Bench Memos

Liu-dicrous Responses to Written Questions—Part 2

More on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:

1.  Liu claims that his “writings agree with Supreme Court precedent that courts have no role in creating social or economic entitlements.”  (Sessions Q3.b (emphasis added); see also Sessions Q3.c.)  But Liu has in fact written that the judiciary is “generally limited to an interstitial role” in recognizing constitutional welfare rights—“affirmative constitutional right[s] to particular social goods such as ‘education, shelter, subsistence, health care and the like, or to the money these things cost.’”

The “interstitial role” that Liu contemplates for the judiciary is far from “no role” (nor is that “interstitial role” compatible with a sound understanding of judging).  Further, Liu writes only that the judiciary is “generally limited” to that interstitial role, and he thus leaves open a much broader role for judges (as his call for San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” reveals).

2.  Liu declines to express any opinion on whether the Court’s 2002 decision in Zelman v. Simmons-Harris, which held that school-choice programs that include religious schools do not violate the Establishment Clause, was rightly decided.  (Sessions Q10.b.)  He doesn’t maintain that he doesn’t have an opinion, nor that he hasn’t previously expressed an opinion, but only that he does “not recall any specific conversations” on the issue.  Liu’s evasiveness discredits his handful of conservative supporters who have touted their misunderstanding of Liu’s position on school choice as a supposed courageous exception to Liu’s hard-Left record on constitutional issues.

3.  Asked “who will decide when the courts are being faithful to the Constitution,” Liu opines that “the Supreme Court is the ultimate arbiter of when courts have been faithful to the Constitution.”  So much for any meaningful check on judicial excesses.  Even worse, Liu bases his position entirely on the fact that the Court has asserted (wrongly) that “its interpretation of the Constitution ‘is the supreme law of the land.’”  (Sessions Q7.a.)

4.  Presenting an account of Liu’s remarks on the “idea of remedying societal discrimination” as a justification for racial preferences, Senator Sessions offered this critique:

You plainly do not share Justice Powell’s concern about timelessly “imposing

discriminatory legal remedies that work against innocent people.” In your words,

“if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.” And as you put it, quoting Justice Brennan, concerns that “remedying societal discrimination … has no foreseeable endpoint” are nothing more than “‘a fear of too much justice.’”


In your comments, you do not recognize, much less give any weight to, the concerns of innocent victims of racial preferences. Instead, your approach would lead to the imposition of racial quotas in education, employment, and contracting ad infinitum since any persisting disparities would be attributed to past societal discrimination.

Sessions then asked Liu, “If that is not an accurate reading of your comments, please explain why.”  So far as I can tell, Liu’s response does not take issue with Sessions’s critique.  (Liu does quote a passage from one of his writings that observes that “a desire to remedy discrimination and its vestiges logically motivates the hope that affirmative action will some day end,” but that “hope” is no answer to Sessions’s critique that Liu’s approach would lead to pervasive racial quotas in perpetuity.)  (Sessions Q12.a.)

5.  Liu concedes that his rabblerousing call for Milliken v. Bradley and San Antonio Independent School District v. Rodriguez “to be swept into the dustbin of history” is not replicated in his writings.  (Sessions Q14.d.ii, 14.e.ii.)  (From what I can tell, he was not asked that same specific question about the third Supreme Court ruling, Adarand Constructors, Inc. v. Peña, that he wanted “swept into the dustbin of history.”)  As I’ve explained, that fact makes his inexplicable failure to include his presentation in his Senate questionnaire response all the more disturbing.