Tuesday, March 23, 2010

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.


AndrewPrice said...

Lawhawk, I just saw an article on this -- the first one I'd seen other than your post (which I know you wrote the other day). You must be psychic!!

Any hoo, good work scooping everybody! And good article too.

I absolutely despise the "living document" crap. That is the workings of a poor mind with an inability to comprehend what they read or reason.

Unknown said...

Andrew: We've been pretty good at staying ahead of the curve. I suppose it's inevitable that we'll bump into articles on the same subject occasionally. At least we are generally scrupulous about attributing anything that we didn't come up with originally. But as you said, I had done the research last week, and wrote the article several days ago. Besides, where else will the readers get such brilliant analysis? LOL

Liu has been hanging over our heads for a couple of months now. I didn't give it much consideration until it looked like Obama was going to get his way. We need to look carefully and diligently at every appointee he comes up with from here on, and put up a genuine fight when necessary.

AndrewPrice said...

Agreed Lawhawk. I honestly haven't paid much attention to Lui, but your article gives me a lot of reasons for pause. Of course, I have to wonder, can they mess up the Ninth Circuit anymore than it already is?

Unknown said...

Andrew: LOL. Actually they couldn't screw it up much more, and Rheinhardt must be ready for retirement soon. It's that next step I worry about. Rush this nomination through, let him sit on the court for awhile, then nominate him for the Supreme Court the first time a conservative/originalist retires or dies. It's too soon to nominate him now, and since the next retiree is already pretty liberal, it's that third appointment of a young man like Liu that we could be stuck with for decades, tilting the balance of the Court to the left for years to come.

Tennessee Jed said...

Living Constitution sounds like code for: "the end justifies the means" to my ear.

Joel Farnham said...

Terrific, another stealth judge who on the surface is ideal, but actually will modify the Constitution to suit his preferences.

Unknown said...

Tennessee: It sounds pretty much the same to me. Use the law to hammer your opponents, and when the Constitution gets in the way, make up your own version.

Unknown said...

Joel: Guys like this are far more dangerous than the Sotomayors. She couldn't convince an eskimo to wear warm clothes. He can convince people who should know better that his version of the law is actually what the Constitution means. He's as smooth as a snake-oil salesman.

The only thing that might help us out is that he also has a touch of arrogance, and occasionally admits his social agenda comes ahead of his beliefs about the Constitution. The Republicans need to do their homework, and beat him over the head with his own words at the hearings.

HamiltonsGhost said...

Lawhawk--It sounds like this guy is exactly the kind of doctrinaire leftist that you said before is an exception to the rule of presidents getting their nominees confirmed.

Unknown said...

HamiltonsGhost: I would certainly put him in that category. His legal arguments are brilliant, but as soon as he has to match them up in the constitutional sphere, he begins to philosophize rather than discuss law and precedent.

My big hope is that the Republicans on the judiciary committee will do more than take a couple of jabs and make abstract philosophical statements and really get down to the business of exposing this brilliant leftist charlatan.

StanH said...

Ignorance is bliss! Thanks Lawhawk I didn’t think I could feel any worse…LOL!

Duh-One certainly doesn’t disappoint. This as we know is a place where a president can really leave his mark, and not in a good way. Another glaring example as to why we need to flip congress in 11/10 and just like the democrats, play ruff and filibuster judges.

On another point Lawhawk, and not to diminish your brilliant overview, but did anyone see Newt Gingrich on Hannity? Very inspiring, and left open the possibility of 2012. I know he’s done a couple irritating things like sit down with Pelosi, in regards to the global warming hoax, and spoke nicely of Barry before the election in 08, etc. However if he’s found his conservative roots, and if he’s the man from the Reagan era to ’94-’98 a brilliant conservative politician/ historian/ tactician, and would paddle Barry about the face and shoulders. There would not be the question of gravitas, about the same age as Reagan in ’80. For what it worth, he was my congressman in the ‘80s and early ‘90s and I was always proud of that fact.

StanH said...

Ruff-ruff! LOL! …Rough not ruff.

Individualist said...

"his deference to government intrusion on individual rights puts him at the margin of the judicial spectrum, not the mainstream."

Okay Lin gets the award for Most Interesting Fascist of the Year. A little known award it comes with a certificate of statism which I am sure Lin will think is a nice touch.

I thouhgt the whole point of the US Constitution was INDIVIDUAL Rights. All I have to say is WTF!

Individualist said...


Unknown said...

StanH: I have great admiration for New Gingrich, and I did see the Hannity interview. He is a fine thinker, and a policy wonk. The Republican Party owes him a great debt for what happened in 1994. That said, I think he just has too much baggage to be able to herd the cats that the Republican field will become over the next six months to three years. I still worry about his need to be liked by the other party, and his inability to stay up with the leading edge of the Republican Party. He got too many races wrong, both in the last cycle, and during the special elections. He can be both very stubborn and in power he has a tendency to pull the "my way or the highway" attitude.

I think there is a place, a major position even, for Newt. But I just don't see him as a candidate. Then again, I could be wrong.

Unknown said...

Individualist: As I said, this man is a brilliant debater, and you sometimes walk away from his arguments agreeing with him, until you have time to think about it. Here is a statist, rabid egalitarian, big government power-loving, socialist-leaning, Constitution-mangler. Yet he actually had the nerve to accuse Justice Roberts of diminishing individual rights and supporting government excess.

Liu and his ilk love criminals and admire terrorists. In each case he has used to "point the finger" at Justice Roberts, it has been law enforcement asking Congress to help them do their jobs more efficiently without damaging a single Constitutional right.

Liu is one of the lefties who constantly, and purposely, use the terms "civil rights" and "civil liberties" interchangeably. By calling Roberts's support of Congressional and state action in times of crisis "interference with individual rights" is simply breathtakingly misleading.

Though Liu opposes the use of intelligence capabilities to thwart Muslim terrorist groups and "racial profiling" by police in high-crime areas as government intrusion, he would be perfectly happy to support the government fining and/or jailing individuals who refuse to purchase health insurance. Liu advocates massive government intrusion on individual rights guaranteed by the Constitution, and his criticism of Roberts is quite simply dishonest.

StanH said...

I remember him as a young congressman, congressional minority whip, minority leader, then Speaker of the House. His special order speeches going after Jim Wright were enjoyable TV, and pioneering. If he can reconnect with his youthful firebrand, he could be a real possibility?

However, his chumminess with the other side is bothersome, we’ll see.

Unknown said...

StanH; I think Newt is a valuable contributor and an excellent strategist. But as a presidential candidate, I see him as a slightly more principled, slightly more intelligent McCain. We need a candidate that can't get side-tracked trying to explain why he was so kind to Obama and saw merit in things Obama did prior to and during the election cycle.

Things said can't be un-said, and a presidential debate that is about Newt's transgressions diverts public attention from Obama's far greater transgressions. No matter how sincere his conversion may be on Obama, his former coziness will be raised and used against Gingrich. We need a candidate who has never had a good word to say about Obama, and who knows a socialist when he sees one.

Writer X said...

I do hope you're right about the Republicans growing a backbone on this appointment. Bring on the donnybrook. What's the next step with this guy?

Thanks, LawHawk. Other news sources are only starting to report on Liu and they haven't said much!

Skinners 2 Cents said...

Law Hawk your awesome and your intellect shadows my own....more than a couple times. Laugh as you will the rest of you can laugh as well I get it :) I'm honest about it and I'm trying to kill the echo chamber, however, I might be what gets you guys and gals the fringe label and for that I apologize. I'm here to learn because there are some crazy smart people here.

Law Hawk your Journal Of An Exile which is great comedic tragedy is always entertaining. It's the judiciously bad news though it's always really bad not just kinda bad.

I sit hoping that the judicial process works because truth is important but at times it seems irrelevant. Not just irrelevant but completely unnecessary. Truth is the last thing a liberal said in the world that we live in.

You and Andrew wrote some great pieces about the last Supreme Court appointee turned affiliated member.

If what I read was correct there are some serious arguments to be made against her sitting there. Why do those serious arguments never make it into the now? If this was a loan for a commoner and you didn't put the right x in the right box you get rejected. I don't understand the difference for something that is so much more important than just a loan.

Does our judicial system actually work anymore? I know it's the best system on the planet and I'm grateful for that. My concern is that it's getting worse and the bar isn't set very high in comparison.

Please help this commoner understand why constitutional law has little to do with the constitution? The constitution was written for the lay men and women to understand. I'm pretty sure I understand it but when legal beagles get near it, it's suddenly gets intelligently confusing.

Or merely mock me I'm ok with that too as long as it's funny well as long as it's damn funny. Dumb people annoy me as well it just works on a sliding scale. The next time you need Victorian work done on your home this schlep might just be the guy creating it and cutting it and shipping it. We all play our roles I'm ok with that. Truly the burden of this falls on the "smart" people their leading the way right. Perhaps it's time to tell the really smart people that common sense and intuition trumps college cred at least where it comes to law.

What is the answer to restoring our judicial process? I expect the Supreme Court to answer these questions yet they seem to take a while to even acknowledge them if they don't manage to avoid them all together.

Sorry I'm off topic on another crazy smart article about another crazy anti American judicial hopeful. It's just a disturbing trend that goes on and on.

Unknown said...

WriterX: I'm sure the MSM would like to keep this appointment under the radar. The hearings are supposed to begin today, but I'm not sure if the Democrats have recovered from their champagne celebration of the signing of the socialized medicine bill. Andrew noticed that they did a puff piece at ABC News online the same day. It was typical. They glowed over the appointment, and found the most obscure criticisms of him that they could, all in the name of balance, you know.

Unknown said...

Skinners2Cents: The problem with these appointments is that most people really don't care how many legal angels can dance on the head of a pin. And the pseudo-intellectuals make their arguments so obscure and esoteric that nobody notices they lost the pin for the legal angels to dance on.

Believe me, it isn't only non-lawyers who think there's something fishy about this high-fallutin' assault on the Constitution. I joined the Federalist Society a long while back in large part to be reminded that there is still a large and influential body of lawyers, judges and legal scholars who still believe the Constitution is a bedrock document, not just another bothersome law that can be changed with the stroke of a pen to satisfy the will of temporary majorities.

Historically, the Supreme Court framed almost all of its decisions based on the wording of the Constitution and their study of the intentions of the Founders when the words didn't address a specific issue. Sometimes they went off on a tangent, but not often. Then came the Warren Court. Suddenly, the Constitution became a flawed and archaic reference document instead of the foundation of the rule of law over the rule of men. The concept of judicial restraint went out the window and was replaced by the concept of judicial supremacy. Five out of nine lawyers in black dresses were suddenly wiser than the Founders, more important than all the legislators and executives in the other two branches of government, and more capable of seeing unwritten divine messages than the Biblical prophets.

For all its flaws, we still have a great legal system, but the ongoing assault on the Constitution by lawyers like Liu has weakened the underlying concept of the rule of law which is not a respecter of persons. Equality under the law, more than anything else, is the brilliance of the great document. So naturally, that's the concept most often attacked by the legal leftists who need race and class warfare to perpetuate governmental power over the individual.

Often, conservatives have been appointed to the court who mean well, but are not bright enough to counter the arguments of determined "living constitutionalists." Sandra Day O'Connor is a perfect example. She reacted emotionally to the law, and as a result often agreed with the liberals on some silly emotional basis. What kind of intellect says "I don't know whether affirmative action is consitutional or not" in a Supreme Court decision? If a Supreme Court justice doesn't know, then who the hell does? Yet that's exactly what O'Connor said in a majority opinion on affirmative action. Imagine what a Liu could have done to her.

Roberts and Alito were excellent appointments because they are not overwhelmed by leftist arguments and emotional appeals. And it's also why I only half-jokingly suggested John Yoo for this spot instead of Liu.

The ultimate answer, of course, is to elect conservative presidents and conservative senators so that candidates like Liu never get to the first stage.

Unknown said...

Skinners2Cents: Let me give you just one example of why it is important to have conservative originalists on the court who are also highly intelligent. It is not enough to issue a good opinion, it must also have sound legal reasoning or it will quickly go off on unplanned tangents.

Brown v. Board of Education is the perfect example of what happens when you get the Constitution right but the legal reasoning wrong. The Constitution and the Civil War Amendments clearly say that it is unconstitutional to discriminate on the basis of race, creed, color, national origin or prior condition of servitude. Racial segregation in public schools clearly violated that very clear right.

The Supreme Court in its opinion should simply have said, "Racial segregation violates the clear mandates of the Constitution." End of issue.

But no, the social engineers, supported by their not-too-bright colleagues, felt the necessity to add the words "separate is inherently unequal." Well, yes, it probably is. But what does that have to do with the Constitution? Race is a constitutional "protected category." But what followed was years of contentious and destructive litigation based on pretty much everything except race. Can you segregate males and females? Can you put brighter students in special college-preparatory classes, separate from their duller fellow students? Is it acceptable to spend more money on school sports which draw more participation from males than from females? Can you separate problem students and special needs students from the general student population? These questions, and many, many more were created by the extraneous and legally meaningless words "separate is inherently unequal" and have cost billions of dollars in ludicrous lawsuits and academic irrelevancies.

That is why I want not just politically-conservative justices, but also highly-intelligent, intellectual legal scholars on the high court. "Separate is inherently unequal" is a broad philosophical statement, not a legal/constitutional statement of the law in a specific case addressing a specific issue. Such extraneous and unnecessary wording brings on the absolute guarantee that another principle will quickly come into play--the doctrine of unintended consequences.

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