President Obama recently nominated Berkeley law professor Goodwin Liu for the 9th Circuit Court of Appeals, looking to shift an already-radical panel even further to the left. This week, Senate Republicans, exercising a prerogative repeatedly used by Senate Democrats during the Bush years, filibustered Liu. The media, of course, tried to turn the story into another Republicans-hate-minorities narrative which implied that anybody nominated who hasn’t killed anybody or donated to a GOP candidate ought to reach the bench unscathed.
Liu should never reach the bench. It’s not because he teaches at Berkeley or because he’s a minority. (After all, Clarence Thomas is strict constructionists’ favorite judge, even more so than Scalia). It’s because he’s directly out of the “constitutional analysis requires discarding the constitution” mold of judicial theory.
Liu, like Obama, believes that the Constitution is not a document of negative liberties – i.e., liberties that exist because we restrict government from intruding into our lives. Instead, he thinks that the Constitution is a charter of positive liberties – i.e. “liberties” that aren’t liberties at all, but privileges bestowed by a benevolent state redistributing resources to its citizens. Where does Liu see this in the Constitution itself? He doesn’t. Instead, as he wrote in the Yale Law Journal, he finds it in “the social citizenship tradition [which] assigns equal constitutional status to negative rights against government oppression and positive rights to government assistance on the ground that both are essential to liberty.” The fact that this is considered legitimate fodder for one of the nation’s top legal journals demonstrates the decay of American legal education – by this same logic, I’d love to write a piece about how the Affordable Care Act implicitly endorses full laissez-faire health care due to America’s social citizenship tradition, which requires that people take responsibility for their own health.
But Liu goes even further. He actually states that the Constitution mandates “a minimal safety net” (where?), “basic employment supports” (where?), “health insurance” (where?), “child care” (where?), “transportation subsidies” (where?), “job training” (where?), and a “robust earned income tax credit” (where?). Apparently Liu isn’t just ideologically driven, he’s constitutionally illiterate. The founders’ America lacked each and every element named by Liu, yet somehow a document they wrote requires all of them. Peculiar.
Remember Peggy Joseph? She’s the woman who exclaimed that with Obama as president, “I won’t ever have to worry about putting gas in my car. I won’t have to worry about paying my mortgage.” Remember how we scoffed at her? If Liu had his way, she’d be able to sue under the constitution and force the government to provide the gas and the mortgage. In a sense, Peggy Joseph was smarter than the rest of us – she saw the essence of the Obama administration and of legal “scholars” like Goodwin Liu, who will enact redistributionist policies from the bench.
It doesn’t end there. Liu has stated that buzzwords like “free enterprise,” “private ownership of property,” and “limited government” are in fact “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” Sensing some anger here toward the prevailing American orthodoxy for the last few hundred years?
Not only does Liu believe that his own political prejudices should influence the interpretation of a clearly-stated written document, he believes that judges should be able use foreign legal decisions as precedents for American cases. “The resistance to this practice,” he wrote in the Daito University Law School Journal (Japan), “is difficult for me to grasp since the United States can hardly claim to have a monopoly on wise solutions to common legal problems faced by constitutional democracies around the world.” No, but we can claim to have a monopoly on our founding document and the interpretation of it. Imagine that your family has passed a handwritten will down for centuries. Members of your family have studied that will for decades. The language is clear and concise, and requires no extraneous explanation; the only interpretation at issue is how the principles of the will are applied in today’s world. Would you have your grandfather, the world’s leading expert on that will, adjudicate it? Or would you have somebody who springs from a different culture than your own, doesn’t know your family, and doesn’t know anything about the origins of the will interpret the will? Liu would take the random foreigner just as seriously as the family experts.
Perhaps the oddest aspect of the hubbub over Liu’s filibuster is the media’s contention that it simply isn’t polite to filibuster him. This from the same media that praised Obama’s direct assault on members of the Supreme Court during his 2010 State of the Union Address. And this about the same Liu who once stated of Justice Alito’s America, “[it is a place] where police may shoot and kill an unarmed boy, where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance, where the FBI may install a camera where you sleep, where a black man may be sentenced to death by an all-white jury for killing a white man absent analysis showing discrimination.” It is the height of irony for Liu’s supporters to contend that he deserves a mannerly response when he engages in such rhetoric.
And then there are the spineless right-wing commentators, many of whom are uncomfortable with the idea of invoking a filibuster to stop Liu’s nomination. In a misguided display of anti-partisanship, some conservatives state that if we opposed filibustering Miguel Estrada, we cannot support filibustering Goodwin Liu. There’s a difference that they’re missing: Liu is a horrible judicial nominee, and must be stopped before he uses his position to undermine the constitutional order; Estrada was a terrific nominee who actually believes in an abides by the Constitution. Using all legal methods to stop Liu is an act of virtue; using any legal methods to stop Estrada was an act of radicalism.
The Constitution is not fodder to be used to fuel liberal flames; it is not a blot to be interpreted as desired by political actors. It is a founding document to be abided by– the greatest manifestation of American ideals ever put on paper, the most masterful organization of government yet created. Anyone who undermines it must be stopped. And that means Goodwin Liu.
Ben Shapiro is an attorney and writer and a Shillman Journalism Fellow at the Freedom Center, and author of the upcoming book “Primetime Propaganda: The True Hollywood Story of How The Left Took Over Your TV” from Broadside Books, an imprint of HarperCollins.
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