Law professors Akhil Reed Amar and Kenneth W. Starr have sent the Senate Judiciary Committee a badly confused letter in support of Goodwin Liu’s nomination to the Ninth Circuit. The core of their letter is dedicated to the proposition that Liu has “independence and openness to diverse viewpoints as well as [the] ability to follow the facts and the law to their logical conclusion, whatever its political valence may be” (or, as they later put it, the “ability to discharge faithfully an abiding duty to follow the law”).
Amar and Starr offer two examples in purported support of their proposition, but neither helps. First, they cite Liu’s limited support of school-choice programs. As I’ve explained, Liu supports school-choice programs only insofar as they advance racial quotas. Once one understands that (and there’s no indication that Amar and Starr do), it’s difficult to see how Liu’s position on school choice evidences his “independence and openness to diverse viewpoints,” and his position certainly has no relation to his supposed “ability to follow the facts and the law to their logical conclusion.”
Second, Amar and Starr cite Liu’s correct prediction that the California supreme court would uphold Proposition 8 “under applicable precedents” (their phrase). They assert that his correct prediction shows that Liu “knows the difference between what the law is and what he might wish it to be.” But this is a glaring non sequitur. Liu wasn’t stating how he would rule; he was predicting how the California supreme court would. Moreover, in an op-ed, Liu stated that the challenge to Proposition 8 was a “good argument, but one that faces difficult precedents,” and he argued that “there are good reasons for the California Supreme Court to rethink its jurisprudence in this area.” So much for his “know[ing] the difference between what the law is and what he might wish it to be.”
Amar’s and Starr’s assertion of Liu’s “ability to follow the facts and the law to their logical conclusion” is also curious, as it’s not really his “ability” that anyone has questioned. It’s his willingness and commitment. Further, anyone familiar with Liu’s gauzy constitutional theorizing would recognize that the whole concept of following the law doesn’t have much substance in his framework. Take, for example:
The problem for courts is to determine, at the moment of decision, 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. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.
It is, of course, theoretically possible that someone who advocates a freewheeling judicial role could himself be quite scrupulous in following a whole body of precedent that he detests. But Amar and Starr provide zero reason for anyone to believe that Liu would carry out the judicial role in that manner, and there is nothing in his record to support speculation that he would.