The president’s nominee had "a brilliant legal mind" and a charming manner, the critic wrote in an op-ed. But his record was "resolutely conservative." This made the Supreme Court nomination "a seismic event that threatens to deepen the nation’s red-blue divide." It should be rejected, the critic implied.
The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.
Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.
Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.
So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?
More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.
•Racial preferences without end. In 2003, in a panel discussion held by the progressive American Constitution Society for Law and Policy, Liu — who later chaired the group’s board — called for reviving a constitutional justification for racial preferences for African-Americans in government employment, education, and contracting that would likely expand and extend such programs for many, many decades into the future.
The idea is what Liu described as "remedying societal discrimination as a justification for affirmative action." This rationale, rejected by the Supreme Court since 1989, is broader in important ways than the "educational diversity" rationale for preferences in university admissions that a 5-4 Court majority adopted in 2003.
Liu thereby embraced an idea that, Justice Lewis Powell warned in a 1986 opinion, could make "discriminatory legal remedies that work against innocent people… ageless in their reach into the past, and timeless in their ability to affect the future."
Indeed, Liu spoke of "societal discrimination" as synonymous with "historical discrimination," which, he could have noted, was committed mostly by people who died long ago. And he asserted — more than three decades after affirmative-action programs were initiated as temporary remedies for ongoing discrimination — that the need for such preferences "has only just begun" and that "the cumulative effects of societal discrimination will take a long time to remedy."
A very, very long time, if Liu and his allies continue to pretend that the huge gaps in educational performance that are the main cause of racial inequality today can be closed by discriminating against Asians and whites; by conscripting school children to integrate distant schools; and without far greater efforts by black parents to get their children to study.
Goodwin Liu’s sweeping vision of court-ordered social justice probably puts him markedly to the ideological left of at least half of Senate Democrats and 80 percent of voters.
•Reparations for slavery. Liu suggested in a 2008 panel discussion about responsibility for the slave trade that Americans generally, "whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to… give up [something] to make things right… 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." The graduate of Stanford University and Yale Law School did not discuss the extent to which courts should order people to comply with this "moral duty."
•Racial balancing in schools. Liu co-authored a 2005 law review article lamenting the 1974 Supreme Court decision, Milliken v. Bradley, that ended court-ordered busing of children between mostly black cities and mostly white suburbs to desegregate schools. In the article, he also supported vouchers and charter schools, but only if they promote racial balance by reflecting "the racial and socioeconomic diversity of the metropolitan area — not the local school district — where they are located."
•Welfare rights. In "Rethinking Constitutional Welfare Rights," a 2008 Stanford Law Review article, Liu argued that courts should play an "interstitial" role in requiring governments at all levels to provide "education, shelter, subsistence, health care, and the like, or… the money these things cost" to needy people.
Although creating welfare programs should be mainly a legislative function, he wrote, courts should "leverage the legislature’s own publicly stated commitment to welfare provision" by reviewing and sometimes invalidating "apparent qualifications on that commitment." When judges think that "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 wrote, they should push laggard legislatures to spend more generously or equitably. He suggested that courts should strike down, for example, Congress’s method of allocating federal funds for the education of poor children among states and California’s "antiquated and inequitable system of school finance."
•Gay marriage. Liu joined 16 other law professors in a 2007 amicus brief urging the California Supreme Court to rule that the state’s failure to give the same respect (as well as the same benefits) to same-sex marriage as to man-woman marriage violated the state constitution’s guarantee of equal protection of the laws. The brief implied — without explicitly stating — that the traditional definition of marriage also violates the U.S. Constitution. If Liu is confirmed to the U.S. Court of Appeals for the 9th Circuit, that issue could soon come before him in the major gay-marriage case now pending in federal District Court in San Francisco.
•Judicial power to reshape society while overruling major Supreme Court precedents. "Some [say] 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," Liu said in another American Constitution Society panel, in 2004. "I want to disagree with this view…. If we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Milliken, Rodriguez, [and] Adarand be swept into the dustbin of history."
Rodriguez is the 1973 Supreme Court precedent that required judges to defer to local and state control of public school funding and programs; Adarand, in 1995, subjected racially preferential federal programs to judicial "strict scrutiny." To be sure, overruling Adarand would reduce judicial power to strike down racial-preference programs, which are highly unpopular. But Liu’s overall approach would vastly expand judicial power at the expense of democratic governance.
These and other Liu assertions would — unless he somehow dispels their clear meaning in his confirmation testimony — provide senators who strongly disagree ample justification for voting against him. As Liu himself correctly suggested in opposing the nominations of Roberts and Samuel Alito, senators have no duty to defer to the president’s choice of a judicial nominee whom they consider ideologically unacceptable.
It would be a shame, however, if Senate Republicans were to deploy procedural gimmicks against Liu. It would be a bigger shame if they were to emulate the Democratic leadership’s virtually unprecedented strategy of filibustering admirable, outstandingly well-qualified conservative Bush nominees such as Miguel Estrada and Peter Keisler. A filibuster seems likely unless Republican leaders, who have so far been silent on the subject, see it as a political loser.
One reason to give Liu an up-or-down vote is that like all lower-court nominees, he will pledge to obey Supreme Court precedents and he would, at worst, have only so much room to write his personal views into the Constitution without being outvoted by Appeals Court colleagues or reversed by the justices.
A second reason is that the stalling, filibusters, and sometimes-vicious character assassination that have polluted the confirmation process are leaving judicial vacancies unfilled for too long and are degrading the quality of the judiciary by scaring off some of the best potential nominees.
Third, many Republican senators forcefully denounced as unconstitutional the Democratic filibusters of Bush’s nominees. Could they unblushingly turn around and filibuster Obama’s nominees?
Yes, they could. Republican senators cannot be expected to disarm unilaterally. Not unless Democratic leaders first make a meaningful pledge not to filibuster future Republican presidents’ nominees absent truly extraordinary circumstances.
Seven moderate Senate Democrats made just such a pledge as part of their May 2005 "Gang of 14" agreement with seven Republicans. Might Senate leaders leverage the coming battle over Liu into a broader agreement to give all judicial nominees a fair shake? Hope springs eternal.
This article appeared in the Saturday, April 3, 2010 edition of National Journal.