Goodwin Liu should not be a Ninth Circuit judge

Presidential elections matter for many reasons — not least, but too little noticed, because of judicial nominations. Federal judges, and Supreme Court justices, typically serve for life. Their philosophies, their ideologies, their view of the Constitution, influence American law and politics vastly more than some of the congressional contests we so closely watch.

The Ninth Circuit United States Court of Appeals (covering California, Oregon, Arizona, Alaska and Washington) — by far the most liberal, and most-reversed, circuit in the land — does not need another liberal judge. To be sure, the nominees to the Ninth Circuit during this administration will be liberal — but there is liberal, and there is Goodwin Liu.

President Obama’s nomination of Goodwin Liu to the Ninth Circuit was blocked by Republican filibuster on Thursday. It was a principled vote. I do not say that lightly. I’ve written before that presidents are entitled to deference in their judicial nominations — precisely because presidential elections have consequences, and Americans must better appreciate judicial nominations as one such substantial consequence.

When Republican Senator Lindsey Graham voted in favor of President Obama’s nomination of Elena Kagan to the Supreme Court in the Senate Judiciary Committee, to the great consternation of many conservatives, I defended him. Liberal presidents get to do liberal things — and unless Elena Kagan was unqualified (she was not) or the sort of ideological liberal who threatened especially aggressive promotion of a liberal agenda (she was not), then the president gets his pick.

Goodwin Liu warranted Republican opposition. His published views are not only not mainstream — they’re the most far-reaching re-writing of the Constitution in contemporary legal and political dialogue.

Liu promotes not merely statutory, but constitutional, rights to health care, education, housing and welfare payments — meaning these entitlements, like rights to free speech, freedom from unwarranted search and seizure, etc., would be beyond the power of any future legislature to question or curtail.

“Rights to government assistance,” Liu insists, “are essential to liberty,” and therefore a fundamental right. And Europe proves it! The “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.” Goodwin Liu says every form of welfare is a constitutional right — meaning we cannot any longer debate the propriety or extent of any government hand-out — it’s a constitutional right. We neatly remove from the political realm, according to Liu, every argument about health care, education, housing, and welfare payments — because these are “constitutional rights.”

If ever there were a reason for Republicans — for Americans generally — to oppose a judicial nominee — this is it.

This is why presidential elections profoundly matter. President Obama wants Goodwin Liu on the Ninth Circuit, and the left is touting Goodwin Liu as a future Supreme Court nominee. And Goodwin Liu represents the most substantial change to our understanding of the Constitution in this generation.

Republican Senator Jeff Sessions says of Liu: “His record reveals that he believes the Constitution is a fluid, evolving document with no fixed meaning.”  No, only half-right — and in part, dangerously wrong. Goodwin Liu believes the Constitution “fixes” a host of “rights” and takes them forever out of the realm of political debate.

The road to serfdom begins with the kind of judiciary Goodwin Liu envisions.

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6 Responses to Goodwin Liu should not be a Ninth Circuit judge

  1. lbwoodgate says:

    It’s an argument that only a liberal would appreciate but to say it’s rewriting the constitution is a bit too much. Like the Bible it’s all a matter of interpretation.

  2. jeff veazey says:

    I feel sorry for you that you don’t believe people have a right to housing and health care. It affirms our Americaness and our collective sense of humanity (which in turn makes us willing to serve our country and die for “We the people…”, if necessary) more than helping any one person. We understand that, in this exceptional nation, no one need be homeless or without health care, if they do not choose to be so. These are rights that are easily drawn from the real and tangible words: life, liberty and the pursuit of happiness.

    • Jeff, I’m puzzled that you should “feel sorry” for me, as opposed to simply disagreeing with me. Do you have an insight that equips you to look down with pity on me, and my ilk, instead of simply telling me I have a misguided opinion?

      Please understand, you may or may not be right about “rights” to housing and health care. But these rights arise because a legislature — state or federal — declares them rights, not because the Constitution enshrines them, as Goodwin Liu believes. And that was my only point. It is one thing to insist that all Americans have a right to housing and health care and commit that proposition to the political process — quite another to take that proposition forever out of the political process by insisting that the Constitution guarantees these rights.

      Except by the kind of convoluted and dangerous legal reasoning urged by Goodwin Liu, there is no constitutional guarantee to housing and health care, and the Framers would have been aghast at such a notion. Precisely because we care deeply about what remains in the political realm, and what gets forever removed from the political realm by constitutional adjudication, there is an enormous difference between statutory rights and constitutional rights.

      “Life, liberty and the pursuit of happiness” appear in the Declaration of Independence, not the Constitution.

      And by the way, not incidentally, if Goodwin Liu’s preferred jurisprudence held sway, ObamaCare would be subject to even more compelling constitutional challenge because every “beneficiary” would then have standing to challenge the “unequal” distribution of health care, the “unequal” imposition of obligations, and the “unequal” gift of waivers to favored entities (primarily unions and politically generous corporations).

  3. jeff veazey says:

    Yes, I do feel sorry for you, particularly, because your heart is so good. But that narrowness of possibilities in your mind prevents the full exercise of your humanity. I love it when people tell me what the founding fathers would have thought or done, as though they have insight that equips them to look down on me. Health care barely existed at the time of our founding, so the notion that anything that was excluded was done so purposely, or that, if thrust forward in a time maching, the founding fathers would gag at the living breathing document they spawned, is ridiculous. The founding fathers left us with slavery so their insight is questionable. Their short-sightedness left us to deal with the long term effects of events like the civil war, civil rights, discrimination, voting rights, etc. I don’t know Liu’s record. If it reveals anything dangerous, I am sure he would have been arrested, shot, or discredited in all quarters by now. I had this same discussion in Con Law many years ago. I like my Constitution living and breathing, thank you. Conservatives like it that way too, when it serves their purpose. This discussion is probably too academic for me. I just follow my heart and head to guide me to what is fairest for all. Sorry for confusing critical American documents off the top of my head. I would think the revolutionary ideals of Independence worth fighting a long war over would be imbued into the organizing Constitutional document after victory. I promise not to feel sorry for you any more but I won’t-can’t stop shaking my head.

    • Very kindly stated… I think, at least as to my heart. You’re insisting upon a point, with your shaking head, that is at the heart of constitutional argument: How do we make continuing sense of words written 200+ years ago and intended as a supremely binding document? You want living and breathing because that makes for something you conceive as “fairest for all.” And if everyone agreed with your notion of what is “fairest for all,” then I’d say, sure, let’s do living and breathing. But they don’t Jeff. And there’s the rub. Coming to some sort of determination about how to interpret the Constitution is not about reaching the “fairest” interpretation — but about how to mediate intensely warring conceptions of what is “fair.” And in the context of that political warfare, the Founders had one overriding concern: limit the power of government to dictate political results, unless the people determine, through legislative or constitutional-amendment processes, how they wish to be bound. In other words, it matters not a whit that some of the Founders were slaveholders, because they gave the American people a way to say that slavery is unconstitutional, which the American people did with the 13th Amendment. The Founders plainly did not enshrine welfare and health care as constitutional rights (as opposed to potential legislative rights) for the soundest of all reasons — because these are political questions properly debated and resolved in the political realm, not decisions to be forever removed from the political realm by constitutional dictate. Whatever the warts and flaws of the Founders, their vision of our supremely binding document was an inspired limitation on government power, and an inspired limitation on the narrow class of issues that can never be political. This is why Goodwin Liu’s jurisprudence is a radical reworking of constitutional understanding, and this is why Republicans were willing to undertake their first filibuster of a judicial nominee, which I applaud. Let him be a brilliant academic doing that academic thing about which you profess discomfort — but don’t let him press his jurisprudence on the bench.

  4. rautakyy says:

    It is interresting how much the political debate in the US seems to revolve around the constitution. In Finland we have about hundred years old constitution and it has been changed from time to time. It is more a tool for the juristiction, than the main political theme.

    Our socialist politicians have created what we call a wellfare society. This is much the same as in other nordic countries (Sweden, Norway and Denmark). It means we as nations percieve such things as “rights” as a universal healthcare and free education (all the way through university) free for all people. The governments even give a basic support for all the students to live on. I think this is the reason taxation in general is not such a troll to us, as it seems to be for you in the US. Taxes are seen more like a wery good insurance for any occurance to our citizens. On the other hand the companies have also come to appreciate the fact that they have the full potential of small nations to be highly educated at their disposal and that the universal health care keeps up the general level of healt up, so workforce is more capable.

    I am not saying we have a perfect system, far from it, but it has to account for something, that nowadays even our conservative politicians run their campaingns on the issues like how do we endorce the general wellfare, education and health care.

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