The confirmation hearing for Goodwin Liu -- President Obama's nominee for a seat on the 9th Circuit Court of Appeals --is turning into a firestorm in the Senate Judiciary Committee. Sen. Jeff Sessions, R-Ala., the ranking GOP member, claims that Liu's failure to submit a complete list of his writings in his Senate questionnaire might place the nomination in jeopardy.
Wednesday afternoon Sessions issued a statement criticizing Liu and asking the committee's chairman, Senator Patrick Leahy, D-Vt., to postpone Liu's hearing currently scheduled for next week. "Goodwin Liu's entire record consists primarily of a stunning series of writings and speeches—and yet he failed to disclose dozens of those writings and speeches to the Judiciary Committee, " Sessions said.
In a letter to Leahy Sessions wrote "At best, this nominee's extraordinary disregard for the Committee's constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee".
The controversy arose earlier in the week when Liu, who is a Berkley law professor, submitted a letter to the committee apologizing for the omissions. "In preparing my original submission, I made a good faith effort to track down all of my publications and speeches over the years. " Liu wrote to the committee. "But I have since realized that those efforts were not sufficient."
In a letter to Sessions, Leahy acknowledged that Liu had failed to provide some materials but refused to postpone next week's hearing.
Leahy said that Senate Republicans had already delayed Liu's hearing once after the nominee had left his one-week old son home to attend the hearing, and saw no reason to further delay "this nominee's opportunity to appear before the Committee."
Many believe that Liu's hearing could foreshadow contentious confirmation this summer should Justice John Paul Stevens decide to retire and the president chooses to nominate a similar candidate with an extensive paper trail on divisive social issues.
In his statement Sessions outlined his concerns with the position Liu has taken in some of his writing and said he was troubled because the committee has less time to consider the newly submitted work. "These omissions," the Senator said, "are particularly severe because many of them shed greater light on Liu's most controversial and troubling views—such as his support for racial quotas and his belief that government welfare is a constitutional right."
Jennifer Meinig, legislative counsel for the liberal group Alliance for Justice, says Republicans are nervous because "Liu will appeal to a wide audience because he has spent his career advocating for the right of equal justice for all, not a select, privileged few."
Republicans Wary of Liu's Judicial Philosophy
Although Liu has never argued a Supreme Court case, he has written extensively on constitutional law and civil rights. His scholarly work -- touching on topics like affirmative action, the death penalty, welfare rights and same-sex marriage -- provides his critics with an unusually long paper trail. He clerked for Supreme Court Justice Ruth Bader Ginsburg in 2000 and later told the Los Angeles Times that Bush v. Gore, the decision that settled the 2000 presidential election, was "utterly lacking in legal principle."
Sessions and other Republicans on the committee are also concerned about Liu's judicial philosophy outlined in a book he co-authored, "Keeping Faith with the Constitution." In the book, Liu writes that the Constitution should be interpreted by adapting its broad principles to the conditions faced by successive generations.
The philosophy aligns him with more liberal justices on the Supreme Court, such as Justice Steven Breyer, and puts him at odds with conservatives like Justice Antonin Scalia, who as an "originalist" believes that in analyzing the constitutional text, one must give the text the meaning it had when it was adopted.
Scalia worries that those who follow Liu's philosophy will find constitutional rights that are not set forth in the Constitution.
M. Edward Whelan III, president of the Ethics and Public Policy Center, has written extensively about Liu's record on his blog in the National Review online. Of Liu's book, Whelan writes, "What Liu means by 'keeping faith' is evidently adherence to the living-constitutionalist gimmick that judges can redefine the Constitution to mean whatever they want it to mean."
"Liu has all the makings of a hard-Left judicial activist," says Whelan, "as shown by his positions on matters ranging from welfare rights to racial quotas to same-sex marriage and by his utterly lawless constitutional philosophy generally."
Jonathan Singer, a current student of Liu, disagrees. "He's someone who has an open mind, not a doctrinaire ideologue," he said.
Liu Has Opined on Several 'Hot Button' Issues
Liu , 39, who is the son of Taiwanese immigrants , sits on the board of the liberal American Constitution Society, and opposed the nominations of both Chief Justice John G. Roberts and Justice Samuel Alito. In an op-ed, Liu wrote that the nomination of Roberts "is a seismic event that threatens to deepen the nation's red-blue divide."
In 2006, Liu testified against the nomination of Alito, saying the judge had an "exceptionally talented legal mind," but that he was concerned with "Alito's lack of skepticism toward government power that infringes on individual rights and liberties."
In 2007, Liu joined 17 other professors and submitted a friend of the court brief to the California Supreme Court, arguing that California's definition of marriage between a man and a woman violated the state constitution. The issue is likely to come before the U.S. Supreme Court in some form over the next few years.
Not all conservatives, however, are opposed to Liu. He has been supportive of charter schools and some government-funded vouchers for private schools. Such positions have earned him the praise of Clint Bolick, director of the Scharf-Norton Center at the Goldwater Institute wrote to senior members of the Judiciary Committee in support of Liu.
"I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty," wrote Bolick. "He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."