Paul has written here and here about Goodwin Liu, a left-wing law professor whom President Obama has nominated to the 9th Circuit Court of Appeals. To say that Liu is thinly qualified would give him too much credit, as he has scarcely ever practiced law at all. Now, an attack Liu launched against John Roberts in 2005 has surfaced and has raised new questions about his nomination.
When President Bush first nominated Roberts to succeed Sandra O’Connor, Liu responded with an attack that tells us nothing about Roberts but a great deal about Liu. First, Liu criticized Roberts’ associations:
Before becoming a judge, he belonged to the Republican National Lawyers’ Association and the National Legal Center for the Public Interest, whose mission is to promote (among other things) “free enterprise,” “private ownership of property,” and “limited government.” These are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.
Private property, free enterprise and limited government are “code words”? No one holding such a bizarre, anti-Constitutional view should hold public office in any capacity, certainly not as a judge.
Liu went on to attack an opinion that Roberts authored as a judge on the D.C. Circuit Court of Appeals, the famous “french fry” case, Hedgepeth v. Washington Metropolitan Area Transit Authority. You might have to be a lawyer to fully appreciate the dishonesty of Liu’s description of the case and of Roberts’ opinion:
Last year, for example, he wrote an opinion rejecting the civil rights claims of 12-year-old Ansche Hedgepeth, who was arrested, searched, handcuffed, booked, and detained by police for eating a single french fry in a subway station in violation of D.C. law. Although an adult committing the same infraction would have received only a citation under D.C. law, Roberts said the police’s treatment of Hedgepeth served the “goal of promoting parental awareness and involvement with children who commit delinquent acts.”
From Liu’s account you might think that Roberts was the D.C. official who wrote the law, not a judge called upon to rule on its constitutionality. Here is how Roberts began his opinion on the case:
No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as “foolish,” and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.
Roberts did, here, exactly what a judge is supposed to do–not impose his own opinion as to whether a law or ordinance is foolish, but evaluate its constitutionality according to established principles and precedents. It is worth noting, too, that Liu described Roberts’ opinion in this case as though it were outside the mainstream, while in fact Roberts wrote for a unanimous court, and every judge who looked at the case ruled the same way. Liu here betrays the arrogance of the left-wing academic: anyone who disagrees with me is an extremist, even if his disagreement represents a consensus among competent jurists.
This is the section of his opinion in which Roberts evaluated the constitutionality of the D.C. no-food-in-the-Metro ordinance:
On cross-motions for summary judgment, the district court ruled in favor of the defendants. Hedgepeth v. Washington Metro. Area Transit, 284 F.Supp.2d 145, 149 (D.D.C.2003). Addressing the equal protection claim, the court applied “the highly deferential rational basis test,” id. at 156, because it found that age is not a suspect class, id. at 152-53, and that there is no fundamental right to be free from physical restraint when there is probable cause for arrest. Id. at 155. The court then ruled that both the District’s no-citation policy for minors and WMATA’s zero-tolerance policy survived rational basis review.
Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” … We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.
Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name — an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children. The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen — detention until the parent is notified and retrieves the child — certainly does that, in a way issuing a citation might not. The district court had and we too may have thoughts on the wisdom of this policy choice — it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears — but it is not our place to second-guess such legislative judgments. See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976) (per curiam) (rational basis review does not authorize the judiciary to sit as a “superlegislature”).
(Emphasis added.) Far-left professors like Goodwin Liu don’t seem to understand that a judge’s role is not to serve as a dictator, imposing left-wing policy preferences on an unwilling public and an “unenlightened” legislature.
One last quote from Liu’s self-revelatory attack on Roberts:
In addition to weakening key environmental laws, Roberts’s theory of limited federal power would potentially undermine bedrock civil rights laws, including the Civil Rights Act of 1964.
“Roberts’s theory of limited federal power”? Has Liu ever read the Constitution? Did he actually attend law school? If so, was he not taught that ours is a government of limited powers? It is shocking that President Obama would nominate an extremist like Goodwin Liu, who expresses outright hostility to the most fundamental principles of our democracy, to the federal bench. Republicans, as well as Democrats who understand that we do, indeed, have a government of limited powers, should do everything possible to defeat his nomination.