Sunday, April 25, 2010
JUDGING MR. LIU
GOODWIN LIU is a young and brilliant law professor at the University of California at Berkeley, a darling of the left often mentioned as a future Supreme Court nominee. So it came as no surprise when Republicans on the Senate Judiciary Committee went on the attack during Mr. Liu’s April 16 confirmation hearing for a seat on the U.S. Court of Appeals for the 9th Circuit. They had plenty of ammunition, much of it provided by Mr. Liu himself.
For starters, Mr. Liu opposed the confirmation of Bush Supreme Court nominees John G. Roberts Jr. and Samuel A. Alito Jr., arguing that their approach to judging was suspect because it tended to hand wins to the wealthy and powerful, including the government. Republicans took note — and turned the tables, hammering Mr. Liu about his judicial philosophy and his work on “constitutional welfare rights” and the impact of foreign legal ideas in American jurisprudence.
It would be no surprise if Republicans gave Mr. Liu a taste of his own medicine and cast party-line votes against him. But it would be wrong. Mr. Liu, like every other judicial nominee, should be judged on his qualifications and voted down only if he is ethically compromised or if his views fall far outside accepted strands of legal theory.
Mr. Liu is unquestionably qualified; the American Bar Association panel that reviews nominees game him a unanimous “well qualified” rating. Making a judgment about Mr. Liu’s judicial philosophy is tougher. His academic works show him to be aggressively liberal. Writing about the courts’ role in social welfare cases, he argues that courts may “legitimately foster evolution of welfare rights.” He urges courts to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection. This is not entirely new; the Supreme Court in the early 1970s used this approach to invalidate congressional cuts to the food stamps program.
It is impossible to know whether Mr. Liu would abide by his pledge to be “an impartial, objective and neutral arbiter of specific cases and controversies.” Others with controversial views or academic records have put aside their political impulses and performed honorably on the bench. Mr. Liu should be given that opportunity.