Published March 04, 2010
Even his critics describe him as "brilliant," but President Obama's newly minted judicial nominee -- law professor Goodwin Liu -- will not have an easy time getting to the 9th Circuit bench.
At age 39, Liu has compiled an impressive resume: Rhodes Scholar, Supreme Court clerk, top grades at both Stanford University and Yale Law School and now law professor University of California, Berkeley.
Liu has also aligned himself with progressive legal groups, including the American Constitution Society, where he is chairman of the board of directors. That's prompting opponents to argue that Liu is "too far outside the mainstream" to take a seat on a court just one step below the Supreme Court of the United States.
"He believes the Constitution is something judges can manipulate to have it say what they think culture or evolving standards of decency requires of it in a given day," said the Senate Judiciary Committee's top Republican Jeff Sessions, R-Ala.
Ed Whelan, a one-time clerk to Justice Antonin Scalia and now president of the Ethics and Public Policy Center, echoed those concerns.
"Liu believes that judges have the authority to impose their views ... using clever verbal camouflage to disguise what they're doing."
Liu opponents point to a number of his writings, including a book he co-authored in 2009 called "Keeping Faith with the Constitution," in which the authors opine about their concept of judicial interpretation.
"Applications of constitutional text and principles must be open to adaptation and change ... as the conditions and norms of our society become ever more distant from those of the Founding generation."
That theme -- that the Constitution's text and principles must be adapted to changes in the world -- repeats throughout the book and raises eyebrows among conservatives.
Others who know Liu point to what he's accomplished, starting as the son of Taiwanese immigrants who didn't speak much English.
"He embodies the American dream," said Doug Kendall, president of the progressive Constitutional Accountability Center (CAC).
Kendall's group does not make a decision about whether to officially support nominees until their confirmation process has concluded, but he is impressed by what he knows of Liu so far.
Kendall said he believes Liu's critics are wrongly portraying him as extreme.
"If you look at Liu's scholarship, he rejects both the conservative idea that judges should strictly construe the Constitution and the liberal idea that the Constitution is a living, breathing document," he said.
In a 2005 report Liu co-authored prior to his testimony, he wrote that Alito's opinions "show a disturbing tendency to tolerate serious errors" and "reveal troubling perspectives on federalism, race, and due process of law."
His testimony didn't derail Alito but now Liu will face similar probing. Already, questions are being asked about whether the president's is putting the young nominee on the fast track to the high court.
Kendall said only time will tell whether Liu would be the right fit, but it's possible he could be in the running if he is confirmed to and serves well at the 9th Circuit. However, that is a possibility that "concerns" Liu's detractors, including Whelan.
"That's certainly an added factor that folks in the Senate need to take into account," he said.