Barack Obama’s latest appeals-court nominee, Professor Goodwin Liu, will appear a week from tomorrow [see update] at the Senate Judiciary Committee for his confirmation hearing. Liu, currently teaching at Berkeley, will serve on the oft-overruled 9th Circuit court if he manages to do well in his appearance. And he should, because he has the rather unique status of having testified at the committee before — in 2006, when Liu opposed Samuel Alito’s confirmation:
“Judge Alito has an exceptionally talented legal mind. . . . [H]is opinions have demonstrated sharp analysis, lawyerly craft, and impressive mastery of complex issues. He clearly possesses the intellectual ability required for appointment to the nation’s highest court. .. Intellect . . . is a necessary but not sufficient credential. Equally important are the subtle qualities of judging that give the law its legitimacy, humanity, and semblance of justice. We care about nominees’ ‘judicial philosophy.’”…
“Justice Alito’s lack of skepticism toward government power that infringes on individual rights and liberties. . . . In this area, Judge Alito’s record is at the margin of the judicial spectrum, not the mainstream.”
“[Justice Alito’s] deferential instinct towards government [was] at odds with the Supreme Court’s vital role in protecting privacy, freedom, and due process of law, and [that instinct] deserve[d] special concern in light of questionable tactics used to fight the War on Terror.”
Has anyone who testified against someone’s appointment to the Supreme Court been appointed so quickly to an appellate court whose decisions will get reviewed by that justice? It seems a rather odd set of circumstances, one that emphasizes Liu’s status as an activist rather than someone with the judicial temperament to serve on the appellate bench.
Nor is this the only oddity in Liu’s approach to reasoned, detached application of the law. He has a rather expansive view of “rights,” as well. In his book Education, Equality and National Citizenship (2006), Liu wrote:
“The duty of government cannot be reduced to simply providing the basic necessities of life . . . the main pillars of the agenda would include . . . expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.”
Certainly one can make an argument for those policies as policies, but not as natural rights as understood by the founders. Granted, that passage doesn’t directly address these as rights, but later in his 2009 essay National Citizenship and The Promise of Equal Opportunity,
Liu makes the connection more clearly, emphasis mine:
“[W]e must be careful to ensure that the ideal of national citizenship does not infuse public education with nativism, cultural conformity, or chauvinistic nationalism and we should not use the concept of citizenship to deny education to noncitizen children, not least because the Equal Protection Clause extends to ‘persons,’ not only to citizens. At the same time . . . we should be thoughtful but not bashful in forging political solidarity necessary for redistributive mutual aid.”
Redistribution. Where have I heard that before? Do we need a judge who believes that the Constitution sets that as a right?
In his Keeping Faith with the Constitution (2009), Liu gives a clearer idea of his approach to constitutional philosophy:
“[C]onstitutional meaning is a function of both text and context. In many instances, a court cannot be faithful to the principle embodied in the text unless it takes into account the social context in which the text is interpreted. The relevant context includes not only social conditions and facts about the world, but also public values and social understandings as reflected in statutes, common law, and other parts of the legal landscape. ”
“The words and principles of the Constitution endure as our fundamental law because they have been made relevant to the conditions and challenges of each generation through an ongoing process of interpretation.”
In other words, the Constitution means whatever we say it means, despite its clear and rather ascetic text.
Presidents have the ability to appoint whomever they want to the bench. Elections do have consequences, and that is one of the more substantial ones. However, that doesn’t mean that the Senate has to approve each appointee (although it should mean an up or down vote on the Senate floor), and Liu appears to be a radical addition to the one appellate court that hardly needs another.
Update: Originally, my source believed this hearing to be scheduled for tomorrow, but it’s actually for a week from tomorrow, on March 24th. My apologies for the confusion.