When Congress adjourned for recess in August, Senate rules required unanimous consent to hold over nominations made by Barack Obama, or else the nominations would be returned. For controversial judicial nominees Goodwin Liu and Robert Chatigny, that embarrassingly resulted in their names being returned to Obama for reconsideration.
Undeterred, Obama has resubmitted Liu and Chatigny to the Senate Judiciary Committee. Votes are expected on Thursday. Their respective views on the Commerce Clause and sex offenders caused Republican Senato rs to place holds on the nomination requiring cloture votes to break.
And this time, with election close at hand, it could mean that Senators in tough races, like Russ Feingold in Wisconsin, may have to reconsider their previous support for these nominees.
Even with the prior support of the Judiciary Committee, Senate Democrats still could not muster the 60 votes needed to proceed to a final vote on the nominees. Otherwise they would have already been confirmed. The failure to muster those votes rests entirely with the nominees, whose radical views have made their nominations toxic. It also rests with Senate Democrats, who failed to even get their own caucus to fully support them, and Obama, who nominated them in spite of their radicalism.
Consider the case of Goodwin Liu. In questioning from Senator Dianne Feinstein, the Senator said the Supreme Court had taken a “constraining view” of the Commerce Clause and asked what Liu thought was the extent and scope of Congress’ power to regulate commerce.
Liu responded by outlining what he viewed as the current doctrine adopted by the Supreme Court, saying, “the Court articulated the doctrine that the activity being regulated has to be economic in nature but it stopped short of saying that that is an absolute requirement” before the Court could determine if the activity or “class of activities” had a “substantial effect” on interstate commerce.
In other words, Liu is saying that an activity need not be economic in order for it to have a “substantial effect” on interstate commerce. This of course leaves the door open for just about every human activity to be regulated by Congress, even if it in reality has no bearing on interstate commerce.
Liu promised to uphold his questionable dogma, saying, “that is the doctrine as I understand it, and I would faithfully apply that doctrine to any case that came before me as a judge.” Meaning he would push to have non-economic activities be covered under the Commerce Clause.
Americans for Limited Government Counsel Nathan Mehrens has described Liu’s views of the Commerce Clause is “expansive,” adding that Liu had “a total lack of a philosophy that applies either the original intent or meaning of the Constitution.”
Mehrens said that the Supreme Court’s expansive view of Commerce Clause over the past century “has given rise to regulation in areas that have no relation at all to commerce, in everything from education to environmental policy.”
Which may be why Liu supports welfare “rights,” which he believes that once created by Congress, “eligibility requirements” of that “right” could be heard by the courts. In short, if something is subsidized by Congress, an individual could sue that they have a right to that “entitlement.” Which could be just about anything.
In a 2008 Stanford Law Review article, “Rethinking Constitutional Welfare Rights,” Liu discussed at length the concept of judicially-imposed welfare rights. In this context welfare rights mean a societal consensus that persons possess a right to certain goods and services, a consensus of “how a society understands its obligations of mutual provision.”
According to the article, Liu wrote that, “judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices.”
Liu explained what this would look like in context of his actual decision-making as a judge, “Some day yet, the Court may be presented with an opportunity to recognize a fundamental right to education or housing or medical care. But the recognition, if it comes, will not come as a moral or philosophical epiphany but as an interpretation and consolidation of the values we have gradually internalized as a society.”
By saying that “eligibility requirements” of an expansive “welfare right” such as ObamaCare can indeed be heard by the courts, Liu is opening the door for the national health care takeover to become a single-payer system by judicial fiat. Such dangerous views have most Americans rightly concerned about what new “right” the courts might articulate next.
Then there’s Robert Chatigny. His controversial actions defending convicted rapist and serial murderer, Michael Ross, in 2005 earned him a hold by Senate Republicans.
Chatigny’s contentious remarks were made at a last-minute hearing in 2005 he had convened wherein he granted a stay of execution for Ross. In that hearing, Chatigny chastised Ross’ attorney, T.R. Paulding, and threatened to have his law license pulled for not more vigorously pursuing Ross’ defense.
Although the hearing was supposed to be examining Ross’ competence to waive his right to appeal, Chatigny opined, “looking at the record in a light most favorable to Mr. Ross, he never should have been convicted. Or if convicted, he never should have been sentenced to death because his sexual sadism, which was found by every single person who looked at him, is clearly a mitigating factor.”
But Ross had confessed to all eight rape-murders. Of course he should have been convicted. There was no question of his malice and cruelty, either, and yet for Chatigny, this was a mitigating factor that should have blocked the death penalty sentence. Nonsense.
Chatigny’s bias and personal interest in this case may have been best revealed by the fact that the hearing Chatigny was presiding over had nothing to do with sentencing. It had to do with forcing Ross’ attorney to pursue a claim that Ross was not competent to waive his right to appeal the sentence.
Making matter worse, Chatigny has a long history of acting sympathetically toward sex offenders. As reported by the Washington Times, “[i]n 12 child-pornography cases, Judge Chatigny imposed a sentence either at or more lenient than the recommended minimum – with most downward departures involving sentences less than half as long.” He even overturned Connecticut’s sex offender registry law in 2000.
Now the Judiciary Committee is prepared for another showdown on these nominees, although nobody expects that they will fail to be reported to the Senate floor. Equally, Senate Republicans will keep their holds on these controversial nominees.
Meaning if Harry Reid and Patrick Leahy care enough about these nominees, then they should be able to muster the 60 votes needed to invoke cloture on them. If not, it will be because Senate Democrats could not unite around their own nominee. Republicans have every right and duty to object to nominees that do not share their judicial philosophy. They are under no obligation to help them across the finish line.
Bill Wilson is the President of Americans for Limited Government.
