It is difficult to imagine the Ninth Circuit as any more radically liberal than it already is. Despite a few stellar judges, the Court is full of liberal activists who have earned it the reputation of having the highest Supreme Court reversal rate of any court in the nation. But, with his latest judicial nominee, President Obama just may do what seemed impossible.
There are many red flags in the judicial record of Ninth Circuit nominee Goodwin Liu, who is Associate Dean at the University of California Berkeley Law School.
Judicial Philosophy: Though Liu has stressed "constitutional fidelity" in several articles, he has also stated that he "envisions the judiciary...as a culturally situated interpreter of social meaning." While this statement makes it ever so clear that Liu is an academic, it also makes clear that he does not understand the judiciary's role. Judges are not interpreters of "social meaning." They are interpreters of the Constitution and laws. Regrettably, it is just this sort of loose theory that allows judges to ignore the plain and ordinary meaning of the Constitution and statutes, and to instead replace it with what they personally think is best based upon their subjective interpretation of "social meaning."
Constitutional Welfare Rights: Liu has a strong penchant for redistribution, and it is clear that he believes judges should play a role in it. In an article titled, "Rethinking Constitutional Welfare Rights," he lays out his vision for the creation of a constitutional right to welfare. He desires a "reinvigorated public dialogue" about "our commitments to mutual aid and distributive justice across a broad range of social goods." Once this dialogue takes place among policymakers, Liu wants the courts to recognize "a fundamental right to education or housing or medical care...as an interpretation and consolidation of the values we have gradually internalized as a society."
In another article, he stated that "negative rights against government oppression" and "positive rights to government assistance" have "equal constitutional status" because "both are essential to liberty."
Unfortunately for Liu, our Constitution's Framers disagree. They recognized that these two concepts are indeed mutually exclusive: if we allow the government to "assist us" by giving it a redistributive power over our personal property and the power to control health care, education, etc., individual liberty will necessarily erode. Indeed the Framers sought to prevent such redistribution by limiting government's power and providing what Liu considers as "negative" property rights. These protections have already been eroded by activist judges, and it is clear that Liu would like to erode those protections still further.
Radical on Death Penalty: Liu has been outspoken in his opposition to the death penalty. Kent Scheidegger of the Criminal Justice Legal Foundation has stated that, "To anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point. If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case."
Reasonable people can disagree on death penalty policy, but it is not up to judges to determine that policy or undermine it through judicial obstruction. The American people decide through the democratic process whether their respective states will utilize the death penalty. The judge's role in capital habeas corpus cases in the federal court of appeals system is predominantly to assure that grave errors were not made in the process--the questions of guilt or innocence and sentencing are reserved first and foremost for juries and are decided by multiple state and federal appeals before a federal appeals court judge takes a first look at the case. But too many activist federal court of appeals judges treat death penalty cases like they are hearing them de novo--like it is their job to put themselves in the place of the jury, so that they can impose their own preferences, rather than simply review for actual legal errors. Given Mr. Scheidegger's warning, there is little doubt that Liu would be just this sort of judge.
Racial Preferences and School Choice: Ed Whelan has pointed out that, in an article titled "School Choice to Achieve Desegregation," Liu never embraces or even states his agreement with the Supreme Court's 2002 ruling in Zelman v. Simmons-Harris that school-choice programs that include religious schools are constitutional. However, Liu is willing to embrace school choice if it is directed to the illegal end of ensuring racial quotas in schools. For example, Liu advocates "a funding set-aside in federal and state charter programs to create and reward charter schools that reflect the racial and socioeconomic diversity of the metropolitan area...where they are located." These set aside programs should "use the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity."
Liu's other writings also make clear that he would impose racial preferences directly if he could.
Lacking Experience: Ed Whelan and The Washington Times have noted that Liu does not even meet the standard for federal judgeships outlined by the American Bar Association, which includes substantial courtroom and trial experience and at least 12 years practicing law. Thirty-nine year old Liu has no experience as a trial lawyer and has not even been out of law school for twelve years. (The fact that the ABA nonetheless rated him "well-qualified" suggests that their ratings are perhaps based on something other than qualification.)
Many pundits are speculating that the Ninth Circuit may be Liu's stepping stone to the Supreme Court. If this is the case, he could potentially be one of the most activist justices the High Court has seen yet. Even the Washington Post admits that Obama's other federal nominees have been "more moderate" than Liu.
Liu's confirmation hearing before the Senate is tomorrow.
Cross-posted on the Foundry.