How times have changed. In 2005, when Democrats balked at confirming some of then-President George W. Bush’s judicial nominees, Senate Republicans widely declared that filibustering a judicial nominee violates the Constitution. Late last month, however, Senate Republicans embraced the tactic, almost unanimously joining a filibuster of professor Goodwin Liu’s nomination to a federal appeals court. And sadly, it worked: Last week, Liu asked President Obama to withdraw his nomination.
Republicans justified their apparent belief that what’s unacceptable in a Republican administration is perfectly fine in a Democratic administration by demonizing Liu, insisting he would rewrite the Constitution to achieve liberal ends. Sen. Charles E. Grassley (R-Iowa) accused Liu of wanting to make America more like “communist-run China.” Other senators fixated on a pair of Liu’s law review articles, claiming that they proved Liu would wield a judgeship to create all kinds of new welfare programs and somehow seize control of America’s schools.
The claims are ludicrous, but they highlight an unfortunate new reality for prolific legal scholars such as Liu. Once upon a time, senators examined a nominee’s record only to find if there was a compelling reason to keep the nominee off the federal bench. In this instance, Senate Republicans seemed intent on finding things in Liu’s scholarship that could be distorted to paint him as a radical. And because Liu has been a very prolific scholar, there was a lot of material that could be distorted.
Consider Liu’s discussion of welfare rights. In the 1960s and ‘70s, a legal scholar named Frank Michelman published a series of articles calling for courts to take a very aggressive role in expanding anti-poverty programs. Michelman’s writings remain influential among liberal law professors today.
Liu published a lengthy response to this aggressive vision of judicially created welfare rights. In it, he takes on Michelman’s vision, saying it would give judges far too much power to overrule democratically elected officials. Liu calls for “legislative supremacy” in defining the scope of welfare rights, and he explains that it would have been utterly inappropriate for the courts to second-guess Congress’ decision to roll back welfare rights in its 1996 welfare reform law. It doesn’t sound like something a conservative would object to, right?
Yet Senate Republicans managed to distort this cry for judicial restraint into proof that Liu would create massive new welfare programs by judicial fiat. In doing so, they focused on one aspect of his analysis, in which he concluded that the courts sometimes have a constitutional obligation to ensure fair and equal access to the welfare programs that elected officials create. Liu’s critics seemed to ignore the fact that conservative Supreme Court Justice Antonin Scalia embraces a similar role for the judiciary. Scalia joined the Supreme Court’s decision in Saenz vs. Roe, which struck down a state law that denied some California residents a portion of their welfare benefits. If Liu’s stance on constitutional welfare rights disqualifies him from the federal bench, it also disqualifies Scalia.
There’s some evidence that Republicans targeted Liu to exact payback for his testimony during Justice Samuel A. Alito Jr.'s confirmation hearing. In that proceeding, Liu testified about Alito’s record on criminal justice, highlighting some embarrassing details from his past — including a memorandum in which Alito argued that cops should be allowed to shoot a purse-snatcher in the back to prevent him from getting away with 10 stolen dollars. Every single word of Liu’s critique of Alito was scrupulously accurate, and leading conservatives such as Clinton inquisitor Kenneth Starr and torture memo author John Yoo — both of whom supported Liu’s nomination — found nothing in Liu’s testimony that should keep him off the bench. Nevertheless, numerous GOP senators cited Liu’s Alito testimony to explain their vote against him.
Two lessons emerge from this debacle. Future presidents of both parties will learn that if they nominate someone with a body of published work — no matter how moderate — that work will inevitably contain out-of-context statements that can be used to embarrass the nominee and the White House. Thus, the lesson for presidents is clear: Don’t nominate anyone who actually has had something to say about the Constitution.
Brilliant young lawyers will learn equally harsh lessons: Keep your mouth shut, don’t write anything down and never, ever say anything critical of a powerful official, even if the criticism is true. Because presidents will no longer nominate anyone who speaks out, the brightest, most promising legal minds will learn to keep silent.
In the end, the American people will be much poorer because the Goodwin Lius of the future will be silenced. Democracy depends on an informed electorate, and it is better-informed when brilliant voices share their expertise. Congress depends on these same voices to advise them on confirmation votes and other important matters. But the Senate’s vote on Liu sends a clear message to any of the nation’s brightest constitutional thinkers who hope to someday be able to serve on the federal bench: stop talking.
Ian Millhiser is a constitutional attorney and a policy analyst with the Center for American Progress Action Fund.