Bench Memos

Yet Another Striking Omission by Goodwin Liu—Part 1

I’ve learned of yet another striking omission from Ninth Circuit nominee Goodwin Liu’s Senate questionnaire response.  This omission strikes me as inexplicable (on innocent grounds, that is), and it also fleshes out a remarkable pattern in which Liu’s most incendiary remarks just happen to come in presentations that he’s either entirely failed to inform the Senate ever took place or for which he’s failed to provide readily available records.  (I will address this highly problematic pattern in a follow-on post later today.)  

The latest omission that’s been discovered (thanks, as with all the others, to blogger Morgen of Verum Serum) is Liu’s participation on a showcase panel on “The Legacy of Brown v. Board of Education at the American Constitution Society’s 2004 national convention.  To put things in fuller context, Liu was a member of ACS’s board at the time, his academic work focused heavily on Brown, and the panel discussion marked the 50th anniversary of Brown.  Yet somehow Liu and his vetters failed to identify Liu’s participation in the panel.

Well, it turns out that a transcript of the panel presentation is available online, and the nature of Liu’s remarks is such that it is easy to understand why he might prefer that they not see the light of day while his nomination is pending.  Here are some excerpts (underlining added):

[S]ome observers conclude that the legacy of Brown is that courts, and more broadly law, can only do so much to change society. That some things, some problems are best left to politics and not principle, and that to believe otherwise is to indulge a hollow hope.

I want to disagree with this view, and I want to disagree not because I have a rosier picture of the progress we’ve made since Brown. Instead I want to disagree because the lack of progress since Brown is a testament to the power of courts to influence society, to a testament to the power of legal principle to ratify inequality.…

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.…

But my point is not that we should spend time longing for some bygone day. Instead my point is that we need to be mindful of how this early progress was undone. By presidents, by politicians, by judges, and by an agenda that was dedicated, and still is dedicated, to a few simple values: private choice over public good, formal equality over structural equality, and liberty at the expense of justice for all.…

Some day maybe soon, the wheel of history will turn. It has always been this way with Civil Rights, and I think it is an important perspective to have. Brown itself was not written on a blank slate. It overruled Plessey. The Civil Rights Act of 1964 was upheld against the Civil Rights cases of 1883. The Women’s Movement overcame cases like Bradwell vs. Illinois and Hoyt vs. Florida. And of course, Lawrence overruled Bowers. I’m not saying there’s anything inevitable about this, but if we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Millikan [sic], Rodriguez, Adarand, be swept into the dustbin of history.

In addition, later in the panel discussion, when another participant who evidently wasn’t paying careful attention to Liu’s remarks somehow imputed to him the “precept that judges are just supposed to figure out what the law is and not what it should be,” Liu interjected, “That’s not my precept.”

I will offer a critique of these comments in a forthcoming Part 2 post.