It’s hard to imagine a better dry run for this summer’s battle to replace retiring Supreme Court Justice John Paul Stevens than last Friday’s confirmation hearings for federal appellate court hopeful Goodwin Liu. Nominated by President Barack Obama to fill a vacancy on the federal 9th Circuit Court of Appeals, Liu is something of a dream candidate for the left—and a nightmare for the right.
The 39-year-old son of Taiwanese immigrants, Liu is a Rhodes scholar, a former clerk for Supreme Court Justice Ruth Bader Ginsburg, and a respected law professor at the University of California, Berkeley. He’s also an outspoken champion of what’s commonly known as the “living” Constitution, which is the notion, as Liu has put it, that what matters for judicial decision-making “is not how the Constitution would have been applied at the founding, but rather how it should be applied today...in light of changing needs, conditions and understandings of our society."
In fact, Liu has even argued that a judge’s role shouldn’t be limited to simply protecting individual rights against government infringement, but to guaranteeing positive welfare rights as well. “We have grown used to treating the Fourteenth Amendment as a vehicle for judicial enforcement of negative rights against governmental denial of formal equality,” he wrote in a 2009 essay, “and not for legislative enforcement of positive rights to governmental provision of what is necessary for equal citizenship.”
Unsurprisingly, that approach didn’t sit well with the Judiciary Committee’s Republicans, particularly conservative Sen. Jeff Sessions (R-Ala.), who denounced Liu’s ideas as "the very vanguard of what I would call intellectual judicial activism." For their part, committee Democrats pretended like the Republicans were the only ones who ever played politics over judicial nominees. "I hope they will keep the same open mind kept by Democratic senators," intoned committee chairman Sen. Patrick Leahy (D-Vt).
The truth is that both sides routinely subject their opponents’ judicial candidates to some very harsh scrutiny. And why wouldn’t they? Yet that simple fact recently eluded Slate legal correspondent Dahlia Lithwick, who wrote a strange column alleging that “the national debate about the courts has become so wildly unbalanced in recent years that a whole generation of young progressive law students has watched the teachers they revere sent up as constitutional buffoons.” In contrast, Lithwick asserted, “the brightest lights of the Federalist Society—Judge Brett Kavanaugh, professor Richard Epstein, Clarence Thomas, Theodore Olsen, Ken Starr, and Michael McConnell—are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House.”
While it’s true that conservative hero Clarence Thomas made it onto the high court, that only occurred after a scorched-earth confirmation battle where Thomas was repeatedly demonized. And Lithwick completely—and conveniently—ignored the fact that Senate Judiciary Committee Chairman Joe Biden (D-Del.) kicked off the Thomas hearings by waving around a copy of Richard Epstein’s book Takings: Private Property and the Power of Eminent Domain, and trying to discredit Thomas by linking him to Epstein’s libertarian defense of property rights. As Epstein later told Reason, "I took some pride in the fact that Joe Biden held a copy of Takings...and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."
As for Lithwick's "wildly unbalanced" judicial confirmation climate: There's no doubt things can get a little wild in and out of the Senate Judiciary Committee, but the debate itself is quite well balanced. Both sides have repeatedly gone to war on behalf of their respective legal agendas. For Lithwick to argue otherwise is to ignore some of the most famous events in modern legal history.
The most important issue here isn't who's being meaner to the other side's nominees, it's whether a controversial judicial philosophy should keep an otherwise qualified nominee off of the bench. Ironically, Goodwin Liu himself has argued that it should. During the bruising 2005 confirmation battle over future Chief Justice John Roberts, for instance, Liu attacked President George W. Bush for failing to choose “a consensus candidate to replace Justice Sandra Day O’Connor” and instead picking “a conservative thoroughbred who, if confirmed, will likely swing the Court sharply to the right.”
Similarly, Liu testified before the Senate in 2006 that Supreme Court nominee Samuel Alito "envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse" and "where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination."
So it’s hardly shocking that Senate Republicans would now give Liu a taste of his own medicine. Nor should anybody on the right feign surprise when future Republican judicial nominees are treated roughly by liberals.
It’s time for both sides to come clean about the importance of judicial philosophy. That means no more grandstanding about “open minds” and double standards. If Constitutional interpretation matters—and it most certainly does—then senators have an obligation to query each and every nominee about it and vote accordingly. That’s the only way we’ll ever have a real debate about the Constitution and the courts.