Later today, California’s Commission on Judicial Appointments will hold a two-hour hearing on the nomination of Goodwin Liu to the state supreme court. Goodwin is widely expected to be confirmed shortly thereafter.
Goodwin’s ascension to his state’s highest court will end an 18 month saga that began when President Obama nominated him to a federal appellate judgeship on the basis of his widespread support throughout the legal community — including numerous leading conservatives. Clinton inquisitor Ken Starr called Goodwin an “extraordinarily qualified nominee” who will serve as a judge “with great distinction.” Torture memo author John Yoo called Goodwin a “very well qualified” nominee who will be a “good judge on the bench.”
But Goodwin is also very young. And brilliant. And a former Supreme Court clerk. Senate Republicans soon envisioned a future where the Judge Liu of 2010 became the Justice Liu of 2014, and they began combing through Goodwin’s prolific scholarship searching for nuggets that could be taken out of context to discredit the nominee. Suddenly, Goodwin’s article disagreeing with a prominent liberal’s recipe for judicially-created welfare rights became proof that Goodwin actually supported a judicial takeover of welfare. An op-ed making the utterly banal point that a conservative interest group used the terms “free enterprise,”‘ “private ownership of property,” and “limited government” as code words for an ideological agenda became proof that he wants to turn America into “Communist-run China.”
As I wrote in the Los Angeles Times shortly after Goodwin withdrew his nomination, two heartbreaking lessons emerged from Goodwin’s failed confirmation:
Future presidents of both parties will learn that if they nominate someone with a body of published work — no matter how moderate — that work will inevitably contain out-of-context statements that can be used to embarrass the nominee and the White House. Thus, the lesson for presidents is clear: Don’t nominate anyone who actually has had something to say about the Constitution.
Brilliant young lawyers will learn equally harsh lessons: Keep your mouth shut, don’t write anything down and never, ever say anything critical of a powerful official, even if the criticism is true. Because presidents will no longer nominate anyone who speaks out, the brightest, most promising legal minds will learn to keep silent.
The truth, however, is that this has already happened. When I was halfway through my second year of law school, I wrote a law review note arguing that the Constitution guarantees all children a minimally adequate education. The piece won an award, but looking back at it now, many of its arguments are amateurish. Some of them fail to consider important veins of scholarship or lines of caselaw, and other parts lack a manageable limiting principle. In other words, it is exactly the kind of piece one would expect an inexperienced law student to produce as they were struggling to make sense of the rich complexity that is American constitutional law. I no longer agree with many of the arguments I wrote in that piece, but writing it and going through the very lengthy process of preparing it for publication was one of the formative periods in my legal education. It taught me how to write. It taught me how to make a difficult argument. And, in retrospect, it taught me that sometimes an argument that you desperately want to be true just isn’t going to work.
Shortly after I finished the first draft, a professor took me aside and told me not to publish the piece because, if I did, I would reveal the fact that I have political views and disqualify myself from ever serving in a Senate-confirmed position. I did not take his advice and I do not regret it, as I continue to believe that I am better off speaking openly than I am holding my tongue in the hopes that some day the President of the United States will tap me on the shoulder. The fact remains, however, that I had to choose when I was just 27 years old with no real experience in the legal profession whether I ever wanted to be a judge someday.
I know many people who were faced with the same decision and reached the opposite conclusion. A dear friend of mine chose not to apply for a job at a leading women’s rights organization because she was too scared of the future implications for her career. A talented colleague turned down an offer to do important research on corporate influence on the law because he was scared of leaving a paper trail. I myself once advised someone not to publish an article because I thought it would doom her in a future confirmation hearing. None of these people is over the age of 33.
I do not normally use my perch at ThinkProgress to vent my own career anxieties. Or refer to public figures that I know personally by their first names. Or write in the first person. I also don’t plan to make a habit of it. But the standard that now prevails in judicial confirmation fights — where a nominee is only as good as the most embarrassing statement that can be taken out of context and turned against them — is a cancer upon my profession. Everyone I know who works at the intersection of law and politics has been forced to decide whether to speak or keep silent at some point in their career, and a shockingly large number of them have learned to simply glue their mouths shut.
This is why Goodwin’s impending confirmation is such an important event. It is proof that someone who has spoken frequently and openly can still achieve the highest echelons of the legal profession. And it is proof that talented lawyers with dreams of judicial service do not need to hide themselves in corporate law firms laboring endlessly to never offend an important person. Our federal confirmations process remains deeply broken, but Justice Goodwin Liu will be a constant reminder that silence is not the only path to relevance.