Constitutional Law

The Washington Post Endorses Goodwin Liu

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Yesterday's Washington Post featured a short, unsigned editorial urging the Senate Judiciary Committee to approve the confirmation of controversial Berkeley law professor Goodwin Liu to a seat on the federal 9th Circuit Court of Appeals:

Mr. Liu is unquestionably qualified; the American Bar Association panel that reviews nominees game him a unanimous "well qualified" rating. Making a judgment about Mr. Liu's judicial philosophy is tougher. His academic works show him to be aggressively liberal. Writing about the courts' role in social welfare cases, he argues that courts may "legitimately foster evolution of welfare rights." He urges courts to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection. This is not entirely new; the Supreme Court in the early 1970s used this approach to invalidate congressional cuts to the food stamps program.

It is impossible to know whether Mr. Liu would abide by his pledge to be "an impartial, objective and neutral arbiter of specific cases and controversies." Others with controversial views or academic records have put aside their political impulses and performed honorably on the bench. Mr. Liu should be given that opportunity.

Read the whole thing here. I discuss Liu's record and what his hearings reveal about the judicial confirmation process here.

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  1. Mr. Liu is unquestionably qualified; the American Bar Association panel that reviews nominees game him a unanimous “well qualified” rating.

    Given that the term “constitutional scholar” is inherently oxymoronic, this can only mean that he hasn’t been caught with any hookers.

    1. he hasn’t been caught with any hookers

      That’s a negative in my book. But I don’t get to vote on confirmation, so…

  2. Others with controversial views or academic records have put aside their political impulses and performed honorably on the bench. Mr. Liu should be given that opportunity.

    And I guess if he blows that opportunity, no harm, no foul, right? Jesus, “just give him a chance” for the rest of his natural life? What the hell kind of argument is that?

    1. And of course the Washington Post was just a ok with those others who had “controversial views and academic records” sitting on the bench right?

    2. Pro Lib’s favorite jurist, Janice Rogers Brown, has some “controversial views”. Maybe she should get a chance.

      1. BP,

        I’m still hoping that we can fool them into appointing a wise black daughter of sharecroppers.

  3. Liu on the 9th Circuit is like the proverbial drop in the bucket. That court is so fucked up, it cannot be fucked up any more by the addition of this loon.

  4. He urges courts to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection.

    I’d love to have a look at his copy of the Constitution, because there is nothing in my copy that would support such a conclusion.

    It is impossible to know whether Mr. Liu would abide by his pledge to be “an impartial, objective and neutral arbiter of specific cases and controversies.”

    Maybe, but its possible to make a pretty goddam good guess about whether he would suddenly abandon years of writing about what judges ought to be doing, in favor of a jurisprudence that he has spent his entire professional career rejecting.

    1. whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection

      It means rolling back the unconstitutional welfare state is unconstitutional. Pretty clever, eh?

    2. The court has long held (over thirty years now) that one can have a property interest in a public benefit that is protected by the due process clause. It goes like this: if the state creates a benefit with certain objective criteria for reception of the benefit, and someone fits the criteria, then they have a property interest in the criteria (a lot of recognized property interests are not tangible). A person have the benefit taken without due process. Of course the state can get rid of the benefit. I’m guessing this is what the guy is talking about, and it don’t seem crazy to me if that is the case.

      1. “A person cannot have the benefit taken without due process.”

      2. So how do you feel about Epstein’s regulatory takings argument? The reasoning is the same – if anything Epistein’s argument is stronger since the absence of a particular novel regulation on the usage of property has a much longer history than the grant of a goverment benefit.

  5. Others with controversial views or academic records have put aside their political impulses and performed honorably on the bench. Mr. Liu should be given that opportunity.

    That’s rather akin to a game involving a revolver and one live round, isn’t it?

    1. Shoot the dirty fucking hippie? I love that game.

      1. In shoot the hippie, one ought to use a M-1A with full 20 round mags of black tip.

        After all, it gets tiring when you have to repeatedly pull the trigger 6 times to finally shoot the dirty SOBs. Plus, it’s cruel to make them sit through click-click-click-click-click knowing it’s just coming at them.

    2. And I’m sure the Post has taken that same position regarding every conservative judicial nominee, right?

  6. Who gives a rodent’s rectum what the American Bar Association has to say about this communist?

    Remember, if one supports an income tax, a progressive income tax, compulsory public education, government schools, collective bargaining and closed shops, one, like Obama and Prof. Liu, is a communist.

    1. Nonsense. Words have meanings dude.

  7. The rich and powerful have Congress to look out for their interests, what’s so bad about the other 95% having a branch of government on their side?

    1. Read up on what the blindfold on the statue of justice means.

      1. But it always seems to be blind to white collar crime and laser focused on poor crime.

        1. blind to white collar crime

          (sigh)

    2. Is that what the other 95% ACTUALLY want or is this false consciousness bullshit?

      1. I know, I love the mental gymnastics the left go through in trying to reconcile the cognitive dissonance between what the downtrodden masses are supposed to want, and what they actually vote for.

        1. I assume they’re not supposed to want the top 5% looting all the resources for themselves while not being productive at all.

          1. I assume they’re not supposed to want the top 5% looting all the resources for themselves while not being productive at all.

            That is the natural way of things.

            Of course, the top 5% do not always stay there. Look what happened to A & P and the Graflex Corporation.

    3. The rich and powerful have Congress to look out for their interests, what’s so bad about the other 95% having a branch of government on their side?

      The judiciary is supposed to be on the side of the Constitution .

      1. Indeed, but quite a bit of that document is open to interpretation.

        1. Indeed, but quite a bit of that document is open to interpretation.

          Such as the definition of search and seizure?

          Or arms?

          Or speech?

          Or cruel and unusual punishment?

          1. Lord yes there is monsterous room for interpretation in every one you mention.WTF?

            Is nude dancing speech? Crush videos? Armbands? Burning a flag? All recent cases, none obvious.

            The other examples are even easier.

          2. You left out interstate commerce.

          3. or ‘states shall use nothing but gold and silver as legal tender’?

            1. or ‘states shall use nothing but gold and silver as legal tender’?

              Yeah Article I Section 8 is about the limits on states. The clause about gold and silver doesn’t say anything about what the federal government can do. And even the case law around it says that depositors to banks can consent to getting a check, instead of metal coins.

    4. “The rich and powerful have Congress to look out for their interests, what’s so bad about the other 95% having a branch of government on their side?”

      Actually, I agree to this to the extent that (as Adam Smith predicted), the rich would try to turn their economic power into political power and maintain their wealth by restricting the market. The courts should be the protectors of the free market and property rights from the depradations of the rich and powerful. Unfortunately, at least when it comes to eminent domain, the Supreme Court has dropped the ball.

      1. The courts should be the protectors of the free market

        Where does the constitution say we’re supposed to be a free market? If that’s what it wanted, that’s a rather large oversight for the founding document of a nation.

        Actually it’s a pretty ‘socialist’ document if you look at it.

        The rich have turned their power into political power… in order to decrease the oversight of government. I still don’t get how further decreasing that will help.

  8. His last name is “Liu” dammit, of course he’s qualified to sit on the Court. Just as female genitalia, black skin, a latino name or some combination of all of those would also be equal qualifiers.

  9. Just as female genitalia, black skin, a latino name or some combination of all of those would also be equal qualifiers”

    I don’t think any nominee had just one of those things as their qualifier. They had one or more of those things+lots of impressive accomplishments.

    But way to fuck nuance in the eye socket buddy!

    1. So if Sonia Sotomayor was instead a 55 year old white guy named John Johnson that person still would have been nominated to the Supreme Court?

      The point is MNG that none of those things should matter. Being black, white, male, female, etc. don’t have any bearing on how good or bad of a judge you are, and they shouldn’t be used as qualifiers either.

      1. actually I consider being an asian a disqualifier for the supreme court. Or at least, being an asian lawyer. I mean seriously, how fucked up do you have to be to be an asian lawyer? What did you do, botch your math SATs?

        On the other hand, my dad was a lawyer, so…

    2. “They had one or more of those things+lots of impressive accomplishments.”

      What about the feller with more impressive accomplishments but no vag, piercings, or exotic name?

      I’ll take a deserving John Smith over a “never been one of those on the bench before” Boy George.

  10. He urges courts to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection.

    *sighs, bangs head on desk*

    “But that’s how we’ve always done it.”

    Based on this reasoning, it would be impermissible to restrain SWAT teams from using “dynamic entry” raids as they please.

    1. Precedent is absolute bullshit. What’s the point of having courts still if “we already decided that 30years ago”?

      1. I hope you’re kidding.

        He’s kidding right?

        Someone tell me he’s kidding.

      2. Yes they should appeal to the all-knowing libertarian instead.

        1. How about they appeal to REASON!!!!!

          *drink*

      3. It is a maxim among these lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the Judges never fail of directing accordingly.

        In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent and tedious in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary hath to my cow, but whether the said cow were red or black, her horns long or short; whether the field I graze her in be round or square, whether she were milked at home or abroad, what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, or thirty years come to an issue.

        It is likewise to be observed that this society hath a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide whether the field, left me by my ancestors for six generations, belong to me or to a stranger three hundred miles off.

        Nothing ever changes.

  11. Shoot ’em all down until all those fed judges are retired or dead.

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