The Curious Case of Goodwin Liu

A Washington truism: to conservatives, potentially troublesome judicial appointments justify immediate action no matter how injurious to the smooth functioning of a legislative body. It's been this way since Roe, as Republicans have grasped how the subtle formalism of American life can be influenced by judicial rulings. And so Senate Republicans are holding up the nomination of Goodwin Liu, an associate dean at the Berkeley School of Law, to an appointment to the Ninth Circuit court of appeals.

Liu presents a classic dilemma for intellectually honest conservatives: he is undeniably brilliant, undeniably qualified to serve, has a great story behind him (son of immigrants who didn't learn English until kindergarten, was a Rhodes scholar, went to Stanford, Yale Law) respected by colleagues bearing various ideologies -- and he is unabashedly (so far are these things go) a judicial liberal.

The bill of goods against Liu is familiar: he is an outspoken advocate for the theory of a living Constitution and has an expansive interpretation of the 14th amendment.  Republicans distributed parts of an essay Liu wrote (along with Pam Karlan, another potential Obama court/Supreme Court nominee from Stanford): "For too long, liberals, progressives ... have been defensive about how the Constitution should be interpreted. But an examination of the document itself and the way its principles have been applied over time reveals that the progressive view is in fact the one that has prevailed."  Manna to the ears of liberals, of course, who also appreciate how Liu has taken public stands on issues ranging from health care to same-sex marriage. 

Echoes of Sonia Sotomayor can be found in the way Liu describes his approach to judging: "And how do people come at their judgments?...lessons learned from experience, and an awareness of the evolving norms and social understandings of our country."

It's obvious why conservatives don't want Liu on the bench. It's also clear that the prevailing theory that elections have consequences when it comes to judicial nominations is not particularly viable these days.

There are a few other reasons why Liu is not acceptable: he does not like Samuel Alito and made this clear during Alito's nomination to the Court. He is also extremely ... shall we say, charming. Articles laud his Midwestern folksy demeanor; he is a product of the Sacramento suburbs and speaks the language of ordinary American (read: ordinary American white guy) well. A conservative lawyer who has worked with Liu confessed to me that he is "scared" of Liu because is he "more brilliant than [Antonin] Scalia without being nasty."

To the extent that racial politics is involved, it probably is only that Democrats would be able to make advances with a demographic group -- Asian-Americans -- who are becoming one of the larger sources of fundraising for Republicans and who have, according to Republicans, conservative family structures and an entrepreneurial spirit that makes them ripe for conservative political arguments.  I'm uncomfortable with this ethnic/tribal  essentialism, but it is present among Democrats too.  Today, Sen. Patrick Leahy noted that Liu's nomination  "would also bring much-needed diversity to the Federal bench.  There are currently no active Asian American federal appeals court judges in the country.  Judge Denny Chin of New York has been nominated to the Second Circuit, but Senate Republicans have stalled his nomination for over three months, despite his unanimous approval by the Senate Judiciary Committee."

Thumbnail photo credit: takomabibelot/flickr

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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