Liu Nomination Pushes 9th Circuit Farther Left

By nominating UC Berkeley Law Professor Goodwin Liu to the US Court of Appeals for the Ninth Circuit, Barack Obama is working to push the nation’s most liberal – and most overturned – court even further outside the mainstream of American jurisprudence.

Liu, the son of Taiwanese immigrants, will face certain opposition from many Republicans in part because of his many liberal positions but also because he took an active role in opposing Supreme Court Justices John Roberts and Samuel Alito.

Liu offered an amicus brief to the California Supreme Court in which he and others argued that the state’s ban on same-sex marriage was unconstitutional.  In that 2008 case, the court sided with Liu and other supporters of gay marriage, overturning the state’s prior ban on gay marriage.  However, after Proposition 8 passed in November, 2008, the same court then declined to overturn the will of the voters, though it allowed previously made same-sex marriages to remain in force.  As Ed Whelan of National Review notes, “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.”  (Whelan also excoriates other shoddy legal thinking by Liu on the issue of criminal procedure.)

Goodwin Liu has made a name for himself with his views on the death penalty.  Indeed, his use of the issue in written and verbal testimony against the confirmation of Supreme Court Justice Samuel Alito has caused Kent Scheidegger of the Criminal Justice Legal Foundation to suggest that “To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers’ side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case.”

Liu’s left-leaning positions on specific issues emanate from a view of the constitution which is anything but “originalist” and which, perhaps explaining Obama’s nomination of him, betray an extreme judicial “activist” philosophy hiding behind often-moderate rhetoric. 

In November, 2008, Liu wrote an article entitled “Rethinking Constitutional Welfare Rights”.  He notes an almost oxymoronic pair of objections to his thesis:  First, that it is “inherently conservative” and second that “it carries an intolerable risk that judges…will impose their own values on society.”  It’s like the car that is objected to because it is simultaneously too expensive and too cheap.  But I suppose such intellectual pretzel-twists are routinely found at UC Berkeley.  

Liu’s thesis in this case is “conservative” in the sense that he argues that courts should not be determining that there are constitutionally-guaranteed welfare rights.  But the thesis is far more radical than it sounds…because his real point is to add the word “yet” to that concept.  Liu wants to “reinvigorate public dialogue about our commitments to mutual aid and distributive justice across a broad range of social goods” and then have the courts recognize “a fundamental right to education or housing or medical care…as an interpretation and consolidation of the values we have gradually internalized as a society.”  In other words, the Constitution and its core American principles of limited government and liberty should be legislated away and then finally swept away by courts.  Goodwin Liu’s desire to “construct, contest, and enact…distributive commitments in our public culture” is a view greatly to be feared in a judicial nominee.

In an 2006 article entitled “Education, Equality, and National Citizenship”, Liu suggests that “contrary to the conventional wisdom that ‘the Constitution is a charter of negative rather than positive liberties,’ the social citizenship tradition assigns equal constitutional status to negative rights against government oppression and positive rights to government assistance on the ground that both are essential to liberty.” 

Note to Mr. Liu: If he wants to enforce a “social citizenship tradition”, he might better try to become a judge in France or Sweden.  Our Founders understood the principles in the Constitution as timeless restraints on government due to the inherent nature of people and power, and they would certainly object to a characterization of the document as providing “rights to government assistance.”

In an interview promoting his upcoming book, Liu makes his contempt for the Constitution’s plain language clear – despite trying hard to do the opposite:  “The way the Constitution has endured is through an ongoing process of interpretation.  And that where that interpretation has succeeded is because of, not in spite of, fidelity to our written Constitution.” 

So far, so good, right? But in usual Liu style, his “conservative” preamble is followed by a radical proposition: “And 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.” In other words, the rules of the game should be allowed to change whenever “society” finds the rules inconvenient. 

If you still find Liu’s position vague, this should clear it up: “…it becomes pretty clear why ‘originalism’ or ‘strict construction’ don’t make a lot of sense… Many of the broad phrases – equal protection of the law, due process of law, unreasonable search and seizure, freedom of speech – all of these phrases are quite broad and indeterminate… The Framers deliberately chose these broad words so they would be adaptable over time. ” 

Sure, Goodwin, “freedom of speech” is so vague and unclear; James Madison must have intended for you to change its definition as soon as you have the opportunity.

Ranking Republican member of the Senate Judiciary Committee, Jeff Sessions (R-Ala.), reacted to Obama’s nomination of Goodwin Liu:

I am very disappointed by President Obama’s nomination of Professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit—already an activist court that has handed down decisions striking “under God” from the Pledge of Allegiance and finding Megan’s Law to be unconstitutional. I fear that Professor Liu will be an activist judge in this same mold.

Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence…

I will withhold final judgment until after his hearing. But it seems to me that his judicial philosophy does not respect the American ideal of judges as neutral arbiters of the law. I hope my initial impressions are wrong.

Holly Fujie, a graduate of UC Berkeley’s law school, recent president of the California State Bar, and donor to Barack Obama’s presidential campaign, made the remarkable statements that Liu’s “experience…will be an invaluable addition to the Ninth Circuit.”  Given that Liu is only 39 years old and has never been a judge, it could be that his most relevant experience for getting an appointment to one of the nation’s most important courts was his participation in Barack Obama’s “transition team.”

Of course, Liu’s cavalier flaunting of the Constitution’s plain meaning is a big plus for Obama as well. More amusing was Fujie statement that she is “excited that this nomination will add diversity to the federal courts of appeal.”  In the sense that it will add someone with even less respect for the Constitution than the already weak average in our courts, perhaps she’s right.