Citizens United

Legal scholar Goodwin Liu, President Obama’s nominee for the Ninth Circuit Court of Appeals, is receiving a second hearing at the Senate Judiciary Committee today. Liu, who is an Associate Dean and Professor of Law at the Berkeley School of Law and a renowned legal scholar, has unsurprisingly found himself to be a top target of right-wing activists.

Ed Whalen of the Nation Review accuses Liu of “trying to fool senators and get himself appointed to the Ninth Circuit, where he would (among countless opportunities for mischief)” overrule California’s Proposition 8. In addition, a coalition of right-wing groups including the Judicial Crisis Network, Family Research Council, Concerned Women for America, Liberty Counsel, American Values, the Center for Military Readiness, the Media Research Center, the Traditional Values Coalition, Americans for Limited Government, and Citizens United have signed on to a memo condemning Liu for representing the “extreme liberal agenda of judicial activism.”

But Richard Painter, the Associate Counsel to the President during the Bush Administration, points out that while many ideological right-wing activists oppose Liu, prominent conservative legal minds like John Yoo, Ken Starr, and Clint Bolick endorse his confirmation and corroborate Liu’s qualifications. “The attacks are rife with extravagant and tendentious readings of Liu’s record,” Painter writes, “and they are based on selective quotations of Liu's writings that even then don’t prove the point”:

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee.

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Far from being radical, Liu's view probably comports with the intent of the framers who bequeathed the Constitution to their descendants with the intent that it be a useful document. Few if any of our ancestors would have intended that we run our businesses, farm our land, educate our children, or live our lives exactly the way they did, even if they did intend that the Constitution give us principles of self-government that would last for generations. Liu's perspective may be more realistic than that of some of his opponents; his view is certainly not radical.

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In sum, Liu is eminently qualified. He has support from prominent conservatives. He would fill a judicial emergency vacancy, and he would add important diversity to the bench. He is pragmatic and open-minded, not dogmatic or ideological, as his support for school vouchers shows.

Many, though by no means all, of his scholarly views do not align with conservative ideology or with the policy positions of many elected officials in the Republican Party. (This might not have been the case thirty years ago, but many moderates have since left the Republican Party.) Nevertheless, his views are part of the American legal mainstream. The independence, rigor, and fair-mindedness of his writings support a confident prediction that he will be a dutiful and impartial judge.

How finicky were the activists at the Conservative Political Action Conference? Romney, McCain, and Huckabee each bent over backwards to cater to the far-right sentiments of the audience, but the speaker who got the most “presidential” reception was Newt Gingrich.

 “Hillary and Obama talk about real change—Newt Gingrich delivers real change!” trumpeted David Bossie of Citizens United in introducing this “one-man think tank.” Bossie’s “only regret,” he said, was that Gingrich was not a candidate for president. (Bossie, incidentally, was forced out of his job investigating the Clinton Administration for House Republicans by then-Speaker Gingrich in 1998, but the two have apparently made up, working together on Gingrich’s “Rediscovering God” DVD.)

Rather than take the podium immediately, Gingrich spent about five minutes shaking hands with the cheering audience as bombastic march music blasted in the background. The only thing missing was a balloon drop.

“Run, Newt, run!” someone shouted. “Run for president!” cried another.

No, Newt Gingrich was not jumping in to save these poor right-wing activists from John McCain. (Sorry, Michael Reagan.) In fact, Gingrich said they have an “absolute requirement to support the Republican nominee this fall.” Instead, Gingrich played the role of a medicine-show man—telling the crowd they have a serious condition and he has just the elixir to cure what ails them.