As we await word from Justice John Paul Stevens about his retirement plans, conservatives (and particularly the conservative legal activists who live for Court nomination battles) have decided to engage in a sort of warm-up act, or perhaps a show of force, by picking a fight over UC-Berkeley law professor Goodwin Liu’s nomination to the Ninth Circuit Court of Appeals.
In a summary of the mobilization over Liu that’s already far along among conservatives, Politico‘s Kasie Hunt suggests the professor’s views (or more specifically, the long paper trail that professors tend to leave) make him symbolically important to his and the president’s enemies:
Why all the fuss over just one among hundreds of federal judicial nominees? Conservatives see Liu as the tip of the spear for the next generation of jurists — if he makes it to the court they fear he could become a leading liberal jurist on property rights, the death penalty, affirmative action, guns and even interpretations of the health care law.
Now it’s fundamental to disputes over the Supreme Court and the Constitution that each side–sometimes fairly, sometimes not–tends to depict the other as aggressors against the status quo ante; I’d personally rephrase Hunt’s characterization of conservative opinion to say that they view a rising legal star like Liu as a conveniently “radical” foil for their own radical constitutional arguments, aimed at rolling back “liberal” Supreme Court decisions dating back at least to the New Deal.
Accordingly, progressives need to go into the fight over Liu not in a defensive crouch over his “controversial” utterances carefully taken out of context from law review articles and interviews, but determined to expose the radicalism of his tormentors. Among the conservative legal beagles who will be leading the charge against Liu are people who are determined to erode the separation of church and state; to undermine the constitutional basis of New Deal and Great Society programs like Social Security and Medicare; and to strip away significant civil liberties and civil rights protections.
Whatever happens to Liu’s judicial ambitions (and it’s worth noting that it’s a lot easier to defeat a circuit court nomination than a Supreme Court nomination), the fight over his nomination should be a warm-up act for progressives as well. As I wrote when word of Stevens’ likely retirement came out, the Supreme Court battle offers progressives a good opportunity to show that the Republican Party is increasingly the captive of people and opinions that won’t much stand the light of day, and whose radicalism is most evident when they begin trying to tamper with the Constitution. I suspect Goodwin Liu’s “controversial” liberalism will embolden them to go hog-wild.