On the Horizon

The dust hasn’t yet settled on the Right’s reaction to health care reform. Proclamations are still going out about the end of America as we know it; talk radio hosts are still proclaiming the coming apocalypse of "Obamacare" and spinning tales of the left-wing “plants”, allegedly the real conveyors of epithets and expectoration, in between plugs for the “Take America Back Tour.” But the practitioners of politicotainment know how to fill the GOP's big tent and as Barnum knew, you have to keep the acts coming, always having something going on in the side ring while the center ring is between attractions. For that reason, if you haven’t heard of Goodwin Liu yet, you might be hearing a lot about him in the next month. In February, President Obama nominated him to fill a vacancy on the U.S. Court of Appeals for the Ninth Circuit.

The son of immigrants from Taiwan, Liu graduated from Yale Law School and was the first in his family to earn a law degree. He worked as an appellate litigator in Washington for O’Melveney & Myers, clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. Currently Liu is Associate Dean and Professor of Law at University of California-Berkeley, specializing in constitutional law, education policy, civil rights and the U.S. Supreme Court. He is co-director of the Berkeley law school's Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, which focuses on civil rights law and policy.

Liu served on President Obama’s transition team in the areas of education policy and agency review, teams of the Presidential transition of Barack Obama, and has served on boards of directors for the American Civil Liberties Union of Northern California; the American Constitution Society for Law and Policy in Washington, D.C.; and Chinese for Affirmative Action to name a few. In March, the American Bar Association gave Liu its highest "WQ" (well qualified) rating, by a unanimous vote of its committee.

In short, some of Liu’s affiliations alone could set tinfoil hats a-tingle, and he’s already attracting opponents on the Right: National Review contributor and former Scalia law clerk Ed Whelan, Tony Perkins of the American Family Association, the Heritage Foundation and Senate Judiciary Committee’s Jeff Sessions, R-Alabama. But it isn’t Liu’s connections, his opposition to “strict constructionism” interpretations of the Constitution or his history of support for marriage equality for gays that's drawn the most ire so far. It’s his previous opposition to the appointments of Supreme Court Justices Samuel Alito and John Roberts.

Well, that and the embarrassing fact that Liu was right.

Liu wrote that while Roberts had "a brilliant legal mind", a Supreme Court nominee "must be evaluated on more than legal intellect," and gave examples of how Roberts' "legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment."

Testifying in Justice Alito's confirmation hearing in 2006, Liu considered Alito’s record to be "at the margin of the judicial spectrum, not the mainstream"; and commented on "Judge Alito's lack of skepticism toward government power that infringes on individual rights and liberties. Throughout his career, with few exceptions, Judge Alito has sided with the police, prosecutors, immigration officials, and other government agents, while taking a minimalist approach to recognizing official error and abuse." Liu also noted a "disturbing pattern of deference toward the use of government power against individuals."

While President Obama hasn’t hinted at considering Liu for the Supreme Court, Justice John Paul Stevens’ recent confirmation of rumors that he intends to retire has fueled speculation that Liu’s current nomination could be a prelude to a nomination as Stevens’ replacement.

A hearing was scheduled for Liu's confirmation on March 24th; however, it was postponed due to Republican objections on procedural grounds; and has been rescheduled for Friday, April 16, 2010. This could get interesting.