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Goodwin Liu Throws Obama (and Sotomayor!) Under the Bus

Morgen on May 3, 2010 at 3:27 pm

According to the Blog of Legal Times, the Senate Judiciary Committee is scheduled to vote on Goodwin’s Liu nomination this coming Thursday. Although it appears that Republicans will be able to delay this vote for at least another week, it is a foregone conclusion that Liu will be passed out of committee given that Democrats enjoy a 12-7 member advantage.

The real question is when and if Democrats will be able to bring Liu’s nomination up for a vote on the Senate floor, and whether Republicans will attempt to block his nomination with a filibuster. Writing last week in The New Republic, Mark Greenbaum seems pretty pessimistic about Liu’s chances (while aptly comparing his nomination to that of Miguel Estrada). But I still believe Liu is likely to be confirmed, although I think there is a possibility he may be sacrificed as part of a deal to bring a larger bloc of stalled nominations to the floor.

Along with the news on the committee vote, a list of Liu’s responses to a number of follow-up questions from the GOP senators was also released today. A PDF of this document is available here. While I was personally interested in Liu’s response to question #14 on page 16, given that it put him on the spot to address his “dustbin of history” comment which I uncovered, the most newsworthy portion seems to be that once again a judicial nominee has explicitly rejected the “empathy” standard promoted by President Obama.

A question from Sen. Grassley:

Question: Do you believe that it is ever appropriate for judges to indulge their empathy for particular groups of persons? For example, do you believe that it’s appropriate for judges to favor those who are poor? Do you believe that it’s appropriate for judges to disfavor corporations?

Response: I do not believe it is ever appropriate for judges to indulge their empathy for particular groups of persons. A judge must approach every case objectively and impartially.


And as an added bonus, Sen. Coburn forced Liu to throw the “wise Latina” under the bus as well:

Question: You have been extremely critical of Justice Alito saying that “[h]e approaches law in a formalistic, mechanical way abstracted from human experience.” This statement seems to reflect the sentiments of Justice Sotomayor who believed that human experiences should influence a judge’s decisions. She stated: “Personal experiences affect the facts that judges choose to see,” and “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Do you agree with Justice Sotomayor’s statement?

Response: I do not believe that a judge may “choose to see” particular facts in a case based on personal experiences or for any other reason. A judge has a duty to consider fully and fairly all the facts in the record of a given case or controversy. I also do not believe that the life experiences that arise from being a member of a particular race or gender would lead a judge “more often than not [to] reach a better conclusion” than the life experiences that arise from being a member of another race or gender.


Of course Liu’s responses to these questions come as no surprise since not only did Sotomayor also disavow Obama’s empathy standard during her confirmation hearing, but she also reinvented the plain meaning of her own “wise Latina” statement. She basically threw herself under the bus!

What all this gamesmanship makes patently clear is that the path to confirmation for liberal judicial nominees is centered around one simple strategy: sound as much like a conservative jurist as possible. While on one level this is a telling affirmation that most Americans generally side with a conservative judicial philosophy, it is frustrating that so many judicial nominees can pass through this process while obscuring their real beliefs. Even if it means directly refuting or contradicting their own prior writings and statements.

For what it’s worth, I think the GOP should take the high ground and choose not to filibuster Liu’s nomination. Even though I think it would be completely reasonable for them to do so given the extent to which Democrats (including the President) filibustered many of President Bush’s nominees. And in spite of the fact that I continue to believe Liu intentionally omitted some of his most controversial statements from his original Judiciary Questionnaire. Let’s see how many so-called “moderate” Democrats opt to support a nominee who has advocated for constitutional welfare rights, and who has expressed moral support for reparations for slavery.

But if nothing else the process has once again made clear that even the best and brightest legal scholars on the left are either unable or unwilling to defend their cherished ideals to the American people. Power over principle, I guess.

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Category: Crime & the Law |

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