Goodwin Liu comes through

Republicans have finally had their shot at Goodwin Liu, the UC Berkeley professor nominated to the U.S. 9th Circuit Court of Appeals, and Liu is still standing. In a mostly superficial and scripted hearing of the Senate Judiciary Committee last week, Liu’s critics raised only one substantial issue to buttress their case that he is outside the mainstream, and Liu refuted it.

In what we hope wasn’t a preview of hearings for President Obama’s next Supreme Court nominee, the proceedings plumbed irrelevancies such as Liu’s tardiness in submitting some articles and speeches, his dearth of trial experience and his past criticism of Justice Samuel A. Alito Jr. Republicans recycled familiar rhetoric about “judicial activism” and the need for judges to “interpret the statutes and Constitution as written,” as if the meaning of those documents was always self-evident.

Liu contributed to the staged quality of the hearing by serving up unnecessarily cautious answers to questions dealing with everything from capital punishment to the use by American judges of foreign law. He said a judge’s task “remains the same, which is, applying the law faithfully to the facts of a specific case.” As for his academic writings, they “would have no bearing on my role as a judge.” He did concede that “judges are human beings.” It would have been edifying if he had felt free to speak more about how the human being named Goodwin Liu might weigh the law and the facts. Alas, such candor is politically perilous.

The one serious question raised by committee Republicans was whether Liu might seek to enforce not only the civil rights protected by the Constitution, but social and economic rights such as welfare assistance, healthcare and free public education. Sen. Jeff Sessions (R-Ala.), the ranking Republican, quoted an abstruse academic article in which Liu wrote that judges should recognize “welfare rights [based on] the shared understandings of particular welfare goods as they are manifested in our institutions, laws and evolving social practices.”

Actually, Liu suggested in the article that, although judges have authority to ensure that welfare and other benefits are distributed fairly, the main source of those rights is legislation, a point he made even more clearly in his testimony. (Of course, even if Liu believed that the Supreme Court could create new constitutional rights, he would be powerless to do so on an appeals court.)

To sum up: Liu is, as the American Bar Assn. found, well qualified. His views are well within any definition of “mainstream” legal thought. He should be confirmed.