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Monthly Archives: February 2010

Here is an excerpt from Obama’s nominee for the 9th circuit judgeship, via Ed Whelan.  In his article on Welfare Rights, Goodwin Liu says:

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.… 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.

What did he just say? If there is a prize for impenetrable prose, this guy is going to win it. Legal writing has to be crisp, clear, and incapable of misinterpretation. That paragraph was limp, vague, and capable of a thousand interpretations.

How can you follow a judicial opinion if you can’t tell what the judge is saying?

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 [i.e., judicially cognizable] welfare rights reflect the contingent character of our society’s collective judgments rather than the tidy logic of a comprehensive moral theory.

Again. I have no idea what he just said. Besides the obvious. So, legislatures are the primary source for welfare rights. Good. Courts cannot fix the contours of a welfare right for all time – because the “shared understandings of a society” are subject to revision? See how sloppy that is? The scope of welfare benefits is not due to the broad “shared understandings of society”.  Those shared understandings may comprehend a million different things. Welfare rights depend almost exclusively on what the legislatively created welfare laws say they are. Not on what the whole universe of “shared understandings” are.

Why do they have to be so vague in their writing? Is it a vainglorious attempt to sound important?

The problem [i.e., challenge] for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.

Wrong, wrong, wrong.

Courts do not observe social values and decide when they should become crystallized into law. Legislatures do that. Activist courts like to suddenly think their values need to be crystallized into law. He seems to have some respect for legislatures, but in fact, it is just a sham.

You can see where this is headed. Liu believes that courts are the main driver of society. Or, one of the main drivers, when in fact they are to be bystanders, umpires, and nothing more.

This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus. Yet the task is familiar to common law adjudication and … pervades the interpretive work of courts on a wide range of constitutional questions.

There he goes again. The purpose of a judicial decision is to forge or frustrate a social consensus. That’s how you get a Roe v Wade. decision. That’s how you end up being ruled by judges instead of elected officials.

And no, the task is not familiar to common law adjudication. The common law was another beast altogether, not dependent on legislatiion, for the most part. Most of it was developed before the heyday of legislation. Most of it was developed with the idea in mind that there WAS a “tidy logic of a comprehensive moral theory”.

The development of the common law was not a survey of the times, not an attempt to modernize things, not an attempt to get with the trend of the moment. (Some of it was, when you get into the Brandeis – Holmes – Cardozo days, but that was a small period of a 400 year development.)

This guy may be downright dangerous. Ed Whelan notes:

As he puts it, the role of the courts would be to “meaningfully assess the distributive reach of a welfare statute by focusing on the extent of legislative deliberation and democratic legitimacy supporting it rather than on its substantive rationality” (p. 263). 

The court is going to be the judge of the “democratic legitimacy” supporting the legislation? Again, what does that mean? If the Legislature says “Everyone in this state with incomes under $15,000 gets a grant of $1,000” does the judge go “Hmmm. Most people in this state think they should get $2,000, by the latest polls”  Therefore this legislation is overturned. Or does it say “‘Well, 49 other states give them 2,000 – so the statute is unconstitutional.”?

This is not hard. Liu wants to substitute his judgment for the legislatures. This is not hard. Liu thinks courts should sit in judgment of legislatures, deciding whether they do enough, or too much. It is not much more complicated than that.

It is pretty clear. Liu is a judicial supremacist:

In his conclusion (pp. 266-267), Liu identifies two areas in which he believes that courts can now “legitimately foster evolution of welfare rights.”  First, “the interstate discrimination in federal funding [of the education of low-income children] seems overdue for legislative reconsideration”—which (as I understand it) is Liu’s way of saying that courts should compel that legislative reconsideration by ruling, dialogically and provisionally, that the existing federal program that supplements state spending on low-income children is unconstitutional because its method of allocating federal funds has no evident purpose.  Second, courts should strike down “California’s antiquated and inequitable system of school finance” on the ground that it has “outlived its policy justification and now contributes to systemic inequity.” 

In other words, Liu thinks that his personal opinions about things should be enacted into law, legislatures be damned.

Liu wrote a lot of words, some of it intelligible, some not. But in the end it all appears to have been a smokescreen for “I want to take over”.

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