Bench Memos

Yet Another Striking Omission by Goodwin Liu—Part 2

Let’s examine the remarks by Goodwin Liu in the 2004 panel presentation on “The Legacy of Brown v. Board of Education” that he inexplicably failed to include in his Senate questionnaire response:

1.  Liu expressly outlines for his left-wing audience an agenda for overruling three important Supreme Court precedents—or, as he aggressively puts it, for having them “swept into the dustbin of history.”  This is an agenda that Liu himself clearly embraces and is committed to: 

“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” (emphasis added).

Just as Liu faults “the power of courts” for the supposed “lack of progress since Brown,” so does he plainly believe that the exercise of judicial power is needed to implement his agenda.  (How, else, of course, would these cases be overruled?)  In rejecting the notion that “problems are best left to politics and not principle,” he sees in the exercise of judicial power the imposition of principle:  Just as “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,” so does he envision the power of courts being used to impose his favored principles.  And in expressly rejecting the “precept that judges are just supposed to figure out what the law is and not what it should be,” Liu makes crystal-clear that he would use his judicial office to advance his agenda.

2.  An examination of the three precedents that Liu is eager to have “swept into the dustbin of history” starkly reveals Liu’s agenda. 

a.  Let’s start with the Court’s 1974 decision in Milliken v. Bradley.  As Liu himself accurately summarized it in his law-review article, “School Choice to Achieve Desegregation” (which I discuss here), that decision “limited the legal availability of interdistrict school desegregation remedies to situations where plaintiffs could prove that ‘there has been a constitutional violation within one district that produces a significant segregrative effect in another district.’”  In that article, Liu states that Milliken seems firmly embedded in the law” (emphasis added).  That’s not a surprising judgment, since overturning it would offer the prospect of massive busing across district lines and would imperil the access to local schools that many homebuyers regard as an essential part of their biggest lifetime investment.  Indeed, I doubt that there would be a single vote among the current members of the Supreme Court to overrule Milliken.

But for Liu, the fact that Milliken “seems firmly embedded in the law” is evidently not a reason to leave it in place but instead occasion for a call to arms to overturn it.  Liu has already made clear (in his opposition to the Court’s rulings in the 2007 school cases from Seattle and Louisville) that he doesn’t much care if a four-year-old has to spend three hours a day on a bus to help achieve racial balancing in the schools.  After all, such sacrifices are just part of what others have “to give up to make things right” in Liu’s eyes. If that means the imposition of pervasive racial quotas across society for generations to come through what Justice Powell identified as “discriminatory legal remedies that work against innocent people,” so what? says Liu:  Such concerns are, to him, nothing more than “a fear of too much justice.”

b.  The second (and equally “firmly embedded”) case that Liu wants “swept into the dustbin of history” is the Court’s 1973 ruling in San Antonio Independent School District v. Rodriguez, which held that education is not a fundamental right, the provision of which is subject to strict judicial scrutiny under the Fourteenth Amendment.  A contrary ruling would have subjected systems of school finance and all other aspects of public education to federal judicial micromanagement.  With the benefit of hindsight, there is widespread recognition that Justice Powell was prescient to observe in his majority opinion:

[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…   Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.

An expert in the area tells me that he doubts that there is a single vote on the current Supreme Court to overturn Rodriguez

Liu’s support for overturning Rodriguez also exposes how phony is the purportedly modest role that he’s advocated for the courts in recognizing (i.e., inventing) “constitutional welfare rights” to matters like education, shelter, subsistence, and health care.

c.  The third case that Liu wants “swept into the dustbin of history” is the Court’s 1995 ruling in Adarand Constructors, Inc. v. Peña, which, in a majority opinion by Justice O’Connor, ruled that racial classifications imposed by the federal government must be subject to strict scrutiny.  Liu doesn’t dispute the holding of Bolling v. Sharpe (decided the same day as Brown) that there is an equal-protection principle embedded in the Fifth Amendment that protects blacks from racial discrimination by the federal government, but, consistent with his support of racial quotas in perpetuity, he rejects the notion that this equal-protection principle applies equally to whites.

Has there ever been a judicial nominee with such a clear agenda to work to overrule (or to undermine) Supreme Court precedent?  What reason is there to believe that Liu’s agenda doesn’t extend to all the other matters he is passionate about (but that were beyond the scope of the Brown panel?