Jerry Brown’s political past was clouded for many reasons. Chief among them was his appointment of Rose Bird as Chief Justice of the California Supreme Court. She was not reconfirmed to a new term by voters. In essence, she was kicked out of office. She earned that distinction because she literally refused to follow the law. By appointing the unqualified Goodwin Liu to the Supreme Court, Jerry Brown now has one more Bird of a feather.
Brown believes Liu is qualified to sit on the highest Court in the state because he is “a distinguished legal scholar and teacher. He is a nationally recognized expert on constitutional law and has experience in private practice, government service and in the academic community.” Notice what’s missing? He has never been a judge.
Would you put someone in charge of a hospital’s surgery department to operate on you who has never practiced surgery – even for a day? I wouldn’t and I also wouldn’t appoint someone to the highest Court in the state ahead of others who are far, far more qualified. Indeed, Liu is not qualified for the highest Court in the state – maybe a County Superior Court – but not the Supreme Court.
Liu’s lack of qualifications, however, hardly begin to tell the full story. Liu has stated that “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 light of the concerns, conditions, and evolving norms of our society.” In no uncertain terms, that is the theory of a living Constitution – a document that evolves with time.
I believe, as US Supreme Court Justice Scalia does, that the US Constitution is not alive. As Scalia pointed out: It is a document. It has writing on it and “It says some things and doesn’t say others.”
It should be interpreted as it was written. If the public thinks that it is inadequate, then through the amendment process it can be changed. Judges, however, should not bring it to life and change its meaning. For those that think they should, I recommend they take their mortgage down to BofA or Wells Fargo and tell them that times have evolved, that they don’t want $2,500 to mean $2,500 anymore. Now they want it to mean $1,400. Even in today’s world of bailouts, that is likely not to work. Liu believes the meaning of the document does change – he even goes so far as to encourage the consideration of foreign laws to interpret our laws.
The problem with that is that no one can ever know which foreign laws to consider – nor which norms have changed and in whose mind. In practice, such moving gray areas of thought mean that legal process becomes uncertain. Such uncertainty is an open invitation for lawyers and plaintiffs to file lawsuits – after all, it’s worth a try even if a statute says otherwise – and that drives up litigation costs, the costs of doing business in this state and the cost to employ people in this state.
Now, last I checked, California was already an uninviting place for employers and employees – unless they are from law firms. As a lawyer who represents small businesses, I can tell you that the cost of litigation is a big concern and evolving norms will only make things worse.
In the final analysis, we were founded as a nation of laws – not men. While it is true that certain men interpret those laws – it should only be qualified men who do so at the Supreme Court level. They should refer only to our laws – as written – not as they would like them to be or think they have become. Goodwin Liu doesn’t think that way – neither did Rose Bird and that’s precisely why Brown picked them.