A few final (I think) comments on Ninth Circuit nominee Goodwin Liu’s initial set of responses to post-hearing written questions:
1. Five years ago, Liu wrote a cheap attack on the nomination of John Roberts to the Supreme Court. The lead item that Liu offered in support of his claim that Roberts’s “legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment” was Roberts’s unanimous opinion in a case (which I discuss more fully in point 1 in the preceding link) that upheld a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody.
Asked whether it’s his judgment that the arrest in the case violated the defendant’s constitutional rights, Liu refuses to opine on the matter. (Cornyn Q4.b.) What, then, was he faulting Roberts for? Liu now says that his “concern” was that the mandatory arrest policy was extreme, but Roberts expressed very much the same view. He also claims that he had concerns that the policy might “have reflected stereotypes of youth offenders” and notes that Roberts’s opinion “did not address” such an argument. I’d bet it didn’t do so because no one made the argument, just as Liu himself didn’t make the argument in his op-ed. In any event, if Liu thinks that’s a winning argument, he should say so. If he doesn’t, he had no ground to criticize Roberts’s opinion.
In his second count in that same op-ed (point 2 in link above), Liu alleged that Roberts had a “theory of limited federal power” that would “weaken[] key environmental laws … and would potentially undermine bedrock civil rights laws.” Liu now doesn’t defend that allegation but instead maintains merely that he “expressed no view on whether [Roberts] would have concluded … that the regulation [at issue] exceeded Congress’s commerce power.” ([Cornyn Q4.c.)
2. At Justice Alito’s confirmation hearing, Liu offered patently demagogic testimony. At his own hearing, Liu conceded only that his testimony against Alito used “perhaps unnecessarily flowery language.” Now that he finally perceives it as in his interest to do so, Liu offers an apology of sorts (though I have to wonder whether the passage I italicize is Liu’s effort to confer victim status on himself):
[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now. [Cornyn Q6]
3. Liu maintains that his amicus brief in the California supreme court, which argued that the traditional definition of marriage violated the state constitution, “expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution”:
The brief urged the court to “rely solely on California, rather than federal, constitutional law” and noted that “California’s Constitution has often been construed to provide broader protection than its federal counterpart.” The brief discussed federal cases “to illustrate” an “analytic methodology for interpreting the California Constitution.” The brief expressed no view and made no attempt to resolve whether California’s definition of marriage violated the U.S. Constitution. [Sessions Q13.a (citations omitted)]
That strikes me as a misleadingly incomplete account. In their brief, Liu and the other amici state at the outset (p. 2) that “well-accepted constitutional principles” require invalidation of California’s marriage law. In context, it’s clear that the “well-accepted constitutional principles” they’re referring to are federal constitutional principles (as Liu’s own summary acknowledges). Under the implicit logic of their brief, amici are arguing that because California’s definition of marriage violates these federal constitutional principles, it follows a fortiori that it is inconsistent with the “parallel[]” or “broader” protection that California’s constitution provides. In other words, because California’s definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution.
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