So can someone please explain to America's progressive law students why most of the liberal speakers at their national conference are already confirmation war punch lines? Is there some kind of false equivalency between the two groups that makes ACS "outside the mainstream" while the Federalist Society not only represents the mainstream but renders anyone outside of it hysterical? Why should conservative law students be moved and inspired by their legal rock stars while liberals are sent the message that theirs are outrageous?
The national debate about the courts has become so wildly unbalanced in recent years that a whole generation of young progressive law students has watched the teachers they revere sent up as constitutional buffoons. Whether it's Harold Koh (trashed in the media on phony charges of wanting to bring shariah law to the United States) or Goodwin Liu (torn apart with cartoonish claims that he wants to reshape all of America using the Constitution as his weapon of choice), these nominees are revered by their students precisely because they have been willing to talk and write in bold ways about liberal jurisprudence. That shouldn't be a disqualifying proposition, just as Justice Antonin Scalia's conservative jurisprudence was not.
Conservative judicial activists have been emboldened to take the position that any liberal who has ever offered a strong and persuasive defense of a nonoriginalist, nontextualist methodology is both dangerous and unserious. The lesson for many progressives is that the only way to be taken seriously as a viable nominee is to be either perfectly opaque or perfectly silent. I don't know how many times you need to see your heroes lampooned as crazies on Fox News before you begin to see the value in never speaking or writing another controversial word. It's not clear how it serves the country or the judiciary to have one whole side of the debate grow up cowed and embarrassed to voice their views.
Goodwin Liu faces a brutal confirmation fight tomorrow precisely because he's been brave enough to speak openly about how he thinks about the Constitution. Strip away the hysteria and distortions, and that's all he represents: a voice on one side of a centuries-long debate about how to interpret that document. Tom Goldstein (him again!) put it well when he wrote, before Liu's last (scuttled) hearing:
If Liu's opponents succeed, it is hard to see why the president would later nominate or the Senate would confirm any candidate who openly embraces the long-prevailing view that the Constitution is written in broad terms precisely in order to account for the varied problems that a huge and dynamic country would confront over the centuries. The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.