The Senate is expected to vote soon on whether to begin debate on the nomination of UC Berkeley law professor Goodwin Liu to the U.S. 9th Circuit Court of Appeals, which has jurisdiction over California and other Western states. Twice approved by the Senate Judiciary Committee and rated "well qualified" by the American Bar Assn., Liu has nevertheless been accused by conservatives of being "outside the mainstream," which appears to be simply a synonym for "liberal."
Liu's academic writings, which are not necessarily a guide to how he would vote on the appeals court, undoubtedly place him at the liberal end of the philosophical spectrum. But that no more puts him outside the mainstream than did the conservative inclinations of George W. Bush nominees whom Republicans and conservatives rightly defended on the basis of their professional credentials. The mainstream is just that, not a narrow philosophical tributary.
The chief argument for Liu's supposed radicalism is an article in which he allegedly advocated that the courts read into the Constitution economic rights such as public education, healthcare and access to welfare benefits. The article did suggest that judges recognize "welfare rights [based on] the shared understandings of particular welfare goods as they are manifested in our institutions, laws and evolving social practices." But Liu wrote that the main source of those rights is legislation, not court decisions.
Liu also is faulted for coauthoring a book that said the Constitution should be interpreted "in order to sustain its vitality in light of the changing needs, conditions and understandings of our society." But that idea is self-evident and endorsed in some contexts even by conservative judges. The truth is that liberal and conservative judges are guided, depending on the case, by both the "original intent" of the document and its application to present-day realities.
Like other Obama administration nominees, including some who are not remotely controversial, Liu is a casualty of a feud between Democrats and Republicans over judicial candidates. Republicans point to what they say was the mistreatment of Bush nominees by Senate Democrats; Democrats haven't forgotten Republican efforts to block President Clinton's selections. This tit-for-tat is not only tiresome, it deprives the federal courts of needed personnel. If Republicans want to assure fair treatment of a future Republican president's nominees, they should declare a truce and treat President Obama's nominees fairly. In Liu's case, that means an up-or-down vote — followed by confirmation.