Perhaps my favorite part of Goodwin Liu’s confirmation hearing (see unofficial transcript) is this scripted exchange that he had with Senator Feinstein:
Feinstein: “Now, in blog entries, you have been accused of favoring racial quotas, so I want to ask you plainly, do you favor racial quotas? And do you believe they are constitutionally permissible?”
Liu: “Senator Feinstein, I absolutely do not support racial quotas, and my writings, I think, have made very clear that I believe they are unconstitutional.”
Let’s start with the first part of Liu’s response, his claim that he “absolutely do[es] not support racial quotas.”
It’s an old game for folks on the Left to maintain that they don’t support racial quotas—because, lo and behold, they define the term “quota” virtually out of existence. My favorite example is provided by 11th Circuit judge (and former Florida chief justice) Rosemary Barkett, who, perhaps not incidentally, was on the same American Constitution Society showcase panel on “The Legacy of Brown v. Board of Education”—the panel in which Liu called for Milliken, Rodriguez, and Adarand to “be swept into the dustbin of history” but the very existence of which Liu somehow forgot to disclose to the Senate. Here’s Barkett’s hilarious defense in 1993 of a commission report that recommended passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998:
It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.
I have no idea what private definition of “quota” Liu was harboring when he asserted that he “absolutely do[es] not support racial quotas.” Despite the fact that Feinstein had surely given him a heads-up that she would be asking him the question, Liu doesn’t explain what he means by “racial quotas,” nor does he cite any material in his record that supports his assertion.
As I have shown in discussing Liu’s position on school choice, Liu uses the term “segregation” to describe the state of schools that don’t “reflect the racial and socioeconomic diversity of the metropolitan area … where they are located,” and he proposes using “the racial composition of the broader metropolitan area as the reference point for measuring and rewarding diversity.” Anyone who doesn’t count that as support by Liu for racial quotas has stripped the term “quota” of any substance.
More broadly, as I have discussed, Liu’s advocacy of reviving “the idea of remedying societal discrimination as a justification for affirmative action” would in practice entail the imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination). As his discussion of reparations for slavery shows, Liu uses the term “segregated” so expansively that only the imposition of racial quotas will achieve the elimination of what he calls segregation.
If Liu wants to explain that I have somehow misunderstood him, I would be happy to entertain his explanation. But it’s evasiveness bordering on outright dishonesty for him to respond to charges like mine by privately adopting some incredibly narrow definition of “quotas” and then asserting that he “absolutely do[es] not support racial quotas.”
The second part of Liu’s response—that his “writings, I think, have made very clear that I believe [racial quotas] are unconstitutional”—also turns on Liu’s private definition of “racial quotas.” In addition, it would have been good for Liu to identify specific passages from one or more of his writings that supposedly set forth his position. Among other things, the Senate could then determine how narrowly Liu is using the term “racial quotas” and whether what he presents as what he “believe[s]” is merely (as I suspect) his understanding of existing Supreme Court precedent or is instead his independent view on how the Constitution should best be interpreted.