Myths and falsehoods surrounding the judicial nomination of Goodwin Liu

››› ››› MATT MCLAUGHLIN

With the Senate Judiciary Committee scheduled to hold a confirmation hearing on April 16 for Goodwin Liu, who was nominated by President Obama to be a judge on the U.S. Court of Appeals for the 9th Circuit, Media Matters revisits some common myths and falsehoods pushed by right-wing media to attack Liu.

MYTH: Liu is out of the mainstream

MYTH: Liu said he supports reparations for slavery

MYTH: Liu has spoken "against private ownership of property"

MYTH: Liu's statements on welfare are "radical"

MYTH: Liu is not qualified according to the ABA's standards

MYTH: Liu is trying to hide something with questionnaire responses

MYTH: The GOP has taken a consistent position on the appropriateness of judicial filibusters

MYTH: Liu is out of the mainstream

Right-wing media describe Liu as "radical" and "extremist." In a March 3 editorial, The Washington Times characterized Liu as a "radical" judicial nominee "whose own words demonstrate unfitness for the position." Hannity similarly described Liu's statements as "radical." In his Washington Examiner op-ed, Frank wrote that Liu "stands for an extremist view of the Constitution and the role of the courts."

FACT: Liu has support from conservatives. Despite the attacks from right-wing media figures, conservative scholars -- including Kenneth Starr and John Yoo -- have expressed support for Liu's nomination. Starr, who investigated President Clinton, co-signed a March 19 letter to Senate Judiciary Committee chairman Patrick Leahy (D-VT) stating that Liu "is exceptionally well-qualified to serve on the court of appeals." According to the Los Angeles Times, Yoo -- the Bush administration lawyer who authored the infamous torture memos -- said of Liu's nomination: "[H]e's not someone a Republican president would pick, but for a Democratic nominee, he's a very good choice." Additionally, Goldwater Institute director Clint Bolick wrote that he "strongly support[s]" Liu's nomination, and James Guthrie, education policy studies director at the George W. Bush Institute in Dallas, reportedly described Liu as a "pragmatist" rather than an "ideologue." Even Fox News host Megyn Kelly has stated that Liu's "qualifications are unassailable."

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MYTH: Liu said he supports reparations for slavery

Fox News, right-wing blogs distort Liu's comments to claim he supports reparations. Fox News personalities and right-wing blogs have distorted comments Liu made in a 2008 discussion about the legacy of slavery to suggest he supports "reparations." For example, Fox News' Bill O'Reilly stated that Liu "believes in reparations," and the Fox Nation website stated that Liu "Says Reparations on the Table." The Fox Nation post linked to a March 23 National Review Online (NRO) piece that suggested that comments Liu made during a discussion of the documentary film Traces of the Trade, which explores the role of New Englanders in the slave trade, revealed some "grandiose reparations project."

FACT: Liu did not advocate for reparations during the discussion. Nowhere in the passage cited by NRO did Liu say he supported reparations. In the discussion of Traces of the Trade, Liu actually argued for dealing with the legacy of slavery through working at the community level. Liu said that "instead of looking for the single national strategy" on racial equality, people should "think about what you can do on a much smaller scale in much smaller communities, around specific problems that people face, whether it's in their schools, in their workplaces, access to health care, in their housing -- whatever it may be."

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MYTH: Liu has spoken "against private ownership of property"

Wash. Examiner columnist distorts Liu's writing to claim he had spoken "against private ownership of property." In a March 23 Washington Examiner op-ed, Center for Class Action Fairness president Theodore Frank distorted a column Liu had written to claim that Liu should be "disqualif[ied]" from becoming a judge because he purportedly spoke "against private ownership of property." Frank wrote:

In 2005, Goodwin Liu spoke out against the nomination of John Roberts to the Supreme Court because of Roberts's support for "free enterprise," "private ownership of property," and "limited government" -- demonstrating nothing more than the bubble that a twenty-first century left-wing law professor lives in that would treat such fundamental principles of America as "code words" worthy of condemnation.

This alone is sufficient, by itself, to disqualify Liu from this new position to which he has been nominated. The man who speaks out against private ownership of property does not deserve a lifetime Article III appointment.

FACT: Liu did not speak out "against private ownership of property." In fact, Liu actually identified the term "private ownership of property" -- as used by an organization with which then-Supreme Court nominee John Roberts was affiliated -- as indicative of "an ideological agenda hostile to environmental, workplace, and consumer protections." Liu did not oppose Roberts' nomination because of Roberts' "support for 'free enterprise,' 'private ownership of property,' and 'limited government,' " and Liu's supposed opposition to those values, as Frank claimed. Instead, Liu was making the indisputable point that right-of-center organizations often describe their organizations using such terms in order to indicate that they are economically conservative. Liu wrote of Roberts in a July 22, 2005, Bloomberg column:

Before becoming a judge, he belonged to the Republican National Lawyers' Association and the National Legal Center for the Public Interest, whose mission is to promote (among other things) "free enterprise,'' "private ownership of property,'' and "limited government.'' These are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.

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MYTH: Liu's statements on welfare are "radical"

Wash. Times: "Liu's goal was to create a judicially enforceable, constitutional right to welfare." From a March 3 Washington Times editorial, which bore the subhead "Obama nominates another judicial radical, in Liu of common sense":

Now, let's move beyond theory. For what practical purpose was Mr. Liu laying out his complicated and risky scheme of judging? Here's where things get even worse. As repeated many times in his essay, Mr. Liu's goal was to create a judicially enforceable, constitutional right to welfare. He hastened to add that such a revolution would only be pushed in an "evolutionary" way -- not immediately -- by "cue[ing] the policymaking process toward greater deliberation and rationality."

FACT: Conservatives are distorting Liu's position. As The New York Times reported, the 2008 Stanford Law Review article cited by The Washington Times "focused on small-scale disputes over Congressionally enacted programs -- like 'invalidating statutory eligibility requirements' -- not creating welfare programs based on judicial fiat." The New York Times also reported: "Supporters of Mr. Liu ... argue that critics have exaggerated his writings to portray him as an ideologue."

FACT: Supreme Court justices such as Thurgood Marshall argued for constitutional rights for the poor. In the Liu law review article cited by The Washington Times, Liu wrote: "I use the term 'welfare right' to mean an affirmative constitutional right to particular social goods such as 'education, shelter, subsistence, health care and the like, or to the money these things cost.' " In San Antonio Independent School District v. Rodriguez, a case involving education -- one of the areas encompassed by the term "welfare," according to Liu -- Marshall wrote in dissent: "In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record." Marshall's opinion was joined by Justice William O. Douglas. Further, in a dissent in the 1972 case Lindsey v. Normet, one involving expedited eviction cases in which tenants were not allowed to present claims that they were withholding rent because their homes were in disrepair, Douglas described a "tenant's claim to his home" as a "fundamental" right.

FACT: Prominent legal scholars have argued in favor of welfare rights. In his article, Liu also mentions numerous legal scholars who have stated that the Constitution protects a right to welfare, including Harvard law professor Frank Michelman, Yale law professor Charles L. Black Jr., former Assistant Secretary for Health and Human Services Peter Edelman, and University of California, Irvine School of Law Dean Erwin Chemerinsky.

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MYTH: Liu is not qualified according to the ABA's standards

Wash. Times claim: Liu "doesn't meet the ordinary standards for federal judges outlined by the American Bar Association." A March 3 Washington Times editorial stated:

Finally, Mr. [Ed] Whelan [of the Ethics and Public Policy Center] has noted that Mr. Liu doesn't meet the ordinary standards for federal judges outlined by the American Bar Association. These standards include "at least 12 years' experience in the practice of law" and "substantial courtroom and trial experience." Mr. Whelan points out that Mr. Liu, who is only 39 years old, "hasn't even been out of law school for 12 years" and has "zero 'experience as a trial lawyer.' " This nomination should be withdrawn.

Similarly, Fox News' Sean Hannity said that Liu is "raising eyebrows both for his radical views and his lack of experience" and went on to state that the ABA "says that judges should have at least 12 years of practical experience."

FACT: ABA unanimously gave Liu highest possible rating: "Well Qualified." In its ratings of Article III judicial nominees during the 111th Congress, the American Bar Association stated that Liu is "well-qualified" by a unanimous vote, the highest possible rating.

FACT: 9th Circuit chief judge was nominated by Reagan after being out of law school for only 10 years. Alex Kozinski, chief judge of the 9th Circuit, graduated from law school in 1975. At the age of 35, he was nominated by President Reagan in June 1985. Liu graduated from law school more than 11 years before his nomination was announced and passed the bar more than 10 years before his nomination.

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MYTH: Liu is trying to hide something with questionnaire responses

Right-wing media baselessly attack Liu's honesty over supplemental responses to Senate questionnaire. Conservative media figures have seized on the fact that Liu submitted additional responses to his Senate questionnaire to attack Liu's character and fitness for the bench. On her blog, Michelle Malkin wrote that Liu seems to have "a curious case of selective amnesia." On Fox News, host Bill Hemmer asked if Liu had failed to include the additional responses in his original submissions "to hide something that would have been a red flag," and Fox News contributor Byron York stated that "a number of Republicans suspect that he is trying to hide something."

FACT: Former Bush administration counsel has debunked the charge that Liu acted in bad faith. In a blog post responding to the criticism over Liu's supplementary responses, University of Minnesota law professor Richard Painter, a former assistant White House counsel during the Bush administration, wrote: "Professor Liu also apparently does not have a photographic memory. It appears to me, however, that his original answers to the questions were a careful and good faith effort to supply the Senate with the information it needed to assess his nomination." Painter continued: "He provided a lot more information than many nominees do in response to these questions. He has now provided the additional information the Senate wants. I doubt the Senators will learn anything new from it." Painter concluded his post by saying: "Rather than posturing over yet one more 'missing documents' episode in Washington, the Senate should perhaps look at this nomination on the merits and vote."

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MYTH: The GOP has taken a consistent position on the appropriateness of judicial filibusters

Fox doesn't challenge Sessions on his willingness to filibuster Liu. Media have failed to challenge Senate Republicans to reconcile their threats to filibuster Obama's judicial nominees under certain circumstances with the fact that a number of these same Republican senators previously took the position that filibusters of President Bush's nominees were unconstitutional or otherwise ran counter to constitutional principles. On April 8, Kelly asked Sen. Jeff Sessions (AL), the ranking Republican on the Senate Judiciary Committee, "Would you be prepared to filibuster [Liu]?" Sessions replied: "I think that if these hearings create a circumstance where he is not able to explain away the apparent meaning of these statements, then yes, I think every vehicle should be utilized to ensure he's not given a lifetime appointment." Kelly did not ask Sessions to reconcile his willingness to filibuster Liu with his prior remarks about filibusters of Bush's nominees.

FACT: Sessions -- and other Republicans and conservatives -- have suggested that judicial filibusters are unconstitutional. During a May 23, 2005, floor statement, Sessions stated:

The vote, historically, since the founding of this Republic, is a majority vote. Lets [sic] look at that. The Constitution says that the Congress shall advise and consent on treaties, provided two-thirds agree, and shall advise and consent on judges and other nominees. Since the founding of the Republic, we have understood that there was a two-thirds super majority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done. But there was a conscious decision on behalf of the leadership, unfortunately, of the Democratic Party in the last Congress to systematically filibuster some of the best nominees ever submitted to the Senate. It has been very painful."

Other Republican senators, including Orrin Hatch (UT), Sam Brownback (KS), Chuck Grassley (IA), John Cornyn (TX), James Inhofe (OK), Tom Coburn (OK), and Pat Roberts (KS), have also previously said or suggested that filibustering judicial nominees is unconstitutional or otherwise ran counter to constitutional principles. Numerous conservative media figures also denounced judicial filibusters of Bush's nominees -- with Rush Limbaugh, Hannity, radio host Mark Levin, and The Washington Times' Donald Lambro all asserting that Democrats' use of such filibusters was unconstitutional.

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