Wash. Examiner columnist falsely portrays Liu as “against private ownership of property”

Washington Examiner columnist Theodore H. Frank distorted a column by federal circuit court nominee Goodwin Liu to claim Liu was “disqualif[ied]” from that position because he purportedly spoke “against private ownership of property.” In fact, Liu merely identified the term “private ownership of property,” as used by an organization then-Supreme Court nominee John Roberts was affiliated with, as indicative of “an ideological agenda hostile to environmental, workplace, and consumer protections.”

From Frank's March 23 Washington Examiner column:

I oppose the nomination of 39-year-old Berkeley Professor Goodwin Liu to the U.S. Ninth Circuit Court of Appeals, and I urge the Senate to reject it.

In 2005, Goodwin Liu spoke out against the nomination of John Roberts to the Supreme Court because of Roberts's support for “free enterprise,” “private ownership of property,” and “limited government” -- demonstrating nothing more than the bubble that a twenty-first century left-wing law professor lives in that would treat such fundamental principles of America as “code words” worthy of condemnation.

This alone is sufficient, by itself, to disqualify Liu from this new position to which he has been nominated. The man who speaks out against private ownership of property does not deserve a lifetime Article III appointment.

Liu did not “speak out against private ownership of property”

Liu: Group affiliated with Roberts used terms as “code words” for “ideological agenda.” Liu did not oppose Roberts' nomination because of Roberts' “support for 'free enterprise,' 'private ownership of property,' and 'limited government,'” and Liu's supposed opposition of those values, as Frank claimed. Instead, Liu was making the indisputable point that right-of-center organizations often describe their organizations' missions using such terms in order to indicate that they are economically conservative. Liu wrote of Roberts in a July 22, 2005, Bloomberg column:

Before becoming a judge, he belonged to the Republican National Lawyers' Association and the National Legal Center for the Public Interest, whose mission is to promote (among other things) “free enterprise,'' ”private ownership of property,'' and “limited government.'' These are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.

Analysis indicates Roberts has indeed been skeptical of regulations of corporations. In noting that Roberts has ruled in a manner ”not that of a humble moderate but, rather, that of a doctrinaire conservative" during his Supreme Court tenure, Jeffrey Toobin wrote in a May 25, 2009, New Yorker article:

The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.


In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.

Frank distorted Liu's words on other issues

Frank claimed Liu supports reparations, racial quotas. From Frank's column:

Goodwin Liu's America is a land in which “justice” means judges remedying “societal discrimination” regardless of the consequences on innocent people; where 20th century immigrants to the United States are “responsible” for the crimes of 19th century slave-owners; where states would not be allowed to exercise the will of the people in punishing murderers with capital punishment; where racial quotas are not only not forbidden, but required.

Frank did not cite any evidence that Liu supports reparations or quotas. In a 2008 discussion cited by right-wing blogs as evidence Liu supports reparations, Liu said:

So what I would do is I think I would draw a distinction between a concept of guilt, which locates accountability in a sort of limited set of wrongdoers, and on the other hand a concept of responsibility. Which is I think a more broad suggestion that all of us -- whatever our lineage, whatever our ancestry, whatever our complicity -- still have a moral duty to, as Katrina says in the last bit, to make things right. And that's a moral duty that's incumbent on everybody who inherits this nation regardless of whatever the history is.

And I think, you know, to add one more point on top of that, the exercise of that responsibility -- and this is I think where Ambassador Joseph has been taking us -- necessarily requires the answer to the question, “What are we willing to give up to make things right?” Because it's going to require us to give up something. Whether it is the seat at Harvard, the seat at Princeton, or is it going to require us to give up our segregated neighborhoods, our segregated schools. Is it going to require us to give up our money? It's going to require giving up something.

And so, until we can have that further conversation of what it is we're willing to give up, I agree that the reconciliation can't fully occur.

Liu actually argued for dealing with the legacy of slavery through working at the community level -- not through reparations. Rather than advocating for “reparations,” Liu said that “instead of looking for the single national strategy” on racial equality, people should “think about what you can do on a much smaller scale in much smaller communities, around specific problems that people face, whether it's in their schools, in their workplaces, access to health care, in their housing -- whatever it may be.”

Liu has not advocated for quotas. National Review Online's Ed Whelan claimed in a March 17 blog post that statements by Liu in support of affirmative action during a 2003 American Constitution Society panel are evidence Liu supports what “in practice” would be “imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever.” But Liu wrote in an article in the spring 2004 edition of the Howard Law Journal that remedying discrimination “logically motivates the hope that affirmative action will some day end.” He also wrote in that article that even if the legal justifications for affirmative action were altered, “quotas will remain impermissible”:

By observing that the number of minority applicants with high grades and test scores has increased since Bakke, and then declaring that racial preferences should be unnecessary in twenty-five years, the [Supreme] Court [in Grutter v. Bollinger] squarely situated affirmative action within the continuing national struggle to eradicate racial inequality. Whereas “diversity” entails no inherent aspiration for an end to race-consciousness, a desire to remedy discrimination and its vestiges logically motivates the hope that affirmative action will some day end.


If Croson's vitality were to diminish, the mechanics of race-conscious admissions policies would not necessarily change in a substantial way. To the extent that affirmative action “must not unduly burden individuals who are not members of the favored racial and ethnic groups,” quotas will remain impermissible, and individualized review will be the norm. But even if a doctrinal shift would not expand the use of affirmative action, it has the significant and, in my view, salutary potential to provide a stronger justification for current practice. [Accessed from the Lexis database]