Yesterday, the Wonk Room wrote that tomorrow’s cloture vote on the Goodwin Liu judicial nomination is a truth-telling contest for conservatives — will Senate conservatives side with Ken Starr and John Yoo, who support Liu’s nomination, or will they buy various right-wing interest groups’ distortions of Liu’s record? Sadly, Sen. Jeff Sessions (R-AL) lost this contest today in an interview on Fox News:
Well, he has no real experience. He’s never tried a case. … He’s one of the most activist judges I think most of us have ever seen to be nominated. He believes there’s a constitutional right to welfare, for example. He has written some extraordinary things that have caused great concern.
Liu does not believe in a “constitutional right to welfare,” but Liu’s opponents have consistently made this baseless claim because of an article Liu published which actually says the opposite. As law Professor Jesse Choper explains:
Liu’s “conception of the judicial role does not license courts to declare rights to entirely new benefits or programs not yet in existence.” Welfare rights, Liu says, “cannot be reasoned into existence by courts on their own.” The main thrust of the article is to reject the view, advanced by legal scholars in the 1960s and 1970s, that courts can read into the Constitution a theory of distributive justice. Instead, Liu argues for “legislative supremacy” in defining welfare rights. For example, he says, there is “no role for courts” to question Congress’s decision in the 1996 welfare reform law to end the sixty-year old entitlement of poor families to cash assistance.
Liu does believe that the Constitution provides certain protections that ensure fair and equal access to welfare — but so does conservative Justice Antonin Scalia. Scalia, who, like Liu, spent most of his career in the legal academy and government service before becoming a judge, joined the Supreme Court’s decision in Saenz v. Roe. Saenz struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. So if Liu’s stance on constitutional welfare disqualifies him from the federal bench, it also disqualifies Scalia.
This is hardly the first time that Sessions and his fellow conservatives held one of Obama’s judicial nominees to a standard that Scalia himself would fail. Sessions grilled Justice Elena Kagan because she wouldn’t label the Affordable Care Act unconstitutional — even though Scalia has also rejected the right’s arguments against this law. Kagan was also attacked because she once worked on a presidential memorandum preventing foreign gun manufacturers from importing military-grade firearms such as Uzis into the United States, even though Scalia wrote in D.C. v. Heller that it is perfectly constitutional to ban “weapons that are most useful in military service.”
The lesson that emerges from Sessions and others’ attacks on Liu isn’t that he is some kind of radical — why, then, would the likes of Ken Starr and John Yoo support him? The lesson that emerges from this entire debate is that Liu’s opponents have moved so far to the right that mainstream nominees like Liu — or even strident conservatives like Scalia — are no longer acceptable to them.