Ethics

I have begun to sort through the mass of material provided to the Senate by Goodwin Liu in his original questionnaire and the material he provided in his supplemental questionnaire.   I don't know him, and I want to see what the fuss is about.  

Liu is a liberal, probably a moderate liberal but still a liberal.  So is the President.  President Bush?s nominees to the bench were mostly conservative.  So was the President.

We knew this before Liu submitted his first set of answers to the questionnaire.  His answers and the materials cited confirm it.  The materials he submitted in his supplemental answers confirm it also.  He is a liberal.

What the Senate should ask with respect to all of the President?s nominees is whether their political perspective is within the range of reason.   Are they so liberal ? in fact radical ? that they cannot be trusted to interpret and apply the Constitution and the laws when the only reasonable interpretation is inconsistent with their desired social outcome?  Are they so conservative that they would condone something entirely outside the realm of reason ? like torture ? as being consistent with the Constitution and laws of the United States?  If so, these are the nominees the Senate should reject for lifetime appointments to the district courts and courts of appeals (I leave aside the question of whether a more exacting degree of ideological scrutiny on both ends of the political spectrum is merited for the Supreme Court)

Nothing I have seen in this file comes anywhere close to that.  Liu has not written articles that ignore the laws and Constitution and then cite Derrida or some other dubious authority for the truth of the matter asserted, or for the proposition that there is no such thing as truth.  He has not embraced many of the obscure yet trendy theories that left wing academics advance in order to advance their careers but not much else.  He has written about the law and how the law affects people ? perhaps in a way that conservatives do not agree with ? but he has written about the law.  He appears to care about the law and respect the law, which is what we should expect of a judge.

An example of a ?shocking? revelation is that Liu participated in a discussion of the film Traces of the Trade, which explores the role of New Englanders in the slave trade.  His critics point out that Liu lists the event in his questionnaire response, but doesn?t link to any video or transcript or any other account of his remarks.  Somebody has found the video, and his shocking comments in the video include an observation that slavery was wrong, and that many white people profited from the slave trade indirectly if not directly.  He then said there was little point making a distinction between those of us whose ancestors were around at the time and those of us who, like Liu, are of more recent lineage in America.  ?all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to ? make things right.?  This might sound preachy, but it is difficult to say that he is wrong, much less an extremist for expressing these views.  In fact he avoided the divisive language that the radical left often uses to distinguish between ?us? and ?them?.  He could have exploited differences between persons whose families were here at the time of the slave trade and those whose families were not here, casting dispersions on descendants of older American families.  He did not do so.  Instead he said that it is our collective responsibility to find a solution to the problem of racial inequality that we inherited.

I write about this for a legal ethics discussion group because this entire episode shows how seriously misguided the confirmation process has become.  At least since Brandeis (1916) there have been personal attacks on the nominee and his ethics, and lawyers have been involved in those attacks.  In the past two decades, however, the process has become longer, more document-intensive and more prone to manipulation by outside interest groups.  It has also become a cash cow for the national political parties. 

Many of President Bush?s nominees were treated horribly by the Senate; some were not confirmed even though they should have been confirmed.  The senators have switched sides now and are reading from each others? script, but the story is the same.  This time around, they are looking for a smoking gun that probably doesn?t exist.  If it does exist, I have not seen it.  If they do discover something new and important ? perhaps that one of Liu?s brown bag lunches was with a local chapter of the Taliban ? I reserve the right to change my mind.