The long-awaited judicial confirmation hearing today of Berkeley Law Professor Goodwin Liu erupted into open warfare today as Republicans attacked Liu on his background and perceived bias. I discussed the confirmation fight on the segment below of Rachel Maddow.
Liu promised to keep an open mind and not pre-judge cases from a liberal perspective, but Republicans attacked him for his liberal views, particularly his interpretation of the Constitution. One quote often raised by the GOP was:
“The question … 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.”
Sen. Jeff Sessions, R-Ala., criticized Liu for his criticism of Chief Justice John Roberts and Samuel Alito. He then attacked Liu on his lack of experience, asking “Have you argued any case before the Supreme Court or the court of appeals?”
Liu has never argued before the Supreme Court and only argued once before an appellate court.
However, arguing before the Supreme Court is hardly a criteria for judicial confirmation since only a small percentage of nominees have appeared before the Court. Such arguments have little to do with the lawyers but the cases and the interest of justices in a given issue at a given time. If Supreme Court argument were a criteria, ninety-eight percent of the GOP nominees would have failed.
Committee Chairman Patrick Leahy. D-Vt., seemed genuinely ticked. He and other Democrats agreed to accept claims of impartiality from conservative GOP nominees. Yet, his colleagues are unwilling to accept the same assurance from Democratic nominees.
The hearing occurs in the aftermath of the withdrawal of Dawn Johnsen who was all but abandoned by the Obama Administration, here, and opposed by Democrats like Senator Ben Nelson over her opposition to torture policies. Liu will be the latest test of whether the White House will support a liberal for such positions.
Liu has a remarkable resume:
— an Associate Dean and Professor of Law at UC Berkeley School of Law (Boalt Hall). —- clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg
— clerked for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit
— special assistant to the deputy secretary of the U.S. Department of Education
— senior program officer for higher education at the Corporation for National Service (AmeriCorps).
— Rhodes Scholar
— Board of Trustees of Stanford University
— Chair of the Board of Directors of the American Constitution Society
— B.S., Stanford University (1991)
— M.A., Oxford University (1993)
–J.D., Yale Law School (1998)
He reminds me of Michael McConnell who was confirmed in the Bush Administration and served as a federal judge on the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. McConnell was brilliant and conservative. He was confirmed and so to should be Liu.
There is also an interesting comparison to Brett Kavanaugh who was appointed to the U.S. Court of Appeals on May 30, 2006. He also clerked on the court of appeals and the Supreme Court like Liu. He also had limited litigation experience. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. Judge Kavanaugh was a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, Judge Kavanaugh served as Associate Counsel and then as Senior Associate Counsel to the President.
Then there was the nomination of David Bunning, the son of Sen. Jim Bunning. David Bunning, 35, was an assistant U.S. attorney in Covington with a razor thin resume. He was rated as “not qualified” by the ABA due to his lack of experience but still confirmed unanimously by the Senate, here.
Then there was Michael Wallace who received a unanimous “not qualified” rating during the Bush Administration. He was supported by the GOP but eventually withdrew under opposition, here.
This is not to say that the ABA rating should be treated as dispositive either way. Academics often have difficulty on experience. The ABA gave Ronald Reagan’s judicial nominees Richard Posner and Frank Easterbrook “qualified/not qualified” ratings. Posner is arguably one of the greatest legal minds of his generation and Easterbrook is widely respected for the depth of this intellect and knowledge on the bench. Both are conservative but the bench is richer with their contributions. The same is true with Liu. If his career and writings are any measure, his contribution to the body of jurisprudence on the Ninth Circuit would be extraordinary.
For the full story, click here.