Later today the Senate is set for a “cloture” vote – the vote to end debate, for which you need 60 votes – on the nomination of Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.  I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general – or if the Republicans ought to be the first to foreswear the tactic even without a guarantee that Democrats would do likewise in the future – but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.

As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights – not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required.  That is, someone ought to be able to sue the government (qua the taxpayer) if they don’t have adequate health care, or food, or shelter, or… well, anything Liu envisions is part of his indeterminate Constitution whose evolving norms adapt to the times “in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.”

As Liu wrote in the Yale Law Journal in 2006: 

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.

Moreover, he’s opined that words like “free enterprise,” “private ownership of property,” and “limited government” are “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” 

As I wrote in an op-ed with Evan Turgeon last year:

We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.

Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”

Now, if all 53 Democratic senators vote for cloture, they will need to add seven Republicans to prevail.  So the key to this vote are the 11 GOP senators who voted for cloture earlier this month on controversial Rhode Island district court nominee Jack McConnell: Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune.  This list includes some of the more ”squishy” Republicans, to be sure, but there are also some wild cards – and, of course, the stakes with a circuit court nominee are higher than for a district court nominee.

The outcome of the vote is uncertain but one thing I can say for sure is that if Prof. Liu becomes Judge Liu (and later, God forbid, Justice Liu), the Obamacare litigation will seem so quaint: Can Congress force you to buy health insurance?  Heck, the Constitution requires you to buy it – for yourself and a lot of others as well!

The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.

But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.

The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.

“These kids today and their violent [blank]….” This refrain has been around for as long as there have been kids – and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books – in his bluntly titled book Seduction of the Innocent – so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.

The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.

California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.

We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.

The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).