Bench Memos

NY Times on Goodwin Liu

A house editorial in Sunday’s New York Times tries to make the case for Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit.  Alas, the editorial descends to the usual level of Times editorials on legal and judicial issues.

Let’s start by running through the errors, distortions, and half-truths in five consecutive sentences in the editorial:

1.  The editorial repeats the canard that Liu’s “support of school vouchers and charter schools” is some sort of meaningful deviation from his hard-left (“liberal”) record.  But as I have explained, Liu supports only those school-choice programs that advance his goal of racial quotas in schools, and he views even those programs as a second-best alternative to his preferred means of direct judicial imposition of interdistrict racial-balancing orders.

2.  The editorial states that Liu’s critics “are taking aim at his support for affirmative action, gay marriage rights, and national health care.”  By utterly blurring the distinction between policy positions and constitutional views, this proposition invites the misunderstanding that we critics are objecting to Liu’s policy views.  But what we are primarily objecting to is that Liu would entrench his policy views as constitutional rights.  In other words, it would be one thing for Liu to favor same-sex marriage as a matter of policy; it’s quite another for him to believe that the Constitution should be read to invent a constitutional right to same-sex marriage.

This passage also dramatically understates the grounds of objection to Liu’s constitutional views (as my recent NRO essay illustrates).  Its reference to Liu’s “support for … national health care” hardly captures his argument that judges (usually in an “interstitial” role) may legitimately invent constitutional rights to a broad range of social “welfare” goods, including education, shelter, and subsistence (as well as health care).

3.  The editorial states that Liu’s views “fall within the mainstream of legal scholarship and American politics.”  The mainstream of what counts as “legal scholarship” today is much farther left than the mainstream of “American politics,” and even within legal academia Liu is clearly well on the Left.  If Liu’s views were mainstream, the editorial woudn’t need to obscure them.

4.  The editorial cites Ken Starr’s letter asserting Liu’s “independence and openness to diverse viewpoints.”  Set aside the curiosity that the same editorial page that lambasted Starr’s judgment in a series of editorials a decade ago bearing titles like “More Bad Advice From Ken Starr” and “Ken Starr’s Misjudgments” should now present a naked pro hominem argument resting on Starr’s judgment.  As I’ve shown, Starr’s badly confused letter fails to provide any evidence for his assertion.  Nor is it at all clear whether Starr—who, perhaps out of benevolence, seems eager to support any nominee he’s ever met—has anything other than a passing acquaintance with Liu and his record.  

5.  The editorial asserts:  “Perhaps the biggest factor fueling the opposition to Mr. Liu is that he was openly critical of Chief Justice John Roberts and Justice Samuel Alito at the time of their nominations.”  This seems to me wildly off base.  First, what I have highlighted is not the mere fact of Liu’s opposition to Roberts and Alito but his resort to a wildly distorted and incompetent (if not deliberately dishonest) attack and to sloppy and demagogic testimony.  The shoddy quality of Liu’s opposition reflects poorly on his intellectual integrity.  Second, Liu’s attacks on Roberts and Alito make up just one of the many items in the bill of particulars against his nomination. 

But let’s assume, for the moment, that everything the Times said about Liu were true.  Even if that were so, it’s striking that the same could have been said even more strongly about Miguel Estrada, President George W. Bush’s nominee to the D.C. Circuit whom the Times vigorously opposed:  an inspiring life story; exceptionally well regarded in his elite sector of the legal profession; a legal record of ideological diversity (e.g., Estrada represented the Clinton administration in a big case against anti-abortion protesters); and the support of a former Solicitor General of the opposite party (Seth Waxman, who, unlike Starr with Liu, actually worked closely with Estrada).   

Yet somehow the Times reached opposite judgments on Liu and Estrada, judgments succinctly captured in the contrary titles of its editorials on them:  “An Exceptional Nominee” versus “An Unacceptable Nominee.”