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.