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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  April 20, 2010
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Topic category:  Government/Politics

Dump Goodwin Liu and His Humpty Dumpty Judicial Approach

Liu really presents unfaithfulness as faithfulness. He has no need for the prescribed procedure for amending the Constitution. Instead, he would use Humpty Dumpty jurisprudence to revise the Constitution and laws under the guise of interpretation.

President Obama nominated radical Goodwin Liu for a seat of the United States Court of Appeals for the Ninth Circuit.

Why hasn't Liu followed the example of failed Obama nominee Dawn Johnson and withdrawn his nomination? Even if we very generously attribute his failure to provide more than 100 items requested by the Senate Judiciary Committee to oversight, why didn't he withdraw his name from consideration after his confirmation hearing last Friday?

Edward Whelan, president of the Ethics and Public Policy Center, in posts at National Review Online's Bench Memos, prompted exposed Liu as unfit, by pointing out that Lie's dismissal of his own writings on law as irrelevant was ludicrous (very punny) and his Chief Justice Roberts impersonation as incredible.

Whelan:

"Letís start with Liuís remarkable claim that 'whatever I may have written in the books and in the articles would have no bearing on my role as a judge.'

"Letís put this claim in context.

"The one book that Liu has written (or, more precisely, co-authored) is Keeping Faith with the Constitution....the stated purpose of Keeping Faith is to 'describe and defend' a 'dynamic process of [constitutional] interpretation' that Liu labels 'constitutional fidelity.' 'Interpreting the Constitution,' he argues, 'requires adaptation of its broad principles to the conditions and challenges faced by successive generationsĒ (emphasis added). His interpretive approach draws on a variety of considerations: original understandings, 'the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society.' Such an approach, he asserts, is 'richer than originalism or strict construction, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nationís founding.' Indeed, he claims, his approach 'is what enables the American people to keep faith with the Constitution from one generation to the next.' (p. 2)

"In chapter two of Keeping Faithótitled 'Judicial Interpretation of the Constitution'óLiu makes clear his view that judges should adopt the interpretive approach that he is 'describ[ing] and defend[ing]':

Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society. [p. 25]

I wonít repeat my critique of Liuís book here. For present purposes, my question instead is how Liu can plausibly maintain that an interpretive approach that he believes is 'require[d]'ówhich, indeed, he believes is essential to 'enable[] the American people to keep faith with the Constitution from one generation to the next' 'would have no bearing on [his] role as a judge.' The contention is simply ludicrous."

It sure is! It is also an insult to our intelligence.

Liu really presents unfaithfulness as faithfulness. He has no need for the prescribed procedure for amending the Constitution. Instead, he would use Humpty Dumpty jurisprudence to revise the Constitution and laws under the guise of interpretation.

Lewis Carroll, Through the Looking Glass, chapter 6:

Humpty Dumpty: "As I was saying, that seems to be done right -- though I haven't time to look it over thoroughly just now -- and that shows that there are three hundred and sixty-four days when you might get un-birthday presents -- '

"'Certainly,' said Alice.

"'And only one for birthday presents, you know. There's glory for you!'

"'I don't know what you mean by "glory,"' Alice said.

"Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!'''

"'But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

"'When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean so many different things.'

"'The question is,' said Humpty Dumpty, 'which is to be master - - that's all.'"

The Constitution is supposed to be the master. A judge swears (or affirms) to uphold the Constitution, not to revise it.

Whelan:

"In his hearing testimony...Ninth Circuit nominee Goodwin Liu tried to sound like Chief Justice Roberts, as he even paraphrased Robertsís umpire analogy:

I think the role of the judge is to be an impartial, objective and neutral arbiter of specific cases and controversies that come before him or her. And the way that that process works is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations that are at issue in the case.

"But in his book Keeping Faith with the Constitution, Liu expressed a very different view. There, quoting Robertsís umpire analogy, he argued that it did 'not withstand scrutiny':

Ironically, the significance of Chief Justice Robertsís baseball analogy is exactly the opposite of what he intended. Just as baseball players and many fans know that umpires over time have interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context. [p. 28 (emphasis added)]

"Somehow all of Liuís previous talk of judicial 'attention to evolving social context' seems to have disappeared."

Liu should have the grace to "disappear" too.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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