Goodwin Liu flunks the “mainstream” test

Late last night, I watched a portion of the Senate Judiciary Committee’s hearing on the nomination Goodwin Liu. Based on what I saw, I agree with Ed Whelan who (based on the hour he watched) says “it sure sounded as if Goodwin Liu was running away from his record of writings and speeches.” Or, as Daniel Foster puts it:

Goodwin Liu casually disavowed his long-held views on Constitutional interpretation, painting himself as all but a strict constructionist, instead of someone who once wrote that “what we mean by ‘fidelity’ [to the Constitution] is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every single generation.”

For example, Liu has said:

The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The U.S. Supreme Court has cited foreign authority in cases limiting the death penalty and invalidating criminal laws against homosexual sodomy, among others. The resistance to this practice is difficult for me to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.

Yesterday, though, Liu insisted that foreign law should be source of “ideas,” not “authority.” This statement cannot be reconciled with the quoted passage, which expressly endorses using foreign “authority” to find “solutions to. . .legal problems. Indeed, what role do “ideas” have in a judicial opinion other than as authority in favor of or against a particular result? An judicial opinion is not a seminar.
Liu tried to score some points with Sen. Coburn by claiming he has testified that, under existing law, courts should reject a constitutional challenge to the California Proposition on gay marriage. Coburn corrected Liu, noting that the professor had only testified that the courts would reject the challenge, not that they should. I haven’t read the testimony in question, but Liu did not challenge Coburn’s characterization of it after Coburn called him on it.
On welfare rights, it was more of the same. Sen. Sessions asked about Liu’s statement that courts should “apply constitutional doctrine in a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understanding.” Liu tried to brush the statement aside as “academic jargon,” and claimed that he believes courts have “no role at all” in distriburing legislative judgments in this area.
The concept of participation in a “dialogic process” may be academic jargon, but it plainly does not mean “no role at all.” When it comes to interpreting his past statements, Goodwin Liu is no strict constructionist.
During judicial confirmation battles we often hear claims that the nominee is outside of “the judicial mainstream.” Liu himself hurled that accusation at Samuel Alito.
Determining what falls within the judicial mainstream isn’t always easy, but here’s a good test: if a nominee cannot advocate before Congress the views he or she has advanced in more sheltered contexts, then the nominee’s view are not “mainstream.”
Yesterday, Goodwin Liu flunked that test.

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