Former Clinton speechwriter Eric Liu has an op-ed in the Politico today defending the nomination of Professor Goodwin Liu (no relation). Eric Liu is correct that some attacks on Professor Liu have been overwrought or exaggerated — and, in my view, reflect a degree of ideological scrutiny I do not believe the Senate should engage in — but his defense is problematic as well.
Eric Liu wonders “why are these right-wing activists attacking his nomination? Maybe because Liu is a young progressive with a chance to serve on the federal bench for decades.” Perhaps. But perhaps also because Professor Liu’s stated views are less “moderate” outside of legal acdemia than Eric Liu acknowledges and because of Professor Liu’s own role in prior nomination fights — a point Eric Liu misses completely.
First, Eric Liu downplays some of Professor Liu’s positions. For instance, he writes that “Liu’s writings consistently argue that quotas are unconstitutional,” but fails to note that Professor Liu has called for Adarand to be “swept into the dustbin of history.” As Adarand held that strict scrutiny must be applied to federal affirmative action programs — and strict scrutiny is what has led to the invalidation of quotas and set-aside programs — this is a signficant omission. I do not think this opinion should disqualify Professor Liu from the bench — I believe a liberal President is entitled to nominate liberal judges — but his defenders should be more forthright in defending his views, particularly if they wish to characterize him as “moderate.”
Second, as I’ve blogged before, the fervent opposition to Liu should be no surprise given Profesor Liu’s own role in opposing President Bush’s judicial nominations and urging the Senate to consider the ideological views of prospective nominees. Not only did he deliver quite strongly worded testimony to the Senate Judiciary Committee opposing confirmation of Samuel Alito, he also wrote an op-ed grossly misrepresenting John Roberts’ record on the U.S. Court of Appeals for the D.C. Circuit. [See this dissection of Professor Liu’s attack on Roberts here, with particular attention to point 2.]
Third, Eric Liu makes no mention of the flap over Professor Liu’s questionanaire and the speed with which Senator Leahy has sought to push this nomination through. Professor Liu’s confirmation hearing was first scheduled for a mere 28 days after his nomination. This was pushed back due to partisan bickering over health care, and then it was revealed that Professor Liu’s Judiciary Committee questionnaire was incomplete, prompting senate Republicans to ask for yet more time to review his record and the 100-plus pages of late-submitted materials.
By comparison, when President Bush nominated a prominent legal academic to the federal appellate bench — Professor Michael McConnell — the Senate took over fourteen months to confirm him. Liu, on the other hand, is sailing along, despite failing to provide the Senate Judiciary Committee with a complete questionaire response until late in the process. And while Professor Liu is a prominent, rising academic, he’s no Michael McConnell (at least not yet). At the time of his nomination, Professor McConnell was widely acknwoledged to be among the foremost constitutional law scholars of his generation, as well as among the top tier of Supreme Court advocates (now that he’s no longer on the bench, I believe he’s arguing a case before the Court next week). Professor Liu, by contrast, is still up-and-coming, and has no meaningful litigation experience, let alone before the Supreme Court. Again, it took the Senate over fourteen months to confirm McConnell. [I should also note that, from what I understand, Professor McConnell never even attempted to provide the committee with full accounts of every public speech or lecture he had ever given, the Committee understood this, and it was never an issue.]
Let me reiterate, in case there is any confusion, that I believe the Senate should be relatively deferential to a President’s judicial picks, and that I believe Professor Liu is qualified for the bench. A liberal President should get to see liberal nominees confirmed, just as a conservative President should get to see conservative nominees confirmed. Yet that has not been the Senate’s approach of late, as several of President Bush’s nominees were blocked. If this is going to change, Senate Democrats and Professor Liu’s defenders need to acknowledge thir role in judicial wars past and call for a friendlier confirmation process for all judicial nominees.