Supreme Court Battle Quietly Brews Over Possible Future Nominations

There is a Supreme Court battle brewing on Capitol Hill -- despite the fact that there are currently no vacancies on the high court.

On Wednesday, the Senate Judiciary Committee will hold hearings to consider the nomination of Berkeley law professor Goodwin Liu to the Ninth Circuit Court of Appeals.

The hearing is expected to be contentious, showcasing the differences in judicial philosophy between the parties, with conservative senators arguing that Liu's record on divisive issues puts him outside the mainstream of judicial thinking.

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Some believe Republicans are opposed to Liu's nomination because they fear President Obama may be grooming Liu for a future Supreme Court vacancy.

"His nomination seems to me to represent the apex of judicial activist philosophy," said Sen. Jeff Sessions, R-Ala., the ranking member of the Senate Judiciary Committee. "His views represent a fundamental change in our understanding of the role in society of the court."

"As a constitutional law professor, Liu has an unusually long record of public statements that Republicans will attempt to paint as outside the mainstream," said professor Stephen I. Vladeck of American University.


"But given Liu's young age and ethnicity, I suspect the Republicans are also worried that he will be a tantalizing prospect for the Supreme Court in a few years, a possibility that would only be bolstered by a stint on the Court of Appeals."

Liu, 39, is the son of Taiwanese immigrants.

For the first time in Supreme Court history, all the current sitting justices have previously served as federal circuit judges.

"This is a test case," said Vladek. "Most of the early Obama nominees were tried-and-true moderate judges with extensive experience on district courts. While Liu is not the first non-judge to be nominated by the president, he is probably the most prominent liberal academic."

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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 everything including 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."

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Sessions and other Republicans on the committee are concerned about Liu's judicial philosophy as 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.

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