Bench Memos

Liu-dicrous Responses to Written Questions—Part 3

See Parts 1 and 2.

At his confirmation hearing, Ninth Circuit nominee Goodwin Liu tried to disguise himself as a judicial conservative.  (See “Simply Liu-dicrous Testimony,” Parts 2, 3, and 4.)  He continues that effort in his initial set of responses to post-hearing written questions:

1.  Continuing to maintain that his academic writings on how judges should construe the Constitution would somehow have no bearing on how he as judge would construe the Constitution, Liu presents a cook-by-recipe vision of judging that would have him laughed out of academia if anyone believed he actually meant what he said:

In deciding cases that come before me as a judge, I would set aside the views I have expressed as a scholar and follow the instructions of applicable Supreme Court and Ninth Circuit precedents, including any instructions in such precedents on how to interpret specific constitutional provisions.  [Sessions Q6.a]

Liu also gives the impression of repudiating both President Obama’s empathy standard and his own book-long argument that the Constitution must be interpreted “in light of the conditions and challenges faced by succeeding generations”:  He asserts that “all cases must be decided by applying the law to the facts from beginning to end.”  (Cornyn Q20.a.)

2.  Having previously dismissed the values of “free enterprise,” “private ownership of property,” and “limited government” as “code words for an ideological agenda hostile to environmental, workplace, and consumer protections,” Liu now waxes rhapsodic about these values:

From the time of America’s founding, our nation and our Constitution have reflected an unwavering commitment to free enterprise, private ownership of property, and limited government. I strongly believe in these important values, and I am personally committed to them.  [Cornyn Q3.c]

3.  Having previously found it “difficult … to grasp” how anyone could resist the practice of using foreign authority in interpreting the Constitution, Liu continues his confirmation-process posture of seeing at most a very limited role for the practice.  See, e.g., Cornyn Q10.b, 10.d, 11.