Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

Confirm Goodwin Liu to the Court of Appeals

As I noted here last week, President Obama has nominated Goodwin Liu, a constitutional law professor of mine at the University of California Berkeley School of Law, to a position on the United States Court of Appeals for the Ninth Circuit.

Unsurprisingly, the right wing is already setting its sites on Professor Liu, just as they have on virtually all of the President's other judicial nominees. I have tried to correct some of the record with regard to Professor Liu here at MyDD. But in an effort to broaden the effort, I have created a new website in support of his nomination: ConfirmGoodwin.com.

The site is already loaded with a good deal of information -- statements from academics, politicians and media outlets of all stripes, Professor Liu's biography, fact checks. The site also contains a petition so that people can register their support for the nomination.

Professor Liu would make a great federal judge. Don't just take my word for it. Ask the American Bar Association, which awarded Goodwin Liu it's highest possible rating: a unanimous "well qualified." Ask the Sacramento Bee, which recently editorialized that "it is hard to image anyone who's better qualified than Liu." Ask the officials and academics from across the ideological and political spectrum speaking out on behalf of Professor Liu's nomination. Stop by ConfirmGoodwin.com today.

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