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Thomas Goldstein

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A Hearing to Define "Mainstream" Judicial Views

Posted: 03/24/10 02:43 PM ET

The Senate Judiciary Committee today holds its most significant hearing on any of President Obama's judicial nominees, to consider a candidate who has received remarkably little attention. Justice Sonia Sotomayor, who passed through the Committee last summer, will have a great influence on the law for decades. But unlike her preordained confirmation, the uncertain outcome of today's hearing will chart the course for many dozens of judicial nominations that the president will make during his time in office.

The candidate is Goodwin Liu, a law professor and associate dean at California's Berkeley Law School. The president selected Liu for a seat on the Ninth Circuit, by far the largest court of appeals, which has jurisdiction over several Western states. The controversy is over Liu's liberalism, and the Committee is confronting the claim that the views he would apply as a judge are outside the mainstream, so that the nomination should be rejected.

Liu's formal qualifications for the post are not actually seriously disputed. He is young but broadly recognized as a brilliant and thoughtful lawyer. A Rhodes scholar, he graduated from Yale Law School with an impeccable record that secured him a Supreme Court clerkship.

Nor is there real disagreement over whether Liu has the temperament and commitment to the rule of law that a judicial appointment requires. The American Bar Association unanimously found him to be "well qualified," the highest possible rating.

Liu also differs from other nominees who were handed opportunities on a silver platter. Indeed, his personal story embodies the American dream. The child of immigrants from Taiwan, Liu spoke no English before starting public elementary school. Public service defines his professional life. He spent two years after college helping to launch AmeriCorps. Soon after law school, he began work on education issues in the Clinton administration, and then pursued scholarship. If confirmed, Liu would be the only Asian-American judge on the federal courts of appeals.

Though a model nominee in those respects, Liu's appointment has brought controversy. The narrow but vocal opposition is rooted in his scholarly writings, which take a broad view of the liberties protected by the Constitution. But his scholarship is far from radical. For example, he has explicitly rejected the theory that the Constitution is a "living" document that is infinitely malleable. Liu's embrace of school voucher programs has earned him praise from conservative quarters.

Still, other conservatives object that Liu's writings echo many of the themes of the Warren Court era. That is the period in which the Supreme Court read the Constitution to recognize a right to an abortion, raise the wall separating church and state, uphold the constitutionality of affirmative action and expand the protections provided to criminal defendants.

Conservative activists view that entire mode of judicial thinking as bankrupt and little more than a tool for judges to impose their own personal preferences as law. With the vocal support of several Supreme Court Justices, conservatives have had some success in framing that settled approach endorsed by Liu, which underlies most of our existing constitutional law, as entirely illegitimate.

The decades-long controversy over how broadly to read the Constitution's liberties will not be settled in today's hearing. But Liu's fate before the Senate could render the debate practically moot. The vote to confirm or reject an appellate nominee not only stakes out a position on the individual candidate, but also more broadly sets the bar on whether certain substantive views on the law are just too extreme to permit confirmation.

By openly blocking Liu's confirmation on the ground that his views of the Constitution are outside the mainstream, they would set a precedent applicable to dozens of future nominations, including for seats on the Supreme Court. If Liu's opponents succeed, it is hard to see why the president would later nominate or the Senate would confirm any candidate who openly embraces the long-prevailing view that the Constitution is written in broad terms precisely in order to account for the varied problems that a huge and dynamic country would confront over the centuries.

The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.