By Ilya Shapiro
Later today the Senate is set for a "cloture" vote -- the vote to end debate, for which you need 60 votes -- on the nomination of Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. I'm not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general -- or if the Republicans ought to be the first to foreswear the tactic even without a guarantee that Democrats would do likewise in the future -- but if ever there were an "extraordinary circumstance" fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.
As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights -- not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required. That is, someone ought to be able to sue the government (qua the taxpayer) if they don't have adequate health care, or food, or shelter, or... well, anything Liu envisions is part of his indeterminate Constitution whose evolving norms adapt to the times "in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society."
As Liu wrote in the Yale Law Journal in 2006:
On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.
Moreover, he's opined that words like "free enterprise," "private ownership of property," and "limited government" are "code words for an ideological agenda hostile to environmental, workplace, and consumer protections."
As I wrote in an op-ed with Evan Turgeon last year:
We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.
Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”
Now, if all 53 Democratic senators vote for cloture, they will need to add seven Republicans to prevail. So the key to this vote are the 11 GOP senators who voted for cloture earlier this month on controversial Rhode Island district court nominee Jack McConnell: Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune. This list includes some of the more "squishy" Republicans, to be sure, but there are also some wild cards -- and, of course, the stakes with a circuit court nominee are higher than for a district court nominee.
The outcome of the vote is uncertain but one thing I can say for sure is that if Prof. Liu becomes Judge Liu (and later, God forbid, Justice Liu), the Obamacare litigation will seem so quaint: Can Congress force you to buy health insurance? Heck, the Constitution requires you to buy it -- for yourself and a lot of others as well!