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Taking on Goodwin Liu…

Morgen on March 31, 2010 at 2:28 pm

I tipped Ed Whelan from the Ethics and Public Policy Center to another glaring omission from Goodwin’s Liu questionnaire response for his upcoming senate confirmation hearing. Ed has done a terrific job deconstructing this in a two part post over at NRO’s Bench Memos blog, and I don’t want to get into the weeds on this discussion here. The bottom line is that Liu failed to disclose a panel discussion he participated in at the 2004 national conference of the American Constitution Society (ACS). It seems highly unlikely that this omission was accidental on his part, given that he was an ACS board member at the time, and that he disclosed his participation at the 2003 ACS conference and in other subsequent years. As it turns out, Liu had a clear motive for hiding his participation at this event. In his prepared comments which I uncovered, Liu expressed his clear desire for several Supreme Court decisions that he disagreed with dealing with education and racial preferences to be “swept into the dustbin of history”.

Now I am not an expert on law or the judiciary, but it seems pretty extreme to me for a higher court nominee to have expressed such a strong opinion rooting for the overthrow of existing Supreme Court precedent. Stare decisis, anyone? Can you imagine the reaction from the left if a Bush higher court nominee had previously called for Roe v. Wade to be tossed into the “dustbin of history”? Equally troubling, it seems clear from the overall arch of Liu’s comments – and many of his other writings – that he believes the judiciary should play a very active role in setting policy related to issues of equality and (non-existent) economic rights. Or to paraphrase Liu, the job of a judge is to say what the law should be, not what the law is.

I encourage you to check out all of Ed’s posts on Goodwin Liu at NRO if you are interested in reading more about this.

I also want to say a bit about my own motivation for working on this. My interest in research and blogging has always been chiefly motivated by my desire to make an impact on the national political debate. Like a lot of other Americans, I woke up after the election in 2008 to the realization that our political leadership was seeking to dramatically alter the balance between the public and private sectors, and individual liberty versus government control. The America we are fast on the road to becoming is not the America I want for my children and grandchildren.

That said, we have a democratic form of government and our current leaders in Congress and the White House were elected by the People. They have as much right to advocate for and implement their policy preferences as those who will be replacing them in mass starting next January. But the American people are entitled to an open and honest debate, especially with matters of law and policy of lasting impact. We did not have this type of debate with healthcare reform. From the deception over the public option and the underhanded strategy to centralize federal control of the health system, to the misleading data and outright propaganda over the long-term costs of the legislation. The Administration and congressional leadership forced through this legislation by at first deceiving and ultimately ignoring the clear majority of Americans who opposed them.

As someone who actively worked to shine a light on many of the underlying deceptions employed in this fight, I’d like to think my efforts will ultimately make a difference when votes are cast this November. But the cause of truth was well worth the effort regardless. It is imperative on all of us to insist on honesty, and genuine transparency, from those who we elect to represent us. This will be just as important when the balance of political power shifts once again in our favor.

Bringing this back to Goodwin Liu, and to wrap this up, I want to share Liu’s closing comments at the 2004 ACS conference:

For too long the right has made us feel reluctant, even embarrassed, to defend ideas like integration, like school funding equality, like illegality of disparate impact discrimination. As if these concepts would open the door to all manner of redistribution in our society.

I think we would do well to remember the words of Justice Brennan, who told us unabashedly that this type of criticism on its face, his words, “suggest a fear of too much justice.” With that we could have in this country too much justice. With that we could have even a little bit of justice.

So to Goodwin Liu, who I do not know, and have no personal vendetta against, I say only this. Have the courage of your convictions. You clearly have strong views on racial intregration, school funding and control, and yes, even reparations. Own them, defend them, even advocate for them. But be honest with the Senators charged with evaluating your suitability for a life-time judicial appointment. Be honest with the American people.

Most of us on the right will still oppose your confirmation, but we will respect you for it. Far more importantly, you will have honored the trust that the American people should be able to place in our leaders for honesty and transparency. Ultimately, what is the real value of any level of justice achieved through evasion or deceit?

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Category: Crime & the Law |

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