Lines in the sand

It seems that Republicans in the Senate want to make sure that they set the boundaries for judicial picks.

“I promise a fair hearing, and I promise that the nominee will have a chance to explain any criticisms that are raised,” Mr. Sessions said on NBC’s “Meet the Press” on Sunday. “But if a nominee is one that is so activist like Goodwin Liu that’s just been nominated — who’s written that, that the Constitution requires welfare and health care to individuals — if it’s somebody like that, clearly outside the mainstream, then I think every power should be utilized to protect the Constitution. We’ll not confirm somebody like that.”

Supporters of Mr. Liu, nominated for the United States Court of Appeals for the Ninth Circuit, in San Francisco, argue that critics have exaggerated his writings to portray him as an ideologue. A 2008 Stanford Law Review article by Mr. Liu about welfare rights, which Mr. Sessions referred to, focused on small-scale disputes over Congressionally enacted programs — like “invalidating statutory eligibility requirements” — not creating welfare programs based on judicial fiat.

Still, Mr. Liu has been more open in expressing liberal political views — like support for affirmative action and same-sex marriage — than Mr. Obama’s other appeals court nominees. In that sense, he is arguably the first Obama nominee who is the equivalent of some of the most controversial nominees by Mr. Bush, several of whom Democrats delayed or blocked.

Mr. Liu also earned conservative enmity by criticizing Mr. Bush’s two Supreme Court appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. And a book he co-wrote argues that judges should interpret the Constitution “in light of the concerns, conditions and evolving norms of our society” — an approach some conservatives say enables judges to impose their own political values.

Born to Taiwanese immigrants, Mr. Liu, 39, earned degrees from Stanford and Yale Law School. A Rhodes scholar, he was a Supreme Court clerk and worked briefly at a law firm before becoming a law professor.

The Obama administration sought to focus on Mr. Liu’s biography and the fact that he would be the only Asian-American judge on the federals appeals bench. But Republicans twice managed to delay his hearing, giving conservatives extra time to mine his record for ammunition and build opposition.

M. Edward Whelan III, a former Bush administration lawyer who analyzes Democratic nominees’ legal writings for National Review, recently wrote that Mr. Liu’s record “represents a volatile mix of aggressive left-wing ideology and raw inexperience.”

And in a recent memorandum to “the conservative movement,” more than a dozen conservative leaders — including Curt Levey of the Committee for Justice, Gary Bauer of American Values and Wendy Wright of Concerned Women for America — characterized Mr. Liu as “unfit” to be a judge because he had an “extreme liberal agenda that he would impose from the bench.”

Mr. Liu’s defenders object to that characterization. They pointed to statements of support from a handful of other conservative figures, including several who called him open-minded because he supports allowing students in low-quality public schools to use vouchers to study elsewhere.

Kenneth W. Starr, the dean of Pepperdine’s law school and former Whitewater prosecutor, co-wrote a letter saying Mr. Liu should be confirmed because he “is a person of great intellect, accomplishment and integrity, and he is exceptionally well-qualified to serve on the court of appeals.”

So, if support for same-sex marriage (in the 9th Circuit, no less) is an example of "liberal overreach," it's going to be an interesting debate over a Supreme Court nominee and a reawakening of the Culture Wars. Yippee.