Supreme Court Battle Quietly Brews Over Possible Future Nominations

March 22, 2010— -- 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.

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."

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."

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.

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.

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."

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.

"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."