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Qualified, Measured, and Mainstream: Why the Senate Should Confirm Goodwin Liu

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This afternoon, over a year after he was first nominated by President Obama to the Ninth Circuit federal court of appeals, University of California law professor Goodwin Liu will go before the Senate Judiciary Committee for his second confirmation hearing. There will be few surprises, since Liu already gave 3.5 hours of testimony last April followed by 98 pages of written answers to Senators' questions. But at least the hearing will remove any further excuse for delaying an up-or-down vote on Liu's nomination.

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee.

Liu is not the first nominee to go through a barrage of unfair attacks. Louis Brandeis, the first Jewish American to join the Supreme Court, had a nasty Senate confirmation hearing in 1916. The Clarence Thomas confirmation hearing was another debacle; Senators caricatured and attacked the nominee instead of discussing his ideas about judging. President George W. Bush's nominee to the D.C. Circuit, Miguel Estrada, was attacked by critics who had preconceived notions about how a Hispanic jurist should think about the law. He eventually withdrew.

Having worked on the confirmations of John Roberts and Samuel Alito as the chief White House ethics lawyer under President Bush, I've done my share of vetting judicial candidates and fighting the confirmation wars. I didn't know much about Liu before his nomination to the Ninth Circuit. But I became intrigued by the attention the nomination generated, and I wondered if his Republican critics were deploying the same tactics the Democrats had used to attack Republican nominees. They were. If anything, the attacks on Liu have been even more unfair than attacks on past nominees. Based on my own review of his record, I believe it's not a close question that Liu is an outstanding nominee whose views fall well within the legal mainstream. That conclusion is shared by leading conservatives who are familiar with Liu's record.

This post brings together a variety of material about Liu:

  • First, I review Liu's background, qualifications, and key endorsements.
  • Second, I highlight two letters from respected authorities that shed important light on Liu's scholarly record.
  • Third, I provide several responses to various attacks on Liu.
  • Fourth, I address Liu's opposition to the Supreme Court confirmations of Roberts and Alito, two Justices whom I vigorously supported as a Bush administration lawyer and whom I believe were outstanding additions to the Court.

These materials summarize why Liu is an excellent choice for the federal bench. But even if you read this entire post, nothing substitutes for reading Liu's writings or watching his testimony for yourself. That is how I reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed.

By now, many are familiar with Liu's background and qualifications. The son of Taiwanese immigrants, Liu didn't learn English until kindergarten. He grew up in Sacramento and attended public schools. He graduated from Stanford, Oxford, and Yale Law School. He is a Rhodes Scholar. He clerked at the U.S. Supreme Court. He worked in government and private practice before becoming an award-winning teacher and scholar at UC Berkeley. He earned tenure in five years and was appointed Associate Dean of the law school. He's been elected to the American Law Institute and to numerous boards, including the Stanford Board of Trustees. He is 40 years old.

The ABA gave Liu its highest rating of Unanimously Well-Qualified. FOX News anchor and legal analyst Megyn Kelly said "his qualifications are unassailable." The New York Times called him "An Exceptional Nominee." Liu's life story reflects the American Dream. He would become only the second Asian American currently serving on a federal appeals court and the only Asian American in active service on the Ninth Circuit, whose jurisdiction is home to over 40 percent of our nation's Asian American population. In addition, Liu would fill a "judicial emergency" vacancy.

Given Liu's outstanding qualifications, it is no wonder his critics resort to claiming that he is "radical" and "extreme" by selectively quoting and misinterpreting his law review articles. I decided to read Liu's writings and see for myself what all the fuss was about. I offered my conclusions in a Los Angeles Times op-ed:

There are some left-wing ideologues on law faculties, but UC Berkeley's Goodwin Liu is not one of them. He is a fine choice for the federal bench.... This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook.... From all of the law review articles, speeches and other material Liu has submitted, it is quite clear that he is a moderate liberal, that he is open to ideas championed by libertarians and conservatives, and that he is intelligent and capable of being a good judge. Liu respects the law, which is what we should expect of a judge.

But don't take my word for it. Here is what former Whitewater prosecutor Ken Starr said in a letter endorsing Liu, which discussed testimony that Liu gave in 2008 correctly predicting that the California Supreme Court would uphold Proposition 8, a voter-approved ban on same-sex marriage, under applicable state precedents:

Goodwin's position ... could not have pleased his friends who sought to invalidate Proposition 8. But, as the example shows, Goodwin knows the difference between what the law is and what he might wish it to be, and he is fully capable and unafraid of discharging the duty to say what the law is.

Goodwin is a person of great intellect, accomplishment, and integrity, and he is exceptionally well-qualified to serve on the court of appeals.... [His record shows] his independence and openness to diverse viewpoints as well as his ability to follow the facts and the law to their logical conclusion, whatever its political valence may be.

And here is what Goldwater Institute lawyer Clint Bolick--a key architect of current lawsuits challenging President Obama's health care legislation--said in his endorsement letter, which highlighted a law review article in which Liu supports school vouchers:

It took a great deal of courage and integrity for Prof. Liu ... to take such a strong and public position.... Having reviewed several of his academic writings, I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court.

Liu's Republican supporters also include William T. Coleman, Jr., former Secretary of Transportation under President Ford and one of President Bush's appointees to the Court of Military Commission Review (Liu is a "bright, intelligent and understanding person" and "will become an outstanding judge on the Ninth Circuit."); John Yoo, former Justice Department attorney under President Bush ("for a Democratic nominee, he's a very good choice."); and Tom Campbell, former congressman, law professor, and business school dean ("Goodwin will bring scholarly distinction and a strong reputation for integrity, fair-mindedness, and collegiality to the Ninth Circuit.").

If you want to confirm the judgment of these leading conservatives, I suggest that you read Liu's writings for yourself. If you do, you will find that Liu is thoughtful, measured, and well within the legal mainstream. Strident efforts to demonize Liu reflect the tiresome tit-for-tat of confirmation politics (which Republicans have rightly decried in the past) rather than any insight into the kind of judge Liu would be.

For concise overviews of Liu's scholarly record, I suggest two items. The first is a letter by Professor Jesse Choper, one of the nation's leading constitutional law scholars. Choper is widely regarded as having a middle-of-the-road perspective, neither liberal nor conservative. Because he chaired Liu's tenure review, he had occasion to read and evaluate all of Liu's writings. With numerous citations to Liu's published work, the letter carefully responds to mischaracterizations of Liu's writings on welfare rights, affirmative action, capital punishment, school desegregation, and constitutional interpretation. Here is what Choper concluded:

I have been dismayed and disappointed that some commentators have portrayed Liu as a liberal extremist when his record is so plainly to the contrary. His writings indicate that he would be relatively moderate and pragmatic, and an especially fair jurist, one with a clear understanding of the limited role that courts should occupy. Indeed, when one looks across the entire body of his work in his principal area of expertise, education law and policy, it is telling that so much of it is directed at legislators and policymakers and not at courts--a reflection, I believe, of his appreciation for the appropriate limits of judicial authority....

[W]hen evaluated against the range of ideas in contemporary Supreme Court jurisprudence, Liu's perspectives--whether one agrees with them or not--are well within the legal mainstream. Moreover, no matter what views he has taken as a scholar, I am confident that, if confirmed to the Ninth Circuit, he will not seek to enforce his views as law. Rather, to the extent that any person can predict the future, I feel assured that he will faithfully discharge his obligation to follow Supreme Court and circuit precedent. In this regard, Liu will follow in a fine tradition of many legal scholars who have served with distinction on the federal bench.

The second item is a bipartisan letter by 22 leaders in education law and policy, Liu's primary area of scholarship. (Two-thirds of Liu's academic publications address education law or policy.) Although this letter has not received much attention, people in the education field will tell you that Liu's supporters are A-list names who span a broad ideological range--from conservative heavyweights like Eric Hanushek of the Hoover Institution, Frederick Hess of the American Enterprise Institute, and James Guthrie of the George W. Bush Presidential Center; to centrist reformers like former New York City schools chancellor Joel Klein and former Bush education official Michael Petrilli; to moderate liberals like former U.S. Secretary of Education Richard Riley and affirmative action critic Richard Kahlenberg. The letter describes Liu's nuanced positions on school finance, affirmative action, school vouchers, and other issues, and concludes:

... Professor Liu's writings are thorough, pragmatic, and scrupulously attentive to facts and evidence. His work is nuanced and balanced, not dogmatic or ideological....

... [H]is record demonstrates the habits of rigorous inquiry, open-mindedness, independence, and intellectual honesty that we want expect our judges to have. His writings are meticulously researched and carefully argued, and they reflect a willingness to consider ideas on their substantive merits no matter where they lie on the political spectrum. Moreover, we are confident in Professor Liu's ability to decide cases based on the facts and the law, regardless of his policy views. His scholarship amply demonstrates that kind of intellectual discipline, and our high regard for his work is widely shared.

Given the ferocity of education politics, it speaks volumes that Liu enjoys the respect of such an ideologically diverse and high-powered group.

Now, you can believe the top experts in the areas of Liu's scholarship and prominent conservatives such as Ken Starr and Clint Bolick--or you can believe National Review Online's Ed Whelan. I know where I would put my marbles. As discussed below, Whelan's anti-Liu repository invents a series of myths about Liu with no basis in reality.

1. Myth: Liu believes judges "may legitimately invent constitutional rights to a broad range of social 'welfare' goods, including education, shelter, subsistence, and health care."

Reality: Not true. In a 2008 law review article, Liu argued precisely the opposite: welfare rights, he wrote, "cannot be reasoned into existence by courts on their own." Consistent with Supreme Court precedent, Liu explained that only legislators--not judges--may "declare rights to entirely new benefits or programs not yet in existence." Liu's writings treat welfare and education as primarily legislative not judicial responsibilities, as I and others have explained. His 2008 article endorsed "legislative supremacy" in these areas; for example, Liu said there is "no role for courts" to question Congress's 1996 decision to end welfare entitlements for poor families. As the New York Times reported, the only judicial role that Liu endorsed "focused on small-scale disputes over Congressionally enacted programs--like 'invalidating statutory eligibility requirements'--not creating welfare programs based on judicial fiat." As Jesse Choper observed, "judicial review of this sort is supported by Supreme Court precedent, and it has been embraced by Justices such as Lewis Powell, hardly a left-wing radical."

In short, Whelan is simply wrong to say that Liu believes judges may legitimately invent constitutional welfare rights. And the fact that Whalen disagrees with the limited judicial role that Liu endorses does not mean Liu is a liberal extremist. It just means Whalen disagrees with Liu and with some of our nation's most distinguished jurists on this issue.

2. Myth: Liu believes in a "freewheeling constitutional approach" that allows people "to redefine the Constitution to mean whatever they want it to mean."

Reality: No, he doesn't. Liu co-authored a 2009 book titled Keeping Faith with the Constitution, which emphasized "the fixed and enduring character of [the Constitution's] text and principles" and rejected the idea that "the Constitution can come to mean whatever a sufficient number of people think it ought to mean." Instead, Liu endorsed the common-sense view that courts interpreting the Constitution must ask not how its general principles would have been applied in 1789 when it was first ratified or in 1868 when the Fourteenth Amendment was adopted, but rather how those principles should be applied today in light of the conditions and challenges facing each generation. That is the approach taken in cases like Brown v. Board of Education, where a unanimous Supreme Court said "we cannot turn the clock back to 1868" in deciding the constitutionality of school segregation. Instead, the Court said "we must consider public education in the light of its full development and its present place in American life" in the course of reaching its historic decision to ban racial segregation in public schools.

Far from being radical, Liu's view probably comports with the intent of the framers who bequeathed the Constitution to their descendants with the intent that it be a useful document. Few if any of our ancestors would have intended that we run our businesses, farm our land, educate our children, or live our lives exactly the way they did, even if they did intend that the Constitution give us principles of self-government that would last for generations. Liu's perspective may be more realistic than that of some of his opponents; his view is certainly not radical.

Reviewing Liu's book, Jesse Choper writes:

Liu's interpretive approach is part of mainstream legal thought, at least as much as originalism is. Disagreements over how the Constitution should be interpreted are familiar and unlikely ever to be resolved; the debate itself is part of our legal tradition. Though not without the inherent limits of any method of constitutional interpretation, Liu's position reflects the statements and practices of many of our most eminent jurists, including Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes, and John Marshall. And it echoes the language of key Supreme Court precedents ending racial segregation, establishing constitutional protections against gender discrimination, and authorizing Congress to regulate the national economy.

Again, the fact that Whelan disagrees with Liu does not mean Liu is a radical. It just means Whelan, who believes "originalism [is] the genuinely faithful method of constitutional interpretation," finds it hard to tolerate mainstream views that differ from his own.

3. Myth: "Liu is a supporter of racial quotas in the schools, and he supports school choice only insofar as it furthers that goal."

Reality: Not true. In a 2005 law review article, Liu endorsed school choice initiatives, including charter schools and vouchers, that enable disadvantaged children to attend good schools, whether public, private, or religious. Given the intensity of liberal opposition to school vouchers, conservatives such as Ken Starr and Clint Bolick have rightly praised Liu's article for showing "courage," "integrity," and "independence."

In the article, Liu proposed rewarding schools whose enrollments roughly reflect the racial and socioeconomic diversity of their surrounding communities. Whelan says this shows Liu supports racial quotas, but I find that hard to believe. If Liu's position is tantamount to supporting quotas, why would Clint Bolick--one of America's most vigilant foes of racial quotas (whom Whelan "deeply admire[s]")--praise Liu's article and endorse his nomination? In fact, Liu's position is similar to what Justice Kennedy said in a 2007 school desegregation case: "having classrooms that reflect the racial makeup of the surrounding community" is one of "our highest aspirations," and "[a] compelling interest exists in avoiding racial isolation ... [and] achiev[ing] a diverse student population." Justice Kennedy, however, does not support racial quotas, and Liu doesn't either.

4. Myth: Liu supports "racial quotas forever."

Reality: Of course he doesn't. In a 2003 panel discussion, Liu endorsed "the idea of remedying societal discrimination as a justification for affirmative action." He also spelled out this view in a 2004 law review article, where he endorsed the diversity rationale upheld in Grutter v. Bollinger but also argued for reconnecting affirmative action to its historic remedial purpose. As Jesse Choper observed, "that view is hardly radical, putting Liu in the company of people like Richard Nixon, Gerald Ford, and Colin Powell." Whelan says Liu's position authorizes racial quotas in perpetuity, citing an opinion by Justice Powell. But again, Liu doesn't support quotas. And far from endorsing race-conscious remedies "forever," Liu wrote in his article: "Whereas 'diversity' entails no inherent aspiration for an end to race-consciousness, a desire to remedy discrimination and its vestiges logically motivates the hope that affirmative action will some day end." In other words, Liu believes--quite reasonably--that the eventual termination of affirmative action more logically follows from a remedial rationale than from the diversity rationale upheld by the Supreme Court in Grutter.

5. Myth: Liu supports "reparations for slavery" and a "grandiose reparations project."

Reality: This attack is so absurd it barely merits a response. In a 2008 panel, Liu and others discussed a documentary film about a New England family's role in the slave trade. Because seeing is believing, I urge you to watch the video and decide for yourself whether Liu supports (or even mentions) reparations. To the extent Liu discussed solutions for racial inequality, here is what he said:

... [I]nstead of looking for the single national strategy, which is what everybody always looks for, think about what you can do on a much smaller scale in much smaller communities, around specific problems that people face, whether it's in their schools, in their workplaces, access to health care, in their housing--whatever it may be.

6. Myth: Liu supports "direct judicial imposition of interdistrict racial-balancing orders" in public schools.

Reality: This is simply not true. In a 2004 law review article and in a 2004 panel discussion, Liu criticized Milliken v. Bradley, the 1974 case in which the Supreme Court held, 5-4, that remedies for de jure segregation of Detroit's public schools may not extend to suburban districts to which many whites had fled. But Liu's criticism of Milliken, a case decided 37 years ago, hardly means he is a present-day supporter of court-ordered busing. In fact, Liu acknowledged in a 2005 article that "Milliken seems firmly embedded in the law." That article, as well as a 2002 New York Times op-ed, gives us a clear sense of how Liu would address current segregation between urban and suburban districts: He urges policy solutions, not judicial intervention; in particular, he supports interdistrict school choice.

7. Myth: Liu supports "using foreign law to redefine the Constitution."

Reality: No, he doesn't. In a 2006 law review article, Liu wrote that "the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world." When asked about this statement at his confirmation hearing, Liu said:

I do not believe foreign law should control in any way the interpretation of United States law, whether it's the United States Constitution or a statute.... I think foreign precedent can be cited in the same way that a law review article might be cited, which is simply to say, judges can collect ideas from any place that they find it persuasive. But there's a very important difference, Senator, and one that I take very seriously, between looking for guidance or ideas versus looking for authority. And authority is the basis on which cases are decided, not ideas or other forms of guidance.

In his responses to Senators' written questions, Liu wrote that "foreign law can be a source of ideas, just as treatises and law review articles can be sources of ideas," but "foreign law has no legal authority in the interpretation of U.S. law, including the U.S. Constitution, unless U.S. law so provides." For at least two decades, this view has been endorsed by a Supreme Court majority, including Justice Kennedy and Justice O'Connor. It is hardly radical.

8. Myth: Liu supports "the invention of a federal constitutional right to same-sex marriage."

Reality: I don't know Liu's position on whether there's a federal constitutional right to same-sex marriage. That's because nothing in Liu's record addresses that issue. In 2007, Liu joined an amicus brief by 17 law professors arguing that California laws against same-sex marriage violate the California Constitution. Whelan says "the brief argues that because California's definition of marriage violates the equal-protection guarantee of the federal Constitution, it follows that it violates the state Constitution." That is a creative reading of what the brief actually argued. It urged the California Supreme Court to "rely solely on California, rather than federal, constitutional law," and it discussed federal cases "to illustrate" a "methodology for interpreting the California Constitution." If the brief were truly an argument under the U.S. Constitution, one would expect to see substantial analysis of major precedents like Romer and Lawrence--yet the brief scarcely mentions those cases. In short, the brief was submitted in a case that sought to resolve a contentious issue under state law (where it should be resolved), and it is about how the California Supreme Court should interpret the California Constitution, not the U.S. Constitution.

More could be said in response to these and other attacks on Liu, but you get the picture. The attacks are rife with extravagant and tendentious readings of Liu's record, and they are based on selective quotations of Liu's writings that even then don't prove the point. Liu is hardly the "ideologue" he is portrayed to be, even if some of his critics are.

Finally, I should address Liu's opposition to the confirmations of Chief Justice Roberts and Justice Alito. As a lawyer in the Bush White House, I worked to get those Justices confirmed. Obviously I don't agree with Liu's opposition to those nominations.

It is critically important, however, that people feel free to speak their minds about Supreme Court and other judicial nominations without fear of retribution. I don't agree with Liu's criticisms of Roberts or Alito, just as I don't agree with Whelan's criticisms of Liu. But their views should be allowed and tested in the marketplace of ideas, not silenced by fear of political retaliation. If Ed Whelan were to be nominated for the federal bench by a future President (probably not this one), I would want to hear about his own judicial philosophy. Whelan's opposition to Liu would be irrelevant, and I would have very little respect for anybody who would seek to make it relevant.

Liu's opposition to the Alito nomination has garnered the most attention. Some have claimed that a 2005 issue brief, in which Liu raised concerns about then-Judge Alito's opinions in death penalty cases, showed that Liu is "intensely hostile to capital punishment" and thus unfit for the bench. This groundless attack prompted former Republican Congressman Bob Barr to write that "Liu's views on the death penalty have been distorted.... [H]is views on due process for criminal defendants certainly are not radical. A more accurate reading of Liu's analysis reveals simply his commitment to the Constitution and to a fair criminal justice system." Dozens of former judges and prosecutors (here, here, and here) joined Barr in defending Liu. At his confirmation hearing, Liu stated unequivocally: "I would have no difficulty or objection of any sort, personal or legal, to enforcing the law as written with respect to the death penalty."

Suspected, not actual, opposition to the death penalty is a particularly inappropriate ground for opposing the confirmation of a federal judge. Many lawyers, including myself, are members of churches and other religious organizations that are opposed to the death penalty or that urge their members in public life to be very cautious about use of the death penalty. Some people may be so categorically opposed to the death penalty that they cannot serve as judges in a country that endorses capital punishment. But it is critically important that candidates for judicial office be assessed in accordance with what they actually think on this issue, not what others think they think.

Other critics have focused on Liu's testimony before the Senate Judiciary Committee at Justice Alito's confirmation hearing in 2006. In 17 pages of testimony, Liu analyzed over 50 opinions that Alito wrote on the Third Circuit in cases concerning individual rights versus government power, and he observed that Alito sided with the government more often than other Republican-appointed appellate judges nationwide. Liu's substantive legal analysis has gotten almost no attention because whether one agrees with it or not, it clearly qualifies as responsible commentary. Instead, Liu's critics have seized on the concluding paragraph of his testimony, the one that begins "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse ...."

This paragraph appears to be Liu's attempt to conclude his testimony with a dramatic coda. But the coda was unfortunate and unnecessary because it did not add anything new to Liu's substantive analysis. It used provocative language to narrow Alito's vast record down to a handful of controversial opinions, each of which had already been analyzed in Liu's testimony. (For example, the "stolen purse" case refers to Tennessee v. Garner, the subject of a 1984 memo that Alito wrote as a Justice Department lawyer.) In his written responses to Senators' questions, Liu admitted that the paragraph was "unduly harsh and provocative" and that it "has an ad hominem quality that is unfair and hurtful to the nominee.... For these reasons, I regret having written this passage, and I would omit it if I had the opportunity to rewrite my testimony."

No one paid much attention to what Liu said about Alito at the time, but now it is one of the arguments made against his confirmation. I understand why the passage has irked Liu's opponents; it was unnecessarily dramatic and unduly provocative, as Liu concedes. But does this statement really show--against the weight of his full testimony as well as the thousands of pages of measured and thoughtful writings in his record and Liu's own 3½-hour confirmation hearing--that Liu is intemperate, radical, or extreme? The judicial confirmation process should subject every nominee to careful scrutiny. But at the end of the day, the process must not descend into a retaliatory game of "gotcha." Liu should be confirmed not because he is perfect, but because his record considered in its totality demonstrates his qualifications, temperament, and ability to faithfully discharge his duty as a judge.

In sum, Liu is eminently qualified. He has support from prominent conservatives. He would fill a judicial emergency vacancy, and he would add important diversity to the bench. He is pragmatic and open-minded, not dogmatic or ideological, as his support for school vouchers shows.

Many, though by no means all, of his scholarly views do not align with conservative ideology or with the policy positions of many elected officials in the Republican Party. (This might not have been the case thirty years ago, but many moderates have since left the Republican Party.) Nevertheless, his views are part of the American legal mainstream. The independence, rigor, and fair-mindedness of his writings support a confident prediction that he will be a dutiful and impartial judge.

It has been more than a year since Liu was first nominated. His candidacy has been thoroughly debated. The Senate should vote on Liu's nomination, and it should vote to confirm.

Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota. From 2005 to 2007, he served as the chief White House ethics lawyer for President George W. Bush. Contact: rpainter@umn.edu, (612) 626-9707.

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