Bench Memos

Re: Hilarious Defense of Liu

As promised, let me quickly address the two other supposed errors that Jonas Lerman of mistakenly charges me with. Let’s recall that the broader context of these points and of my first rebuttal of Lerman is that that there is a disturbing pattern that Ninth Circuit nominee Goodwin Liu’s most inexplicable omissions contain some of his most controversial and incendiary comments and that this pattern reasonably invites the suspicion that Liu was trying to hide aspects of his record from the Senate.

1. Lerman claims that I’m reading “out of context” Liu’s rejection of the “precept that judges are just supposed to figure out what the law is and not what it should be.” But it’s Lerman who distorts the additional context that he provides. Here’s what Lerman claims:

On page 21 of the ACS event transcript, Liu notes that a core principle of the Federalist Society is that “the job of judges is to say what the law is and not what it should be.” So when Liu said to his co-panelist, “That’s not my precept,” he was simply stating that authorship of the precept belongs to the Federalist Society, not to Liu.

Here’s what page 21 of the transcript shows Liu said:

Now The Federalist Society will tell you that one of its core principles is that the job of judges is to say what the law is and not what it should be. Do not believe it.


The Constitutional world that we inherit today is not the revelation of some natural law or some neutral principle. It is an edifice carefully crafted and aggressively built in the image of conservative ideology.


When Liu later interrupts another speaker to reject the “precept that judges are just supposed to figure out what the law is and not what it should be,” he isn’t conferring intellectual-property rights in the precept to the Federalist Society. He’s rejecting the very notion of judicial neutrality. That theme pervades his comments. Just as he sees in “the lack of progress since Brown …a testament to the power of courts to influence society, to a testament to the power of legal principle to ratify inequality,” so does he envision the power of courts being used to impose his favored principles. It’s precisely why he calls for precedents he doesn’t like to “be swept into the dustbin of history.”


More generally, Liu’s entire approach to constitutional interpretation obscures—indeed, denies—any meaningful line between “what the law is” and “what it should be.”  For example, he writes:


The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.


2. Lerman claims that Liu’s remarks on racial preferences at a panel discussion that he failed to identify in his initial questionnaire response reflect the “exact view” that he set forth in a published article that he did provide. But Lerman’s claim of redundancy rests on his simply ignoring some of the most provocative aspects of Liu’s remarks. As I wrote:

Liu, to put it mildly, does not share Justice Powell’s concern about timelessly “imposing discriminatory legal remedies that work against innocent people.”  In Liu’s words, “if it seems like the cumulative effects of societal discrimination will take a long time to remedy, that is because it will.”  And concerns that “remedying societal discrimination … has no foreseeable endpoint” are, to Liu, nothing more than (as he quotes Justice Brennan) “‘a fear of too much justice.’”  So much for even recognizing, much less giving any weight to, the innocent victims of racial preferences.

I see nothing remotely comparable in the pages of Liu’s article that Lerman cites.