Possible Liu Cloture Vote Is a Truth-Telling Contest For Conservatives

Legal Times reports that Ninth Circuit judicial nominee Goodwin Liu could finally receive a cloture vote this week after waiting more than a year for this preliminary vote. It is difficult to imagine a better affirmation of the American Dream than Liu’s elevation to the federal bench. A son of Taiwanese immigrants who learned English in kindergarten, Liu’s intellect and drive propelled him to Stanford undergrad, a Rhodes scholarship, Yale Law School, a Supreme Court clerkship, a law practice at a leading law firm and, now, a professorship at one of the nation’s top law schools. Liu would also become the only active Asian-American judge on the Ninth Circuit, despite the fact that one in ten residents of the circuit are Asian Pacific Americans, and he will fill a vacancy that the Administrative Office of the U.S. Courts deems a “judicial emergency.”

Yet Liu has also emerged as one of President Obama’s most controversial nominees — although it’s not entirely clear why. A core focus of Liu’s scholarship, for example, is the impact of the Constitution on education policy. As a letter co-signed by conservative legal lion Kenneth Starr — yes, THAT Kenneth Starr — explains, this scholarship hardly paints Liu as some kind of kneejerk liberal:

Goodwin (and his co-author Bill Taylor) wrote an article in Fordham Law Review in 2005 defending the use of school vouchers to provide better educational opportunities for children trapped in failing schools. The article provides a careful and candid review of the evidence on how vouchers have worked in practice, and it responds to the critics of vouchers in a direct and forceful way. We are fairly sure that this piece did not win Goodwin any friends in the liberal establishment, but it reflected his sincerely reasoned view about one way to improve the life chances of some of our most disadvantaged children.

Starr’s praise is echoed by his fellow Berkeley Law Professor John Yoo — yes THAT John Yoo — who calls Liu “very well qualified” and describes him as someone who will be “a good judge on the bench.”

Yet, while conservatives like Starr and Yoo have the integrity to tell the truth about Liu’s mainstream record, right-wing interest groups have mined Liu’s many pages of scholarship for out-of-context quotes that can be lifted to falsely paint him as a radical. One of Liu’s law review articles, for example, can best be described as trying to reconcile the judiciary’s role in protecting federal welfare rights with the need to ensure judges behave in a way that is consistent with our fundamentally democratic values. Liu envisions judges as subservient to the Constitution and the laws our elected leaders enact. In Liu’s words, “it is only through democratic adoption of a program of mutual aid that that a welfare right plausibly comes into being for courts to recognize.”

Liu’s belief that the judiciary must protect certain people’s access to social welfare programs is far from radical. In Saenz v. Roe, the Supreme Court struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. Justice Antonin Scalia, one of the Court’s most conservative members, was in the majority in Saenz. Nevertheless, Liu’s critics tout his apparent agreement with Scalia as proof that he would seize power from elected officials and create massive new welfare programs by fiat.

This distortion of Liu’s writings pervades the arguments against his confirmation. Several of his opponents point to an article where he expressly states that he “do[es] not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education” as proof that he would do something conservatives apparently view as appalling—hold that the Constitution guarantees every American child an adequate education. Even a few senators joined these distortions, claiming that Liu was “vicious” and “unfair” to then-Judge Samuel Alito for accurately pointing out several controversial decisions in Alito’s past — including a memo Alito wrote arguing that cops should be allowed to shoot a fleeing purse-snatcher in the back to prevent him from getting away with ten stolen dollars.

The truth is that Liu’s record leaves no doubt that he understands that a judge’s job is to faithfully follow the Constitution as it has been interpreted by the Supreme Court. Watch a compilation of Liu explaining his views in his own words:

When the full Senate considers Liu’s nomination, its members will have a simple decision to make. They can follow Starr and Yoo’s lead and fairly evaluate Liu’s completely uncontroversial record, or they can accept the interest groups’ distortions as gospel. If they decide to give these interest groups a veto power over Liu’s nomination, America will be all the poorer for losing one of the judiciary’s most talented nominees.