Senate Rejects A Loon, er, A Liu

In an historic vote, the Senate has rejected Barack Obama’s nominee for the Ninth Circuit Court of Appeals bench. Goodwin Liu, leftist law professor at UC Berkeley’s Boalt Hall was denied the seat based on his lack of genuine judicial qualifications and extremist views on the Constitution. Senate majority leader, Harry Reid (D-NV) had pushed for cloture so that the Senate could give Liu “the vote he deserves.” Well—he got it.

The vote was 52-43 against cloture. Goodwin Liu is the most doctrinaire, social-engineering, “living constitution” advocate yet put forward by this or any other administration. I have discussed the nomination twice before on this blog, and for a full background on him, go to: A Perfect Nominee and Nomination Drones On. Today I just want to add to and amplify my prior remarks to demonstrate just how far Barack Obama is willing to go to “fundamentally transform America” and its most vital document, the Constitution.

Liu received a rating of “well qualified” from the left-leaning American Bar Association. In doing so, it ignored its own rules. Under the current ABA standards, Liu should have earned a simple “qualified” at best. In order to get a “well qualified" rating, the nominee must have at least twelve years experience in the practice of law and substantial courtroom experience. Though experience as a judge is not required, the highest rating has rarely been given to any nominee who did not have at least some judicial experience. Liu has only been out of law school for twelve years and a member of the State Bar for less than eleven. He practiced law for less than two years and has almost no courtroom experience. He has zero experience as a judge.

Liu has participated in exactly one trial, and his legal practice was otherwise comprised entirely of writing appellate briefs. Since Liu does have some experience in the area of appeals, and the Ninth Circuit Court of Appeals deals with appellate law rather than trial law, that should have gained him a maximum rating of “qualified.” More subtle than that, however, is the fact that trial experience gives a future judge a much better idea of where trial facts separate from legal analysis. Lower courts and juries are the triers of fact, but there are times when facts and law are inextricably intertwined, and sorting them out becomes the role of the appellate court judge. Liu has no discernible record that would indicate that he can make those distinctions.

Another subtle but extremely important part of rating judicial nominees is the vital “judicial temperament” criterion. Liu has demonstrated a complete lack of such temperament. Rather than disagree in a lawyerlike manner with conservative justices Roberts and Alito, he launched personal attacks from a left wing political point of view. He was particularly rabid when he testified against the nomination of Justice Alito saying on the record: “Alito’s vision of America is one where police may shoot and kill an unarmed boy, where federal agents may point guns at ordinary citizens during a raid, where the FBI may install a camera where you sleep, where a black man may be sentenced to death by an all-white jury for killing a white man absent analysis showing discrimination.”

The vast majority of Liu’s positives are purely academic. He is a brilliant if wrong-headed debater on the Constitution. He’s a Rhodes Scholar graduate of Stanford, with an MA from Oxford University and his JD from Yale. It’s hard to argue with those academic credentials. He’s a good politician as evidenced by his position as associate dean of a top-tier law school at a very young age. But just like reading Mechanics Illustrated doesn’t make you a good mechanic, reading law books doesn’t make you a good lawyer, let alone a good judge. Experience in the real world of law is simply an essential ingredient.

But there is also the simple fact that Liu is so far off the mainstream chart of legal views that he needed to be treated as that “extraordinary circumstance” in which a sitting President is denied his choice for a position on the federal bench. Here’s a short and non-exhaustive laundry list of Liu’s radical views:

He is unalterably opposed to the death penalty (for minorities, at least).

He supports the creation of constitutional fundamental rights to gay marriage, welfare, goods, education, shelter, subsistence and (surprise) health care.

He advocates the active use of foreign law in constitutional decisions and has called Americans "parochial" for believing that our Constitution is superior to the laws of other nations.

He believes in perpetual imposition of racial quotas to obtain “just” results.

He believes that all criminal convictions should be subject to appellate review if the defendant was black and the jury was other than black, even if there is no evidence whatsoever of racial bias.

And then there’s an even more practical reason for rejecting Liu. He is very young. That in itself is not the issue. But seats on appellate federal benches are frequent stepping-stones to the Supreme Court. A judge with his radical views could be influencing decisions for thirty or forty years (he’s only thirty-nine). As a Ninth Circuit Appellate Justice he would bring both his personal leftist judicial views and those of the much-reversed Ninth Circuit to the highest (and final) court in the land.

Even if Barack Obama is rejected by the voters in 2012, a Goodwin Liu on the Supreme Court would have carried the Obama flag into the constitutional arena long after many of us have gone on to our eternal reward. After allowing Obama a number of “iffy” judicial nominees, the Senate has at last said “this far, and no farther.” Democrats, including both Senators from California, are threatening that this vote will come back to haunt those who voted against cloture. After the murderous treatment Bush nominees had to put up with, I would call this chickens coming home to roost. How much worse could Democrats treat future Republican nominees than they already have?