After declaring that Supreme Court Justice Sonia Sotomayor and Judges Edward Chen and David Hamilton were all “radical” judicial nominees, The Washington Times has turned its sights on Goodwin Liu, President Obama's nominee for the 9th U.S. Circuit Court of Appeals, declaring that he, like the other Obama nominees, is a “radical” because of his views on constitutional “welfare” rights. In fact, Liu's views are in accordance with those of former Supreme Court justices like Thurgood Marshall and prominent legal scholars.
Wash. Times claim: Liu “doesn't meet the ordinary standards for federal judges outlined by the American Bar Association”
From a March 3 Washington Times editorial:
Finally, Mr. [Ed] Whelan [of the Ethics and Public Policy Center] has noted that Mr. Liu doesn't meet the ordinary standards for federal judges outlined by the American Bar Association. These standards include “at least 12 years' experience in the practice of law” and “substantial courtroom and trial experience.” Mr. Whelan points out that Mr. Liu, who is only 39 years old, “hasn't even been out of law school for 12 years” and has “zero 'experience as a trial lawyer.' ” This nomination should be withdrawn.
Reality: ABA gave Liu highest possible rating: “Well Qualified”
ABA unanimously rated Liu well-qualified. In its ratings of Article III judicial nominees during the 111th Congress, the American Bar Association stated that Liu is “well-qualified” by a unanimous vote, the highest possible rating.
9th Circuit chief judge was nominated by Reagan after being out of law school for only 10 years. Alex Kozinski, chief judge of the 9th Circuit, graduated from law school in 1975. At the age of 35, he was nominated by President Reagan in June 1985. Liu graduated from law school more than 11 years before his nomination was announced and passed the bar more than 10 years before his nomination.
Wash. Times claim: Liu a “radical” for advocating for a “constitutional right to welfare”
From the March 3 Washington Times editorial, which bore the subhead “Obama nominates another judicial radical in Liu of common sense” :
Now, let's move beyond theory. For what practical purpose was Mr. Liu laying out his complicated and risky scheme of judging? Here's where things get even worse. As repeated many times in his essay, Mr. Liu's goal was to create a judicially enforceable, constitutional right to welfare. He hastened to add that such a revolution would only be pushed in an “evolutionary” way -- not immediately -- by “cue[ing] the policymaking process toward greater deliberation and rationality.”
Reality: Supreme Court justices stated that rights cited by Liu were fundamental
Liu defined “welfare rights” as right to “education, shelter, subsistence, health care and the like, or to the money those things cost.” In the article cited by the Times, Liu wrote: “I use the term 'welfare right' to mean an affirmative constitutional right to particular social goods such as 'education, shelter, subsistence, health care and the like, or to the money these things cost.' ”
Marshall: The right to education is “vital.” In San Antonio Independent School District v. Rodriguez, a case involving education -- one of the areas encompassed by the term “welfare,” according to Liu -- Marshall wrote in dissent: “In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record.” Marshall's opinion was joined by Justice William O. Douglas.
Majority in San Antonio Independent School District v. Rodriguez left open possibility that some level of education is constitutionally required. The majority opinion in San Antonio Independent School District v. Rodriguez explicitly left open the possibility that “some identifiable quantum of education” is constitutionally required. Discussing the plaintiffs' argument that states must provide an education to residents in order for them to meaningfully exercise their First Amendment rights and their right to vote, the majority opinion, written by Justice Lewis Powell and joined by Chief Justice Warren Burger and Justices Potter Stewart, Harry Blackmun, and William Rehnquist, never stated that a minimum level of education was not constitutionally required. Indeed, Powell wrote:
Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where -- as is true in the present case -- no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
Douglas: Tenant's claim to his home is “fundamental.” In a dissent in the 1972 case Lindsey v. Normet, one involving expedited eviction cases in which tenants were not allowed to present claims that they were withholding rent because their homes were in disrepair, Douglas stated:
But where the right is so fundamental as the tenant's claim to his home, the requirements of due process should be more embracing. In the setting of modern urban life, the home, even though it be in the slums, is where man's roots are. To put him into the street when the slum landlord, not the slum tenant, is the real culprit deprives the tenant of a fundamental right without any real opportunity to defend. Then he loses the essence of the controversy, being given only empty promises that somehow, somewhere, someone may allow him to litigate the basic question in the case.
Prominent legal scholars have stated that the Constitution protects welfare rights. In his article, Liu mentions numerous legal scholars who have stated that the Constitution protects a right to welfare, including Harvard law professor Frank Michelman, Yale law professor Charles L. Black Jr., former Assistant Secretary for Health and Human Services Peter Edelman, and University of California, Irvine School of Law Dean Erwin Chemerinsky.
Wash. Times claim: “Liu in effect is advocating a judicial dictatorship”
Wash. Times: By advocating that judges should “apply a cultural 'context' ” in reaching their decisions, Liu “is advocating a judicial dictatorship.” From the Times editorial:
Mr. Liu was discussing the idea that judges be bound less by the actual language of the Constitution than by “a systematic moral theory.” He agonized in print about the need to reject, for practical reasons, that idea of judge as Olympian moralist. But he did the next worst thing: He wrote instead that he “envisions the judiciary ... as a culturally situated interpreter of social meaning.”
Let's translate that into plain English. Mr. Liu is saying that a judge should read between the lines of actual laws to a deeper meaning that the judge, in his wisdom, can decipher. Then the judge should apply a cultural “context” to that deeper meaning. And enforce it.
A reader can be forgiven for thinking that Mr. Liu in effect is advocating a judicial dictatorship. Liberated from the strict and limited dictates of the Constitution, Mr. Liu's vision of governance is based on no bedrock principles and thus would be held hostage to trendy intellectual whims.
Reality: Supreme Court already takes cultural context into account
In fact, as Liu noted, Supreme Court already looks at “interpretation[s] of social meanings” in order to decide constitutional cases. In the article cited by the Times, Liu points out that interpreting the Eighth Amendment, which prohibits “cruel and unusual punishment,” and the Fourth Amendment, which prohibits “unreasonable searches and seizures,” the Supreme Court already looks at social norms:
[I]t is important to see that the general mode of reasoning is hardly unfamiliar to courts in light of the many constitutional doctrines that turn on interpretation of social meanings. In some areas, the constitutional text may be said to invite this interpretive approach. Consider, for example, the Eighth Amendment prohibition on “cruel and unusual punishments,” whose application invokes the “evolving standards of decency that mark the progress of a maturing society,” or the Fourth Amendment prohibition on "unreasonable searches and seizures," whose application looks to the “reasonable expectation of privacy” that individuals have in our society.
Liu also noted that Supreme Court looks to cultural norms to limit punitive damages, determine obscenity, and other matters. Liu continued:
But even without these textual hooks, the Court has employed the interpretive approach in construing such guarantees as freedom of speech, equal protection, and due process. Consider, for example, the determination of obscenity under “contemporary community standards” ; the identification of “fighting words” based on what “ordinary men know ... are likely to cause a fight” ; the measurement of due process “by that whole community sense of 'decency and fairness' that has been woven by common experience into the fabric of acceptable conduct” ; the invalidity of gender classifications based on “outdated misconceptions concerning the role of females” ; or the “reasonableness” of punitive damages under the Due Process Clause.
As [Yale] Professor [Robert] Post has argued, such examples show that constitutional law “is not autonomous from culture” and “properly evolves as culture evolves.” In applying these doctrines, courts make judgments informed by state policies, the common law, cultural practices, social facts, historical context, and the everyday “knowledge [of] a literate participant in American culture.”
Wash. Times' crusade against Obama's judicial appointees is rife with misinformation
Wash. Times: Hamilton is “a radical's radical.” A Washington Times editorial used select comments and decisions made by Hamilton to smear him as a “radical's radical” and call for senators “to stop this nomination.” In addition to invoking Hamilton's views on “empathy” -- a favorite conservative attack -- the editorial misleadingly suggested that Hamilton believes judges should “effectively amend the Constitution” and that he discriminated against Christianity by banning the word “Jesus” from state legislature prayer, but allowing the word “Allah.”
Wash. Times: Chen is “a biased radical.” The Times used a series of comments reportedly made by Chen to smear him as a “biased radical” who “doesn't appear to love America” and “should not be confirmed,” when, in fact, the quotes in question establish nothing of the sort. Moreover, the Times editorial page previously claimed that Senate Democrats were wrong for opposing judicial nominees based on their political views and personal opinions.
Wash. Times: Sotomayor is “the most radical Supreme Court nominee in memory.” The Times repeatedly misrepresented Sotomayor's record to assert that “she is unfit for the nation's highest court” and repeatedly claim that she is a radical. For instance, the Times claimed that she “assert[ed]” in three speeches “that there are 'inherent physiological' differences between the races.” In fact, Sotomayor made no such claim. Another editorial claimed that Sotomayor's statement that the " 'Court of Appeals is where policy is made' ... runs counter to more than 200 years of American legal tradition," when, in fact, Sotomayor's explanation is in line with federal appellate courts' “policy making” role, as numerous legal scholars have noted. A Times article also reported criticisms of Sotomayor's judicial temperament, but none of those criticisms came from an on-the-record source who knew Sotomayor. And the Times advanced without challenge the charge that Sotomayor's reversal rate, which the Times reported as three of five cases, or 60 percent, was “high.” But the Supreme Court has reversed more than 60 percent of the federal appeals court cases it considered each year since 2004.