Vote Tomorrow On Obama's "Most Controversial" Judicial Nominee: Goodwin Liu

Today in Washington, D.C. -  May 18, 2011:
Yesterday, Democrats failed to get the 60 votes they needed to move ahead with their bill to raise taxes on American energy companies, S. 940. They failed by a vote of 52-48. Also yesterday the Senate voted 71-28 to confirm Susan L. Carney to the 2nd Circuit Court of Appeals.

The Senate began consideration of the motion to proceed to S. 953, the Republican bill to increase domestic energy production. It needed 60 votes for cloture but was voted down (42-57). The bill would have expand offshore oil drilling and jobs for America by requiring the Obama administration to speed up decisions on drilling permits. That's all, the Obama administration would have had to stop stalling and to stop limiting Americans access to jobs and oil.  But liberal democrats held strong in their continued willingness to back the Obama efforts to limit Americans to resources and to place us at the mercy of the price gouging by the Middle East and the funding of countries supporting terrorist against America and Americans world-wide.

In addition, five Republican Senators Jim DeMint (SC), Mike Lee (UT), Richard Shelby (AL), Olympia Snowe (ME) and David Vitter (LA) opposed the bill.  Although it has been indicated that some of them believed the bill did not go far enough, answers are needed from each of these Senators. Also, Virgina's two democrat senators, Jim Webb and Mark Warner voted against the bill because it did not provide Virginia with royalties from the sale of leases off the Virginia coast. Don't know if this would be called an earmark or a defense of States rights. Gov. Bob McDonnell (R) was for drilling off Virginia's cost to expand jobs and help to establish energy independence.

It seems that with a little more work on the GOP bill that this bill could pass, will be watching for future actions by the Senate Republican leadership.

Last night, Senate Majority Leader Harry Reid (D-NV) filed cloture on one of President Obama’s most controversial judicial nominees, liberal  Berkeley law professor Goodwin Liu, who has been nominated for the 9th Circuit Court of Appeals. A cloture vote on the Liu nomination is expected tomorrow. Reid’s move sets up a cloture vote on Liu’s nomination tomorrow in the Senate. The Wall Street Journal’s Ashby Jones calls Liu “arguably the most controversial judicial nominee made so far by President Barack Obama” and the AP noted last year he’s “an unabashed liberal legal scholar who, if confirmed, could become a force on the federal Appeals Court for decades.”

In an editorial last year, The Wall Street Journal deemed him “Berkeley's Judge” and wrote, “the 39-year-old Berkeley law school professor is a prototype for those who believe the Constitution should be read to reflect what he has called the ‘evolving norms and social understandings of our country.’” The WSJ editorial pointed out, “Speaking of the nomination of now Chief Justice John Roberts, Mr. Liu opined that words like ‘“free enterprise,” “private ownership of property,” and “limited government”’ are ‘code words for an ideological agenda hostile to environmental, workplace, and consumer protections.’”

Ed Whalen of the Ethics and Public Policy Center has written extensively about the problems with Liu’s approach to the law. Writing for National Review Online last year, Whalen pointed out, “Liu's freewheeling constitutional approach yields a plethora of extreme left-wing results, including his support for the invention of a federal constitutional right to same-sex marriage.”

Whalen also wrote, “Perhaps most striking . . . is his law-review article ‘Rethinking Constitutional Welfare Rights,’ which argues that judges . . . may legitimately invent constitutional rights to a broad range of social ‘welfare’ goods, including education, shelter, subsistence, and health care.” Whalen points to Liu writing, “The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.” Whalen explained, “[T]he vast discretionary judicial role that Liu urges -- one that reduces Congress and the state legislatures to quasi-administrative bodies -- fundamentally misunderstands (to restate Liu's test of judicial philosophy) ‘the role of the courts in a constitutional democracy.’” Indeed, in Liu’s explanation, he says courts need to “determine” “our collective values on a given issue” and whether they’re at a point where they can be written into the law.

As The Heritage Foundation’s Hans von Spakovsky and Deborah O’Malley write today, “In his writings, Liu has shown a disturbing judicial philosophy that fits neatly within the activist mold Obama wants nominees to fill. Liu ‘envisions the judiciary … as a culturally situated interpreter of social meaning.’ Judges are not supposed to be interpreters of ‘social meaning’ who base their decisions on the latest cultural meanderings of academia. They are supposed to be interpreters of the Constitution and the laws passed by Congress. But it is this kind of nebulous culturally situated interpretation that allows judges to ignore the plain and ordinary meaning of the law and to replace it with what they personally think is the ‘best’ outcome based upon their own highly subjective, biased, and often radical interpretation of ‘social meaning.’”

At Liu’s hearing in front of the Senate Judiciary Committee last year, Sen. Jeff Sessions summed up Liu’s views of the law: “They represent, I think, the very vanguard of what I would call intellectual judicial activism, a theory of interpretation of our Constitution and laws that empowers a judge to expand government and to find rights there that often have never been found before.”

Given Professor Liu’s writings and his view of the Constitution, it’s easy to see why he is such a controversial nominee and why senators voting on cloture on his nomination tomorrow will need to consider his record very carefully.

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