Rumors of a possible Supreme Court retirement this summer have Washington buzzing with anticipation. Adding to the intrigue is the controversial nomination of Goodwin Liu for the 9th U.S. Circuit Court of Appeals.
Senate Republicans used a procedural move Wednesday to postpone Liu’s hearing. But the delay will likely do little to lower the stakes surrounding his nomination. Liu’s outspoken opposition to the nominations of Chief Justice John Roberts and Justice Samuel Alito made him a hero of the far left. And his stance on issues ranging from welfare rights to the death penalty would make him one of the most activist judges, if confirmed, on the left-leaning 9th Circuit.
“Obama has decided, in a bow to the left wing, to nominate a poster child from Berkeley who checks off every radical liberal ideological box,” said Gary Marx, executive director of the Judicial Crisis Network. “Goodwin Liu is their dream to have on the Supreme Court someday. They are desperately looking for a liberal counterweight to [Justice Antonin] Scalia on the court.”
The wildcard, of course, is the recent announcement from Justice John Paul Stevens that he will step down before President Obama’s first term ends. Stevens could leave as early as this summer (he’s hired only one clerk), particularly if the political climate continues to threaten liberal incumbents in the Senate.
Even if Liu is confirmed to the 9th Circuit seat, it’s unclear if he would have the qualifications for the Supreme Court. There would be precedent, however, for elevating an appellate court judge in such short order. David Souter was confirmed for the 1st U.S. Circuit Court of Appeals on April 27, 1990. Three months later, on July 25, 1990, President George H.W. Bush nominated Souter for the Supreme Court.
Just as liberals feared that a young Miguel Estrada was destined for the high court when President George W. Bush nominated him to the D.C. Circuit Court of Appeals in 2001, those same feelings exist about Liu. The left pulled out all the stops to oppose Estrada, eventually prompting him to withdraw his nomination in 2003.
In addition to his potential grooming for the Supreme Court, there are other reasons the left is salivating at the prospect of Liu’s confirmation. Obama’s nomination of Sonia Sotomayor to the Supreme Court was viewed by liberals as a pragmatic choice. There have also been grumblings on the left about Obama’s commitment to reshaping the judiciary.
Liu makes no secret about his judicial philosophy and liberal interpretation of the U.S. Constitution. In a September 2009 article for the American Constitution Society, Liu and Pamela Karlan wrote:
For too long, liberals, progressives … have been defensive about how the Constitution should be interpreted. But an examination of the document itself and the way its principles have been applied over time reveals that the progressive view is in fact the one that has prevailed.
He told The Brennan Center For Justice in May 2009: “I would hope that the Obama administration would appoint judges who are broad-minded in their view of the kinds of sources that are legitimate to take into account in reading, especially the Constitution, but broadly legal texts of all sorts.”
As Heritage’s Debbie O’Malley wrote yesterday on The Foundry:
Judges are not interpreters of ‘social meaning.’ They are interpreters of the Constitution and laws. Regrettably, it is just this sort of loose theory that allows judges to ignore the plain and ordinary meaning of the Constitution and statutes, and to instead replace it with what they personally think is best based upon their subjective interpretation of ‘social meaning.’
For the left, however, this is precisely the type of justice they want on the bench.