Over the weekend, I offered my impressions of Goodwin Liu’s appearance before the Senate Judiciary. The portion of Lui’s testimony I was able to watch convinced me that the nominee was affecting a rather dramatic “confirmation conversion.”
Ed Whelan, having read the entire transcript, offers additional detail about Liu’s mock conversion. The nominee testified that judges should be “impartial, objective and neutral arbiter[s] of specific cases and controversies that come before [them].” The way the judge fulfills this role, Liu added, “is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations that are at issue in the case.”
But Liu has written that “faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context.” And, in a perversion of Chief Justice Roberts’ famous baseball analogy, Liu has compared the role of the judge to the role of the renegade umpires who changed the strike zone “in response to changing aspects and contemporary understandings of the game.”
A judge who, in effect, changes the rules, in the name of paying attention to the evolving social context, by definition does not give absolute fidelity to the applicable precedents and pertinent statutory language. The fidelity instead is to the judge’s personal understanding of how the “social context” is, or should be, evolving.
Recognizing the chasm between his writings and the testimony needed to secure confirmation, Liu told the Senators that “whatever I may have written in the books and in the articles would have no bearing on my role as a judge.” But Liu’s books and articles aren’t about the Albegensian Heresy or the pre-Raphaelites. They are about how the Constitution should be interpreted. Indeed, as Whelan reminds us, Liu’s one book, Keeping Faith with the Constitution, lays down the principles that Liu thinks judges must apply if they are to be faithful to that document.
Interpreting the Constitution is, of course, one of the most important things judges do. Thus, the notion that Liu’s writings about how the Constitution should be interpreted have “no bearing on [his] role as a judge” insults the intelligence of the Senators on the Judiciary Committee.
When the path to confirmation involves insulting Senators’ intelligence to this degree, that path is likely to be rocky. Liu is looking like a nominee Republicans may be able to block.
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