The Liu Confirmation Hearing

Yesterday I watched the Senate Judiciary Committee’s hearing on Goodwin Liu’s nomination for a seat on the Ninth Circuit.  As I’ve indicated in prior posts, I went to law school with Goodwin and fully support his confirmation even though we have a different view of constitutional law.  Aside from the usual political posturing and harping on confirmation battles past (at least they didn’t go back to Learned Hand), there were two things that caught my attention.

First, some of the senators and commentators seem confused about (or don’t recognize) the difference between the academic and judicial roles.  When students ask how I think a certain case should be decided, my answer is “I don’t know.  I’m a professor.  Not a judge.”  It’s not my job to decide cases.  It is instead to subject them to careful scrutiny, offers theories to reconcile conflicting decisions, and present historical or empirical information that places them in context.  More specifically, precedents are far more plastic when you’re a professor.  The proof of that is that every scholar who has a theory and is confronted with cases that are inconsistent with that theory either shrugs them off or says that the contrary decisions are wrong in a way that a judge could never do.

Why am I pointing this out?  Because it means that Professor Liu was entirely right to say that his articles are not a template of what he will do as a judge,  The accusation that he was running away from his views or undergoing a confirmation conversion is ridiculous.  Academics write for themselves.  A judge must take the views of his or her colleagues into account.  Academics are not bound by authorities.  A judge is.  Most important, academics rarely face consequences for what they write.  Judges do.  (This, BTW, is why Justice Scalia calls himself a “faint-hearted” originalist and recently dismissed academic interest in the Privileges or Immunities Clause as a joke in the context of actually deciding a case.)  This does not mean, of course, that Professor Liu’s academic writings are irrelevant to his candidacy.  It just means that they need to be considered in the proper light.

Second, I want to reiterate what I’ve said before–a President should receive deference for his judicial picks unless the candidate is unqualified or out of the mainstream of the President’s party.  The argument that Goodwin is unqualified is absurd.  Many GOP members of the Judiciary Committee (especially Senator Cornyn–you can look it up on Google) backed Harriet Miers (a nominee to the Supreme Court, not a circuit court) who was clearly unqualified, so I don’t find their critical comments especially convincing now. The fact that Professor Liu has argued only one case before a circuit court does not make him unqualified. I don’t think that Justice Thomas ever argued a case before a federal appellate court (though I must concede that I could be wrong about that) and he’s incredibly qualified.  And with all due respect, conservatives are simply not competent to judge whether a Democratic nominee is outside the mainstream of that party.  If liberal commentators or Democratic senators made that claim, then I would take that seriously.  So far, though, nobody from that side of the aisle has said anything critical about Professor Liu.

In the end, I suppose that Republican senators may conclude that it’s payback time for Miguel Estrada and other conservative judicial nominees who were wrongfully blocked during the Bush years.  Vengeance is a basic human instinct.  But I do not think that reasoned judgment supports such a conclusion.

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9 Responses

  1. Anon says:

    I’d be more in support of Professor Liu if he’d made all the required disclosures when first asked instead of waiting until the media dug up some missing items, thus forcing the Professor to do a last-minute “supplemental” disclosure. I also thought Liu’s statements about Alito during the latter’s confirmation hearings were outrageous.

    Thus, to me it’s a character issue. Liu’s behavior does not deserve the reward of a judicial appointment.

  2. Howard Wasserman says:

    Toward the end here, you hit on an important limitation on this idea about what is inside or outside the mainstream (which, incidentally, is becoming almost as empty as talk of activism and umpires). \”Outside the mainstream\” of what and according to whom? Gerard\’s suggestion is that it is outside the mainstream of the nominee/nominating president\’s party, which should be judged by those within the party. But many define it as outside the mainstream of prevailing legal thought. Which, for some, has come to mean anything to the left of the current Supreme Court on abortion (thus do some suggest that Diane Wood is outside the mainstream).

  3. TJ says:

    “conservatives are simply not competent to judge whether a Democratic nominee is outside the mainstream of that party. If liberal commentators or Democratic senators made that claim, then I would take that seriously.”

    That would be a pretty problematic standard that is open to a lot of gaming. One would expect that the more extreme a president’s pick is, the less that commentators would make any kind of adverse claim against them. In other words, Glenn Greenwald is far more likely to criticize a moderate, mainstream Democrat like Elena Kagan (and already has) as “out of the mainstream” of the Democratic Party, than he is likely to criticize a second coming of William Brennan—because he won’t be criticizing the reincarnated Brennan at all. Similarly, Ed Whelan is far more likely to criticize a nominee like Anthony Kennedy than Robert Bork.

  4. Tim says:

    The question, of course, is not whether Professor Liu is outside of the mainstream of his own party, but whether he is outside of the mainstream of legal thought vis-a-vis the role of a judge and the judiciary. I think it should be sufficient to disqualify the good professor that he took his rightful place alongside Ted Kennedy by making his own effort to derail the ascendancy of an obviously qualified [then]judge Alito when he said “Justice Alito envisions a world where suspects can be gunned down, etc…” Following up on a previous comment, why have the advice and consent role if the only matter to be determined is whether the senators of the president’s party feel that a nominee is within the mainstream of their own party?
    Nor do you confront perhaps the most important question raised by your article, professor..What about those times when precedent provides no answer? Philosophy is important. A judiciary full of individuals like Professor Liu would likely unmoor the constitution from its text, only to be liberated by the predilections of a judges’ own mind, possibly even applying International Law as the tie breaker..

  5. Bruce Boyden says:

    My impression is that the game that the senators are playing is not one of trying to figure out if Nominee X is qualified. Rather, the game is, “Can the President’s nominee be torpedoed or not?” To that end, academic writings that provide juicy quotes are irresistable, regardless of whether the senators actually believe they shed any light on how the nominee would decide cases.

    “When students ask how I think a certain case should be decided, my answer is ‘I don’t know. I’m a professor. Not a judge.'” That’s interesting. I ask my students all the time to pretend they are judges deciding the cases we are reading, and remind them that judges can’t abstain. It seems only fair to play by the same rules when they turn the tables on me.

  6. “Second, I want to reiterate what I’ve said before–a President should receive deference for his judicial picks unless the candidate is unqualified or out of the mainstream of the President’s party.”

    Bu that wasn’t Liu’s own standard, when Republicans were being considered. Then the standard was that a party was allowed to oppose nominees outside of their own mainstream, even if they were nominated by the other party.

    I see no reason Liu shouldn’t be hoist on his own petard.

  7. As you noted, Prof. Liu has defended his writings by stating that professors are supposed to “raise new theories, be provocative in ways that are not simply the role of judge to be.”

    Well, perched as he is in Berkeley, I’m a bit sceptical that Prof. Liu was deliberately courting controversy with his writings; they’ve only begun to do so now that he has been nominated to a position where such thinking could have real consequences. Does anyone believe that President Obama nominated him only AFTER being assured that the writings in no way reflected his potential judicial thought process? Would you be giving his fellow Berkeley Prof. John Yoo the same pass?

    …and if what Mr. Liu says truly reflects the mindset behind much of the writings coming out of law profs today, doesn’t that make even more understandable the comments of CJ Roberts that Prof. Solove highlighted over a week ago?

    Also you write: “In the end, I suppose that Republican senators may conclude that it’s payback time for Miguel Estrada and other conservative judicial nominees who were wrongfully blocked during the Bush years.”

    And if the Republicans don’t look to exact a payback, the end result would be a Judge Liu and still no Judge Estrada. In other words, it would be the result of a kind of unilateral disarmament. No way a Patrick Leahy reciprocates (or can be trusted to do so).

    Finally, while I was no Harriet Miers fan, I perceive absolutely nothing about Goodwin Liu that makes him anywhere more qualified than her to sit on a bench….unless, of course, we are now elevating not-to-be-taken-too-seriously law review articles and conference panel utterances to become the gold standard of credentialing.

  8. Anyway, “Most important, academics rarely face consequences for what they write. Judges do.”

    ??? Judges are almost immune from reprisal, their pay can’t be cut, they can’t be fired except under the most extraordinary circumstances. The “consequences” you’re talking about are being badmouthed. If you’re not willing to be badmouthed for your principles, you don’t have principles. You just like to pretend you do.

  9. Gary Weaver says:

    I think Professor Goodwin Liu would be perfect for the Supreme Court. He’s a constitutional law scholar, he’s clerked for Ginzburg, and he would be the first Asian on the Court. He sits on the Board of Trustees for Stanford University and he’s a Rhodes’s scholar who has graduated from Oxford and Yale. Most importantly, he would fill the liberal void and he’s young. If he gets approval from Congress for this lower court, he will also have been vetted at least once. Maybe this is the reason he’s being given a hard time by the far right…they realize that this young judge could soon be sitting on the Supreme Court.