Bench Memos

Goodwin Liu on Racial Quotas Forever

Among the many presentations that Ninth Circuit nominee Goodwin Liu identifies in his Senate questionnaire response was his participation in a panel on “Segregration, Integration, and Affirmative Action After Bollinger at the American Constitution Society’s national convention in August 2003.  Liu states that he does “not have copies of any notes, transcript, or recording” of his presentation, but blogger Morgen of Verum Serum has kindly called my attention to an online ACS transcript.*  The transcript provides yet further confirmation that Liu is a hard-Left extremist.

In his remarks, Liu advocates reviving “the idea of remedying societal discrimination as a justification for affirmative action.”  Although he agrees with the Supreme Court majority in the Michigan cases that “educational diversity is a compelling interest,” he finds that rationale too limited and pragmatic.  He criticizes the Supreme Court precedent that holds that “remedial motives for affirmative action are permissible only where the policy is remedying an institution’s own discrimination, and not society’s,” and he argues that “the issue is really not as settled as it seems.”  So “we shouldn’t abandon the notion of remedying societal discrimination as a dead letter, either in law or in public debate.”

In his plurality opinion in Wygant v. Jackson Board of Education (1986), Justice Powell warned:

[A]s the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over-expansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.

Liu, to put it mildly, does not share Justice Powell’s concern about timelessly “imposing discriminatory legal remedies that work against innocent people.”  In Liu’s words, “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.”  And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’”  So much for even recognizing, much less giving any weight to, the innocent victims of racial preferences.

What Liu’s proposed approach would mean in practice is imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination).

By the way, I’m willing to assume that Liu, chairman of ACS’s board, and his team of vetters were in fact somehow unable to locate the online ACS transcript, even though it’s the first item that popped up when I did a Google search of the panel title.  But imagine the furor (“cover-up!”) from Senator Leahy and company if a Republican nominee had failed to provide such damning material.

* The transcript has some obvious typographical errors (especially in case names).  I’ve tweaked the punctuation in a couple of the passages I quote.


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