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Still Bitter Over Loss On Health Reform, GOP Seeks To Block Judicial Nominee For His Health Care Views

By ThinkProgress on March 24, 2010 at 7:30 pm

"Still Bitter Over Loss On Health Reform, GOP Seeks To Block Judicial Nominee For His Health Care Views"

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liu2Since losing the health care reform fight, the GOP has vowed revenge by obstruction. Senate Republicans have been using a little-known rule this week to basically stop all committee and subcommittee hearings. They have also contrived a host of “poison pill” amendments to stall the passage of reconciliation. And Sen. John McCain (R-AZ) vowed that “there will be no cooperation for the rest of the year.”

Now, Republicans have for “the first time…injected the partisan health care debate into the confirmation of a judicial pick,” Roll Call notes. They are hoping to defeat Obama’s nomination of University of California law Professor Goodwin Liu to the 9th Circuit Court of Appeals, aghast over his belief that all Americans have a right to health care:

Sen. Jeff Sessions: “‘I have not seen any nominee’s opinions go that far,’ Judiciary ranking member Jeff Sessions (R-Ala.) said in an interview, noting that Liu’s legal writings indicate that equal protection under the 14th amendment includes health care coverage.” [Roll Call]

Ed Whelan: “Perhaps most striking, in part because Liu presents his position as so modest, is his law-review article ‘Rethinking Constitutional Welfare Rights,’ which argues that judges (usually in an ‘interstitial’ role) may legitimately invent constitutional rights to a broad range of social ‘welfare’ goods, including education, shelter, subsistence, and health care.” [National Review]

Ilya Shapiro and Evan Turgeon: “Liu’s confirmation would compromise the judiciary’s check on legislative overreaching and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.” [Daily Caller]

Liu’s right-wing critics are not telling the truth about his views. The article Ed Whelan cites, for example, does the opposite of call for judges to “invent constitutional rights to a broad range of social programs.” Indeed, Liu expressly rejects the idea that judges can base their interpretation of the constitution on ideology or “transcendent moral principles,” and he explicitly warns that the courts cannot create new welfare rights by themselves — instead, the legislature must always act first. 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.”

Nor is Liu’s view that the Constitution protects certain people’s access to social welfare programs particularly radical. In Saenz v. Roe, for example, the Supreme Court struck down a California law which denied some California residents a portion of their welfare benefits. Justice Scalia, one of the Court’s most conservative members, was in the majority in Saenz.

Even right-wing torture apologist John Yoo — who is Liu’s colleague at Berkeley — thinks Liu is “very well qualified.” Liu also has the support of Kenneth Starr, who prosecuted President Clinton. Liu was expected to testify about his nomination today before the Senate Judiciary Committee, but Republicans have obstructed all such business in the Senate.

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