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Goodwin Liu Isn’t A Radical

July 29, 2011

Earlier this week, Gov. Jerry Brown nominated Prof. Goodwin Liu of Berkeley Law (where I’m a student, to be upfront) to the California Supreme Court. The nomination follows two attempts by President Obama to place Liu on the Ninth Circuit Court of Appeals which were filibustered by Senate Republicans. As would be expected, the writers over at CalWatchDog are in a tizzy, calling Liu a ‘radical‘ and saying that his views are out of the mainstream. To support this claim, they cite this passage from Liu’s book “Keeping Faith with the Constitution” (PDF):

“Today, Americans do not think twice about the authority of government to respond to economic needs. Social Security, Medicare, collective bargaining and minimum wage laws, disaster assistance, regulation of the financial markets, and robust initiatives to stabilize the economy comprise large parts of the work we expect our federal and state governments to do. Reasonable people may disagree about the specific policies needed to deal with various economic conditions, with regulation of the marketplace, and with the economy as a whole. But there is no question that developing, enacting, and implementing such policies are an important and legitimate part of what government does.”

Steve Greenhut says this shows that Liu “sees no limits on the power of government”.  This argument doesn’t address the passage itself. Liu states that the government has authority under the economy to “respond to economic needs”. Does Greenhut believe this isn’t true? Does the government have no power to respond to economic needs? If it does, what limit would Greenhut put on it? Which of the policies cited by Liu would Greenhut say go too far? Liu doesn’t assert that the government’s power is unlimited: by saying that certain policies have been accepted by Americans as constitutional, Liu implies that there are policies that are not acceptable. Thus, the passage shows he does believe in limits on the power of government.

John Seiler argues that the policies Liu includes (Medicare, Social Security, financial regulation, etc.) have hurt the economy. I’d disagree but that’s not the issue here. A judge does not rule on the effectiveness of a policy – only an activist judge would do that, as I’m sure Seiler would agree. Instead, Liu’s job on the California Supreme Court will be to rule on the constitutionality of a given policy. As Liu says, we can argue over the specifics but the general proposition that those policies are constitutional is a given. By engaging in this debate, Seiler implicitly validates Liu’s argument.

The problem for the CalWatchDog writers is that Liu is right: Americans have accepted those policies (especially Medicare and Social Security) as constitutional uses of government power. Perhaps members of the Tea Party would disagree; however, despite their current influence in Washington, they don’t represent mainstream beliefs. That’s why Seiler and Greenhut don’t actually make the argument that any policies cited by Liu are unconstitutional, even though that’s the only thing that can support their argument. Goodwin Liu’s views are well within the mainstream and his appointment to the California Supreme Court will be beneficial to the state.

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