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EDITORIAL: A constitutional right to welfare?

- The Washington Times - Wednesday, March 3, 2010

Another day, another radical judicial nominee. President Obama once again has nominated for a federal judgeship a

lawyer whose own words demonstrate unfitness for the position. In the case of Goodwin H. Liu, nominated on Feb. 24 for the 9th U.S. Circuit Court of Appeals, the substance behind the words is even worse than the verbiage.

Mr. Liu is an assistant dean at the University of California Berkeley law school who once clerked for Supreme Court Justice Ruth Bader Ginsburg, so he probably boasts some intellectual firepower. Yet it's the sort of firepower that fits better within the walls of academe, marked by its uniquely indecipherable mumbo-jumbo, than on a bench where clarity is essential.

Ed Whelan of the Ethics and Public Policy Center dug up an example of Mr. Liu's written reason so outlandish as to be unacceptable on its face, no matter what the substance of the legal theory being promoted. In a 2008 Stanford Law Review article, Mr. Liu wrote that judges should engage in "socially situated modes of reasoning that appeal ... to the culturally and historically contingent meanings of particular social goods in our own society" and to "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."

To which most rational people would ask: Huh?

Mr. Liu was discussing the idea that judges be bound less by the actual language of the Constitution than by "a systematic moral theory." He agonized in print about the need to reject, for practical reasons, that idea of judge as Olympian moralist. But he did the next worst thing: He wrote instead that he "envisions the judiciary ... as a culturally situated interpreter of social meaning."

Let's translate that into plain English. Mr. Liu is saying that a judge should read between the lines of actual laws to a deeper meaning that the judge, in his wisdom, can decipher. Then the judge should apply a cultural "context" to that deeper meaning. And enforce it.

A reader can be forgiven for thinking that Mr. Liu in effect is advocating a judicial dictatorship. Liberated from the strict and limited dictates of the Constitution, Mr. Liu's vision of governance is based on no bedrock principles and thus would be held hostage to trendy intellectual whims.

Now, let's move beyond theory. For what practical purpose was Mr. Liu laying out his complicated and risky scheme of judging? Here's where things get even worse. As repeated many times in his essay, Mr. Liu's goal was to create a judicially enforceable, constitutional right to welfare. He hastened to add that such a revolution would only be pushed in an "evolutionary" way - not immediately - by "cue[ing] the policymaking process toward greater deliberation and rationality."

This agenda is dangerous. Judges have less business cueing up policy than referees would have to suggest what plays a quarterback should call.

Finally, Mr. Whelan has noted that Mr. Liu doesn't meet the ordinary standards for federal judges outlined by the American Bar Association. These standards include "at least 12 years' experience in the practice of law" and "substantial courtroom and trial experience." Mr. Whelan points out that Mr. Liu, who is only 39 years old, "hasn't even been out of law school for 12 years" and has "zero 'experience as a trial lawyer.'" This nomination should be withdrawn.