Saturday, April 24, 2010

Confirm Goodwin Liu

          Goodwin Liu, the brilliant Berkeley law professor, has been nominated by President Obama to become a judge on the Ninth Circuit Court of Appeals. Among his numerous writings, Liu is co-author of a book called Keeping Faith With the Constitution. The book was published by the American Constitution Society, an organization that was formed to counter the influence of the Federalist Society, which was established in 1982 to spread the influence of conservative ideals. The Federalist Society has enjoyed tremendous success in placing its members on the federal courts; Supreme Court Justices John Roberts, Antonin Scalia and Samuel Alito are among its members. Led by Justice Scalia, Federalist judges have proposed the constitutional theory known as originalism and denounced judicial activism by liberal judges. 
          Liu's book demolishes the conservative theories of constitutional interpretation. As he cogently explains, whether judicial activism is defined as lack of deference to democratic decision-making, failure to adhere to constitutional text or original meaning, lack of deference to judicial precedent, selective provision of access to the courts, or the use of judicial power to achieve partisan objectives (40), the conservative Rehnquist and Roberts Courts are guilty of it. (See, e.g., Bush v. Gore and Citizens United.) Instead of allegiance to the obscure original intent of the Framers, Liu proposes a theory of constitutional fidelity that allows the Constitution to be interpreted in historical context.
          At Liu's confirmation hearing, Utah Republican Senator Orrin Hatch mocked Liu's theory of constitutional fidelity, arguing that it sounds more like fidelity to judges and judging rather than the Constitution, and implying that Liu would be a judicial activist. Hatch was especially critical of the idea that constitutional interpretation should be influenced by historical events.
          Consider the implications of the two constitutional theories for religion. If originalism is right, then the Religion Clauses protect only those religions known to the Framers and present in the United States at the time of the Constitution's ratification. Justice Scalia suggested as much when he wrote in the Ten Commandments cases that the First Amendment allows the states to disregard polytheists, believers in unconcerned deities, and atheists. Justice Scalia's interpretation appears to put the Asian religions outside the scope of constitutional protection, either  because they are not monotheistic or because Asians were not present in sufficient numbers in the original United States to come within the constitutional text. In contrast, although Professor Liu does not write about the Religion Clauses, his theory of fidelity to the First Amendment allows the Clauses to protect all Americans, as they should, and as most Supreme Court decisions have held.
          Liu's book does point out that originalism cannot protect women's equality, as neither the Framers of the Constitution nor the Fourteenth Amendment had any commitment to women's equality. 
          I have no idea what Professor Liu's religion is, if any, but at his confirmation hearings he spoke movingly of his Taiwanese parents, who encouraged their son to get the best education possible after they immigrated to the United States, as well as of his mentor Robert Matsui, the Japanese-American Representative from Northern California, who was interned as a baby during World War II, along with all the Japanese-Americans whose fidelity to the Constitution was questioned after the attacks on Pearl Harbor. 
          Liu is under attack for espousing a theory of constitutional interpretation that allows the Constitution to include all Americans. He deserves immediate confirmation instead of repeated suggestions by the Senate that he is unfit to be a federal judge

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