A Perfect Nominee For The Ninth Circuit Court

It should come as no surprise to anyone that a president who thinks the Constitution is an impediment to good social policy would appoint a like-minded lawyer to a position on the federal bench. And what better place to put him than the leftist doctrinaire Ninth Circuit Court of Appeals? Meet Goodwin Liu, professor of law at U.C. Berkeley's Boalt Hall.

This nominee is more dangerous than previous Obama nominees in that he is an exceptional scholar and well-regarded among his legal peers of all political and legal stripes as an instructor and as a legal theorist. A good start for reviewing his worthiness as a legal beagle would be to compare him to Obama appointee Sonia Sotomayor. Sotomayor was a purely political appointment. Her legal credentials left a great deal to be desired. She is lacking in good verbal, academic, and analytical skills. She also had a rather dismal record on the bench, including an opinion in the New Jersey firefighters case that her soon-to-be fellow justices on the Supreme Court found so riddled with holes that she was criticized even by Ruth Bader Ginsburg.

Liu suffers from none of Sotomayor's defects. He has never served on the bench, so he has no judicial paper-trail which could establish his record of affirmations or reversals at appellate level courts. He only briefly practiced law before becoming an instructor. His academic record is rather stellar, having graduated from Stanford as a Rhodes Scholar and then obtaining his law degree from Yale. He clerked for Justice Ginsburg at the Supreme Court, and later worked in the Clinton administration in educational reform. At the University of California law school he has earned a distinguished teaching award and was made an associate dean at a very early age.

Appointments to the District Courts of Appeals are among the major qualifiers for a position on the United States Supreme Court, and there's no reason to believe that Obama does not have such a thought in mind for Liu. Obama has already indicated his willingness to appoint controversial people to high positions, and emboldened by his recent success in the health care debate, he will no doubt put considerable political resources behind this nomination.

And why is Liu controversial? He is a strong advocate of the "living Constitution" that conservatives so abhor. He has written intelligent (if not particularly compelling) arguments in favor of same-sex marriage as a constitutional right imposable on the states under several provisions of the Constitution. He has consistently argued that affirmative action is a valid exercise of governmental power. He opposed the nomination of Chief Justice Roberts on the ground that "he has a right-wing vision antagonistic to important rights and protections we currently enjoy." He appeared before the Senate Judiciary Committee to oppose the nomination of Justice Alito, saying that even though he believed that Alito had an exceptionally talented legal mind, still "his deference to government intrusion on individual rights puts him at the margin of the judicial spectrum, not the mainstream."

Without a judicial record to follow, Liu is free to declare that his personal views would not interfere with his ability to follow prevailing law and precedent. That's a handy position to have at a Senate inquiry. Although lack of judicial experience is not a disqualifier, it forms a good basis for more in-depth investigation into his political and legal viewpoints at the confirmation hearings. To start with, if we have only his word for it, what are we to make of his legal opinion that "the originalist views of Justices Antonin Scalia and Clarence Thomas, centered on the original meaning of the Constitution when it was written and amended, are 'seriously flawed.'" And where does he stand on the alternative theory of "original wording," a clearer and less theoretical view of the Constitution?

Those on the left who think the Constitution is an archaic document which must be re-written by the high judiciary to keep up with "the evolving norms and traditions of our society" are thrilled by this Obama nominee. That quote was from a book co-authored by Liu, in which the authors oddly called their position "Constitutional fidelity."

Those on the right, and a substantial portion of the American people are not so thrilled. The health care debate showed how willing this administration is to shred constitutional, legal, political and procedural norms to get what it wants. Those on the Judiciary Committee who might normally have allowed this nomination to slide through with little opposition are quickly re-evaluating that position. In a close call on the legality of acts of Congress, they have come to realize that no judicial nominee is unimportant.

Says ranking Judiciary Committee Republican member Jeff Sessions of Alabama: "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." Just a few weeks ago, Obama might not have had the heart to push such a radical nominee. But that probably changed last Sunday with his success against the odds on health care. Still, at the same time, the opposition has stiffened. Where the Republican members of the Judiciary Committee might previously have merely put up token opposition during the vetting process, this is likely to turn into a real donnybrook.

Sessions and Liu can't both be right about where the legal mainstream is, and I come down on the side of Sessions. Although I have previously discussed the practical political purposes of allowing the president to have his nominees confirmed, I have also talked about those times when the views of the nominee are so extreme as to call into question his ability to perform his duties as required by his oath of office. Liu's opinion of affirmative action alone indicates that he would be unable to abide by the judicial oath requiring impartiality on matters of race and social and economic differences. Without a judicial paper-trail to follow, we should err on the side of believing that the nominee believes exactly what he says he believes, and dismiss the naive belief that he would remain an impartial referee.

One final thought. The "post-racial" president who loves racial quotas indicated that one of Liu's qualifications is that he is Asian-American and there is not a single Asian-American sitting on any of the high appellate federal benches. I agree with his reasoning, and I therefore nominate that great U.C. Berkeley Boalt Hall professor of law and fine Asian-American constitutional scholar--John Yoo (Yoo Hoo?). Somehow, I don't think that's exactly what Obama has in mind.