As the lame-duck session stumbles to an undistinguished conclusion, senators may be called on to vote on the nominations of some of the president’s more controversial judicial nominees. For example, Edward Chen, who wants to be a federal judge in California, said the singing of “America the Beautiful” at a funeral was an appeal to patriotism that sparked “feelings of ambivalence and cynicism” in him.
Goodwin Liu is another of those nominees, and how senators vote on Mr. Liu’s nomination for a judgeship on the 9th Circuit will tell Americans whether they think radicals like Mr. Liu should get lifetime jobs as federal judges. Mr. Liu’s thoughts about the role of judges sound nothing like the Framers’ model of judges who say what the law is, not what they think it should be.
In a 2008 article in the Stanford Law Review, Mr. Liu proposed that the courts “function as interpreters of social norms.” His judges would “make socially situated judgments that inevitably foreground certain facets of our collective values while minimizing others as outdated or recessive in the public culture.” Courts would have to pay “keen attention to the trajectory of social norms reflected in public policies, institutions and practices” and make “predictive judgment* as to how a judicial decision may help forge or frustrate a social consensus.”
Where does the Constitution give unelected judges the power to “help forge … a social consensus” or to “foreground” their preferred “collective values” at the expense of other values a judge deems “outdated or recessive”? It doesn’t.
How does all of that fit within the Constitution’s provision limiting the reach of the federal judicial power to “all Cases, in law and equity” that involve the U.S. Constitution and federal law? Again, it doesn’t.
And why isn’t that usurping the legislature’s role? At least we can vote for and remove our senators and representatives if they don’t reflect our “collective values.” We can’t do that with judges, who receive lifetime appointments.
Mr. Liu has also said, “[I]f we work hard, if we build a new moral consensus,” we might sweep some Supreme Court decisions that put the brakes on the ability of federal courts to engage in liberal social engineering “into the dustbin of history.” That comment came in a 2004 speech that was one of about 117 items Mr. Liu forgot to include in his initial response to the Senate Judiciary Committee’s questionnaire.
In that speech, Mr. Liu criticized decisions that limit the ability of courts to treat people as pawns whose tax money or children are to be moved around to solve problems they didn’t cause. For example, Mr. Liu doesn’t like San Antonio Independent School District v. Rodriguez (1973), in which the Supreme Court held that the Texas school-financing system, which relied on local property taxes, did not violate the Equal Protection Clause of the 14th Amendment. That decision put an end to the liberals’ desire for a federal right to “adequate” school funding (as they would define it). In the hands of activist state courts, such school-funding litigation has led to protracted and unsightly fights between the courts, which invalidated state school-funding systems, and the legislatures, which had to clean up the mess.
Mr. Liu doesn’t like Milliken v. Bradley (1974), either. In Milliken, the court restricted the ability of federal courts to order busing across the lines of school districts to remedy racial discrimination in one of the districts. It said that such cross-district busing could not be ordered unless the neighboring district’s schools were also unconstitutionally segregated or the district lines were the product of a discriminatory purpose. If Milliken had gone the other way, a federal judge could have ordered the busing of children who lived in the Detroit suburbs across boundary lines to change the racial balance in Detroit schools even though the neighboring districts hadn’t discriminated.
At his hearing in the Senate Judiciary Committee, Mr. Liu claimed his writings and speeches would “have no bearing” on how he would behave on the bench. The reams of paper should not be dismissed so quickly. They show what Mr. Liu thinks about the role of the courts and his disdain for judicial restraint. They don’t provide any support for those who think Mr. Liu would display restraint on the bench.
Mr. Liu has no other record to point to. The American Bar Association (ABA) Standing Committee on the Federal Judiciary thinks judicial nominees should have at least 12 years of “experience in the practice of law,” but Mr. Liu has less than two years of actual practice. There is no way that he has “substantial courtroom and trial experience as a lawyer or trial judge,” something the ABA says is “important.”
The evidence suggests that Mr. Liu is at home with judicial social engineering. In decisions he criticizes such as Milliken and Rodriguez, the Supreme Court put an end to the freewheeling days when Earl Warren was chief justice and the courts were busy instigating social change. Before voting to give Mr. Liu one of the few lifetime jobs the federal government has, senators should ask themselves whether the Warren Court should be allowed to rise from the grave.
Jack Park is a former assistant attorney general in Alabama.