Bench Memos

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Mistaken Defenses of Goodwin Liu


It appears that a couple of blogs—Support Goodwin Liu (“SGL”) and Confirm Goodwin Liu (“CGL”)—have been launched in support of Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit nomination.  From a quick wade through the blogs, I see that they purport to take issue with two of my blog posts.  I’m pleased to report that the criticisms are ill-founded. 

First, in response to my post demonstrating that the “mode of reasoning” in an amicus brief that Liu submitted “clearly dictates that Liu … believe[s] that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution,” SGL repeats what I had already made crystal-clear:  in my words, that the amicus brief argued that “California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution.”  SGL tries to downplay the brief’s almost exclusive reliance on federal cases, but nowhere offers any reasoned explanation how the brief’s analysis of those cases would not apply with full force to the federal constitutional issue.  Instead, SGL retreats to the artful evasion that Liu “has never argued that the federal Constitution prohibits state laws that bar same-sex marriage” and that Liu in testimony has stated the blindingly obvious point that “Proposition 8’s validity under the federal Constitution ‘is an open question.’”  Yes, it is an open question—but it’s crystal-clear which way Liu would decide that open question.

Second, in response to my post demonstrating the contemptibly poor quality of Liu’s attacks on John Roberts’s nomination to the Supreme Court, Jonathan Singer—a student of Liu’s who runs CGL—doesn’t take issue with a word that I wrote but contends that my post “is wholly lacking … in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.”  Well, if Liu had simply predicted that Roberts wouldn’t be to his liking on various issues, I wouldn’t have seen any point in taking issue with him.  But instead he offered arguments that he purported to draw from Roberts’s “record” and “legal career.”  In his convenient disregard of Liu’s actual arguments, Singer displays the same contempt that Liu did for the integrity of reasoned argument.

Given the poor quality of argument that the pro-Liu blogs have displayed, I don’t intend to engage in an extended back-and-forth with them.  That said, if I discover that any of my posts on Liu are in any respect mistaken, I will abide by my usual practice of acknowledging and correcting my mistakes.

Tags: Whelan


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