There they go again

Republicans in the Senate are gunning for Goodwin Liu, the 39-year-old UC Berkeley law professor President Obama has named to the U.S. 9th Circuit Court of Appeals. Liu, who supports affirmative action and has theorized about whether welfare benefits can be considered a constitutional right, is “beyond the mainstream,” according to Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee. Of course, Sessions said the same thing about Supreme Court Justice Sonia Sotomayor, which suggests that for him “beyond the mainstream” is just a synonym for “liberal” or “Democratic nominee.”

Because he is an academic, Liu has a long paper trail of views about the Constitution and constitutional interpretation that’s unusual in a judicial nominee. He’s also very young. But so were some notable appeals court appointees of Republican presidents. For example, Alex Kozinski, now the chief judge of the 9th Circuit, was 34 when President Reagan named him to the appeals court. Kenneth W. Starr, the future Whitewater special prosecutor, was 37 when Reagan placed him on the U.S. Court of Appeals for the District of Columbia Circuit.

Many of these appointees held the view that judges should be bound by the Constitution’s original meaning, a doctrine that, in the simplistic form associated with Supreme Court Justice Antonin Scalia, would prevent the Constitution from adapting to the times. In a recent book, Liu and two colleagues took on the doctrine of “originalism”: “The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.” (Actually, both approaches are part of the mainstream, and are sometimes employed by the same judges depending on the case.)

Like his Republican forerunners, Liu represents a departure from the usual practice of filling appeals courts with middle-aged lawyers with previous judicial experience or long careers in private practice. The question for outspoken academics (and politicians) who ascend to the bench, however, is not how old they are, but whether they can trade the role of advocate for that of arbiter. An additional question for appellate judges is whether they will apply Supreme Court precedent even when it conflicts with their own constitutional vision. In Liu’s case, that would mean that he couldn’t get ahead of the Supreme Court on whether to recognize education, shelter or subsistence as constitutional rights. The American Bar Assn. obviously has concluded that Liu can satisfy both obligations. It has rated him “well qualified.” We agree.