Bench Memos

Ninth Circuit Nominee Goodwin Liu

As expected/threatened, President Obama has nominated 39-year-old Berkeley law professor Goodwin Liu to a seat on the Ninth Circuit. 

Pending further review of Liu’s record, I’ll highlight again my summary of Liu’s demagogic testimony against Justice Alito’s confirmation:

First, his description of the issue at stake in Doe v. Groody (the immunity case involving the search of a 10-year-old) is tendentious to the point of being misleading: He claims that Alito “all but ignored” a “rule” whose application Alito openly contested. (An interview that Liu gave on Pacifica radio regarding the case was even worse. He had a screwball theory that even if Alito were correct to read the warrant to incorporate the affidavit, that wouldn’t have justified the search. Liu concealed from his listeners the unhelpful fact that the affidavit requested a search of “all occupants” of the residence and instead argued that the stated reasons for the search wouldn’t have extended to the 10-year-old.) Second, while invoking O’Connor when she helps him, Liu, in criticizing Alito’s 1984 DOJ memo on the “fleeing felon” rule, does not see fit to point out that O’Connor, in her dissent in Tennessee v. Garner, adopted the same position as Alito.

Liu’s concluding remarks are patently demagogic and assume a constitutional scheme in which judges, and only judges, make policy on everything: Liu states that “Alito’s record envisions an America” where police “may” do all sorts of things that Liu (in some instances reasonably, in others less evidently so) doesn’t like. What Liu obscures is that Alito’s approach would enable the political processes to establish reasonable policies on all these matters.

Liu is closely aligned with various left-wing groups.  For example, he is (or recently was) on the boards of directors of the American Constitution Society, the ACLU of Northern California, and the National Women’s Law Center.  He apparently practiced law for about two years.

Liu is co-author of an ACS book titled Keeping Faith with the Constitution.  But what Liu means by “keeping faith” is evidently adherence to the living-constitutionalist gimmick that judges can redefine the Constitution to mean whatever they want it to mean.  Here’s how Liu explains his and his co-authors’ concept of constitutional fidelity in an ACS podcast (around the 1:30 mark):  “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.”