This afternoon, the Senate Judiciary Committee is scheduled to conduct its confirmation hearing for Berkeley law professor Goodwin Liu. Liu, who was nominated by President Obama to the U.S. Court of Appeals for the Ninth Circuit, presents a volatile mix of aggressive left-wing ideology and raw inexperience. It’s the rare nominee who could threaten to make the Ninth Circuit — long the laughingstock of the federal appellate courts — even worse, but that’s exactly the threat that Liu embodies.
Let me first acknowledge what is not at issue: Liu is clearly very bright and talented, and he has compiled an impressive list of achievements, including a Rhodes Scholarship and a clerkship with Justice Ginsburg. As the son of Taiwanese immigrants, he has an inspiring life story. And he possesses a pleasing demeanor.
But as Liu himself stated in his testimony against the confirmation of Justice Alito, “Intellect, however, is a necessary but not sufficient credential.” Nor, of course, do an inspiring life story and a pleasing demeanor go to the core of the judicial role. Rather, what ought to be of central concern, as Liu rightly put it, is “the nominee’s ‘judicial philosophy,’ a somewhat amorphous term that encompasses his perspective on the role of the courts in a constitutional democracy.”
The record of the typical nominee reveals only indirect — though often highly probative — clues about the nominee’s judicial philosophy. But in Liu’s case, we are not limited to the broad set of inferences that can reasonably be drawn from, say, his longtime membership on (and current chairmanship of) the board of directors of the American Constitution Society — which calls itself “one of the nation’s leading progressive legal organizations” — or from his service on the boards of directors of such organizations as the ACLU of Northern California, the National Women’s Law Center, the Public Welfare Foundation, and Chinese for Affirmative Action.
Beyond such indirect evidence, we have the nominee’s own lengthy confession of his views — his self-indictment. Take, for example, the book, pleadingly titled Keeping Faith with the Constitution, in which Liu and his two fellow-lefty co-authors try to slap the deceptive label “constitutional fidelity” on the shoddy “living Constitution” gambit that proponents of liberal judicial activism have used to redefine the Constitution to mean whatever they want it to mean. In malleable terms that would make Bill Clinton a model of marital fidelity, Liu explains, “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.” Liu is able to attack originalism — the genuinely faithful method of constitutional interpretation — only by misrepresentations and distortions.