Bench Memos

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Richard Painter’s Deceptive Portrayal of Goodwin Liu—Part 1


On Huffington Post, law professor (and former Bush White House ethics adviser) Richard Painter offers an extensive, but badly flawed, defense of Goodwin Liu that falsely accuses me of “invent[ing] a series of myths about Liu with no basis in reality.” The opening part of Painter’s essay consists of regurgitating ill-informed or utterly conclusory endorsements of Liu from various folks, including some conservatives who ought to know better. See, for example, my critique of the letter that Ken Starr submitted (jointly with Akhil Amar).

Given that Liu’s hearing starts soon, I’m going to race through Painter’s supposed myths in this post and the next (in the same order as he lists them):

1. According to Painter, I have propagated the “myth” that “Liu believes judges ‘may legitimately invent constitutional rights to a broad range of social ‘welfare’ goods, including education, shelter, subsistence, and health care.’” My actual quote states that Liu argues in a law-review article that “judges (usually in an ‘interstitial’ role) may legitimately invent constitutional rights to a broad range of social ‘welfare’ goods, including education, shelter, subsistence, and health care.” It’s telling that Painter has to excise the italicized parenthetical in order to falsely accuse me of misstating Liu’s views. Nor does he address (much less take issue with) my detailed posts on the matter.

2. According to Painter, it is a “myth” that Liu “believes in a ‘freewheeling constitutional approach’ that allows people ‘to redefine the Constitution to mean whatever they want it to mean.’” Painter cherry-picks the most innocent-sounding of Liu’s statements and ignores the controversial ones. (See, for example, the material in this post of mine.)

3. According to Painter, it is a “myth” that Liu “is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.” That is no myth, as I have documented. Painter doesn’t even address my arguments.

4. According to Painter, it is a myth that Liu “supports racial quotas forever.” Painter doesn’t address my argument, and he hides behind a ridiculously narrow definition of quotas.

5. According to Painter, it is a “myth” that Liu supports “reparations for slavery” and a “grandiose reparations project.” Painter pretends to provide a full account of Liu’s discussion of “solutions for racial equality” but somehow completely omits the remarks of Liu’s that I’ve highlighted, including:

Then there’s a further issue, which is that maybe there are white families who were not involved as directly or even indirectly with the slave trade, but who still benefited from it. And then there is the whole question, which you put on the table, about people who came to America after, and, you know, like my family. And why is it that this movie speaks to me so deeply yet?

And so, what I would do, I think I would draw a distinction between a concept of guilt, which locates accountability in a sort of limited set of wrong-doers, and, on the other hand, a concept of responsibility, which is, I think, a more broad suggestion that all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to … make things right. And that’s a moral duty that’s incumbent upon everybody who inherits this nation, regardless of whatever the history is.

And I think, to add one more point on top of that, the exercise of that responsibility … necessarily requires the answer to the question, “What are we willing to give up to make things right?” Because it’s gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton. Or is it gonna require us to give up our segregated neighborhoods, our segregated schools? Is it gonna require us to give up our money?

It’s gonna require giving up something, and so until we can have that further conversation of what it is we’re willing to give up, I agree that the reconciliation can’t fully occur.


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