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Richard Painter

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

Posted: 03/02/11 08:39 AM ET

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.