Last Friday, President Barack Obama’s nominee for the Ninth Circuit Court of Appeals, University of California at Berkeley law school Associate Dean Goodwin Liu, testified before the Senate Judiciary Committee. It was not the first time Liu was before this Senate panel. In 2006 Liu testified against Supreme Court Justice Samuel Alito claiming Alito’s record was “not the mainstream.” Liu also spoke out against Chief Justice John Roberts nomination in 2005. But now that the Senate was examining his qualifications, Liu offered this spirited defense of his past legal writings:
Whatever I may have written in the books and the articles would have no bearing on my action as a judge.
Specifically, Liu was desperately trying to distance himself from his “Keeping Faith with the Constitution” judicial philosophy which calls for the judiciary to apply the Constitution in light of “evolving norms of our society” and a Yale Law Journal article where Liu “envisions the judiciary…as a culturally situated interpreter of social meaning.”
The complete renunciation of all past legal beliefs appears to be the modus operandi for President Barack Obama’s most controversial judicial nominees. Consider what transpired during Justice Sonia Sotomayor’s confirmation hearing:
Rejecting the Living Constitution: Sen. Lindsey Graham (R-SC) asked Sotomayor flat out: “Do you believe the Constitution is a living, breathing, evolving document?” Sotomayor then flatly rejected the views of liberal scholars and jurists: “The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. It is a process, an amendment process that is set forth in the document. It doesn’t live other than to be timeless by the expression of what it says.” She later told Sen. Al Franken (D-MN): “[T]he role of the court is never to make the policy. It’s to wait until Congress acts.”
Rejecting Transnationalist Jurisprudence: Sen. Tom Coburn (R-OK) asked Sotomayor: “You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.” Sotomayor then flatly rejected the views of established transnationalist jurisprudence leaders like Harold Koh: “I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law.”
Rejecting Obama’s Empathy Standard: Sotomayor even flatly rejected President Obama’s own criteria for selecting Supreme Court nominees, telling Sen. Jon Kyl (R-AZ): “I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws.”
Since President Obama’s most high profile judicial nominees refuse to defend their leftist legal briefs under oath, no wonder liberal law students are so sad. That said, there is no reason to trust the nominees’ confirmation conversionsm, either. In short, they know their pre-confirmation speeches and writings don’t pass muster with the public, but why should we now believe that they didn’t really mean any of what they wrote and said in their pre-nomination careers?