The Ninth Circuit's Newest Nominee

There are eleven US Circuit Courts in the United States. Of those, the largest and the most controversial is the Ninth Circuit Court, headquartered in San Francisco. The Ninth Circuit Court's jurisdiction is huge, covering nine Western states, Guam, and the Marianas.

But it's not the Court's size which makes headlines; it's the extreme, sometimes bordering on ideologically radical, rulings handed down that gets peoples' attention. The fact that the Court is packed with a high percentage of liberals appointed by Democratic Presidents is not in itself objectionable. What is a matter of concern is the Court's atrocious record in adequately and accurately interpreting Constitutional law in its rulings. In 2009, for example, laws set by the Ninth Circuit were overturned in 15 of the 16 cases reviewed by the U.S. Supreme Court, which is hardly a bastion of conservatism.

Now President Obama has nominated a liberal, Goodwin Liu, who--if confirmed by the Senate--will accomplish the near-impossible feat of shifting the Ninth Circuit even further to the left. Liu, a University of California Berkeley law professor, is a committed left-wing idealogue. As we will soon witness with the confirmation hearings of Obama's newest Supreme Court nominee, Elena Kagan, it is customary for Senators to review a judge's past rulings, writings, opinions, speeches, even letters to the editor to try to divine how a judge will rule once he or she has a seat on the court to which they've been nominated.

But in Liu's case, he is asking the Senate to suspend disbelief by making this rather remarkable statement: "As scholars, we are paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative...but the role of a judge is to faithfully follow the law. Whatever I may have written would have no bearing on my role as a judge." And yet Liu, in his past writings and speeches, has advocated that the courts create constitutional rights to education, shelter, subsistence, and health care and to rule based on "how a judicial decision may help forge or frustrate a social consensus". He has advocated reparations for slavery, racial quotas in hiring, and the use of foreign statutes to discover the meaning of American laws. In short, Mr. Liu thinks that the U.S. Constitution means whatever he wants it to mean.

In their collective wisdom, the Founding Fathers knew that the Constitution would need to be changed over time to reflect the values and sensibilities of a modern nation. They provided an avenue for that change to occur in the form of Amendments. But they also placed an extremely high and difficult bar for change to occur: an amendment must be approved by two-thirds of both houses of Congress, followed by ratification of three-quarters of the state legislatures (all states except Nebraska have bicameral legislatures, meaning both houses of those states must also approve an amendment).

The Founding Fathers explicitly and deliberately did not provide for new law to be made from the bench of any court, including the Supreme Court and certainly not the Circuit Courts of Appeal. According to the Constitution, laws were and are to be made by the legislative branch and interpreted as consistent (or not) with the Constitution by the courts.

Goodwin Liu (and, for that matter, President Obama who has sworn to "preserve, protect, and defend the Constitution of the United States") would do well to re-read the Constitution.