As usual, Republicans are taking the he/she’s a judicial activist approach:
“His nomination seems to me to represent the apex of judicial activist philosophy,” said Sen. Jeff Sessions, R-Ala., the ranking member of the Senate Judiciary Committee. “His views represent a fundamental change in our understanding of the role in society of the court.”
The only problem with this approach is that there is a lot that an “activist” judge could do to reverse decades of misguided rulings. The activism isn’t the problem in and of itself. But that’s beside the point.
This is quickly heating up as a left-right issue and as the article says, he’s got an uncharacteristically long paper trail, which will provide all the fodder his opposition needs.
His 2009 book, “Keeping Faith with the Constitution” is worthy of skepticism at best.
“Overall, the Constitution is a profoundly visionary document,” write the authors. “It advanced a new model of effective governance and democratic rule. Its text and structure express general principles that further the guiding purposes stated in the Preamble. And the amendment process has enlarged our basic commitments to liberty, equality, and democracy. Our Constitution thus reflects, in a spare outline, the moral trajectory of a nation continually striving for greater justice.”
It’s not necessarily what types of cases he’d take up that are the problem here; it’s how he views our social contract. To Liu and those like him, the Constitution is merely a visionary guide (nominally) whose sentiments should survive when convenient, but mostly exists as an obstacle whose words can and should be skewed, forgotten, and overridden by ‘precedent’, in the advancement of ‘justice.’
In a 64-page article in the Stanford Review from 2008, “Rethinking Constitutional Welfare Rights,” Liu argues that
First, because the existence of any welfare right depends on democratic instantiation of our shared understandings, the judiciary is generally limited to an interstitial role within the context of a legislated program. Courts do not act as “first movers” in establishing welfare rights not merely because they have limited powers of enforcement as a practical matter, but because conceptually a welfare right does not come into being for a court to recognize without democratic instantiation in the first instance. Second, judicial recognition of welfare rights need not be thoroughgoing in the way that the logical principles of a comprehensive moral theory would suggest. Societal norms, traditions, and understandings vary over time and across social goods, and a constitutional doctrine of welfare rights should be sensitive to such variation. Third, because the shared understandings of a given society are ultimately subject to democratic revision and evolution, judicial intervention cannot fix the existence or contours of a welfare right for all time. As I argue below, the judicial role is best understood as part of an ongoing dialectical process by which legislative judgments are brought into harmony not with transcendent moral principles, but with the values our society declares its own.
I.e., the social contract between the citizens of the United States and its explicitly limited government is not rigid, but instead ‘changes with the times.’
Aw, cute Constitution. “Rhetoric rhetoric history rhetoric Constitution rhetoric rhetoric rights rhetoric.”
Liu explaining the final part of his essay:
Part IV addresses two objections: first, that the interpretive approach I propose is inherently conservative and insufficiently critical of existing social practices, and second, that the approach carries an intolerable risk that judges, in the name of interpreting society’s values, will instead impose their own values on society. In the end, I argue that both dangers can be avoided when courts apply constitutional provisions such as the Equal Protection Clause or the Due Process Clause through a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understandings.
In other words, ‘OK, I’m not a judicial activist and I won’t force my personal views upon society,’ but ‘phrases from the Constitution can be construed to advocate coercive redistribution of wealth.’ As long, of course, as it democratically reflects our social understandings.
You know, I would respect these people more–Berkeley professors and such–if they would just come out and say it. Just say it: you don’t want the government to adhere to the Constitution. You favor social democracy over republicanism. Your worldview is much more Marxist than libertarian (except of course, when it comes to intermittent narrow political goals.)
Think about this: “A dialogic process with the legislature to ensure…[things].”
To him, the system of government of the United States is maneuverable and is simply a formality in the way of an ultimate goal. Cute Constitution, yes we’ll adhere to it. *fingers crossed behind backs*
So, I guess in the end he is a judicial activist, and it is about escapism from the court’s charter and viewing it as merely a tool to achieve a sociopolitical goal. This is worse than judicial activism: this is anti-Constitutional activism. Some may say these are the same thing, but like I said before, activism isn’t in and of itself a problem; it’s what a nominee’s ambition is–restorative or transformative.
We’ll leave with something that should make us all sit contently as he is confirmed for the 9th Circuit, and perhaps eventually considered for the Supreme Court:
…a firm basis in moral theory does not itself validate judicial recognition of welfare rights. What really counts toward the legitimacy of such adjudication is the correctness and accessibility of the court’s interpretation of latent popular morality, not its traceability to a foundational external principle. Indeed, such interpretation must draw on sources and reasoning independent of moral theory, for how else could it play an ultimately justificatory role in relation to moral theory?
That is, we’ll cover up our biases and hidden social goals by “drawing on” or perverting “sources and reasoning independent of moral theory.”
Don’t worry though, our level-headed savior Lindsey Graham will probably vote to confirm him after the obligatory fake grilling over “the Constitution” between all the giggles and winks. You know, wouldn’t want to malign the key Taiwanese voting bloc or anything. Oh, Lindsey. [posted at 20/10 Blog]