Ninth Circuit nominee Goodwin Liu’s testimony at his second confirmation hearing last week was much like his testimony a year ago—replete with implausible efforts to disguise or abandon his actual record and to recast himself as a judicial conservative. I refer the reader to my series of posts on Liu’s testimony last year (beginning here) as well as my series on his responses to post-hearing questions (beginning here). In this post and one or two more, I will address Liu’s testimony last week:
1. Let’s start with what is probably Liu’s biggest howler:
My judicial philosophy in a nutshell, I think, is that the courts of the United States have a very limited role in our system of government.
Gee, how’d I miss that in reading his actual book (Keeping Faith with the Constitution) that presents his view on how courts should interpret the Constitution? As I discuss here, Liu’s judicial philosophy is indistinguishable from the “living Constitution” approach that he finds convenient to purport to disavow. Indeed, in that book, Liu maintains only that his approach, when “conscientiously applied,” “does not give judges unchecked power to determine what society’s values are or to impose their own values on society” (p. 28 (emphasis added)). He doesn’t assert that his approach, under which judges pick and choose among “multiple sources of wisdom and authority” (p. 29) to “adapt [the Constitution’s] broad principles to the conditions and challenges faced by successive generations” (p. 2), gives them only a “very limited role.” On the contrary, while he calls judicial restraint “an important value,” he says that it does not provide “a meaningful guide to constitutional interpretation” and he argues that “[f]aithful application” of the principles he espouses “may sometimes require a robust judicial role” (p. 41). “Sometimes” turns out to be quite often, as his defense in that book of an array of liberal judicial inventions of rights shows that he does not believe in a “very limited role” for the judiciary.
Further, Liu has called for such models of judicial restraint as San Antonio Independent School District v. Rodriguez (education is not a fundamental right subject to strict scrutiny under the Fourteenth Amendment) and Milliken v. Bradley (limiting the availability of interdistrict school desegregation remedies) to be “swept into the dustbin of history.” (At his hearing, Liu referred with seeming approval to Rodriguez as “very much informed by principles of judicial restraint,” but didn’t note that he had called for it to be “swept into the dustbin of history.”) He’s made clear his support for invention of a federal constitutional right to same-sex marriage, and even those who try to deny that fact can’t possibly contest that Liu has advocated that the California supreme court rule that same-sex marriage was required as a matter of state constitutional law. How is that consistent with a “very limited role” for the courts?
2. Let’s turn to Liu’s testimony on the use of foreign law in determining the meaning of constitutional provisions. Liu testified that foreign law “has no authority in our system unless American law requires it to have authority.” As only a careful and well-versed listener might discern, all that he means by that is that foreign law does not provide “controlling” or “binding authority in the interpretation of U.S. law,” that it cannot be “dispositive of the legal question.” (All quotes are Liu’s.)
But that limited proposition is embraced by virtually everyone, including the most aggressive proponents on the Supreme Court of the use of foreign law. (As I discuss in this essay, for example, Justice Ginsburg “emphasizes that she does not regard foreign decisions as ‘controlling authorities.’”) Of course these justices want the freedom to pick and choose when reliance on foreign law will advance their ideological agendas. What they are unable and unwilling to do is provide any governing principle why it is proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. They embrace an essentially essentially lawless—i.e., unconstrained—view of their own role as justices. As Justice Scalia has written, “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
The core of the ongoing dispute over the use of foreign law is instead whether it is proper to rely on foreign law in determining the meaning of provisions of the Constitution—whether, as Liu puts it in his testimony, judges may look to foreign law “as confirmatory or for ideas about how to approach a particular problem.” On that question, Liu is clearly supportive of unconstrained use of foreign law. As he has written (emphasis added):
The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.