Bench Memos

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Why Goodwin Liu’s Nomination Should Be Defeated


Here’s a quick stab at some key points, distilled from the selected repository of my extensive documentation of the case against the controversial nomination of Berkeley law professor Goodwin Liu to the Ninth Circuit:

1. This confirmation battle should be framed by the fact that Liu raced to launch a shoddy attack against the nomination of John Roberts to the Supreme Court and, testifying at Samuel Alito’s confirmation hearing, demagogically smeared Alito. As Miguel Estrada has said of Liu, “The one thing that ought to be reasonably clear … is that someone who personally contributed to the sorry state of the confirmation process, by jumping in the mud pit with both feet and flinging the mud with both hands, is not well positioned to demand that standards be elevated solely for his benefit.”

2. Liu presents a volatile mix of aggressive left-wing ideology and raw inexperience. He’s the rare nominee who would threaten to make the Ninth Circuit worse than it already is.

3. Liu advocates that judges adopt a freewheeling constitutional approach to generate a plethora of extreme left-wing results, including:

The invention of a federal constitutional right to same-sex marriage.

The invention (usually in an “interstitial” role, he says, as though that’s significant comfort) of constitutional rights to a broad range of social “welfaregoods, including education, shelter, subsistence, and health care.

Pervasive racial quotas—in education, employment, and contracting—in perpetuity.

Overruling “firmly embedded” precedents that he dislikes—San Antonio Independent School District v. Rodriguez (education is not a fundamental right subject to strict scrutiny under the Fourteenth Amendment), Milliken v. Bradley (limiting the availability of interdistrict school desegregation remedies), and Adarand Constructors, Inc. v. Peña (racial classifications imposed by the federal government must be subject to strict scrutiny)—and having them “swept into the dustbin of history.”

Unprincipled resort to foreign law to redefine the meaning of provisions of our Constitution.

4. Liu provided wildly implausible confirmation testimony that treats Republican senators as gullible dupes:

He ludicrously contended that his advocacy of how judges should redefine the Constitution to “enable[] the American people to keep faith with the Constitution from one generation to the next” “would have no bearing on [his] role as a judge.”

Having trashed John Roberts, he then tried to sound like him and spouted all sorts of conservative-sounding rhetoric belied by his record, including this howler: “My judicial philosophy in a nutshell, I think, is that the courts of the United States have a very limited role in our system of government.”

He disingenuously tried to run away from his record on foreign law, racial quotas, and same-sex marriage.

He dodged all sorts of questions on which he, as a professor of constitutional law, surely holds and has expressed views.

5. Despite the fact that he was compiling his dossier for a judicial nomination within weeks of Barack Obama’s election as president in November 2008, Liu somehow failed to disclose in his Senate questionnaire response the very presentations at which he made some of his most controversial and incendiary comments. If any Republican nominee had done something similar, Senator Leahy would be clamoring for a criminal investigation.

6. Liu has practiced law for less than two years. Under a neutral application of the ABA’s rules—i.e., “a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law,” and “substantial courtroom and trial experience as a lawyer or trial judge is important”—Liu would presumptively have received a “not qualified” rating and would have been very fortunate to eke out a “qualified.” But somehow the ABA’s process was jiggered to give Liu the ridiculous rating of “well qualified.”


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