeterminacy of originalism, I agree with him that originalism alone will not clearly resolve every constitutional question. But I don’t see this as a troubling defect. As I’ve written in the chapter that I’ve contributed to the new book Freedom and the Rule of Law:

An original-meaning approach is a necessary component of sound judging. And, for the vast bulk of issues that have been hotly contested in recent decades, it is sufficient. But there are also judicial cases in which original meaning, even together with any appropriate canons of construction, does not yield clear answers. In a democratic republic, principles of judicial restraint properly supplement originalism….

[W]hen originalist methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. Reasonable people can dispute how to define the requisite level of clarity, and it may even be that the level will vary depending on context or the constitutional provision at issue. But a law professor’s mere best guess as to constitutional meaning cannot be a judge’s basis for trumping the majoritarian process. Thus, when originalism is allied with judicial restraint, the fact that originalism will not always yield sufficiently clear answers is not, as some critics mistakenly think, a fatal or even a significant defect and does not somehow render originalism unworkable. Rather, that situation calls for judges to apply statutory law.

Liu also seems somehow blind to the fact that his everything-and-the-kitchen-sink approach is at least as indeterminate as originalism.

Second, and again subject to Liu’s misconception of originalism leading him to overstatement (including on Brown vs. Board of Education, as I discuss in this essay), I also generally agree with him that originalism “cannot account for many of the constitutional understandings that Americans take for granted today.” That might well be a relevant objection to originalism if the project of originalists like Justice Scalia were to correct every wrong precedent. But as Scalia has explained in A Matter of Interpretation:

“Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew…. Where originalism will make a difference is not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”

Liu’s own approach can account for all of the “constitutional understandings that Americans take for granted today” only because it is so infinitely malleable. Moreover, it’s hardly a surprise that unsound Supreme Court rulings would misshape the “constitutional understandings that Americans take for granted.” That fact ought to counsel against freewheeling judicial inventions, not, as Liu would have it, be used to justify yet more of them.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

March 4, 2010

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Let’s consider the quality and integrity of some of Liu’s arguments:

1. Evidently borrowing from People for the American Way’s playbook, Liu offers as the lead count in his indictment Roberts’s unanimous opinion for the D.C. Circuit in Hedgepeth v. Washington Metropolitan Area Transit Authority. That case concerned a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody. D.C. police applied the policy to a 12-year-old girl who ate a French fry in a Metro station. In a straightforward application of Supreme Court precedent, the district judge—Clinton appointee (and winner of the Thurgood Marshall Award of Excellence) Emmet Sullivan—described the policy as “foolish” but ruled that it did not violate the Constitution. Similarly, Roberts opened his opinion with this summary paragraph:

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later—all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,” and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

And later:

The district court had and we too may have thoughts on the wisdom of this policy choice—it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears—but it is not our place to second-guess such legislative judgments.

Liu’s account, however, tries to leave the impression that Roberts personally supported the application of the policy to the child (and doesn’t mention any of the facts that would destroy that impression): “Roberts said the police’s treatment of Hedgepeth served ‘the goal of promoting parental awareness and involvement with children who commit delinquent acts.’” The reader who mistakenly placed his trust in Liu wouldn’t understand that the passage that Liu clips is in the context of Roberts’s application of very deferential rational-basis review: “We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.” [Post-hearing addendum: See discussion of Liu's response (item 1 here) to a post-hearing question on this matter.]

As I wrote in “The French-Fry Flapdoodle“: “It is very amusing that advocates of expanded D.C. ‘home rule’ … won’t even trust D.C. officials to establish food policies in Metro stations. The Framers had faith that Americans were fit for self-governance. Those on the Left who think judges have a roving mandate to correct every stupid law or policy plainly don’t share that faith.”

2. Liu’s second count against Roberts is even worse (and, again, seems to be just a rehash of PFAW’s sloppy attack):

In 2003, [Roberts] wrote an opinion urging his court to consider overruling its own precedent to hold that an Endangered Species Act regulation exceeded Congress’s power to regulate interstate commerce.

In addition to weakening key environmental laws, Roberts’s theory of limited federal power would potentially undermine bedrock civil rights laws, including the Civil Rights Act of 1964. His theory was so extreme that it was all but rejected by the Supreme Court in a recent decision upholding federal power to ban medicinal uses of home-grown marijuana.

Liu is wrong on all counts.

Roberts, in his four-paragraph dissent from the denial of rehearing en banc, did not opine (much less urge his court to hold) that the challenged regulation “exceeded Congress’s power to regulate interstate commerce.” What he did was point out that the particular approach the panel majority took “seems inconsistent” with Supreme Court holdings and conflicts with a Fifth Circuit ruling, thus making en banc consideration appropriate. He specifically stated that en banc review “would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.”

After initially parroting the same false line, even the New York Times acknowledged that its (and, by implication, Liu’s) account was mistaken: “He [Roberts] did not say the federal government lacked the power to block a California real estate development because it endangered the toad…. He did not question the constitutionality of the Endangered Species Act.” As Jonathan Adler wrote at the time (same link; emphasis in original): “These mistakes should never have occurred, as the meaning of Roberts’ opinion should be clear to anyone with a modicum of legal training who actually read the opinion.”

So Liu is further wrong in claiming that Roberts advocated a “theory of limited federal power” that would “weaken[] key environmental laws” and “potentially undermine bedrock civil rights laws.” And, as Jonathan has confirmed for me, Liu is also wrong in contending that the Supreme Court’s later decision in Gonzales v. Raich “all but rejected” the point that Roberts did make. (It’s extremely odd in any event for Liu to rely on a later Supreme Court ruling to fault Roberts’s reading of the Supreme Court precedents that existed at the time of his opinion.) [Post-hearing addendum: See discussion of Liu's response (item 1 here) to a post-hearing question on this matter.]

3. In a clear and hilarious sign of what a hard-Left ideologue he is, Liu maintains that the values of “free enterprise,” “private ownership of property,” and “limited government” “are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” [Post-hearing addendum: See discussion of Liu's response (item 2 here) to a post-hearing question on this matter.]

4. Liu calls Roberts’s nomination “a seismic event that threatens to deepen the nation’s red-blue divide.” But it should now be clear that it is Liu’s nomination—threatening to entrench the domination by left-wing Californians of the nine-state (and two-territory) Ninth Circuit—that would deepen the Ninth Circuit’s red-blue divide, the very divide that has fueled efforts to split the circuit.

Goodwin Liu on School Choice in Support of Racial Quotas

March 16, 2010

Ninth Circuit nominee Goodwin Liu’s position on school choice has been touted as a supposed exception to his hard-Left record on constitutional issues. But a fuller examination reveals a very different picture: namely, that Liu supports only those school-choice programs that he believes will lead towards the goal of rough racial quotas in schools, and that he views even those programs as a second-best alternative to his preferred means of direct judicial imposition of interdistrict racial-balancing orders. Indeed, so far as I’m aware (and I invite correction on this and other points if there’s material I’ve missed), Liu has never stated his agreement with the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, which ruled that school-choice programs that include religious schools don’t violate the Establishment Clause.

Let’s examine Liu’s law-review article, “School Choice to Achieve Desegregation” (74 Fordham L. Rev. 791 (2005), co-authored with William L. Taylor). In that article, Liu argues that “school choice can and should be used to promote desegregation” (p. 795). Oddly, Liu never defines what he means by the term “desegregation,” but it’s clear that he uses the term expansively to refer not just to undoing the effects of state-imposed segregation but to achieving rough racial quotas in the schools. Thus, for example, one of the two school-choice ideas that he proposes is “a funding set-aside in federal and state charter programs to create and reward charter schools that reflect the racial and socioeconomic diversity of the metropolitan area -- not the local school district—where they are located” (p. 808 (emphasis added)). As he puts it, “set-aside programs should use the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity” (p. 808). It is in that same sense that the second school-choice idea that he proposes—targeting vouchers to disadvantaged children and raising the amount of the voucher—is aimed at increasing the “desegregative potential of school vouchers” (p. 809).

My point is not necessarily to take issue with Liu’s two proposals but merely to emphasize how narrow they are and how driven they are by Liu’s mentality of racial quotas. It’s not just that Liu opposes a “universal voucher program with no eligibility requirements based on socioeconomic or educational disadvantage” on the grounds that it “would likely increase segregation in both public and private schools” (p. 805). It’s also that Liu doesn’t believe that school choice within existing urban district boundaries would yield meaningful benefits to students within those boundaries. Perhaps he’s right, but it’s odd that supporters of school choice, who have much more faith in the transformative potential of competition to improve schools, would see him as much of an ally.

Further, Liu believes that the Supreme Court’s 1974 decision in Milliken v. Bradley, which (in his summary) “limited the legal availability of interdistrict school desegregation remedies to situations where plaintiffs could prove that ‘there has been a constitutional violation within one district that produces a significant segregrative effect in another district,’” was wrongly decided: “With that decision, enclaves of affluent white families in suburban school districts obtained near immunity from the reach of school desegregation, even when such remedies were logistically feasible and necessary to correct a racial wrong” (p. 792 & n. 8). Liu thus makes clear that his preferred approach to achieving racial quotas in the schools would be by judicial fiat, and it’s only his observation that Milliken “seems firmly embedded in the law” (p. 793) that leads him to explore his limited school-choice proposals to make progress toward that same end.

Liu’s proposals, of course, operate on the terrain that the Court’s decision in Zelman opened up, but while Liu refers to the Zelman ruling, he gives no indication that he believes that it was rightly decided. Similarly, in an ABA Journal article about the Florida supreme court’s 2006 decision that struck down the state’s school-choice program, Liu seemed to welcome the court’s dubious reliance on the state constitutional guarantee of a “uniform, efficient, safe, secure, and high-quality system of free public schools.” In the reporter’s paraphrase, “Regardless of whether courts follow the same reasoning as the court in Florida, Liu and others stress that [the court's] decision gives legislators a new rationale for rejecting voucher programs.”

Bottom line: Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal. [Post-hearing addendum: See discussion of Liu's response (item 2 here) to a post-hearing question on this matter.]

Goodwin Liu on Racial Quotas Forever

March 17, 2010

Among the many presentations that Ninth Circuit nominee Goodwin Liu identifies in his Senate questionnaire response was his participation in a panel on “segregation, Integration, and Affirmative Action After Bollinger at the American Constitution Society’s national convention in August 2003. Liu states that he does “not have copies of any notes, transcript, or recording” of his presentation, but blogger Morgen of Verum Serum has kindly called my attention to an online ACS transcript.* The transcript provides yet further confirmation that Liu is a hard-Left extremist.

In his remarks, Liu advocates reviving “the idea of remedying societal discrimination as a justification for affirmative action.” Although he agrees with the Supreme Court majority in the Michigan cases that “educational diversity is a compelling interest,” he finds that rationale too limited and pragmatic. He criticizes the Supreme Court precedent that holds that “remedial motives for affirmative action are permissible only where the policy is remedying an institution’s own discrimination, and not society’s,” and he argues that “the issue is really not as settled as it seems.” So “we shouldn’t abandon the notion of remedying societal discrimination as a dead letter, either in law or in public debate.”

In his plurality opinion in Wygant v. Jackson Board of Education (1986), Justice Powell warned:

[A]s the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.

Liu, to put it mildly, does not share Justice Powell’s concern about timelessly “imposing discriminatory legal remedies that work against innocent people.” In Liu’s words, “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’” So much for even recognizing, much less giving any weight to, the innocent victims of racial preferences.

What Liu’s proposed approach would mean in practice is imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination). [Post-hearing addendum: See discussion of Liu's testimony on this matter and of his response (item 4 here) to a post-hearing question.]

By the way, I’m willing to assume that Liu, chairman of ACS’s board, and his team of vetters were in fact somehow unable to locate the online ACS transcript, even though it’s the first item that popped up when I did a Google search of the panel title. But imagine the furor (“cover-up!”) from Senator Leahy and company if a Republican nominee had failed to provide such damning material.

* The transcript has some obvious typographical errors (especially in case names). I’ve tweaked the punctuation in a couple of the passages I quote.

Goodwin Liu on Reparations for Slavery

March 23, 2010

In May 2008, Ninth Circuit nominee Goodwin Liu took part in a discussion of the documentary film Traces of the Trade, which explores the role of New Englanders in the slave trade. Liu lists the event in his questionnaire response, but doesn’t link to any video or transcript (or any other account of his remarks).*

Blogger Morgen of Verum Serum has dug up a video of the event and posted a striking two-minute video excerpt, which I encourage you to watch. Here’s a transcript of Liu’s remarks (with some asides deleted):

Then there’s a further issue, which is that maybe there are white families who were not involved as directly or even indirectly with the slave trade, but who still benefited from it. And then there is the whole question, which you put on the table, about people who came to America after, and, you know, like my family. And why is it that this movie speaks to me so deeply yet?

And so, what I would do, I think I would draw a distinction between a concept of guilt, which locates accountability in a sort of limited set of wrong-doers, and, on the other hand, a concept of responsibility, which is, I think, a more broad suggestion that all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to … make things right. And that’s a moral duty that’s incumbent upon everybody who inherits this nation, regardless of whatever the history is.

And I think, to add one more point on top of that, the exercise of that responsibility … necessarily requires the answer to the question, “What are we willing to give up to make things right?” Because it’s gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money?

It’s gonna require giving up something, and so until we can have that further conversation of what it is we’re willing to give up, I agree that the reconciliation can’t fully occur.

Let’s expose the game that Liu is playing. Just as Liu completely ignores the innocent victims of racial preferences when he urges the perpetual imposition of racial quotas as a remedy for “societal discrimination,” so he would make those who were not complicit in slavery pay the price of his grandiose reparations project. Moreover, he continues to use the term “segregated” so expansively that only the imposition of racial quotas will achieve the elimination of what he calls segregation.

Even worse, Liu, far from making any sacrifice himself (he didn’t give up his seats at Stanford and at Yale Law School, or his Rhodes Scholarship, or his clerkship with Justice Ginsburg, or his professorship at Berkeley), is making a career out of benefiting from his grievance-mongering. It’s precisely his hard-edged ideology that has made him a darling of the Left and that explains why he is being nominated to a judicial seat that he craves as a steppingstone to the Supreme Court.

* Correction per this post.

Confused Amar/Starr Letter in Support of Goodwin Liu

March 24, 2010

Law professors Akhil Reed Amar and Kenneth W. Starr have sent the Senate Judiciary Committee a badly confused letter in support of Goodwin Liu’s nomination to the Ninth Circuit. The core of their letter is dedicated to the proposition that Liu has “independence and openness to diverse viewpoints as well as [the] ability to follow the facts and the law to their logical conclusion, whatever its political valence may be” (or, as they later put it, the “ability to discharge faithfully an abiding duty to follow the law”).

Amar and Starr offer two examples in purported support of their proposition, but neither helps. First, they cite Liu’s limited support of school-choice programs. As I’ve explained, Liu supports school-choice programs only insofar as they advance racial quotas. Once one understands that (and there’s no indication that Amar and Starr do), it’s difficult to see how Liu’s position on school choice evidences his “independence and openness to diverse viewpoints,” and his position certainly has no relation to his supposed “ability to follow the facts and the law to their logical conclusion.”

Second, Amar and Starr cite Liu’s correct prediction that the California supreme court would uphold Proposition 8 “under applicable precedents” (their phrase). They assert that his correct prediction shows that Liu “knows the difference between what the law is and what he might wish it to be.” But this is a glaring non sequitur. Liu wasn’t stating how he would rule; he was predicting how the California supreme court would. Moreover, in an op-ed, Liu stated that the challenge to Proposition 8 was a “good argument, but one that faces difficult precedents,” and he argued that “there are good reasons for the California Supreme Court to rethink its jurisprudence in this area.” So much for his “know[ing] the difference between what the law is and what he might wish it to be.”

Amar’s and Starr’s assertion of Liu’s “ability to follow the facts and the law to their logical conclusion” is also curious, as it’s not really his “ability” that anyone has questioned. It’s his willingness and commitment. Further, anyone familiar with Liu’s gauzy constitutional theorizing would recognize that the whole concept of following the law doesn’t have much substance in his framework. Take, for example:

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.

It is, of course, theoretically possible that someone who advocates a freewheeling judicial role could himself be quite scrupulous in following a whole body of precedent that he detests. But Amar and Starr provide zero reason for anyone to believe that Liu would carry out the judicial role in that manner, and there is nothing in his record to support speculation that he would.

Yet Another Striking Omission by Goodwin Liu—Part 1

March 31, 2010

I’ve learned of yet another striking omission from Ninth Circuit nominee Goodwin Liu’s Senate questionnaire response. This omission strikes me as inexplicable (on innocent grounds, that is), and it also fleshes out a remarkable pattern in which Liu’s most incendiary remarks just happen to come in presentations that he’s either entirely failed to inform the Senate ever took place or for which he’s failed to provide readily available records. (I will address this highly problematic pattern in a follow-on post later today.)

The latest omission that’s been discovered (thanks, as with all the others, to blogger Morgen of Verum Serum) is Liu’s participation on a showcase panel on “The Legacy of Brown v. Board of Education at the American Constitution Society’s 2004 national convention. To put things in fuller context, Liu was a member of ACS’s board at the time, his academic work focused heavily on Brown, and the panel discussion marked the 50th anniversary of Brown. Yet somehow Liu and his vetters failed to identify Liu’s participation in the panel.

Well, it turns out that a transcript of the panel presentation is available online, and the nature of Liu’s remarks is such that it is easy to understand why he might prefer that they not see the light of day while his nomination is pending. Here are some excerpts (underlining added):

[S]ome observers conclude that the legacy of Brown is that courts, and more broadly law, can only do so much to change society. That some things, some problems are best left to politics and not principle, and that to believe otherwise is to indulge a hollow hope.

I want to disagree with this view, and I want to disagree not because I have a rosier picture of the progress we’ve made since Brown. Instead I want to disagree because the lack of progress since Brown is a testament to the power of courts to influence society, to a testament to the power of legal principle to ratify inequality….

The Constitutional world that we inherit today is not the revelation of some natural law or some neutral principle. It is an edifice carefully crafted and aggressively built in the image of conservative ideology….

But my point is not that we should spend time longing for some bygone day. Instead my point is that we need to be mindful of how this early progress was undone. By presidents, by politicians, by judges, and by an agenda that was dedicated, and still is dedicated, to a few simple values: private choice over public good, formal equality over structural equality, and liberty at the expense of justice for all….

Some day maybe soon, the wheel of history will turn. It has always been this way with Civil Rights, and I think it is an important perspective to have. Brown itself was not written on a blank slate. It overruled Plessey. The Civil Rights Act of 1964 was upheld against the Civil Rights cases of 1883. The Women’s Movement overcame cases like Bradwell vs. Illinois and Hoyt vs. Florida. And of course, Lawrence overruled Bowers. I’m not saying there’s anything inevitable about this, but if we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Millikan [sic], Rodriguez, Adarand, be swept into the dustbin of history.

In addition, later in the panel discussion, when another participant who evidently wasn’t paying careful attention to Liu’s remarks somehow imputed to him the “precept that judges are just supposed to figure out what the law is and not what it should be,” Liu interjected, “That’s not my precept.”

I will offer a critique of these comments in a forthcoming Part 2 post.

Yet Another Striking Omission by Goodwin Liu—Part 2

March 31, 2010

Let’s examine the remarks by Goodwin Liu in the 2004 panel presentation on “The Legacy of Brown v. Board of Education” that he inexplicably failed to include in his Senate questionnaire response:

1. Liu expressly outlines for his left-wing audience an agenda for overruling three important Supreme Court precedents—or, as he aggressively puts it, for having them “swept into the dustbin of history.” This is an agenda that Liu himself clearly embraces and is committed to:

“if we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Millikan [sic], Rodriguez, Adarand, be swept into the dustbin of history” (emphasis added).

Just as Liu faults “the power of courts” for the supposed “lack of progress since Brown,” so does he plainly believe that the exercise of judicial power is needed to implement his agenda. (How, else, of course, would these cases be overruled?) In rejecting the notion that “problems are best left to politics and not principle,” he sees in the exercise of judicial power the imposition of principle: Just as “the lack of progress since Brown is a testament to the power of courts to influence society, to a testament to the power of legal principle to ratify inequality,” so does he envision the power of courts being used to impose his favored principles. And in expressly rejecting the “precept that judges are just supposed to figure out what the law is and not what it should be,” Liu makes crystal-clear that he would use his judicial office to advance his agenda.

2. An examination of the three precedents that Liu is eager to have “swept into the dustbin of history” starkly reveals Liu’s agenda.

a. Let’s start with the Court’s 1974 decision in Milliken v. Bradley. As Liu himself accurately summarized it in his law-review article, “School Choice to Achieve Desegregation” (which I discuss here), that decision “limited the legal availability of interdistrict school desegregation remedies to situations where plaintiffs could prove that ‘there has been a constitutional violation within one district that produces a significant segregrative effect in another district.’” In that article, Liu states that Milliken seems firmly embedded in the law” (emphasis added). That’s not a surprising judgment, since overturning it would offer the prospect of massive busing across district lines and would imperil the access to local schools that many homebuyers regard as an essential part of their biggest lifetime investment. Indeed, I doubt that there would be a single vote among the current members of the Supreme Court to overrule Milliken.

But for Liu, the fact that Milliken “seems firmly embedded in the law” is evidently not a reason to leave it in place but instead occasion for a call to arms to overturn it. Liu has already made clear (in his opposition to the Court’s rulings in the 2007 school cases from Seattle and Louisville) that he doesn’t much care if a four-year-old has to spend three hours a day on a bus to help achieve racial balancing in the schools. After all, such sacrifices are just part of what others have “to give up to make things right” in Liu’s eyes. If that means the imposition of pervasive racial quotas across society for generations to come through what Justice Powell identified as “discriminatory legal remedies that work against innocent people,” so what? says Liu: Such concerns are, to him, nothing more than “a fear of too much justice.”

b. The second (and equally “firmly embedded”) case that Liu wants “swept into the dustbin of history” is the Court’s 1973 ruling in San Antonio Independent School District v. Rodriguez, which held that education is not a fundamental right, the provision of which is subject to strict judicial scrutiny under the Fourteenth Amendment. A contrary ruling would have subjected systems of school finance and all other aspects of public education to federal judicial micromanagement. With the benefit of hindsight, there is widespread recognition that Justice Powell was prescient to observe in his majority opinion:

[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education…. The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education…. Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.

An expert in the area tells me that he doubts that there is a single vote on the current Supreme Court to overturn Rodriguez.

Liu’s support for overturning Rodriguez also exposes how phony is the purportedly modest role that he’s advocated for the courts in recognizing (i.e., inventing) “constitutional welfare rights” to matters like education, shelter, subsistence, and health care.

c. The third case that Liu wants “swept into the dustbin of history” is the Court’s 1995 ruling in Adarand Constructors, Inc. v. Peña, which, in a majority opinion by Justice O’Connor, ruled that racial classifications imposed by the federal government must be subject to strict scrutiny. Liu doesn’t dispute the holding of Bolling v. Sharpe (decided the same day as Brown) that there is an equal-protection principle embedded in the Fifth Amendment that protects blacks from racial discrimination by the federal government, but, consistent with his support of racial quotas in perpetuity, he rejects the notion that this equal-protection principle applies equally to whites.

Has there ever been a judicial nominee with such a clear agenda to work to overrule (or to undermine) Supreme Court precedent? What reason is there to believe that Liu’s agenda doesn’t extend to all the other matters he is passionate about (but that were beyond the scope of the Brown panel)?

Why Goodwin Liu’s Omissions Matter

April 7, 2010

The relevant issues concerning Ninth Circuit nominee Goodwin Liu’s Senate questionnaire response do not include whether he strictly complied with the admittedly onerous demands of the questionnaire. Everyone familiar with the process recognizes that inadvertent omissions are routine. The relevant issues instead are:

1. Did Liu try to hide some of the most controversial aspects of his record from the Senate?

2. Was Liu, whatever his motive, so incomplete in his questionnaire response that he can’t be said even to have substantially complied with his obligation?

3. Does it make any sense to proceed with his hearing until we have answers on issues 1 and 2?

As I have discussed, I believe that there is a disturbing pattern that Liu’s most inexplicable omissions contain some of his most controversial and incendiary comments and that this pattern reasonably invites the suspicion that Liu was indeed trying to hide aspects of his record from the Senate. Indeed, given what I’ve heard about White House chief of staff Rahm Emanuel’s initial opposition to nominating Liu, I have to wonder whether Liu was equally eager to hide these aspects from the White House. (I’m sorry to say that law professor, and former Bush White House ethics adviser, Richard Painter is wildly wrong, and evidently hasn’t been paying due attention, when he characterizes Liu as having merely “missed some things in his initial answers to the Senate questionnaire: a brown bag lunch here, a talk with alumni there, etc.”)

The only way to dispel this reasonable suspicion, and to maintain the integrity of the Senate Judiciary Committee’s proceedings, is to conduct a thorough investigation before Liu’s confirmation hearing takes place. Liu should expedite that investigation by authorizing committee staff to search the hard drives of his computers and to gain access to his e-mail records (subject, of course, to procedures that protect his legitimate privacy interests). Likewise, he should authorize his vetters to make fully available to the committee all his exchanges of information with them, and he and his vetters should agree to be interviewed by committee staff about the omissions in his questionnaire response.

Liu’s supplemental submissions do nothing to dispel this reasonable suspicion (even if they succeeded in providing what they purport to provide, which they do not—as this post from yesterday and a post to come shortly illustrate).

Meanwhile, Jonathan Singer at ConfirmGoodwinLiu.com continues to display his Stalinist intellectual temperament. For example, in a hilarious post entitled “A New Standard in Transparency,” Singer contends that Liu “acted well within historical precedent for judicial nominees” in his initial questionnaire response. I suppose that’s why Liu saw fit to offer his “sincere and humblest apology for the omissions in my original submission.” Singer somehow thinks it’s meaningful to compare the length of questionnaire responses submitted by various nominees. That comparison wrongly assumes that all nominees have a similar quantum of responsive material. More importantly, it diverts attention from the critical issues whether a nominee has made material omissions and, if so, whether there is reason to believe that those omissions were deliberate.

Goodwin Liu on Using Foreign Law to Redefine the Constitution

April 16, 2010

I hadn’t run across this passage of Goodwin Liu’s:

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

Liu, Developments in U.S. Education Law and Policy, 2 Daito L. Rev. 18, 27 (2006).

Well, yes, if you think that the Supreme Court has freewheeling authority to reconstrue the Constitution to devise “wise solutions”—sometimes by inventing new rights, sometimes by disregarding inconvenient old ones—then anything goes. What is evidently “difficult for [Liu] to grasp” is that that’s not a legitimate role for the Court. [Post-hearing addendum: See discussion of Liu's testimony on this matter.]

Simply Liu-dicrous Testimony—Part 1

April 19, 2010

I’ve reviewed the Federal News Service transcript* of Ninth Circuit nominee Goodwin Liu’s confirmation hearing last Friday. As time permits, I will do a series of posts on Liu’s testimony (as well as on his answers to any post-hearing written questions), and I will then weave them together in a composite essay (or extended post).

Let’s start with Liu’s remarkable claim that “whatever I may have written in the books and in the articles would have no bearing on my role as a judge.”

Let’s put this claim in context.

The one book that Liu has written (or, more precisely, co-authored) is Keeping Faith with the Constitution. As I discuss in this post, the stated purpose of Keeping Faith is to “describe and defend” a “dynamic process of [constitutional] interpretation” that Liu labels “constitutional fidelity.” “Interpreting the Constitution,” he argues, “requires adaptation of its broad principles to the conditions and challenges faced by successive generations” (emphasis added). His interpretive approach draws on a variety of considerations: original understandings, “the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.” Such an approach, he asserts, is “richer than originalism or strict construction, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation’s founding.” Indeed, he claims, his approach “is what enables the American people to keep faith with the Constitution from one generation to the next.” (p. 2)

In chapter two of Keeping Faith -- titled “Judicial Interpretation of the Constitution”—Liu makes clear his view that judges should adopt the interpretive approach that he is “describ[ing] and defend[ing]“:

Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society. [p. 25]

I won’t repeat my critique of Liu’s book here. For present purposes, my question instead is how Liu can plausibly maintain that an interpretive approach that he believes is “require[d]“—which, indeed, he believes is essential to “enable[] the American people to keep faith with the Constitution from one generation to the next”—”would have no bearing on [his] role as a judge.” The contention is simply ludicrous.

*Unfortunately, the FNS transcript doesn’t include page numbers. Once I receive an official committee transcript, I will cite relevant quotations by page and line number.

Simply Liu-dicrous Testimony—Part 2

April 19, 2010

In his hearing testimony (see unofficial transcript), Ninth Circuit nominee Goodwin Liu tried to sound like Chief Justice Roberts, as he even paraphrased Roberts’s umpire analogy:

I think the role of the judge is to be an impartial, objective and neutral arbiter of specific cases and controversies that come before him or her. And the way that that process works is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations that are at issue in the case.

But in his book Keeping Faith with the Constitution, Liu expressed a very different view. There, quoting Roberts’s umpire analogy, he argued that it did “not withstand scrutiny”:

Ironically, the significance of Chief Justice Roberts’s baseball analogy is exactly the opposite of what he intended. Just as baseball players and many fans know that umpires over time have interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context. [p. 28 (emphasis added)]

Somehow all of Liu’s previous talk of judicial “attention to evolving social context” seems to have disappeared.

Simply Liu-dicrous Testimony—Part 3

April 19, 2010

At Goodwin Liu’s confirmation hearing (see unofficial transcript), Senator Coburn quoted this passage from one of Liu’s articles:

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

(Liu, “Developments in U.S. Education Law and Policy,” 2 Daito L. Rev. 18, 27 (2006).) Coburn then asked Liu his view of using foreign law to interpret the Constitution. Liu’s response (emphasis added):

I do not believe foreign law should control in any way the interpretation of United States law, whether it’s the United States Constitution or a statute. I believe that the use of foreign law contains within it many potential pitfalls. In other words, I think that what I’ve observed the justices doing in some of these cases is, they choose the law that is favorable to the argument, and it isn’t a canvassing of the world’s practices or in any way a full account of the various practices throughout the world with respect to their laws. And one of the things, I think, that makes this country unique and worth cherishing is that we are, in many ways, in many, many ways, a much freer nation than many of the other countries around the world. And so I think there are many hazards involved in looking at foreign law as guidance for how we interpret our own principles.

I think the statement in the law review, if I could clarify it, because I think that was only just a brief paragraph, alludes only to the idea that I think foreign precedent can be cited in the same way that a law review article might be cited, which is simply to say, judges can collect ideas from any place that they find it persuasive. But there’s a very important difference, Senator, and one that I take very seriously, between looking for guidance or ideas versus looking for authority. And authority is the basis on which cases are decided, not ideas or other forms of guidance.

A couple of comments:

1. Four years ago, Liu found it “difficult … to grasp” how anyone could resist the practice of using foreign authority in interpreting the Constitution. Now, at his hearing, he jumps to identify the “many potential pitfalls” and “many hazards” in the practice—pitfalls and hazards that were evident back in 2006. Maybe he’s somehow learned something in the intervening four years. Or maybe, just maybe, he’s posing.

2. The question whether foreign law should “control” the interpretation of American law is a red herring, the same red herring that then-Judge Sonia Sotomayor resorted to. No one takes the position that foreign law should “control”—judges who are just making it up anyway always want the freedom to pick and choose—and Liu deserves no credit for rejecting that position. What he was utterly blind to four years ago, and remains inattentive to, is the predicate question whether and how contemporary foreign and international legal materials have any genuine relevance to the issue of American law being decided. But given Liu’s freewheeling approach to the Constitution, it follows that anything goes…. Judges are just “collect[ing] ideas” they find “persuasive.”

Simply Liu-dicrous Testimony—Part 4

April 20, 2010

Perhaps my favorite part of Goodwin Liu’s confirmation hearing (see unofficial transcript) is this scripted exchange that he had with Senator Feinstein:

Feinstein: “Now, in blog entries, you have been accused of favoring racial quotas, so I want to ask you plainly, do you favor racial quotas? And do you believe they are constitutionally permissible?”

Liu: “Senator Feinstein, I absolutely do not support racial quotas, and my writings, I think, have made very clear that I believe they are unconstitutional.”

Let’s start with the first part of Liu’s response, his claim that he “absolutely do[es] not support racial quotas.”

It’s an old game for folks on the Left to maintain that they don’t support racial quotas—because, lo and behold, they define the term “quota” virtually out of existence. My favorite example is provided by 11th Circuit judge (and former Florida chief justice) Rosemary Barkett, who, perhaps not incidentally, was on the same American Constitution Society showcase panel on “The Legacy of Brown v. Board of Education“—the panel in which Liu called for Milliken, Rodriguez, and Adarand to “be swept into the dustbin of history” but the very existence of which Liu somehow forgot to disclose to the Senate. Here’s Barkett’s hilarious defense in 1993 of a commission report that recommended passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998:

It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.

I have no idea what private definition of “quota” Liu was harboring when he asserted that he “absolutely do[es] not support racial quotas.” Despite the fact that Feinstein had surely given him a heads-up that she would be asking him the question, Liu doesn’t explain what he means by “racial quotas,” nor does he cite any material in his record that supports his assertion.

As I have shown in discussing Liu’s position on school choice, Liu uses the term “segregation” to describe the state of schools that don’t “reflect the racial and socioeconomic diversity of the metropolitan area … where they are located,” and he proposes using “the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity.” Anyone who doesn’t count that as support by Liu for racial quotas has stripped the term “quota” of any substance.

More broadly, as I have discussed, Liu’s advocacy of reviving “the idea of remedying societal discrimination as a justification for affirmative action” would in practice entail the imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination). As his discussion of reparations for slavery shows, Liu uses the term “segregated” so expansively that only the imposition of racial quotas will achieve the elimination of what he calls segregation.

If Liu wants to explain that I have somehow misunderstood him, I would be happy to entertain his explanation. But it’s evasiveness bordering on outright dishonesty for him to respond to charges like mine by privately adopting some incredibly narrow definition of “quotas” and then asserting that he “absolutely do[es] not support racial quotas.”

The second part of Liu’s response—that his “writings, I think, have made very clear that I believe [racial quotas] are unconstitutional”—also turns on Liu’s private definition of “racial quotas.” In addition, it would have been good for Liu to identify specific passages from one or more of his writings that supposedly set forth his position. Among other things, the Senate could then determine how narrowly Liu is using the term “racial quotas” and whether what he presents as what he “believe[s]” is merely (as I suspect) his understanding of existing Supreme Court precedent or is instead his independent view on how the Constitution should best be interpreted.

Liu-dicrous Responses to Written Questions—Part 1

May 4, 2010

Controversial Ninth Circuit nominee Goodwin Liu has submitted his initial set of responses to written questions that Senate Judiciary Committee members submitted following his recent hearing. I will aim to offer some commentary on his responses in a series of posts.

Let’s start with Liu’s failure to respond meaningfully to so many questions about his views on a range of constitutional questions. Unlike most judicial nominees, Liu has taught and thought about issues of constitutional law for a number of years. Yet when asked whether he believes that various cases were decided properly, he repeatedly ducked the question and instead recited that he would “faithfully” follow Supreme Court and Ninth Circuit precedent. (By my quick count, Liu used this particular dodge more than eighty times.) In response to other questions about his views on constitutional issues, Liu repeatedly responded by asserting, “I have not previously expressed any view on this issue, and I believe it would not be appropriate for me to do so now” (or something very similar). He never offered any explanation why he believed “it would not be appropriate.”

So when Liu has expressed views on legal issues beyond what the public record shows, his tactic is to refuse to disclose what he has said and to hide behind his promise to follow precedent. And when he maintains that he hasn’t expressed any view on an issue (even if he in fact has formed and holds a view on the issue), his tactic is to assert that it would not be appropriate for him to disclose his view to the Senate.

I must say that I find it highly implausible (even under the narrowest reading of the questions) that Liu, as an engaged scholar of constitutional law, has never “expressed any view,” no matter how discreetly or tentatively, on such matters as whether the Constitution, properly interpreted, confers a right to same-sex marriage (Sessions Q13.a);* or whether the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause (Coburn Q8.a); or whether the Court correctly decided prominent recent cases like the detainee ruling in Hamdan v. Rumsfeld (Cornyn Q22.a), the Second Amendment ruling in District of Columbia v. Heller (Sessions Q13.b), and the New Haven firefighters case, Ricci v. DeStefano (Cornyn Q22.g).

It’s also worth noting that Liu fails to maintain a consistent line in his responses (other than the line of what he evidently perceives to be in his self-interest). For example, Liu volunteers that his “own view of the Constitution” is that racial quotas (which he defines very narrowly as “rigid numerical goal[s]“) are unconstitutional. (Sessions Q10.d.) But the passages from his writings that he cites to substantiate his position (Sessions Q10.e) don’t show that he has ever previously expressed that personal view. So it appears that Liu will disclose his views on legal issues when he thinks that doing so will help his nomination, and he won’t when he thinks that doing so won’t.

* I’ll have more to say on this.

Liu-dicrous Responses to Written Questions—Part 2

May 4, 2010

More on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:

1. Liu claims that his “writings agree with Supreme Court precedent that courts have no role in creating social or economic entitlements.” (Sessions Q3.b (emphasis added); see also Sessions Q3.c.) But Liu has in fact written that the judiciary is “generally limited to an interstitial role” in recognizing constitutional welfare rights—”affirmative constitutional right[s] to particular social goods such as ‘education, shelter, subsistence, health care and the like, or to the money these things cost.’”

The “interstitial role” that Liu contemplates for the judiciary is far from “no role” (nor is that “interstitial role” compatible with a sound understanding of judging). Further, Liu writes only that the judiciary is “generally limited” to that interstitial role, and he thus leaves open a much broader role for judges (as his call for San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” reveals).

2. Liu declines to express any opinion on whether the Court’s 2002 decision in Zelman v. Simmons-Harris, which held that school-choice programs that include religious schools do not violate the Establishment Clause, was rightly decided. (Sessions Q10.b.) He doesn’t maintain that he doesn’t have an opinion, nor that he hasn’t previously expressed an opinion, but only that he does “not recall any specific conversations” on the issue. Liu’s evasiveness discredits his handful of conservative supporters who have touted their misunderstanding of Liu’s position on school choice as a supposed courageous exception to Liu’s hard-Left record on constitutional issues.

3. Asked “who will decide when the courts are being faithful to the Constitution,” Liu opines that “the Supreme Court is the ultimate arbiter of when courts have been faithful to the Constitution.” So much for any meaningful check on judicial excesses. Even worse, Liu bases his position entirely on the fact that the Court has asserted (wrongly) that “its interpretation of the Constitution ‘is the supreme law of the land.’” (Sessions Q7.a.)

4. Presenting an account of Liu’s remarks on the “idea of remedying societal discrimination” as a justification for racial preferences, Senator Sessions offered this critique:

You plainly do not share Justice Powell’s concern about timelessly “imposing discriminatory legal remedies that work against innocent people.” In your words,

“if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And as you put it, quoting Justice Brennan, concerns that “remedying societal discrimination … has no foreseeable endpoint” are nothing more than “‘a fear of too much justice.’”

In your comments, you do not recognize, much less give any weight to, the concerns of innocent victims of racial preferences. Instead, your approach would lead to the imposition of racial quotas in education, employment, and contracting ad infinitum since any persisting disparities would be attributed to past societal discrimination.

Sessions then asked Liu, “If that is not an accurate reading of your comments, please explain why.” So far as I can tell, Liu’s response does not take issue with Sessions’s critique. (Liu does quote a passage from one of his writings that observes that “a desire to remedy discrimination and its vestiges logically motivates the hope that affirmative action will some day end,” but that “hope” is no answer to Sessions’s critique that Liu’s approach would lead to pervasive racial quotas in perpetuity.) (Sessions Q12.a.)

5. Liu concedes that his rabblerousing call for Milliken v. Bradley and San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” is not replicated in his writings. (Sessions Q14.d.ii, 14.e.ii.) (From what I can tell, he was not asked that same specific question about the third Supreme Court ruling, Adarand Constructors, Inc. v. Peña, that he wanted “swept into the dustbin of history.”) As I’ve explained, that fact makes his inexplicable failure to include his presentation in his Senate questionnaire response all the more disturbing.

Liu-dicrous Responses to Written Questions—Part 3

May 4, 2010

See Parts 1 and 2.

At his confirmation hearing, Ninth Circuit nominee Goodwin Liu tried to disguise himself as a judicial conservative. (See “Simply Liu-dicrous Testimony,” Parts 2, 3, and 4.) He continues that effort in his initial set of responses to post-hearing written questions:

1. Continuing to maintain that his academic writings on how judges should construe the Constitution would somehow have no bearing on how he as judge would construe the Constitution, Liu presents a cook-by-recipe vision of judging that would have him laughed out of academia if anyone believed he actually meant what he said:

In deciding cases that come before me as a judge, I would set aside the views I have expressed as a scholar and follow the instructions of applicable Supreme Court and Ninth Circuit precedents, including any instructions in such precedents on how to interpret specific constitutional provisions. [Sessions Q6.a]

Liu also gives the impression of repudiating both President Obama’s empathy standard and his own book-long argument that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations”: He asserts that “all cases must be decided by applying the law to the facts from beginning to end.” (Cornyn Q20.a.)

2. Having previously dismissed the values of “free enterprise,” “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections,” Liu now waxes rhapsodic about these values:

From the time of America’s founding, our nation and our Constitution have reflected an unwavering commitment to free enterprise, private ownership of property, and limited government. I strongly believe in these important values, and I am personally committed to them. [Cornyn Q3.c]

3. Having previously found it “difficult … to grasp” how anyone could resist the practice of using foreign authority in interpreting the Constitution, Liu continues his confirmation-process posture of seeing at most a very limited role for the practice. See, e.g., Cornyn Q10.b, 10.d, 11.

Liu-dicrous Responses to Written Questions—Part 4

May 4, 2010

See Parts 1, 2, and 3.

A few final (I think) comments on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:

1. Five years ago, Liu wrote a cheap attack on the nomination of John Roberts to the Supreme Court. The lead item that Liu offered in support of his claim that Roberts’s “legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment” was Roberts’s unanimous opinion in a case (which I discuss more fully in point 1 in the preceding link) that upheld a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody.

Asked whether it’s his judgment that the arrest in the case violated the defendant’s constitutional rights, Liu refuses to opine on the matter. (Cornyn Q4.b.) What, then, was he faulting Roberts for? Liu now says that his “concern” was that the mandatory arrest policy was extreme, but Roberts expressed very much the same view. He also claims that he had concerns that the policy might “have reflected stereotypes of youth offenders” and notes that Roberts’s opinion “did not address” such an argument. I’d bet it didn’t do so because no one made the argument, just as Liu himself didn’t make the argument in his op-ed. In any event, if Liu thinks that’s a winning argument, he should say so. If he doesn’t, he had no ground to criticize Roberts’s opinion.

In his second count in that same op-ed (point 2 in link above), Liu alleged that Roberts had a “theory of limited federal power” that would “weaken[] key environmental laws … and would potentially undermine bedrock civil rights laws.” Liu now doesn’t defend that allegation but instead maintains merely that he “expressed no view on whether [Roberts] would have concluded … that the regulation [at issue] exceeded Congress’s commerce power.” ([Cornyn Q4.c.)

2. At Justice Alito's confirmation hearing, Liu offered patently demagogic testimony. At his own hearing, Liu conceded only that his testimony against Alito used "perhaps unnecessarily flowery language." Now that he finally perceives it as in his interest to do so, Liu offers an apology of sorts (though I have to wonder whether the passage I italicize is Liu's effort to confer victim status on himself):

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now. [Cornyn Q6]

3. Liu maintains that his amicus brief in the California supreme court, which argued that the traditional definition of marriage violated the state constitution, “expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution”:

The brief urged the court to “rely solely on California, rather than federal, constitutional law” and noted that “California’s Constitution has often been construed to provide broader protection than its federal counterpart.” The brief discussed federal cases “to illustrate” an “analytic methodology for interpreting the California Constitution.” The brief expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution. [Sessions Q13.a (citations omitted)]

That strikes me as a misleadingly incomplete account. In their brief, Liu and the other amici state at the outset (p. 2) that “well-accepted constitutional principles” require invalidation of California’s marriage law. In context, it’s clear that the “well-accepted constitutional principles” they’re referring to are federal constitutional principles (as Liu’s own summary acknowledges). Under the implicit logic of their brief, amici are arguing that because California’s definition of marriage violates these federal constitutional principles, it follows a fortiori that it is inconsistent with the “parallel[]” or “broader” protection that California’s constitution provides. In other words, because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution.

On Goodwin Liu and Same-Sex Marriage

March 1, 2011

It’s an odd thing: On the one hand, many folks on the Left (and many other supporters of same-sex marriage) maintain that only an irrational bigot could fail to accept the (absurd) proposition that the Constitution is properly interpreted as conferring a right to same-sex marriage. On the other hand, these same folks engage in extraordinary gymnastics to deny the concrete evidence that various of Obama’s judicial nominees favor invention of a federal constitutional right to same-sex marriage.

Consider, for example, controversial Ninth Circuit nominee Goodwin Liu, whose second confirmation hearing takes place tomorrow. As I documenteda year ago, Liu was one of 17 professors of constitutional law in California who in 2007 submitted an amicus briefto the California supreme court arguing that California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution. The brief makes clear that Liu and the other amici also believe that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution. As the brief puts it (p. 3), “amici rely upon their expertise in federal constitutional law to illustrate their arguments because [the California supreme court's] analytic methodology for interpreting the Constitution so often parallels analysis by courts construing the federal Constitution” and because the state constitution indeed “has often been construed to provide broader protection than its federal counterpart.” In other words, the brief argues that because California’s definition of marriage violates federal equal-protection principles, it follows that it violates the state Constitution.

Liu and the other amici also incorporate by reference (p. 12) the argument that California’s traditional marriage law “infringes impermissibly on the fundamental right to marry,” “discriminates on the basis of sex and sexual orientation,” and “offends both simultaneously, since the two guarantees, contained in a single sentence of the California as well as the federal constitutions, are mutually reinforcing.” (Emphasis added.)

In short, it is clear that Liu has embraced the position that there is a federal constitutional right to same-sex marriage.

That fact hasn’t kept Liu’s supporters from attempting to deny or obscure the obvious (as I discuss in the paragraph labeled “First” in this post). Nor, more remarkably and more scandalously, did it deter Liu from doing so in his written responses to post-hearing questions last year (as I discuss in point 3 of this post).

With his decision not to defend DOMA, President Obama has amply demonstrated what his allies knew all along—that his professed opposition to same-sex marriage during the presidential campaign was empty posturing designed to fool gullible voters and to get himself elected. Goodwin Liu is now trying to fool senators and get himself appointed to the Ninth Circuit, where he would (among countless opportunities for mischief) take part in deciding whether to review en banc the pending anti-Prop 8 case.

(As I have demonstrated, Liu’s position—and his evasiveness—on this issue are only one small part of a broader pattern that demonstrates his manifest unfitness for judicial office.)

Update: I see that, in response to my post, one of Liu’s supporters claimsthat a letter from Akhil Amar and Ken Starr “thoroughly debunks [my] point.” I disposedof this inanity nearly a year ago. (I’ll just add here that the inane claim doesn’t even involve Liu’s views on the federal constitutional status of same-sex marriage.)

More Liu-dicrous Testimony—Part 1

March 9, 2011

Ninth Circuit nominee Goodwin Liu’s testimony at his second confirmation hearing last week was much like his testimony a year ago—replete with implausible efforts to disguise or abandon his actual record and to recast himself as a judicial conservative. I refer the reader to my series of posts on Liu’s testimony last year (beginning here) as well as my series on his responses to post-hearing questions (beginning here). In this post and one or two more, I will address Liu’s testimony last week:

1. Let’s start with what is probably Liu’s biggest howler:

My judicial philosophy in a nutshell, I think, is that the courts of the United States have a very limited role in our system of government.

Gee, how’d I miss that in reading his actual book (Keeping Faith with the Constitution) that presents his view on how courts should interpret the Constitution? As I discuss here, Liu’s judicial philosophy is indistinguishable from the “living Constitution” approach that he finds convenient to purport to disavow. Indeed, in that book, Liu maintains only that his approach, when “conscientiously applied,” “does not give judges unchecked power to determine what society’s values are or to impose their own values on society” (p. 28 (emphasis added)). He doesn’t assert that his approach, under which judges pick and choose among “multiple sources of wisdom and authority” (p. 29) to “adapt[] [the Constitution's] broad principles to the conditions and challenges faced by successive generations” (p. 2), gives them only a “very limited role.” On the contrary, while he calls judicial restraint “an important value,” he says that it does not provide “a meaningful guide to constitutional interpretation” and he argues that “[f]aithful application” of the principles he espouses “may sometimes require a robust judicial role” (p. 41). “Sometimes” turns out to be quite often, as his defense in that book of an array of liberal judicial inventions of rights shows that he does not believe in a “very limited role” for the judiciary.

Further, Liu has called forsuch models of judicial restraint as San Antonio Independent School District v. Rodriguez (education is not a fundamental right subject to strict scrutiny under the Fourteenth Amendment) and Milliken v. Bradley (limiting the availability of interdistrict school desegregation remedies) to be “swept into the dustbin of history.” (At his hearing, Liu referred with seeming approval to Rodriguez as “very much informed by principles of judicial restraint,” but didn’t note that he had called for it to be “swept into the dustbin of history.”) He’s made clearhis support for invention of a federal constitutional right to same-sex marriage, and even those who try to deny that fact can’t possibly contest that Liu has advocated that the California supreme court rule that same-sex marriage was required as a matter of state constitutional law. How is that consistent with a “very limited role” for the courts?

2. Let’s turn to Liu’s testimony on the use of foreign law in determining the meaning of constitutional provisions. Liu testified that foreign law “has no authority in our system unless American law requires it to have authority.” As only a careful and well-versed listener might discern, all that he means by that is that foreign law does not provide “controlling” or “binding authority in the interpretation of U.S. law,” that it cannot be “dispositive of the legal question.” (All quotes are Liu’s.)

But that limited proposition is embraced by virtually everyone, including the most aggressive proponents on the Supreme Court of the use of foreign law. (As I discuss in this essay, for example, Justice Ginsburg “emphasizes that she does not regard foreign decisions as ‘controlling authorities.’”) Of course these justices want the freedom to pick and choose when reliance on foreign law will advance their ideological agendas. What they are unable and unwilling to do is provide any governing principle why it is proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. They embrace an essentially essentially lawless—i.e., unconstrained—view of their own role as justices. As Justice Scalia has written, “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

The core of the ongoing dispute over the use of foreign law is instead whether it is proper to rely on foreign law in determining the meaning of provisions of the Constitution—whether, as Liu puts it in his testimony, judges may look to foreign law “as confirmatory or for ideas about how to approach a particular problem.” On that question, Liu is clearly supportive of unconstrained use of foreign law. As he has written(emphasis added):

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

More Liu-dicrous Testimony—Part 2

March 9, 2011

Continuing from Part 1(and serially numbering my points):

3. Here’s how Goodwin Liu tried to spin his law-review article on “Rethinking Constitutional Welfare Rights” (which I discuss hereand here):

The first half of the article is devoted to rejecting the idea that courts have really any role in inventing rights in the social and economic realm…. The back half of the article does recognizea limited judicial role in interpreting rights that are created by statute.

The listener would be forgiven for imagining that Liu’s law-review article merely advocated judicial interpretation of statutory rights. In fact, as my posts (with extensive quotes from Liu’s article) make clear, Liu makes the case for what he calls an interstitial judicial role in recognizing constitutional welfare rights—rights to such matters as education, shelter, subsistence and health care. Liu tries to portray that judicial role as modest, but it is so only when compared against the extravagant theorizing of law professor Frank Michelman (whose work serves as a sort of foil for Liu), not when compared against the proper role of the judiciary in our constitutional republic.

I’ll further note that in the conclusion to his article Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.” First, courts should rule (in a “dialogic and provisional” manner, I gather) that the existing federal program that supplements state spending on low-income children is unconstitutional purpose. Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.” So much for a “very limited” judicial role.

Asked how courts are to determine (as Liu proposes they do) “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,” Liu states that this happens “all over the constitutional jurisprudence as elaborated by the Supreme Court,” so his proposal “is in some sense kind of a banal observation about the way the Court elaborates doctrine.” But, as I’ve written in response to his similar claim in his law-review article, the asserted judicial role in most or all of the examples he provides is controversial and disputed and fairly invites the charge that judges are just imposing their own values. So those examples don’t provide a sound basis for conferring vast discretion to the courts in the huge new realm of welfare rights.

4. Liu testified that he “absolutely” does not support racial quotas and that he regards “affirmative action” (aka racial preferences) as a “time-limited remedy for past wrongs.”

As I discussed last year (see last paragraph here), Liu’s position that he does not support racial quotas rests on his very narrow definition of racial quotas as “rigid numerical goal[s]” (and, even then, there’s nothing in his record beyond his testimony to show that he even rejects rigid numerical goals). Liu’s quota mentalityis evidenced by his use of the term “desegregation” to refer not just to undoing the effects of state-imposed segregation but also to achieving a racial composition of each school that reflects the “racial composition of the broader metropolitan area.” Liu’s supportfor “the idea of remedying societal discrimination as a justification for affirmative action” shows how sweeping his support for racial quotas (rough, if not “rigid”) would be.

Far from seeing racial preferences as “time-limited,” Liu has bluntly stated that “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’”

________________________

Richard Painter’s Deceptive Portrayal of Goodwin Liu—Part 1

March 2, 2011

On Huffington Post, law professor (and former Bush White House ethics adviser) Richard Painter offers an extensive, but badly flawed, defenseof Goodwin Liu that falsely accuses me of “invent[ing] a series of myths about Liu with no basis in reality.” The opening part of Painter’s essay consists of regurgitating ill-informed or utterly conclusory endorsements of Liu from various folks, including some conservatives who ought to know better. See, for example, my critiqueof the letter that Ken Starr submitted (jointly with Akhil Amar).

Given that Liu’s hearing starts soon, I’m going to race through Painter’s supposed myths in this post and the next (in the same order as he lists them):

1. According to Painter, I have propagated the “myth” that “Liu believes judges ‘may legitimately invent constitutional rights to a broad range of social ‘welfare’ goods, including education, shelter, subsistence, andhealthcare.’” My actual quote statesthat Liu argues in a law-review article 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.” It’s telling that Painter has to excise the italicized parenthetical in order to falsely accuse me of misstating Liu’s views. Nor does he address (much less take issue with) my detailedpostson the matter.

2. According to Painter, it is a “myth” that Liu “believes in a ‘freewheeling constitutional approach’ that allows people ‘to redefine the Constitution to mean whatever they want it to mean.’” Painter cherry-picks the most innocent-sounding of Liu’s statements and ignores the controversial ones. (See, for example, the material in this postof mine.)

3. According to Painter, it is a “myth” that Liu “is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.” That is no myth, as I have documented. Painter doesn’t even address my arguments.

4. According to Painter, it is a myth that Liu “supports racial quotas forever.” Painter doesn’t address my argument, and he hides behind a ridiculously narrow definition of quotas.

5. According to Painter, it is a “myth” that Liu supports “reparations for slavery” and a “grandiose reparations project.” Painter pretends to provide a full account of Liu’s discussion of “solutions for racial equality” but somehow completely omits the remarks of Liu’s that I’vehighlighted, including:

Then there’s a further issue, which is that maybe there are white families who were not involved as directly or even indirectly with the slave trade, but who still benefited from it. And then there is the whole question, which you put on the table, about people who came to America after, and, you know, like my family. And why is it that this movie speaks to me so deeply yet?

And so, what I would do, I think I would draw a distinction between a concept of guilt, which locates accountability in a sort of limited set of wrong-doers, and, on the other hand, a concept of responsibility, which is, I think, a more broad suggestion thatall of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to … make things right. And that’s a moral duty that’s incumbent upon everybody who inherits this nation, regardless of whatever the history is.

And I think, to add one more point on top of that,the exercise of that responsibility … necessarily requires the answer to the question, “What are we willing to give up to make things right?” Because it’s gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money?

It’s gonna require giving up something, and so until we can have that further conversation of what it is we’re willing to give up, I agree that the reconciliation can’t fully occur.

Richard Painter’s Deceptive Portrayal of Goodwin Liu—Part 2

March 2, 2011

I’ll continuewith Painter’s last three supposed “myths” and then offer some broader comments on Painter’s defense of Liu:

6. Painter says it’s a “myth” that Liu supports “direct judicial imposition of interdistrict racial-balancing orders” in public schools. Painter tries to give his readers the impression that Liu accepts Milliken v. Bradley as settled law. But he somehow doesn’t disclose that Liu (in remarks that he failed to disclose to the Senate Judiciary Committee) called forMilliken to “be swept into the dustbin of history.”

7. Painter says it’s a “myth” that Liu supports “using foreign law to redefine the Constitution.” Painter relies entirely on Liu’s self-serving confirmation testimony and clips a passage to omit the fact that Liu wrotein 2006 that it “is difficult for [him] to grasp” how anyone could resist the “use of foreign authority in American constitutional law.”

8. Painter says it’s a “myth” that Liu supports “the invention of a federal constitutional right to same-sex marriage.” I addressedthis matter in detail just yesterday and fully stand by my account. (Painter falsely attributes to me the claim that Liu’s amicus brief in the California supreme court was “truly an argument under the U.S. Constitution.”)

I’ll briefly add some closing comments:

If Painter were really interested in a real debate on Liu, he wouldn’t have waited until the day of the hearing to launch his shoddy attack on me. He could have done so at any time over the last eight months. Instead, he’s tried to gain some tactical advantage by depriving me of a fair opportunity to respond. (I’ve had to write these responsive posts within the space of two hours or so of discovering Painter’s essay, and I’m sure that there’s much that I would say better, or more fully, if I had time.)

Painter claims to have “reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed” only after “reading Liu’s writings [and] watching his testimony.” But the fact of the matter is that Painter, evidently suffering a severe case of battered-conservative-academic syndrome, racedonto the Liu bandwagon without having any understanding of what was at issue, and (both now and in a previous op-ed) he has resolutely ignored or distorted the many highly problematic aspects of Liu’s record.

Richard Painter’s Deceptive Portrayal of Goodwin Liu—Part 3

March 3, 2011

I’ll limit myself to a couple of additional observations (beyond my Part 1and Part 2posts) on Richard Painter’s deeply defective Huffington Post defenseof Goodwin Liu:

1. In addition to failing to confront my actual arguments, Painter relies heavily on the argument-by-authority fallacy. As he puts it:

Now, you can believe the top experts in the areas of Liu’s scholarship and prominent conservatives such as Ken Starr and Clint Bolick—or you can believe National Review Online’s Ed Whelan. I know where I would put my marbles.

Set aside that Painter, having evidently lost his marbles, would have to find them first before he could put them anywhere. Painter leaves the false impression that folks like Starr and Bolick have actually responded to my critiques of Liu and of their misunderstandings of his record. So far as I’m aware, they haven’t.

(It’s also amusing that Painter can’t even be evenhanded in his mistaken argument by authority. While he invokes various credentials of Liu supporters, he identifies me only as “National Review Online’s Ed Whelan.”)

2. Towards the end of his piece, Painter tries to dismiss the relevance of Liu’s demagogicand irresponsiblearguments against the confirmations of Chief Justice Roberts and Justice Alito. According to Painter, “[i]t is critically important … that people feel free to speak their minds about Supreme Court and other judicial nominations without fear of retribution.” But as I explainedten months ago when Painter made the same bad argument, Painter completely misses the point: The shoddy quality of Liu’s opposition to Roberts and Alito reflects very poorly on him. There is no reason to encourage cheap attacks like Liu’s by not holding him accountable.

Miguel Estrada on Goodwin Liu’s Contemptible Mud-Flinging

March 3, 2011

More on Richard Painter’s insipid argument (see point 2 here) that Goodwin Liu’s attacks on the nominations of Chief Justice Roberts and Justice Alito shouldn’t be held against him:

Former D.C. Circuit nominee Miguel Estrada, whose unsuccessful nomination Richard Painter despicablytried to invoke in support of his shoddy Huffington Post defenseof Liu, strongly disagrees with Painter. In an e-mail to me, Estrada writes (emphasis added):

No one doubts that Senators from both parties have behaved shamefully toward nominees of the other party. The treatment of then-Judge Alito by Democratic members of the Judiciary Committee is not yet all that far in the rear-view mirror, and some of President Obama’s nominees have waited far too long. There is much to be said, therefore, for the proposition that the degradation of the judicial confirmation process is a problem that cries out for a long-term solution. The one thing that ought to be reasonably clear, however, is that someone who personally contributed to the sorry state of the confirmation process, by jumping in the mud pit with both feet and flinging the mud with both hands, is not well positioned to demand that standards be elevated solely for his benefit. Surely Mr. Painter can find a better case than this to dramatize the need for reform.

Clint Bolick: Richard PainterIs “Off-Base”

March 10, 2011

A follow-up to my refutation (Part 1, Part 2, and Part 3) of Richard Painter’s smears against me in his deeply defective Huffington Post defenseof Ninth Circuit nominee Goodwin Liu:

Clint Bolick, whose support for Liu Painter cites repeatedly, has invited me to publish this statement of his:

Although Ed Whelan and I have taken different positions on the judicial nomination of Prof. Goodwin Liu, I believe that Richard Painter has mischaracterized a number of Ed Whelan’s arguments as “myths.” In particular, Painter’s assertions are off the mark regarding Whelan’s criticisms of Liu on the creation of welfare rights, reparations, racial balancing, and the use of foreign law. Obviously, opinions vary regarding the merits of the nomination, but Painter is off-base on several crucial assertions.

Given our bottom-line differences on the Liu nomination, I am particularly grateful to Clint Bolick, as I also am to John Yoo, for standing up against Painter’s smears. It’s striking that two of the very small number of conservatives that Painter relies on for their support of Liu have repudiated Painter (versus zero, so far as I’m aware, who have endorsed his smears). Further, another conservative, Miguel Estrada, whose own nomination battle Painter tried to use in support of Liu, has emphatically condemnedLiu’s mudslinging against the Roberts and Alito nominations.

At this point, it should be clear that it would be reckless at best for anyone to accept Painter’s propositions at face value. I am not arguing that the reader must accept my word on Painter (or Bolick’s or Yoo’s) or on Liu. Rather, the interested reader should carefully examine the competing accounts (both on the matters that Bolick identifies above and on those he doesn’t address) and determine who has argued responsibly and effectively and who hasn’t. I am confident of the judgment that the intelligent and fair-minded reader will reach.

Post Mortem on Liu Cloture Vote

May 19, 2011

The cloture petition on the Liu nomination obtained a remarkably low total of only 52 “yes” votes, versus 43 “no” votes and one vote (Senator Hatch) of “present” (the functional equivalent of a vote against). The opposition to cloture was bipartisan, as it included Democrat Ben Nelson of Nebraska. Only one Republican—Murkowski of Alaska—voted in favor of cloture. Of the four senators who didn’t vote, only one, Baucus (Democrat from Montana), would seem a likely “yes” vote (and, even then, I have to wonder whether he found it politically convenient not to vote).

In sum, there’s no reason to think that a subsequent cloture petition would get more than 53 votes—well short of the 60 needed. So the Liu nomination appears dead.

Indeed, it’s far from clear that Liu would be confirmed on a straight up-or-down vote. As I noted yesterday, Senator Webb, who voted for cloture, has stated that he would vote against confirming Liu, and there may well be some other Democrats (as well as Murkowski) in the same position. For the same reasons that majority leader Harry Reid didn’t try to bring the Liu nomination to the Senate floor last fall in advance of his own re-election contest, I suspect that there are plenty of Senate Democrats happy to see the end of the Liu nomination.

The Left’s Hypocrisy—and Sloppiness—About Supposed Republican Hypocrisy on Filibusters

May 20, 2011

In what will no doubt be a long series of screeds from the Left, Slate‘s Dahlia Lithwick complains of Republican senators’ “extraordinary hypocrisy” in filibustering the controversial nomination of Goodwin Liu. Lithwick’s argument is replete with sloppy thinking and misinformation:

1. For starters, the two positions that are most difficult, indeed impossible, to reconcile in a principled manner are the positions that Lithwick and others on the Left have adopted: namely, (1) that it was perfectly fine for Senate Democrats to filibuster President George W. Bush’s judicial nominees, but (2) that it is objectionable for Senate Republicans to filibuster President Obama’s nomination of Liu.

In order to obscure her own extraordinary inconsistency, Lithwick postures herself as a champion of the so-called Gang of 14 agreement in 2005. If Lithwick ever objected to the Senate Democrats’ unprecedented partisan resort to the filibuster of judicial nominees in 2003 and 2004—against, by my quick count, ten of President Bush’s nominees—I’d be very surprised. (In a rush today, I’ve done some quick, but not exhaustive, research. As usual, I will post any appropriate correction.)

Further, Lithwick radically misstates both the scope and effect of the Gang of 14 agreement. That agreement was limited by its terms to only three then-pending nominees and to future nominations only in the 109th Congress (2005-2006). Lithwick claims that Liu “is the first judicial nominee to be filibustered since 2005,” but what she means is that Liu is the first judicial nominee to be successfully filibustered since then.

Far from establishing a “détente,” the Gang of 14 agreement did not prevent 35 Democrats* from failing to support cloture on one of the pending nominees subject to the agreement and 33 Democrats** from failing to support cloture on another of them. Further, Democrats resorted to the filibuster, and obtained 25 negative votes, to try to stop the nomination of Samuel Alito to the Supreme Court. Only twelve Democrats voted for cloture in 2006 on the nomination of Brett Kavanaugh to the D.C. Circuit. And even when they had majority control of the Senate in 2007, only 13 Democrats voted for cloture on Leslie Southwick’s nomination to the Fifth Circuit. (Among those who viciously smeared Southwick: Lithwick’s Slate colleague, Emily Bazelon.) That’s some détente.

2. The charge of hypocrisy against Senate Republicans is lazy and meritless, for the simple reason that Democratic resort to the filibuster against Bush nominees dramatically altered the terrain.

Republican senators who opposed the Democratic filibuster of President Bush’s nominees can usefully be divided into two categories:(1) those who maintained (mistakenly, in my view) that the filibuster of judicial nominees was unconstitutional; and (2) those who maintained that the filibuster of judicial nominees was a very bad departure from established Senate practices.

a. Let’s begin with the second category. To maintain that some principle of consistency compels Republicans to continue to oppose the judicial filibuster after Democrats have repeatedly resorted to it is to ignore the changed circumstances and to require, as Senator Sessions has aptly put it, “unilateral disarmament” on the part of Republicans.

To develop the analogy: Assume that Nation A and Nation B are fierce rivals and that neither has nuclear weapons. Nation B makes clear that it wants to acquire nuclear weapons, and Nation A opposes that effort on the ground that Nation B’s acquisition would alter the status quo and lead to a dangerous escalation. Nation B goes ahead and acquires nuclear weapons. How would it conceivably be hypocritical for Nation A to then determine that it needed nuclear weapons?

b. As for the category of Republican senators who maintained that the Democratic filibuster of judicial nominees was unconstitutional: The authoritative body on this constitutional question, the Senate itself, has plainly concluded by its practices that the filibuster is constitutionally permissible. Although it seems to me permissible for a senator to continue to abide by his own contrary view, I don’t see why, alternatively, he can’t view the Senate as having authoritatively settled the question adversely to his view.

Again, consider an analogy: Let’s say that the Supreme Court has adopted a reading of Congress’s Commerce Clause powers that a particular senator believes is overly expansive. Must the senator abide by his own more restrictive view? Or is he free to recognize that the Supreme Court’s reading meaningfully defines the legal landscape and to operate within that landscape? Or let’s say that a president disagrees with a Supreme Court decision that strikes down a federal criminal statute on constitutional grounds. Must the president continue to insist that federal prosecutors enforce that statute? I’d be very surprised if anyone flinging the hypocrite label at Republican senators would seriously maintain that the senator and the president in these hypotheticals are hypocrites if they choose to abide by the Supreme Court’s rulings.

c. Further, as I have recently explained, any Republican senator who wants to work towards a long-term bar against filibustering judicial nominees would sensibly recognize that unilateral disarmament by Republicans would do nothing to deter Democrats from filibustering Republican nominees. As with the independent-counsel statute, the only sensible choice for Republican senators who want to get rid of the filibuster in the long run is to inflict its costs against Democratic nominees.

Bottom line: It’s the Left that can’t justify its opposition to Senate Republicans’ use of the filibuster against Liu—a filibuster, it’s worth noting, that Democrat Ben Nelson joined in.

* Of the 35, 32 voted against cloture, and 3 didn’t vote (the functional equivalent of a vote against).

* 32 nays and one not voting.