Bench Memos

NRO’s home for judicial news and analysis.

Simply Liu-dicrous Testimony—Part 2


In his hearing testimony (see unofficial transcript), Ninth Circuit nominee Goodwin Liu tried to sound like Chief Justice Roberts, as he even paraphrased Roberts’s umpire analogy: 

I think the role of the judge is to be an impartial, objective and neutral arbiter of specific cases and controversies that come before him or her.  And the way that that process works is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations that are at issue in the case.

But in his book Keeping Faith with the Constitution, Liu expressed a very different view.  There, quoting Roberts’s umpire analogy, he argued that it did “not withstand scrutiny”:

Ironically, the significance of Chief Justice Roberts’s baseball analogy is exactly the opposite of what he intended.  Just as baseball players and many fans know that umpires over time have interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context.  [p. 28 (emphasis added)]

Somehow all of Liu’s previous talk of judicial “attention to evolving social context” seems to have disappeared.

Tags: Whelan


Sign up for free NRO e-mails today:

Subscribe to National Review