Wednesday, May 25, 2011

Liu's Filibuster and Constitutional Fidelity

The successful filibuster last week of President Obama's nomination of Goodwin Liu (Boalt Hall) to the Ninth Circuit was hardly based on a principled dispute about constitutional interpretation.  Stated reasons for opposition (and thus for the filibuster) ranged from Liu's alleged position on affirmative action to his opposition to President Bush's nominations of then-Judges Roberts and Alito to the Supreme Court.  (The reasons for opposition are well known; here's the floor debate in the Congressional Record, more or less hitting the highlights.)  Most of the reasons were based on selective reading and misinterpretations of Liu's work (although Liu did oppose the nominations of Chief Justice Roberts and Justice Alito).  Con Law Prof Geof Stone (U. Chicago) summed it up in yesterday's Chicago Tribune, writing that the filibuster was merely "partisanship run amok."

Constitutional interpretation played a bit part in opposition to the Liu nomination--but only a bit part.  And for good reason: Liu's interpretive method, constitutional fidelity, is hardly controversial.  It's reflected in different ways in opinions authored by Justices ranging from Ginsburg to Scalia.  It looks an awful lot like Justice Breyer's pragmatic approach, as described most recently in Making our Democracy Work.  And it has strong theoretical roots, going back to work like Philip Bobbitt's classic, Constitutional Fate.

Here's what Liu wrote (or co-wrote, with two other prominent con law scholars) in Keeping Faith with the Constitution:

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.  Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.

Keeping Faith, at 2.

Compare that with Justice Breyer's pragmatism:

Modern American judges working in this tradition, like most judges, use textual language, history, context, relevant traditions, precedent, purposes, and consequences in their efforts to properly interpret an ambiguous text.  But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences.  In doing so, judges must avoid interpretations that are either too rigid or too freewheeling.  They must remain truthful to the text and "reconstruct" past solutions "imaginatively" as applied to present circumstances, at the same time projecting the purposes (or values) that inspired those past solutions to help resolve the present problem.  The judges must seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives.

Making our Democracy Work, at 80-81.  These are just short excerpts, to be sure, and Justice Breyer may have his detractors, but Liu's similarities throughout Keeping the Faith with this sitting Supreme Court Justice suggest that his approach is hardly outside the mainstream. 

SDS

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