Bench Memos

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Simply Liu-dicrous Testimony—Part 1


I’ve reviewed the Federal News Service transcript* of Ninth Circuit nominee Goodwin Liu’s confirmation hearing last Friday.  As time permits, I will do a series of posts on Liu’s testimony (as well as on his answers to any post-hearing written questions), and I will then weave them together in a composite essay (or extended post).

Let’s start with Liu’s remarkable claim that “whatever I may have written in the books and in the articles would have no bearing on my role as a judge.”

Let’s put this claim in context. 

The one book that Liu has written (or, more precisely, co-authored) is Keeping Faith with the ConstitutionAs I discuss in this post, the stated purpose of Keeping Faith is to “describe and defend” a “dynamic process of [constitutional] interpretation” that Liu labels “constitutional fidelity.”  “Interpreting the Constitution,” he argues, “requires adaptation of its broad principles to the conditions and challenges faced by successive generations” (emphasis added).  His interpretive approach draws on a variety of considerations:  original understandings, “the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.”  Such an approach, he asserts, is “richer than originalism or strict construction, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation’s founding.”  Indeed, he claims, his approach “is what enables the American people to keep faith with the Constitution from one generation to the next.”  (p. 2)

In chapter two of Keeping Faith—titled “Judicial Interpretation of the Constitution”—Liu makes clear his view that judges should adopt the interpretive approach that he is “describ[ing] and defend[ing]”:

Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.  [p. 25]

I won’t repeat my critique of Liu’s book here.  For present purposes, my question instead is how Liu can plausibly maintain that an interpretive approach that he believes is “require[d]”—which, indeed, he believes is essential 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.”  The contention is simply ludicrous.

*Unfortunately, the FNS transcript doesn’t include page numbers.  Once I receive an official committee transcript, I will cite relevant quotations by page and line number.

Tags: Whelan


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