Ethics

Presumably these four words made Ebenezer Scrooge a radical because he presumed that taking care of the poor was an obligation of the government rather then himself (one will recall that he was turning down a charitable solicitation on Christmas Eve).   

Had he lived today, Scrooge would have been a dangerous addition to the federal judiciary.  He might have made up government welfare rights for poor people.  

So goes the ongoing crticisism of Goodwin Liu's nomination to the Ninth Circuit.  Liu clearly has a more expansive view of the government's obligation than did Mr. Scrooge, making him arguably even more radical. Liu also envisions society's concept of that obligation changing over time.  Mr. Scrooge's vision -- limited to prisons and workhouses -- may be outdated.  Perhaps the government should do more to help the poor, particularly when children are involved.  Admittedly the government as been focusing for the time being on handing out relief payments for Wall Street banks, but there may come a time when poor relief is also reevaluated. 

Deciding what to do is principally the job of the legislature and the agenices that implement legislative mandates in regulations.  Courts have a role in interpreting and applying statutes, regulations and practices.  Liu has been accused of wanting courts to make up the law in this area, but his writings do not support that accusation.  He has had years to write about this issue, and there are few if any suggestions in his writings for what specifically courts can do that go beyond implementation and interpretation of statutes and regulations -- interpretation based on underlying values and objectives of statutes and regulations but interpretation nonetheless.  To the extent there should be a right to welfare under the Constitution or simply under widely held moral commitments, Liu envisions Congress creating that right and the courts interpreting and applying it.  He says over and over again that the political process has to take the first step.

The record of nominees for the federal bench should be accurately portrayed to the Senate.  Part of our obligation as lawyers is to assure that it is.  We should read his articles and judge for ourselves.  Perhaps I am interpreting Liu's views too narrowly, but I don't believe so.

Liu writes about this issue in his article in the Stanford Law Review.  61 Stanford L. Rev. 203 (2008).

Here is the abstract:

A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman's writings, which endure as the most insightful and imaginative work in this area, sought to anchor the Supreme Court's welfare rights jurisprudence in a comprehensive theory of distributive justice, in particular John Rawls's theory of justice as fairness.

In this Article, I reappraise Michelman's seminal work and argue that his effort to ground the adjudication of welfare rights in a comprehensive moral theory ultimately confronts intractable problems of democratic legitimacy. My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society. Informed by the central themes of Michael Walzer's

Spheres of Justice, I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices. On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable welfare rights reflect the contingent character of our society's collective judgments rather than the tidy logic of a comprehensive moral theory.

In developing my thesis, I consider two objections: first, that the judicial role I propose is inherently conservative, and second, that it carries an intolerable risk that judges, in the name of interpreting society's values, will impose their own values on society. Using various Supreme Court opinions as examples, I show that both dangers can be avoided when courts employ constitutional doctrine in a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understandings.