Bench Memos

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Richard Painter’s Deceptive Portrayal of Goodwin Liu—Part 2


I’ll continue with Painter’s last three supposed “myths” and then offer some broader comments on Painter’s defense of Liu:

6. Painter says it’s a “myth” that Liu supports “direct judicial imposition of interdistrict racial-balancing orders” in public schools. Painter tries to give his readers the impression that Liu accepts Milliken v. Bradley as settled law. But he somehow doesn’t disclose that Liu (in remarks that he failed to disclose to the Senate Judiciary Committee) called for Milliken to “be swept into the dustbin of history.”

7. Painter says it’s a “myth” that Liu supports “using foreign law to redefine the Constitution.” Painter relies entirely on Liu’s self-serving confirmation testimony and clips a passage to omit the fact that Liu wrote in 2006 that it “is difficult for [him] to grasp” how anyone could resist the “use of foreign authority in American constitutional law.”

8. Painter says it’s a “myth” that Liu supports “the invention of a federal constitutional right to same-sex marriage.” I addressed this matter in detail just yesterday and fully stand by my account. (Painter falsely attributes to me the claim that Liu’s amicus brief in the California supreme court was “truly an argument under the U.S. Constitution.”)

I’ll briefly add some closing comments:

If Painter were really interested in a real debate on Liu, he wouldn’t have waited until the day of the hearing to launch his shoddy attack on me. He could have done so at any time over the last eight months. Instead, he’s tried to gain some tactical advantage by depriving me of a fair opportunity to respond. (I’ve had to write these responsive posts within the space of two hours or so of discovering Painter’s essay, and I’m sure that there’s much that I would say better, or more fully, if I had time.)

Painter claims to have “reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed” only after “reading Liu’s writings [and] watching his testimony.” But the fact of the matter is that Painter, evidently suffering a severe case of battered-conservative-academic syndrome, raced onto the Liu bandwagon without having any understanding of what was at issue, and (both now and in a previous op-ed) he has resolutely ignored or distorted the many highly problematic aspects of Liu’s record.


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