Bench Memos

Painter’s Wild Misportrait of Liu

Law professor (and former Bush White House ethics adviser) Richard Painter has compounded his previous ill-informed commentary on the Ninth Circuit nomination of Berkeley law professor Goodwin Liu by writing an absurd op-ed hailing Liu as “a fine choice for the federal bench” and as someone who “shows no signs of being a potential judicial activist.”  I’m tempted to speculate that Painter’s op-ed is a particularly striking manifestation of the phenomenon that I’d label battered-conservative-academic syndrome, but I’ll instead address what I take to be Painter’s core assertions:

1.  Painter contends that “Liu’s academic writings and speeches … reflect a moderate outlook,” but he addresses virtually nothing about those writings and speeches that I and others have found to be controversial. 

How is it “moderate,” say, to call for the Supreme Court precedents of Milliken v. Bradley, San Antonio Independent School District v. Rodriguez, and Adarand Constructors, Inc. v. Peña “to be swept into the dustbin of history”? 

How is it “moderate” to embrace the same freewheeling approach to constitutional interpretation as noted lefty law professor Pam Karlan (or does Painter consider her a “moderate,” too?)?

How is it “moderate” to argue that judges (usually in an “interstitial” role) may legitimately invent constitutional rights to a broad range of social “welfare” goods, including education, shelter, subsistence, and health care? 

How is it “moderate” to advocate reviving “the idea of remedying societal discrimination as a justification for affirmative action”—an approach that would entail the imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination)?

How is it “moderate” to support invention of a federal constitutional right to same-sex marriage?

I could go on and on, but it ought to suffice to note that Painter does not even acknowledge such matters, much less try to explain them away.  Perhaps Painter’s perspective on what a “moderate” is has been so blurred by his time in legal academia that he can no longer see straight.

2.  Painter contends that Liu “envisions most of his proposals being implemented through the legislative process, not by the courts,” but that is simply not true of most or all the items I discuss in item 1 (and in my broader bill of particulars against Liu).

3.  Contending that Liu “has many good ideas,” Painter cites as his only example Liu’s support for “using school-choice and voucher programs to allow students to escape substandard conditions that are particularly hard for poor and minority students.”  Painter  claims that this position shows that Liu “is willing to risk political fallout for suggesting ideas unpopular with many in the left wing of the Democratic Party.”  But this single alleged instance of courageous deviation from the party line is in reality illusory.  As I have explained, Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal.

4.  Painter contends that it is “misguided” for conservatives to count against Liu his opposition to the Roberts and Alito nominations, for “it is important that people speak their mind about Supreme Court and other judicial nominations without fear of retribution.”  Once again, Painter completely misses the point:  The shoddy and demagogic quality of Liu’s opposition to Roberts and Alito reflects very poorly on him.  There is no reason to encourage cheap attacks like Liu’s by not holding him accountable.

5.  Having utterly failed to address the actual arguments against Liu, Painter contends that “few of Liu’s critics are interested in [Painter’s] arguments” (as if he’s actually said anything of interest).  Instead, he claims that many of Liu’s critics “are only interested in demonizing him, probably to show the president and the Democrats on the Senate Judiciary Committee that they can challenge a nominee they don’t like.”  Even more contemptibly, he contends that “another motivating factor” is “money.”  Gee, what happened to Painter’s strong interest, stated in the immediately preceding paragraph, in having “people speak their mind about … judicial nominations”?  And who’s doing the baseless demonizing?