Supreme Court Battle Quietly Brews Over Possible Future Nominations

Scalia worries that those who follow Liu's philosophy 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.

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Liu Has Opined on Several 'Hot Button' Issues

Liu 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."

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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 conservative Goldwater Institutes' Scharf-Norton Center, who wrote to senior members of the Judiciary Committee in support of Liu.

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"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."

This week's hearing comes at a time when Democrats are accusing Republican senators of blocking votes for 18 judicial nominees that have been reported out of the judiciary committee.

Last week, Sen. Patrick Leahy, D-Vt., said on the Senate floor, "This sorry state of affairs is the result of a Republican strategy to stall, obstruct and delay that has existed throughout President Obama's time in office. The casualties of this effort are the American people who seek justice in our increasingly overburdened federal courts."

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