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Whelan on Goodwin Liu

Ed Whelan has a page of resources on Ninth Circuit nominee Goodwin Liu. In a new Bench Memos post, Whelan scoffs at Liu's new claim that his philosophy is that "the courts of the United States have a very limited role":

Gee, how'd I miss that in reading his actual book (Keeping Faith with the Constitution) that presents his view on how courts should interpret the Constitution? As I discuss here, Liu's judicial philosophy is indistinguishable from the "living Constitution" approach that he finds convenient to purport to disavow. Indeed, in that book, Liu maintains only that his approach, when "conscientiously applied," "does not give judges unchecked power to determine what society's values are or to impose their own values on society" (p. 28 (emphasis added)). He doesn't assert that his approach, under which judges pick and choose among "multiple sources of wisdom and authority" (p. 29) to "adapt[] [the Constitution's] broad principles to the conditions and challenges faced by successive generations" (p. 2), gives them only a "very limited role." On the contrary, while he calls judicial restraint "an important value," he says that it does not provide "a meaningful guide to constitutional interpretation" and he argues that "[f]aithful application" of the principles he espouses "may sometimes require a robust judicial role" (p. 41). "Sometimes" turns out to be quite often, as his defense in that book of an array of liberal judicial inventions of rights shows that he does not believe in a "very limited role" for the judiciary.

Further, Liu has called for such models of judicial restraint as San Antonio Independent School District v. Rodriguez (education is not a fundamental right subject to strict scrutiny under the Fourteenth Amendment) and Milliken v. Bradley (limiting the availability of interdistrict school desegregation remedies) to be "swept into the dustbin of history." (At his hearing, Liu referred with seeming approval to Rodriguez as "very much informed by principles of judicial restraint," but didn't note that he had called for it to be "swept into the dustbin of history.")

Today, Whelan continues his critique of Liu's testimony.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.