Today, the Senate Judiciary Committee is set to begin confirmation hearings on Barack Obama’s nominee to the Ninth Circuit Court of Appeals, Goodwin Liu. Liu’s record itself is rather unremarkable. He has no judicial experience. He only practiced law privately for a little more than 20 months.
However, one thing certain to slow down the confirmation of Liu, a University of California at Berkeley law professor, is his highly controversial worldview on “distributive justice.” One need look no further than Liu for a window into how Obama truly views the Constitution and rights, and importantly, what role of courts will have in adjudicating those rights.
What is a right? Whatever society says it is, according to Liu. Liu believes that federal courts have a responsibility to render decisions based upon a societal consensus that persons possess a right to certain goods and services, a consensus of “how a society understands its obligations of mutual provision.”
In 2008, Liu wrote that “the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role.”
In lay terms, in Liu’s world, the proper role of the federal courts is to distribute welfare. If the federal government offers a subsidy, a benefit or some other type of welfare, then everyone is entitled to it in the eyes of the law.
Under Liu’s theories, it would be logical to say that everyone is entitled to Godiva chocolate because Congress subsidizes sugar production. In the world according to Liu, if there were a societal consensus that everyone should have a horse because the government subsidizes the grazing of wild mustangs or the racing industry, then Congress would constitutionally be obligated to allocate a horse to every man, woman, and child.
Under his theory, it would be reasonable for NASA to produce a space rocket for every American. After all, why should just the astronauts get to see space? If there were a societal consensus to spaceflight as a welfare “right,” then Congress would have to find the funds for the “Every American in Space” program, regardless of the cost.
Undereducated? Sue the government for a Pell grant. Undernourished? Sue the government to get on the National Lunch Program. Need a house? Sue the government for a two-story home with central heating. On a waiting list for a heart transplant? Sue the government to get to the head of line.
William Wilson is the President of Americans for Limited Government. He has spent his career working in political strategy and public affairs for various causes and organizations.