05.19.2011 1

Goodwin Liu’s Last Stand

UPDATE: The Senate defeated the cloture for Godwin Liu 52-43. Read the story here.

By Bill Wilson — Today, the Senate will be taking a cloture vote on Goodwin Liu for the Ninth Circuit Court of Appeals. Senate Republicans would do well to make sure it fails. Else, the transformation of the Constitution from “a charter of negative liberties” into one that would “bring about redistributive change” will not be far away.

That is Barack Obama’s true vision of the Constitution. Then an Illinois State Senator, in a 2001 WBEZ public radio interview, Obama lamented that the Warren Court had proven unable to “break us free from the essential constraints that were placed by the Founding Fathers in the Constitution” and had “never ventured into the issues of redistribution of the wealth and sort of more basic issues of political and economic justice in this society.”

No other statement of Obama’s gives the American people a clearer window into how he views the role of federal courts, which would, necessarily, venture into those issues.

And no other judicial nominee of Obama’s better embodies that philosophy than Berkeley law professor Goodwin Liu.

His is a doctrine of “welfare rights” and redistributionism. It is a philosophy that would take federal courts from a venue that adjudicates government infractions of constitutional rights into one where individuals could sue the government for denying “entitlements” like health care or education.

Senate Minority Leader Mitch McConnell last year led the charge to beat back the Liu nomination, and Senate Democrats never risked putting him up for a vote. Now, Obama has renominated him.

It’s up to Senate Republicans to hold the line. McConnell has said that Liu’s “statements, writings and records show a willingness to put [his] own views ahead of the dictates of the law and the Constitution.”

That is putting it rather mildly. Liu’s a dangerous, radical ideology that would redistribute wealth and property to the politically-favored as a matter of right. In a 2008 Stanford Law Review article, “Rethinking Constitutional Welfare Rights,” Liu discussed at length the concept of judicially-imposed “welfare rights.”

Liu believes that persons possess a right to certain goods and services based upon a societal consensus of “how a society understands its obligations of mutual provision.” Then, based upon that consensus, “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.”

So, since the government subsidizes housing, that could mean courts could one day get in the business of forcing legislatures or Congress to allocate funds for “affordable” housing. Or since the health care system has now been taken over, individuals could sue for wider ranges of benefits. Any benefit the government gives out would become the subject of judicial interpretation.

And for Liu, setting these new rights in stone is just a matter of time. He wrote, “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.”

In other words, Liu views the courts as a means of cementing legislative gains that have been made by the political Left over the past many decades, from the New Deal to the Great Society to ObamaCare — whether there is room in the budget for these items or not.

Fundamentally, Liu’s judicial philosophy represents a rejection of representative government. It is one that knows better than the elected branches of government. It is one that does not require the consent of the governed. It is one that rejects the very principle of the separation of powers.

There is simply no excuse for any Senator who professes a belief in constitutionally limited government to consider voting in favor of the confirmation of Goodwin Liu to a lifetime appointment on the federal bench. Liu is the embodiment of disregarding the words of the framers and inserting his own political bias, and should be rejected.

The Senate has a duty to uphold the Constitution by rejecting nominees who reject our values. Goodwin Liu will not support the Constitution, and as such, no Senator should support him.

To be absolutely clear, a vote to allow Liu’s nomination to the Senate floor is a vote in favor of putting Liu and his radical agenda on the federal bench. There can be no political doubletalk, a vote to invoke cloture on Liu’s nomination is a vote for judicial extremism.

Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.

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