The values of Professor Liu

Monday, March 7, 2011

LAST WEEK, Goodwin Liu recounted his young daughter's delight when told that the family would be returning to Washington for an unusual, second confirmation hearing for her father.

"She likes coming to these hearings," explained a jovial Mr. Liu. "I said, 'Good for you, Violet.' "

Members of the audience and the Senate Judiciary Committee broke out in laughter, sensing that Mr. Liu did not share his daughter's enthusiasm for the confirmation deja vu. And no wonder.

Mr. Liu, a law professor at the University of California at Berkeley, was nominated to the U.S. Court of Appeals for the 9th Circuit last year but unjustly failed to get a floor vote after squeaking by in committee on a party-line vote. President Obama, who has shown little appetite for judicial nomination battles, renominated Mr. Liu, who again went before the committee on Wednesday.

Republican senators used Mr. Liu's unabashedly liberal speeches and academic writings to make the case that he is not fit for a lifetime appointment to the bench. Mr. Liu, for example, has argued that judges may "legitimately foster evolution of welfare rights." He has urged courts to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection.

Senators also confronted Mr. Liu with his acerbic critique of then-Judge Samuel A. Alito Jr., whose confirmation to the Supreme Court he opposed. Mr. Liu, among other things, argued that Judge Alito "envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse." At last week's hearing, he disavowed these words as "unduly harsh, provocative and unnecessary," although it was difficult to discern whether it was a sincere recantation or a preemptive strike against further Republican attacks.

Mr. Liu also vowed to "follow the instructions of the U.S. Supreme Court on matters of constitutional interpretation" rather than allow any particular judicial philosophy to guide his decision making. Mr. Liu is unlikely to shunt aside completely the ideas and approaches he has spent years developing. But the real problem, of course, is not that he adheres to a particular judicial philosophy, but that he - like so many others before him - feels the need to pretend not to have one. Senators of both parties share the blame for this infuriating shadowboxing by refusing to respect the president's prerogatives to choose nominees who share his values.

Most important, Mr. Liu has sterling credentials that earned him the highest rating from the American Bar Association. And there have been no allegations of impropriety to disqualify him from serving.

The brilliant professor, who turned just 40 in October, testified that he would not allow his academic musings to interfere with the duties of a lower-court judge to follow precedent. He should be confirmed and given the opportunity to demonstrate that he can do that.

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