More Liu-dicrous Testimony—Part 2

by Ed Whelan

Continuing from Part 1 (and serially numbering my points):

3. Here’s how Goodwin Liu tried to spin his law-review article on “Rethinking Constitutional Welfare Rights” (which I discuss here and here):

The first half of the article is devoted to rejecting the idea that courts have really any role in inventing rights in the social and economic realm…. The back half of the article does recognize a limited judicial role in interpreting rights that are created by statute.

The listener would be forgiven for imagining that Liu’s law-review article merely advocated judicial interpretation of statutory rights. In fact, as my posts (with extensive quotes from Liu’s article) make clear, Liu makes the case for what he calls an interstitial judicial role in recognizing constitutional welfare rights—rights to such matters as education, shelter, subsistence and health care. Liu tries to portray that judicial role as modest, but it is so only when compared against the extravagant theorizing of law professor Frank Michelman (whose work serves as a sort of foil for Liu), not when compared against the proper role of the judiciary in our constitutional republic.

I’ll further note that in the conclusion to his article Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.” First, courts should rule (in a “dialogic and provisional” manner, I gather) that the existing federal program that supplements state spending on low-income children is unconstitutional. Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.” So much for a “very limited” judicial role.

Asked how courts are to determine (as Liu proposes they do) “whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine,” Liu states that this happens “all over the constitutional jurisprudence as elaborated by the Supreme Court,” so his proposal “is in some sense kind of a banal observation about the way the Court elaborates doctrine.” But, as I’ve written in response to his similar claim in his law-review article, the asserted judicial role in most or all of the examples he provides is controversial and disputed and fairly invites the charge that judges are just imposing their own values. So those examples don’t provide a sound basis for conferring vast discretion to the courts in the huge new realm of welfare rights.

4. Liu testified that he “absolutely” does not support racial quotas and that he regards “affirmative action” (aka racial preferences) as a “time-limited remedy for past wrongs.”

As I discussed last year (see last paragraph here), Liu’s position that he does not support racial quotas rests on his very narrow definition of racial quotas as “rigid numerical goal[s]” (and, even then, there’s nothing in his record beyond his testimony to show that he even rejects rigid numerical goals). Liu’s quota mentality is evidenced by his use of the term “desegregation” to refer not just to undoing the effects of state-imposed segregation but also to achieving a racial composition of each school that reflects the “racial composition of the broader metropolitan area.” Liu’s support for “the idea of remedying societal discrimination as a justification for affirmative action” shows how sweeping his support for racial quotas (rough, if not “rigid”) would be.

Far from seeing racial preferences as “time-limited,” Liu has bluntly stated that “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’”