UPDATE: The US Senate has rejected the nomination of Goodwin Liu in a cloture vote, 52-43. This is a great victory for the Constitution and the rule of law.
“To everything there is a season,” says Ecclesiastes 3:1, and the time for Republican senators to fight on judicial nominations is now!
Senate Majority Leader Harry Reid (D-Nevada) has filed cloture on the nomination of radical professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Simply put, Mr. Liu must never be confirmed to this lifetime appointment, and senators should use every tool available to make sure he is stopped.
Sen. Chuck Grassley (R-Iowa) has gone out of his way to work with Democrats to move along judicial nominations at a steady pace. But his good will has been met with contempt as Democrats continue to push the most radical nominees forward.
Sen. Grassley: In the first few months that I have been Ranking Member of the Judiciary Committee, I have worked in good faith to move forward with consensus nominees. As I said a couple days ago, by any fair measure, we are moving nominees at a brisk pace. The Senate has been in session for only 44 days this Congress. In that short time, we have confirmed 19 judges. In fact, thus far we have taken positive action on 43 of 63 nominees submitted this Congress. I want to emphasize that we have taken positive action on 68 percent of the judicial nominees submitted in this Congress. [R]ather than continuing to move forward with consensus nominees, the Majority Leader chose to throw up a detour and proceed to one of the President’s most controversial nominees, Mr. McConnell.
Well, now Sen. Reid has chosen to push through not one of the most, but the most controversial nominee we have seen in a long time. Mr. Liu is as radical as they come; there is hardly anybody to his left.
Liu is perhaps most well known for his extreme view that there is a constitutional right to “welfare,” a view that was rejected even by leftist Judge Sonia Sotomayor during her Supreme Court confirmation hearings. He has also been a vocal advocate of a constitutional right to homosexual marriage.
Those views help expose the real danger to our freedoms with this nomination: Mr. Liu’s judicial philosophy. He believes those constitutional rights must be developed, because he believes the Constitution is a “living, breathing” document that the more enlightened judges (like him, presumably) should continue to mold.
In a 2008 Stanford Law Review article, he argued that judges should “determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.”
So, though there is no constitutional right to homosexual marriage in the text of the Constitution, and it has never been recognized, “our collective values” on homosexuality “have converged to a degree that” judges should write it into the Constitution.
This alone should discredit Mr. Liu from any consideration to be a judge at any level. We do not want judges to conduct social experiments in the courtroom. We want judges to stand for the Constitution (as written) and the rule of law. We want “fidelity to the law,” as Justice Sotomayor referred to it, and Mr. Liu is the exact opposite of “fidelity to the law.”
Liu himself advocated for giving much weight to a judge’s judicial philosophy. In a piece on Bloomberg in which Liu attacked Chief Justice John Roberts on his nomination, Liu wrote:
There’s no doubt Roberts has a brilliant legal mind. Twice Harvard-educated, he has argued 39 cases before the Supreme Court and since 2003 has served on the powerful federal appeals court in Washington, D.C. But a Supreme Court nominee must be evaluated on more than legal intellect.
Because he would sit with life tenure on the nation’s highest court, it’s fair and essential to ask how he would interpret the Constitution and its basic values. Americans deserve real answers to this question, and it should be the central focus of the Senate confirmation process.
Liu’s judicial philosophy cannot be more dangerous, since it could mean something different at any given point in time. Any senator who doesn’t stand firmly against such a rogue nomination violates his oath to “support and defend the Constitution.”
Even those senators with serious reservations about the filibuster of judicial nominees must reconsider their position in light of the Democrats’ use of it during the Bush administration. As they fight to protect what they believe to be the proper way of confirming judges, they must use every tool available, including the filibuster, to protect the Constitution from radical operatives like Liu, who will destroy the Constitution and remake it as they see fit.
Pro-lifers have had to do this for years. Abortion is unconstitutional, period. But even as we defend the unalienable right to life, we must work within the framework that we have been given, and we, therefore, support measures to inform women of the perils of abortion, for example. That does not mean in any way that we support or concede that abortion does not violate the Constitution, but we work within the framework that is in place in order to protect life.
In the same manner, senators have every right to use processes which Democrats have put in place for judicial confirmations in order to protect our liberties and the Constitution.
As if Liu’s rogue judicial philosophy weren’t enough, Mr. Liu apparently has serious memory lapses as well. Apparently, the distinguished professor from the prestigious University of California Berkeley School of Law conveniently “forgot” to disclose 117 of his most controversial speeches and writings in his questionnaire to the Judiciary Committee. One of the speeches he “forgot” to mention was a commencement speech at UC Berkeley Law!
Sen. Jeff Sessions (R-Alabama) addressed the issue in a letter to Judiciary Committee Chairman Patrick Leahy (D-Vermont):
At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee.
Sen. Sessions was very kind in his portrayal. It would be very hard for any reasonable person to believe this was done in error.
This is one of those line-in-the-sand moments. The vote on Goodwin Liu will give Americans a chance to see behind the rhetoric and take a look at what their elected official is willing to do to protect our liberties.
This vote is likely to define some races in 2012.
If not now, when? If not Liu, who?