Ramming Through Radical Nominee Takes Back Seat to Ramming Through Obamacare

Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states). Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” — GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”

Nothing could be farther from the truth. Despite the postponement, Liu’s confirmation is proceeding at breakneck speed. His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days. And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.

Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November. As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”

According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments. Liu states outright that “rights to government assistance” are “essential to liberty.” He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”

Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical). The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee. With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention — and any other legal method of stopping or delaying by even one day his ascension to the bench — serves “American justice” rather than betraying it.

CP: Cato's blog

If You Think Obamacare is Bad...

Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.

Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller. Here are some highlights:

While Liu purports to develop an original approach [to constitutional
interpretation], his nuanced methodology fails to generate a novel result. He
may “suggest a more cautious and discriminating judicial role than one that is
guided by a comprehensive moral theory,” but it is impossible to imagine a case
in which Liu would reach a different outcome than a judge employing the
(disfavored) “Living Constitution” analysis. And this is not surprising, given
that the stated purpose of Liu’s scholarship is to establish legal
justifications for “rights” foreign to the Enlightenment tradition on which our
republic rests — those that make demands on others (unlike, say, the right to
free speech, which makes no demands on anyone).
....
Even more dangerously, Liu’s approach flouts the Constitution’s very
purpose: protecting individual rights by limiting government power. As the
branch responsible for interpreting the Constitution, the judiciary must defend
citizens’ inalienable rights, such as the rights to life, liberty, and property,
from infringement by government actors. Liu’s approach turns that role on its
head. He views the judiciary not as a safeguard against state tyranny, but as a
rubber stamp for any legislation that reflects popular opinion. And it’s a
one-way ratchet: Liu would likely rule that the next Congress could not repeal
Obamacare because it is precisely the kind of “landmark legislation” — to borrow
progressive Yale law professor Bruce Ackerman’s phrase — that cannot be
undone.

As a member of the ACLU and chairman of the American Constitution Society,
it is no secret what kind of rights Liu would find justified by “collective
values.” Liu lists “education, shelter, subsistence, health care and the like,
or to the money these things cost” as examples of affirmative rights he would
seek to establish in law — to constitutionalize beyond a future legislature’s
reach.

Read the whole thing. Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog. (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)

And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:

On my account of the Constitution’s citizenship guarantee, federal
responsibility logically extends to areas beyond education. Importantly,
however, the duty of government cannot be reduced to simply providing the basic
necessities of life….. Beyond a minimal safety net, the legislative agenda of
equal citizenship should extend to systems of support and opportunity that, like
education, provide a foundation for political and economic autonomy and
participation. The main pillars of the agenda would include basic employment
supports such as expanded health insurance, child care, transportation
subsidies, job training, and a robust earned income tax credit.

As Evan and I wrote:

We don’t expect a president of either party to appoint judges who adhere
100 percent to the Cato line — though that would be nice — so we do not object
to every judicial nominee whose philosophy differs from ours.

Goodwin Liu’s nomination, however, is different. By far the most extreme of
Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth
by radically expanding — and constitutionalizing — welfare “rights.”

The Senate needs to understand who it’s dealing with here.

CP: Cato's blog

Response to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns — and quite thoughtfully at that — so I thought I would share this exchange with a reader who emailed me his comments:

I read your piece “Sotomayor Pick Not Based on Merit”, where you
write, “in over 10 years on the Second Circuit, she has not issued any important
decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and,
as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there,
but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998,
Sotomayor has authored over 150 opinions, addressing a wide range of issues, in
civil cases.” And that “To date, two of these decisions have been overturned by
the Supreme Court; a third is under review and likely to be reversed.” 2 out of
over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme
Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena
Kagan.”

I did a bit of research on them, and I’m not sure why you reached that
conclusion. They are all qualified, in some respects Wood and Kagan are a bit
more impressive, but you give the impression that she’s not highly qualified,
and I don’t see evidence for that. On the contrary, she seems highly qualified -
she has a long judicial and academic record, she has dealt with a myriad of
issues, and has authored a vast amount of rulings, which, as far as I’ve seen,
don’t appear to be ideological or particularly “activist.” She strikes me as
someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a
judge — or less qualified to be a Supreme Court justice than, say, Harriet
Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly
unqualified. She’s hardly intellectually impressive in any way, to put it
mildly, and nothing about her record was impressive or even remotely suggesting
she’s qualified to serve as a Justice. She was basically a manager of a law
firm, with zero qualifications to serve as a SC justice. By even mentioning her
name while discussing Sotomayor, you’re giving the impression there’s an analogy
there, where there’s really none. Sotomayor is light-years ahead of Miers. You
can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I
personally would side with the firemen, and it’s unfortunate that Sotomayor
hasn’t, but to be fair, she hasn’t even written a decision about that.We don’t
know what her reasoning was. She merely signed, along with the rest of the
panel, to uphold the lower court’s decision. It’s hard to build an entire case
against her based on something like that. She has written over 150 other
decisions, why not focus on them? Why pick one, that doesn’t even have any
arguments in it, and make it the central issue, when there are over 150 reasoned
decisions to analyze?Why not review them, and give the public a deeper
assessment, rather than focusing on ONE, which doesn’t even have any arguments
or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate
libertarian by philosophy, I’m just not sure why Cato is opposing her
nomination. I like to think of Cato as non-partisan, just as I am, but on this
issue your and Pilon’s opposition/criticism smacks from political partisanship
and is not based on the evidence. So it seems to me.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve
waded through a fair number and read every public report on them produced thus
far (including the very helpful SCOTUSblog summary you cite). Like you, some I
agree with — most, actually, because most cases at this intermediate appellate
level are not controversial (legally or politically), even if complex — some I
don’t. But there’s just not much “there” there — intellectual depth, scholarly
merit, etc. — at least by the elevated standards for elevation to the Supreme
Court and in comparison to more accomplished jurists like Wood and Garland.
She’s a competent judge, but we have 500 of those in the federal judiciary
alone. (And none of this is to disparage her tremendous personal story; I write
this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The
Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of
cases it is asked to review. So, statistically, we can say nothing about
Sotomayor in that sense. A couple of her reversals are a bit strange, but on
technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair
to say Miers was a mere “law firm manager” — she was White House counsel and
apparently a decent lawyer in private practice). I threw that line in
there to show I can pick on Republican nominees too.

4. While Roger has discussed suspicions of Sotomayor’s activism or
radicalness — and I think it’s clear she has more of those tendencies than Wood
or Kagan — this is not the thrust of the my CNN commentary. We just can’t tell
from her opinions, which are all over the map — other than the speeches at
Berkeley and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the
decision is blatant racial discrimination — and the Supreme Court looks likely
to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to
grapple with the complex constitutional and statutory issues is a serious
dereliction of judicial duty — as pointed out by Jose Cabranes in his dissent
from denial of en banc rehearing. Regardless of the merits of the case, the way
it was handled — as a per curiam summary affirmance released late on a Friday,
meant to sweep the case under the rug — is outrageous. Sotomayor was 100%
complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here
isn’t in any particular personality but rather: 1) that official appointments be
made irrespective of racial/ethnic/identity politics, and 2) even more
importantly, that the Supreme Court interpret the Constitution in a way that
treats the judicial enterprise not as one of enforcing social justice or
otherwise rewriting the law it when a result is inconvenient. The talk of
“empathy” is disturbing precisely because it is the antithesis of the rule of
law. And this is why Republican Judiciary Committee members must generate a
public debate on judicial philosophy and not merely attempt to tear down this
nominee. If they don’t demand substantive answers on serious constitutional
questions, they will be complicit in the deterioration of our confirmation
processes.

I look forward to following and commenting further as the confirmation process plays itself out.

[Cross-posted from Cato's blog.]

Handicapping the Justicial Horserace

The increase in chatter in Washington about Justice Souter’s replacement is a clear signal that pundits have gotten about as much mileage as they can over speculation and want to have an actual nominee to dissect.

Even though the administration has been evaluating candidates since the inauguration (and before), there’s no real reason for President Obama to announce a replacement before the Court’s term ends in late June.

The only limiting factor is that the president needs to have a new justice in place by the time the Court resumes hearing cases in October. So, clearly, this politically savvy president will be weighing his legislative priorities against the relative amount of political capital he’ll have to spend to confirm possible nominees. Similarly, Republicans seem to be keeping their powder dry, hopefully in preparation for a serious public debate of competing judicial philosophies and theories of constitutional interpretation.

As far as handicapping goes, the smart money is now on Solicitor General Elena Kagan—because she was recently confirmed by a comfortable margin, has significant support in the conservative legal establishment, and is young (49)—but don’t count out either Judge Diane Wood or Judge Sonia Sotomayor. Or dark horse candidates like Senator Claire McCaskill. It’s really any woman’s ballgame at this point, and will be until Barack Obama—who famously holds his cards close to his vest—announces his pick, on his time.

For a geometric discussion (X-axis = desirable criteria; Y-axis = confirmability) of the above political calculus, see here.

[Cross-posted at Cato's blog.]