GOP's Cover Wearing Thin on Its Distaste for Goodwin Liu

March 5, 2011 6:12 PM

While the media was all agog giving airtime to Charlie Sheen last week, you had to look pretty hard to find coverage of something far more important to society:  the gross and unfair treatment of federal court nominee Goodwin Liu.

Liu has a name Sheen would admire (if it is all about "winning," Liu is a "Goodwin").  And by ancestry, Liu's probably a lot closer to having tiger-blood than Sheen.  But Liu doesn't rate a fraction of the media attention because he's no Charlie Sheen, which is to say he speaks in more thoughtful and measured tones, and brings his mom, dad, wife and two kids (and no goddesses) to his hearing for appeals court judge of the 9th Circuit.

So why do ardent conservatives fear Liu, painting him as if he were Sheen-like, a dangerous liberal and a constitutional wild man from Berkeley ready to trash the will of our Founding Fathers? That's what comes across if you've seen nothing but the right-wing commentary on Liu.

For a simple antidote to all that noise, watch Liu's comportment during last week's confirmation hearing at the Senate Judiciary Committee: http://judiciary.senate.gov/hearings/hearing.cfm?id=5010. Go fast forward in the viewer to around 60:13 of the recording and tell me if Liu isn't more fair and balanced than Fox itself?

The guy is our exemplary story, the model for the model minority.

The son of Taiwanese immigrants who were brought to the U.S. to serve as physicians in rural areas, Liu lived in Florida, Georgia, and California. He went to Sacramento public schools. Then Stanford. Oxford on a Rhodes. Yale Law. (Yes, he could use some Harvard, but no one's that perfect).

He clerked for Supreme Court Justice Ruth Bader Ginsburg and worked as an appellate litigator at O'Melveny and Myers in D.C. Currently, he's the Associate Dean at UC Berkeley's Boalt Hall School of Law, where he's a professor in constitutional law.  Oh, and did I say he is just 40?

If he were confirmed last year after his first hearing, Liu would have been just 39. But even after 3-1/2 hours of testimony, 98 pages of written answers to Senators' questions, Republicans didn't have the decency to confirm Liu and instead aborted his nomination. It forced a re-nomination from President Obama and a second hearing last week.

RACE AN ISSUE?
Remember, this isn't the high court. This is just an appellate post. Considering the paucity of federal judges of Asian American ancestry (at last count just 8) could there be a racial component involved?

Fortunately for the GOP, there's enough political cover. We don't have to go there.

The conservatives' main stated case against Liu is that he's not a faithful "originalist."  Some legal critics fear he would legislate from the bench.

But at last week's hearing, Liu squarely addressed the point when grilled by Sen. Charles Grassley (R-Iowa). Grassley took issue with Liu's book Keeping Faith with the Constitution, (written with Pamela S. Karlan and Christopher H. Schroeder) and specifically, Liu's statement that the Constitution is a "living constitution" that grows and evolves over time.

Liu was extremely polite in his response. "Senator," Liu said, "What we try to do in the book is reject the notion of a 'living Constitution' as far as that label has come to stand for the idea that the Constitution itself can grow evolve and morph into whatever a judge might want it to say, and that is simply wrong."

"The Constitution provides in article 5 the only process by which the text of the Constitution can change, and we respect that," Liu added. "Furthermore. . .the text of the Constitution and principles it expresses are totally fixed and enduring. Those things don't change either."

Liu said the modern challenge was how to apply "broad principles to specific facts."

He cited a Supreme Court case, City of Ontario v. Quon, a sexting case involving California police sergeant Jeff Quon, who used a government-issued cell phone.

"The court interestingly declined to decide that issue," Liu said.

But it wasn't just because of new technology (those Founders were bereft of cell phones), but as Liu put it, the expectations of privacy have not been fully settled.

"The court said workplace norms are evolving, and it's not clear yet what kinds of privacy society is prepared to recognize as reasonable," Liu said. "This is another example of how evolving norms or social conditions inform the court's approach to the interpretation of certain constitutional provisions."

While a radical would absolutely protect the right of the sexter, from his statement, Liu implied he wouldn't improperly use his judge's role.

But remember, Liu's not up for the high court and pointed out to the committee he understands his duty as an appellate judge would be to "follow the Supreme Court's instruction."

"That's what I'd do," Liu said. "Faithfully follow precedents."

Those claiming Liu's not an "originalist" should simply back off.

IS HE A LEFTY LOUIE?
And now for those who claim Liu's a flat out ideologue.

Liu did testify in 2006 against Samuel Alito's nomination saying: "In Judge Alito's America, the police may shoot unarmed Americans. . .the FBI may install a camera where you sleep. . .an all white jury may convict a black man to death."

But at the recent hearing, Liu admitted his comments on Alito were "unduly harsh and inappropriate." Said Liu:  "I understand now more than I did then that strong language like that is not very helpful in the process."

Still, many conservatives looked past that and came to Liu's support, including Kenneth Starr, the former Whitewater prosecutor; the reviled John Yoo, the former Bush Justice Department attorney who justified the administration's use of torture; and Richard Painter, a former ethics lawyer for Bush who worked on both the Roberts and Alito nominations.  Sen. Al Franken (D-Minn.) even asked that Painter's recent letter be put on the record.

Writes Painter: "[T]he attacks on Liu have been even more unfair than attacks on past nominees. Based on my review of his record, I believe it's not a close question that Liu is an outstanding nominee whose views fall well within the legal mainstream."

The political cover of opposing Liu is wearing thin.

If Goodwin Liu is not confirmed soon, surely Republicans wouldn't want Asian Americans to think there is some other deep-seated ugly reason an exemplary candidate---who just happens to be Asian American---is being denied an opportunity to serve his country.

With Asian Americans so woefully underrepresented in the federal judiciary, how does any reasonable person say no to Goodwin Liu?

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Posted by:Emil Guillermo

The views expressed in this blog do not necessarily represent the views or policies of AALDEF.

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