Why the Senate should reject Goodwin Liu

But just as Rome wasn’t built in a day, neither is President Obama’s vision assured. Rather, it’s a work in progress.

A big part of the president's plan was to put government in charge of our nation’s health care system.

Another part was making sure government calls the shots over private industry and elections — so much so that we’re actually having a debate right now about whether businesses need to ask the White House’s permission to move to another state, and whether private businesses should be forced to disclose political contributions in order to get a federal contract.

And still another part of the president’s vision involves the people he wants to put on our nation’s courts.

Do we want people who have reverence for the U.S. Constitution, and who believe it means what it says?

Or do we want people on our courts who care more about advancing an ideology that’s antithetical to the Constitution than they do about upholding it.

This is the question presidents need to ask themselves when it comes to judicial nominees. And I think this president’s preference in this area is clear.

Based on some of the nominations we’ve seen, President Obama wants men and women on the courts who will advance his vision, who would expand the scope of government beyond anything the founders could have ever imagined.

Yet not until now has the Senate been asked to confirm someone who has so openly and vigorously repudiated the widely accepted meaning and purpose of the Constitution. And here I’m referring, of course, to the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.

So this afternoon I would like to take a moment to explain why I believe it is so critically important that the Senate reject this nomination now by opposing cloture on it.

Now, the first thing I would say about Mr. Liu is that I have nothing against him personally. No one disputes that he has a compelling personal story, or that he’s possessed of a fine intellect. But earning a lifetime appointment isn’t a right. Nor is it a popularity contest.

Rather, it is incumbent upon those of us who are required to vote on judicial nominees like him to evaluate each one of them closely — to examine their judicial philosophies, to look at their records, and to consider their temperaments.

And that’s just what we’ve done here.

What have we found?

Well, when it comes to Mr. Liu’s record as a practicing lawyer, the first thing to say is that it’s almost nonexistent. He has no prior experience as a judge and minimal experience actually practicing the law.

This means that in evaluating what kind of judge Mr. Liu would be, and in trying to determine his judicial philosophy, we’re necessarily limited to what’s he written.

And what do Mr. Liu’s writings reveal?

Put simply, they reveal a left-wing ideologue who views the role of a judge not as that of an impartial arbiter, but as someone who views the bench as a position of power. 

As recently as two years ago, Mr. Liu said he believed that the last presidential election, gave liberals, as he put it, "a tremendous opportunity, to actually get [their] ideas and the progressive vision of the Constitution and of law into practice."

Here is an open acknowledgement by Mr. Liu that a judge should use his position to advance his own views. This is repugnant. Anyone who holds such a view as a judge would undermine the integrity of the courts.

And what are Mr. Liu’s views?

Well, in an article he published three years ago, Mr. Liu wrote that courts should interpret the U.S. Constitution as containing a right to education, shelter, subsistence, and health care. By this he meant that the courts should determine how “particular welfare goods” should be distributed — rather than the people themselves, through the democratic process.

The point here is that Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution, but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want. 

And while this philosophy may be popular on left-wing college campuses, it has no place whatsoever in a U.S. courtroom. Everyone who enters our courtrooms should have the assurance that judges will uphold their rights equally, and that they won’t overstep their bounds. Mr. Liu’s writings provide no such assurance. On the contrary, they suggest a deeply-held commitment to the view that the Constitution can mean pretty much whatever a judge wants it to, that judges can just make it up as they go along.

In Mr. Liu’s court, the defendant couldn’t expect to be protected by the Constitution and the laws, because the law is subject to the whim of the judge. This is precisely the opposite of what Americans expect in a judge. It also happens to be the opposite of what the Founders envisioned for the courts. As it says in Federalist 78, the Judiciary “has neither force nor will, but merely judgment.”

Compare this with Mr. Liu, whose writings suggest again and again that a judge shouldn’t look so much at the words of the Constitution when setting out to interpret it, as they should “our collective values,” or our “evolving norms.”

And let’s be clear.  It is the judge, in Mr. Liu’s view, who will determine what “norms” are “evolving,” not the American people.

Clearly, the Constitution itself would take a backseat in his court.

Indeed, even a brief review of his writings suggests that, as a judge, Mr. Liu might very well accord greater respect to foreign law than he would to our own Constitution.

As he once wrote: “The U.S. can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.”

Again, this might fly in a left-wing classroom — but it’s cold comfort to those who look to the courts for equal justice under the law. Americans shouldn’t have to wonder when they walk into an American courtroom which nation’s law’s they’ll be judged under.

So, as I see it, there is no question, based on his writings, that Mr. Liu’s judicial philosophy is completely antithetical to the judicial oath that he would be sworn to uphold.

Now, upon his own nomination to the bench, Professor Liu has sought to distance himself from his legal writings. He has also told the judiciary committee that he stands by them. Well, he can’t have it both ways. And as others have pointed out, if we can’t go by the things Professor Liu has written, there’s nothing left upon which to evaluate him.

So on the question of qualifications, Mr. Liu just doesn’t have much legal experience outside of the classroom.

And while no one is saying teachers can’t be good judges, this particular teacher’s judicial philosophy, as evidenced by his writings, is so far outside the mainstream that anyone who believes in the primacy of the U.S. Constitution should be deeply troubled by the prospect of his appointment to the court.

I believe this nominee is precisely the kind of judge we want to prevent from getting on the bench.

He should not be confirmed.

I will vote against cloture.

I urge my colleagues to do the same.