Another Judiciary hearing for Cal’s Goodwin Liu

Goodwin LiuGoodwin Liu, associate dean and professor at the University of California, Berkeley’s Boalt Hall Law School, was back before the U.S. Senate Judiciary Committee yesterday for yet another hearing on his nomination to a seat on the 9th U.S. Circuit Court of Appeals.

Judiciary Committee Chairman Patrick Leahy, D-Vt., said judicial nominees shouldn’t be litmus-tested to ensure their writings match the leanings of senators from either party.

“Professor Liu’s understanding of constitutional law, from well before his nomination a target of the far right, falls well within the mainstream of American legal thought,” Leahy said. “Nothing I have read or heard from Professor Liu gives me any reason to doubt his conviction about the critical importance of the rule of law as the guiding principle of judicial decision-making. As a professor he has done what great professors do—challenge our view of the law. But he has left no doubt that as a judge he would do what great judges do in applying the law fairly to each case.”

U.S. Sen. Jeff Sessions, R-Ala., again noted Liu’s lack of experience in practicing law, and then went back to a vein he mined in a Washington Post op-ed piece last May in which he claimed Liu believes “that judges should treat the Constitution as an infinitely flexible document to be interpreted through nebulous ‘social understandings’ and the consideration of foreign law. This activist philosophy led Liu to conclude that the Constitution provides a right to government health care and welfare — a remarkable view of a document designed to curb the excess of federal power.”

Sessions pursued this theme by reading from a 2006 article Liu wrote for the Yale Law Journal; Sessions contended Liu had argued that the 14th Amendment’s guarantee of national citizenship gave judges the latitude to start evaluating political and social policies such as equitable public education.

Liu acknowledged his experience mostly is academic, but said a background of scholarly, rigorous inquiry can be an asset to the bench. And Liu said the 2006 article said “absolutely nothing about what a judge should do,” but rather was addressed to lawmakers; in fact, in this article’s introduction, Liu wrote that he was proposing “a federal education policy rooted in legislative enforcement of the 14th Amendment guarantee of national citizenship.”

President Barack Obama nominated Liu in February 2010, and although there was GOP opposition right out of the gate, the Senate Judiciary Committee held a confirmation hearing in April and voted 12-7 along party lines in May to send Liu to the full Senate for confirmation. But amid threats of a filibuster, the Senate sent the nomination back to the President in August, refusing to debate and vote before adjourning for its month-long recess. The president resubmitted his nomination in September, and the Judiciary Committee once again voted 12-7 that month to send the nomination to a floor vote.

Senate leaders cut a deal not to seek Liu’s confirmation in the final hours of the last Congress, and the President re-nominated him Jan. 5.

The GOP has never cared for Liu’s liberal credentials – he chairs the progressive American Constitution Society’s board of directors; he’s a former member of the boards of the American Civil Liberties Union of Northern California and Chinese for Affirmative Action; and he served on the Obama-Biden Presidential Transition’s education policy and agency review teams – or for his belief that judges should interpret the Constitution not according to “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.”

Richard Painter, who was President George W. Bush’s chief ethics lawyer and now is a University of Minnesota law professor supporting Liu’s confirmation, last month said Senate Republicans cast Liu as an arch-liberal activist mainly as a political “tit-for-tat” because he’d spoken out against the confirmations of Supreme Court Chief Justice John Roberts and Supreme Court Associate Justice Samuel Alito.

Painter this week renewed his defense of Liu’s bona fides with a lengthy Huffington Post article in which he concludes Liu is “eminently qualified” and should be confirmed. “He has support from prominent conservatives. He would fill a judicial emergency vacancy, and he would add important diversity to the bench. He is pragmatic and open-minded, not dogmatic or ideological, as his support for school vouchers shows.”

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.

  • Elwood

    “Senate Republicans cast Liu as an arch-liberal activist mainly as a political “tit-for-tat” because he’d spoken out against the confirmations of Supreme Court Chief Justice John Roberts and Supreme Court Associate Justice Samuel Alito.”

    What goes around comes around. Payback’s a bitch, ain’t it?

  • DanvilleDemocrat

    Elections have consequences, though, Elwood. And one of them is that President Barack Obama should at least be free to fill judicial vacancies at the same rate President George W. Bush had. Republican Senators aren’t even willing to allow up-or-down votes on currently serving federal trial court judges nominated for appellate judgeships and previously confirmed unanimously!

  • John W

    Think confirmation is a problem now? With 24 of 33 Senate seats up in 2012 being held by Dems, the GOP is a slam-dunk to gain commanding control of the Senate — very possibly filibuster-proof. If Obama should get re-elected, he won’t be able to get anything confirmed. If the GOP wins the White House too, they’ll be able to get any bozo confirmed.

  • Elwood

    Let’s hear it for any bozo!

    You’re going to learn to love him/her!

  • RR, Uninvited Columnist

    I’m glad the learned professor has been quoted again on “interpreting” the Constitution. It is intellectually impossible to speak in terms of 1868, let aside 1789. You don’t have to be a disciple of deconstructionism to know even judicial temperaments are shaped by contemporary ideas, norms,values, language, etc. As for the intentions of legislators, brother Liu ignores that factor at his peril.

  • John W

    You betcha!