Sen. Feinstein Dodges Question on Controversial Obama Nominee Goodwin Liu

By Matt Cover | May 18, 2011 | 5:03 PM EDT

Sen. Dianne Feinstein (D-Calif.) ( Starr)

( – Senator Dianne Feinstein (D-Calif.), a senior member of the Senate Judiciary Committee, dodged a question about the controversial writings of Goodwin Liu, who was nominated by President Barack Obama to the Ninth Circuit Court of Appeals last year. Feinstein instead said that Liu indicated that he understands the difference between being an advocate and a judge.

To serve on the court, Liu must be confirmed by the Senate. At the Capitol on Wednesday, asked Sen. Feinstein, “In a 2008 law review article Professor Liu argued that there was a constitutional right to welfare – what he called a ‘judicial recognition of welfare rights’ – do you agree with him that there’s a constitutional right to welfare?”

Feinstein did not directly answer the question, but instead said that Liu had assured her that he knew the difference between being an academic and a judge.

“Here’s how I understand the situation with Professor Liu,” said Feinstein. “He has written that -- that’s true, several things. He has written it from the perspective of a university professor as opposed to a judicial appointment.”

“I think you would find a very different Goodwin Liu as an appellate court judge,” she said.

Liu, a law professor and associate dean of the University of California-Berkeley School of Law, wrote in a 2008 law review article that courts should seek to define “welfare rights,” which he described as “an affirmative constitutional right to particular social goods such as ‘education, shelter, subsistence, health care and the like, or to the money these things cost.’”

In arguing for the judicial establishment of alleged “welfare rights,” Liu rejects any “transcendent moral principles” in favor of  “socially situated” ways of thinking, he states in the article. Liu argues that courts should use prevailing social norms instead of consistent moral principles when creating new welfare rights.

Goodwin Liu

“My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society,” Liu wrote. asked Sen. Feinstein whether Liu had repudiated his views on welfare rights in becoming the “very different Goodwin Liu” she had described. Feinstein answered by saying the Liu had made clear he knew the difference between being an academic and a judge.

“He’s [Liu] made a defined indication to me that he understands the difference between an advocate and a [judge],” said Feinstein. “What he’s said is that he would be judicious and I believe he will. I think he’s one of the brightest legal scholars in this country.”

Liu’s nomination to the Ninth Circuit Court of Appeals is scheduled to come before the Senate for a vote on Thursday, May 19.