'Daddy, Are You a Judge Yet?' Obama Nominee Takes the Heat

Goodwin Liu faces Senators in his Appeals Court confirmation hearing.

March 19, 2010, 3:39 PM

April 16, 2010— -- President Obama's federal appeals court nominee Goodwin Liu appeared before a Senate panel today and tried to move forward his embattled nomination to the 9th Circuit court. Liu, a Berkley law professor, apologized for failing to fully disclose his writings and public speeches to Senators and pledged to uphold the values of the Constitution if confirmed.

"I'm sorry that I missed things the first time," Liu said today of his incomplete responses to a Senate Judiciary Committee questionnaire. "I've lived most of my professional life in public and my record is an open book. I have absolutely no intention – no ability – to conceal things I have said, written or done."

Liu's confirmation process has been widely viewed as a preview of the ideological fight expected with Obama's nomination of a replacement for retiring Supreme Court Justice John Paul Stevens. Liu, who has never served as a judge, also became a flashpoint on Capitol Hill for his failure to provide some materials about his record.

"At best, this nominee's extraordinary disregard for the Committee's constitutional role demonstrates incompetence; at worse, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee," wrote Sen. Jeff Sessions, R-Ala., the ranking GOP member, in a letter last week to committee chairman Sen. Patrick Leahy, D-Vt.

Yesterday, Leahy refused Sessions' third request for a delay in the one-day confirmation hearing, allowing Liu's nomination to proceed. But Republicans continued to press the nominee today.

"If a lawyer came into my courtroom and failed to respond completely and accurately – and had to be called to task four different times – that lawyer would be found in contempt, of court, or worse," said Sen. John Cornyn, R-Texas.

Wrangling over Liu also reflected debate over the expediency with which confirmation of Obama's federal judicial nominees has been pursued. Republicans today argued that the process was moving too quickly, not allowing them enough time to review Liu's credentials. Democrats praised the process, saying it has moved more swiftly than it did under President George W. Bush.

For at least one participant, however, the process has not moved quickly enough. In a lighter moment before Liu took questions, he told senators that his daughter Violet asked just three days after his nomination: "Daddy, are you a judge yet?"

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 -- a view which doesn't sit well with conservatives.

"If you truly respect the Constitution, you will enforce it as written whether you like it or not," said Sessions.

"Our Constitution is very special," Liu told the committee today. "As a text, it's the permanent embodiment of the structure of government that we've chosen… the principles endure over the ages. Those things do not change, and the text does not change… What we argue in the book is that to preserve the power and meaning of that text, it's necessary for judges to give those phrases meaning in light of society."

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.

Conservatives worry that those who follow Liu's philosophy will find constitutional rights that are not set forth in the Constitution.

"Based on what I've read, I'm highly concerned," said Sen. Tom Coburn, R-Okla. "I think we have a completely different view of 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.

"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 today defended his writings, which he says have tended to be directed at policymakers, not judges.

"Whatever I may have written in the books and the articles will have no bearing on my role as a judge," he said. When asked if he would honor legal precedents set by the 9th Circuit Court of Appeals and U.S. Supreme Court, Liu said, "Absolutely, I would."

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."

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