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Law professor Goodwin Liu may be test case for Obama judicial picks

By Robert Barnes
Washington Post Staff Writer
Monday, March 22, 2010; A15

Liberal legal activists came away from last summer's confirmation hearings on Sonia Sotomayor with an empty feeling. It's not so much that they had a beef with Sotomayor, whom they supported. But her pragmatic discourses on judging and her vague remarks on constitutional interpretation were far from the soaring progressive vision of the Constitution that they had waited for years to hear from a Democratic nominee.

The activists are likely to get the debate they were looking for soon enough. President Obama's nomination of Goodwin Liu, a law professor at the University of California at Berkeley, to a spot on the U.S. Court of Appeals for the 9th Circuit has energized the left and outraged the right. His hearing and the battle over his nomination could tell much about the Obama administration's willingness to appoint controversial nominees to the bench, including the Supreme Court.

"I think people are viewing this as a test for the Supreme Court nomination that will be coming up" if Justice John Paul Stevens steps down at the end of this term, said Curt Levey, executive director of the conservative Committee for Justice.

It also might be the beginning of an examination of Liu's eventual fitness for a place on the high court. The Senate Judiciary Committee's hearing, scheduled for Wednesday, might serve "as an initial referendum on Goodwin Liu as a Supreme Court nominee," said Michael Gerhardt, a University of North Carolina law professor who advised committee Chairman Patrick J. Leahy (D-Vt.) during the Sotomayor hearings.

Liu, 39, brings an impressive story. Born to Taiwanese immigrants, he learned English at schools in the South before attending Stanford, where he was a Rhodes Scholar, and Yale Law School. He clerked for Justice Ruth Bader Ginsburg, worked in the Clinton administration and became active in education reform. Liu won a distinguished teaching award at the University of California's Berkeley School of Law and was promoted to associate dean.

He has no judicial experience and worked only a few years in private practice, but the American Bar Association has given him its highest approval rating. He would be a rarity on the appeals courts, where not one of the 175 active judges is Asian-American.

He is an outspoken advocate of liberal causes, including same-sex marriage and affirmative action. He infuriated conservatives by opposing the nomination of Chief Justice John G. Roberts Jr., whom he said had a "right-wing vision antagonistic to important rights and protections we currently enjoy." He urged senators to oppose Justice Samuel A. Alito Jr.; Alito had an "exceptionally talented legal mind," Liu said, but his deference to government intrusion on individual rights "is at the margin of the judicial spectrum, not the mainstream."

Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, returned the compliment when Liu was named. "Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence," Sessions said.

Conservative legal activists agreed. "This calls for pull-out-the-stops opposition," wrote Kent Scheidegger of the pro-death-penalty Criminal Justice Legal Foundation. As of last week, Edward Whelan III, a scalding critic of Obama's legal and judicial policies, had posted 15 items about Liu in his blog for National Review Online in little more than three weeks since he was nominated.

Liu is different in several ways from Obama's other choices for the appeals court. For the most part, they are older and more moderate, and bring judicial experience. Although some have raised opposition because of decisions made on the bench, Liu presents a direct challenge to a conservative view of constitutional interpretation.

The "originalist" views of justices Antonin Scalia and Clarence Thomas, centered on the original meaning of the Constitution when it was written and amended, are "seriously flawed," Liu has said.

In a book, he and fellow liberal professors Pamela S. Karlan and Christopher H. Schroeder described their approach as "constitutional fidelity."

"Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society," they wrote in "Keeping Faith With the Constitution."

Liberal law professor Geoffrey Stone of the University of Chicago says those views "are much closer to the mainstream of legal thought than Scalia or Thomas."

The Senate hasn't had such a debate over any of Obama's other nominees. Some are wondering if the White House has the heart for an extended battle for Liu, when even its relatively noncontroversial nominees are having a hard time getting through.

Still, Obama supporters such as Stone said it should not be a surprise the administration has finally nominated someone such as Liu.

"The surprise is why it took so long," he said.

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