Bench Memos

Liu-dicrous Responses to Written Questions—Part 1

Controversial Ninth Circuit nominee Goodwin Liu has submitted his initial set of responses to written questions that Senate Judiciary Committee members submitted following his recent hearing.  I will aim to offer some commentary on his responses in a series of posts.

Let’s start with Liu’s failure to respond meaningfully to so many questions about his views on a range of constitutional questions.  Unlike most judicial nominees, Liu has taught and thought about issues of constitutional law for a number of years.  Yet when asked whether he believes that various cases were decided properly, he repeatedly ducked the question and instead recited that he would “faithfully” follow Supreme Court and Ninth Circuit precedent.  (By my quick count, Liu used this particular dodge more than eighty times.)  In response to other questions about his views on constitutional issues, Liu repeatedly responded by asserting, “I have not previously expressed any view on this issue, and I believe it would not be appropriate for me to do so now” (or something very similar).  He never offered any explanation why he believed “it would not be appropriate.”

So when Liu has expressed views on legal issues beyond what the public record shows, his tactic is to refuse to disclose what he has said and to hide behind his promise to follow precedent.  And when he maintains that he hasn’t expressed any view on an issue (even if he in fact has formed and holds a view on the issue), his tactic is to assert that it would not be appropriate for him to disclose his view to the Senate.

I must say that I find it highly implausible (even under the narrowest reading of the questions) that Liu, as an engaged scholar of constitutional law, has never “expressed any view,” no matter how discreetly or tentatively, on such matters as whether the Constitution, properly interpreted, confers a right to same-sex marriage (Sessions Q13.a);* or whether the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause (Coburn Q8.a); or whether the Court correctly decided prominent recent cases like the detainee ruling in Hamdan v. Rumsfeld (Cornyn Q22.a), the Second Amendment ruling in District of Columbia v. Heller (Sessions Q13.b), and the New Haven firefighters case, Ricci v. DeStefano (Cornyn Q22.g).

It’s also worth noting that Liu fails to maintain a consistent line in his responses (other than the line of what he evidently perceives to be in his self-interest).  For example, Liu volunteers that his “own view of the Constitution” is that racial quotas (which he defines very narrowly as “rigid numerical goal[s]”) are unconstitutional.  (Sessions Q10.d.)  But the passages from his writings that he cites to substantiate his position (Sessions Q10.e) don’t show that he has ever previously expressed that personal view.  So it appears that Liu will disclose his views on legal issues when he thinks that doing so will help his nomination, and he won’t when he thinks that doing so won’t.

* I’ll have more to say on this.

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