Today the Senate Judiciary Committee will hold a hearing for the nomination of 39‐year‐old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach 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.
Yesterday Cato legal associate Evan Turgeon and I published an op‐ed on the Liu nomination in the Daily Caller. Here are some highlights:
While Liu purports to develop an original approach [to constitutional interpretation], his nuanced methodology fails to generate a novel result. He may “suggest a more cautious and discriminating judicial role than one that is guided by a comprehensive moral theory,” but it is impossible to imagine a case in which Liu would reach a different outcome than a judge employing the (disfavored) “Living Constitution” analysis. And this is not surprising, given that the stated purpose of Liu’s scholarship is to establish legal justifications for “rights” foreign to the Enlightenment tradition on which our republic rests — those that make demands on others (unlike, say, the right to free speech, which makes no demands on anyone).
…Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one‐way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation” — to borrow progressive Yale law professor Bruce Ackerman’s phrase — that cannot be undone.
As a member of the ACLU and chairman of the American Constitution Society, it is no secret what kind of rights Liu would find justified by “collective values.” Liu lists “education, shelter, subsistence, health care and the like, or to the money these things cost” as examples of affirmative rights he would seek to establish in law — to constitutionalize beyond a future legislature’s reach.
Read the whole thing. Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog. (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)
And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:
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.
As Evan and I wrote:
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.”
The Senate needs to understand who it’s dealing with here.