Ari Ezra Waldman | Law - Gay, LGBT | News

Professor Goodwin Liu and the Delicate Egos of Senate Republicans


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

GoodwinliuIn a striking, but entirely expected, example of the intellectual dishonesty and inconsistency of most Republicans in the Senate, the upper house today failed to invoke cloture on the nomination of UC Berkeley Law Professor Goodwin Liu to the Court of Appeals for the Ninth Circuit. With 42 votes, Senate Republicans -- all of them, since it was the newly-independent senator from Alaska, Liza Murkowski, who was the lone member of the Republican caucus to vote with her Democratic colleagues to end debate -- blocked an "up-or-down" vote on a brilliant man who even conservatives think would be a great addition to the circuit court.

Republicans gave various reasons for their "no" votes. Professor Liu is "too liberal," "too radical," "out of the mainstream," "he believes in a wholesale rewriting of our values," "he's crazy," and so on. Former George W. Bush Administration lawyer Richard Painter addressed these baseless myths of Professor Liu's liberalism in an extensive article published at the Huffington Post. His arguments are so succinct, so thorough and so correct that I will not repeat them here.

Conservatives were particularly enraged by Professor Liu's supposed views on marriage equality. We should be used to the phenomenon of conservatives arguing that the recognition of gay persons' basic equality is somehow "radical," but, to be honest, I'm not even sure Professor Liu has a view on what the Constitution says about marriage equality. In 2007, Professor Liu joined an amicus brief by 17 law professors arguing that California laws against same-sex marriage violates the California Constitution. The anti-gay conservative writer Ed Whelan over at the National Review Online who famously compared Justice Elena Kagan to a prostitute, thinks Professor Liu's presence on this amicus brief is enough to conclude that Liu supports the "invention of a federal constitutional right to same-sex marriage." But, the California Constitution is different than our nation's highest law. Neither the amicus brief nor any public comments and writings even touch on what Professor Liu thinks the federal Constitution says about marriage equality. He's simply never addressed it. And, in fact, he has even argued that the California Supreme Court was right to uphold Proposition 8 when it did, a position that won Professor Liu no liberal bona fides. This should show Senate Republicans that Professor Liu is willing to recognize what the law is rather than what he would like it to be. 

But it was the always honest Senator Lindsey Graham (R-SC) whose impolitic and refreshing candor zeroed in on the pettiness of Senate Republicans (himself included): "His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue," Sen. Graham said before today’s vote. "His statement showed he has nothing but disdain for those who disagree with him. Goodwin Liu should run for elected office, not serve as a judge."

Professor Liu testified against the nomination of then-Judge Samuel Alito to the Supreme Court, calling the conservative jurist an "ideologue" and "unduly harsh" in his decisions. He said that "Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man." During his own confirmation hearings, Professor Liu backtracked, calling his remarks "overly flowery," "unhelpful" in an already polarized process and evidence of his own "poor judgment" at the time.

Herein lie the two lessons of today's sorry and unfortunate vote.

First, if you want to be a judge, you cannot have any opinions about other people's views, and if you do, state your disagreements with the muted tones of a man who doesn't like his wife's new haircut. Second, when you do air your academic debates and find yourself to the left of some of your colleagues, Senate Republicans are willing to throw you under the bus and ignore their Gang of 14 commitments. The Gang of 14 was a group of senators who pledged to support judicial nominees absent extraordinary circumstances and regardless of party. It is hard to see how Professor Liu was anything other than extraordinarily qualified except for when he ticked off a few petty Republicans who did not like his characterization of a right-wing judge from New Jersey.

This episode also shows that judicial fights are getting worse. Up to now, many of us had thought that Borking a nominee -- blocking the nomination of a judge you disagreed with -- was all about politics, your own views and your substantive disagreements with the views of the nominee. That's bad enough, considering that what we want in our judges are the best and brightest regardless of party. Now we see that, at least when it comes to Senate Republicans, judicial confirmation votes will resemble the petty and childish rules of the schoolyard.

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  1. No shock. No surprise. Another day with the GOP.

    What would GOproud or The Log Cabins say? Nada I suspect.

    Oh well. Nothing knew here, though great intelligent and informative articles as usual Ari.

    Posted by: Rowan | May 19, 2011 6:58:07 PM

  2. This piece is thoroughly excellent. I wish you had published it in a national newspaper, rather than on this blog. Not that T-road doesn't have a terrific readership, but this really deserves wider distribution.

    Posted by: BABH | May 19, 2011 7:03:53 PM

  3. senator chuck grassley from iowa was particularly offensive today when he declared that the american-born liu held a viewpoint the was representative of communist china.

    Posted by: alguien | May 19, 2011 7:10:49 PM

  4. Why am I so often ashamed to be an American?

    Posted by: Zlick | May 19, 2011 7:44:18 PM

  5. more repercussions of what happens when you stay home on election day.

    Posted by: mld | May 19, 2011 8:09:25 PM

  6. "Borking"—is, ipso facto, bad? Bork was only rejected because he was from a different party and simply had different views? Christ of the Andes, once again Mr. Waldman has demonstrated his shallow, jejeune grasp of the facts!

    Cue 2009 letter to the "Washington Post" from leading attorney and former Adjunct Professor of Law at Georgetown University Law Center, Eric Glitzenstein:

    "In his otherwise enlightening piece on shepherding Supreme Court nominees through the confirmation process ['How to Scale the High Court', Outlook, May 24], Tom Korologos suggested that Judge Robert H. Bork's nomination was defeated because Judge Bork was simply too conservative. This is revisionist history.

    As demonstrated by the fact that Justice Antonin Scalia was overwhelmingly confirmed by essentially the same Senate, the fatal flaw was not Judge Bork's ideology or any of the other factors Mr. Korologos mentioned. Rather, two substantive drawbacks emerged in the confirmation process....

    The first was Judge Bork's failure to apply any judicial philosophy consistently; instead, how he would rule as an appellate judge could largely be predicted by who the parties were. Judge Bork almost always ruled for the government in actions brought by consumer, environmental and civil rights groups. Yet in cases brought by business interests against federal agencies, he would often abandon his purported commitment to judicial restraint and invalidate government action.

    The second drawback—exemplified by Judge Bork's famous statement that serving on the Supreme Court would be an 'intellectual feast'—was the notion created by his testimony that justices' primary role is to wage a war of intellect and ideology divorced from any concern for the real-world impact of their rulings.

    There is a valuable historical lesson from the Bork battle, but it is not the one Mr. Korologos suggested. Rather, it is that any judicial record should be scoured for consistency and not merely ideology and that 'intellectual feasts' should be pursued by academics, not life-tenured jurists with enormous power over the lives of millions."

    Posted by: | May 19, 2011 8:40:13 PM

  7. Goodwin Liu was my constitutional law professor, and was awesome. If there's anyone worthy of being appointed a federal circuit judge, it is he.
    I'm so pissed off right now.

    Posted by: Chris | May 19, 2011 8:54:40 PM

  8. So, in 2005 an agreement was reached in the Republican-controlled Senate - through the threat of doing away with the filibuster process entirely - to not use it regarding judicial nominees - Democrats - in 2005 -- agreed to this non-binding agreement -- but in 2006 took back control of the Senate. Since then - they have repeatedly been outmaneuvered by the minority party - often times through the use of or the threat of filibuster - for seemingly anything.

    Now, in 2011 - the Republicans drop any and all pretense to the agreement they entered into when they were in the majority - and invoked the filibuster simply because - technically - they can.

    If the Democrats are unable to lead when they have the White House and they have the majority - then perhaps leadership is simply not their thing.

    I am sick and tired of being a member of the party that is constantly and rightly defined not by their successes - of which there are entirely too few - but BY THEIR FAILURES.

    If Senate Democrats to not know how to be in the majority - and it clearly appears they do not - then 2012 will likely bring them some very good news.

    Posted by: ricky | May 19, 2011 9:10:33 PM

  9. Shameful, absolutely shameful. We have to fight against this stupidity. Not only are *we* going to continue to be trampled by ignorance, but the whole country and future kids are going to suffer, thinking it's normal to be attacked by your own country. Ugh, this has to change. Republicans must be accountable for all the damage they're causing! When are gay people going to be full citizens here?

    Posted by: X | May 19, 2011 10:16:34 PM

  10. They want to block Goodwin Liu because they're afraid he will wind up on the Supreme Court.

    Posted by: Ninong | May 20, 2011 12:28:38 AM

  11. Would be easier to take Ari seriously if he wasn't such an H-bombing dork. $10 says everything he writes is with an eye to running for office/becoming a judge himself. We need a better elite in this country.

    Posted by: Alex 0^0 | May 20, 2011 1:27:51 AM

  12. @ninong


    Posted by: Chitown Kev | May 20, 2011 11:32:05 AM

  13. Lindsey Graham is GAY.

    Posted by: Little Kiwi | May 21, 2011 2:21:07 PM

  14. Recess appointment!

    There's a Memorial Day recess next week.

    Posted by: Anastasia Beaverhausen | May 22, 2011 8:02:08 PM

  15. Hi Ari,

    I was looking for a way to ask you a question, but I guess this is the only avenue. I'm a law student studying constitutional law, and I was wondering about San Fran's proposed circumcision ban. Is it unconstitutional?

    I feel like it would be hard to bring a Free Exercise case after Oregon Employment Services v. Smith, because I assume this ban would be generally applicable. But I guess you could do it if you can prove that the law is intended to discriminate against semitic religions.

    But could you bring an even stronger case relating to substantive due process? If you look at Society of Sisters v. Pierce, Wisconsin v Yoder, Meyers v. Nebraska, etc., it seems that the due process rights of parents to determine the fundamental tenants of their children's upbringing are extremely broad. I'm no expert (I hope to be eventually!), but it seems to me that this law would be unconstitutional.

    Final question: could, for example, a pregnant woman sue now claiming prospective harm and get an injunction barring san fran from putting this on the ballet, and then rule on the constitutionality after the fact?

    Posted by: jon | May 31, 2011 12:38:01 PM

  16. @jon: thank you for your question. you can always send me an email to as for your question, it is an excellent and prescient one! look for my column this week (tomorrow). but to answer it in brief: your arguments make sense, though given the publicity around it (legislative history, as well), it would be hard to prove intent to discriminate. of course, intent is not the end of the line. i agree with you about a parents right to raise his/her child, but i have a (what you may think is a) more annoying view of applicable case law :). i hate to be coy, but i will make my case tomorrow. in any event, ill send you an advance copy of some thoughts to your listed email if thats what you prefer. email me your preferred email if not.

    Posted by: Ari Ezra Waldman | May 31, 2011 12:54:31 PM

  17. and he's damned cute too.

    Posted by: Danny | Sep 1, 2011 9:28:50 PM

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