There are two ways the Senate can approach a president's judicial nominees -- and specifically President Barack Obama's nomination of University of California, Berkeley law professor Goodwin Liu to the 9th U.S. Circuit Court of Appeals, in San Francisco.
One: "We had an election. A Democrat won. And the president can pick who he likes." To wit: Liu -- a Rhodes scholar and graduate of Stanford and Oxford universities and Yale Law School who clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg -- is highly qualified. Republicans should not use delay tactics and the filibuster to thwart a full-Senate up-or-down vote on Liu.
Two: "Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president -- and benefits our democracy -- to find moderate nominees who can garner some measure of bipartisan support."
That is: The opposition party has an obligation to fight extremists. Note: The National Journal's legal authority, Stuart Taylor Jr., estimates that Liu's writings put "him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters."
Here's the tricky part. The first quote comes from a phone conversation with John Yoo, a UC Berkeley law prof reviled by the left because he wrote the 2002 memos that authorized the CIA to use enhanced interrogation techniques.
The latter quote comes from Obama's book "The Audacity of Hope" in defense of Senate Democrats' use of the filibuster against President George W. Bush's judicial nominees. By Obama's precious standard, Republicans are within their rights to try to torpedo Liu's nomination.
The professor is set to testify before the Senate Judiciary Committee on April 16. Last week, Liu, 39, in preparation, filed 117 new items to add to his professional record, which included "some of his most incendiary statements on issues such as affirmative action, school busing and constitutional welfare rights," according to Politico. The committee's ranking Republican, Jeff Sessions of Alabama, noted in a letter to Chairman Patrick Leahy that the omissions at best demonstrated "incompetence" and at worst set "the impression that he knowingly attempted to hide his most controversial work."
Having reviewed a paper Liu co-wrote against the confirmation of now-Justice Samuel Alito, the Criminal Justice Legal Foundation's legal director, Kent Scheidegger, concluded that Liu is "intensely hostile to capital punishment" and would "vote for the murderer on every remotely debatable point." Of course: "None of the cases involves a genuine claim of actual innocence."
Last month, 42 of California's 58 district attorneys signed a letter urging the Senate Judiciary Committee to reject Liu, as "his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is."
UC Berkeley law professor Jesse Choper called the district attorneys' letter "unfortunate." "I know of no evidence whatever that he is opposed philosophically to the death penalty," Choper told me. "He may be, but there isn't any." In a letter to the committee, Choper pointed out that Alito's view prevailed in only one of the four cases Liu examined.
Choper considers Liu to be "a moderate liberal." He wrote to the committee, "I am confident that, if confirmed to the Ninth Circuit, (Liu) will not seek to enforce his views as law."
Other senators, no doubt, will question Liu about the statements that the National Journal's Taylor quoted. In writing that courts should "leverage the legislature's own publicly stated commitment to welfare provision," was Liu arguing welfare is a constitutional right? When Liu discussed a "moral duty to ... give up (something) to make things right" at a 2008 panel on the slave trade, was he supporting reparations?
I have a more parochial concern. As a citizen subject to 9th Circuit sensibilities, I want to know how much this appointment would cost Californians.
Consider the decisions out of this circuit that have cost Californians precious time, peace of mind and money the state doesn't have. There's the 2009 9th Circuit ruling that found overcrowding in California prisons -- which are operating at 190 percent capacity because 100 percent capacity means one inmate per cell -- impairs prisoners' right to "constitutionally adequate medical and mental health care." The court's remedy? It ordered the release of 40,000 inmates in two years.
Then there's the 9th Circuit ruling that put the prison system under receivership and drove up annual health care costs per inmate to $13,778 in 2007-08.
Federal judges repeatedly have overruled murder convictions based on improper jury instructions or inadequate defense because attorneys failed to present evidence about a "difficult childhood." Can Liu explain which capital convictions, if any, he would uphold?
Just what is a judge's obligation to the general public, which has to absorb the cost of his decisions? Does he even care?
Liu himself opposed the confirmation of now-Chief Justice John Roberts on the grounds that Roberts might prove to be a conservative extremist. Well, the 9th Circuit already is extreme, on the liberal side. I want to know whether Liu wants to right a listing ship or steer it into the drink.