Oversimplifying the Bench — Again

Yesterday, Politico purported to cover a “controversy” over Goodwin Liu, a young, brilliant law professor recently appointed by President Obama to the Ninth Circuit. The appointment, of course, is stalled, because to the Republican Party, nothing — not staffing the TSA, or filling the federal bench — could possibly be as important as revitalizing the flagging culture wars.

I say “purported” because, throughout a three page article covering the issue, we learn nothing about the man at the center of it, Goodwin Liu, what his legal philosophy is, and why it’s controversial enough to spawn a legitimate controversy, nor are we linked to resources that we can investigate, to form our own opinions. Instead, we hear simply that Liu has made “incendiary statements on issues such as affirmative action, school busing and constitutional welfare rights.” But any statement on these issues is a fortiori “incendiary.” Especially when framed as such. This is the Politico metareporting style at its finest — assume a story, and report on the fallout, thus depriving the audience of the right to make a choice about whether to care, and whether those who do care ought to, as well.

We might forgive this practice elsewhere, but when it comes to the federal bench, it’s an especially grievous dereliction of duty. Judicial issues uniquely lend themselves to mischaracterization. The issue of “welfare rights,” which Liu is apparently accused of defending, presents the paradigmatic case. To nonlawyers, combining the word “welfare” with “rights” triggers concerns about the overextension of the welfare state, and suggests a failure to incentivize productive behavior (layman’s terms: “GET A JOB!”). To even a first-year law student, though, the question is more complicated, presenting a valid and vital field of research. Legally, the question of “welfare rights” is never whether or how to imply entitlements: it’s how, and when, an extant entitlement can be extinguished. This isn’t a political question; it’s a constitutional one, and there’s no real argument that it’s not. Basic procedural due process requires some form of notice and review before any vested right can be revoked. See Mathews v. Eldridge, 424 U.S. 319 (1976).

Politico surely has a staff of lawyers. At least, they must, to sue all the small-time bloggers who use names that sound like theirs. So they’re able to look in to exactly what Liu has written, and tell their audience whether this a real controversy, or a made up one. They just don’t care to do so, because that’s not the point of their publication, and in fact, it’s not the point of any right-wing attacks on prominent jurists. Responsible inquiry is the enemy of the knee-jerk reaction upon which the Republican Party now relies.

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