March 24, 2010

Do you have a right to health care? Judicial nominee Liu thinks so

Ilya Shapiro and Evan Turgeon have an Op-Ed in the Daily Caller on Obama's nominee to the 9th Circuit, Gordon Liu.
Liu claims that judges faced with determining our society’s “obligations of mutual provision . . . should look to the democratic and cultural manifestations of those understandings, knowing that the legitimacy of judicial intervention on behalf of welfare rights ultimately depends on its coherence with the evolving norms of the public culture.”

That statement provides a perfect synopsis of Liu’s judicial philosophy: Popular opinion is paramount. As a judge, Liu would uphold any legislation that has undergone “vigorous public contestation” and comports with the public’s “considered judgment.” Citing what he calls the “socially contingent character of welfare rights” and the “limitations of the judicial role that flow from it,” Liu would uphold any legislation supported by popular opinion, foreign or international practices, or any other set of “collective values.”

Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation”—to borrow progressive Yale law professor Bruce Ackerman’s phrase—that cannot be undone.
More on Liu here.

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