Listening to the Senate Judiciary Committee grill appellate court nominee Goodwin Liu this morning takes me back to my days at Yale Law School where Liu also earned his JD.
What one recalls is the disastrous turn that liberalism took in this country when it decided that what it could not win politically it would try to win in court. At Yale this meant lots of terms like “dialectical tension” between the judicial branch and the legislative branch or a call for an “ongoing dialogue” between the courts and the political branches.
Similar language is sprinkled throughout Liu’s academic work as became clear in the hearing today as one senator after another tripped over the word “dialectical.” I have not heard the term so often since my days at Berkeley! Of course this rhetoric is not an attempt to revive Marx and Engels.
What it really means is that the liberal wing of the left which emerged in the New Deal era (the period when Yale Law first had real national impact) and in the heyday of social welfare expansion in the 60s (when Yalies again had a national presence) had to flee a new radicalism, independent of the dominant political parties, that emerged from below among workers, students, civil rights activists, and peace activists.
This radicalism threatened to restructure American society in very deep ways and the liberal left feared its power. In response the liberal wing of American politics devised complex regulatory schemes to coopt and channel these movements. The Wagner Act was a classic example as the work of Karl Klare and Katherine Stone has demonstrated. It endorsed union recognition and thus gave a huge boost to unionization of industrial America but it also tangled independent workers activity into a complex legal process that greatly contributed to the bureaucratization of trade unionism.
The right complained bitterly in both eras about what they saw as an intrusive role for the federal government but the liberals were, in fact, “saving capitalism from the capitalists,” for lack of a better phrase. Certainly the mixed economy which emerged over time was not really true free market capitalism but the reforms took the wind out of the sails of the powerful movements from below that argued for a thorough democratization of society in both the political and economic realms.
Yale Law School excels at instilling this liberal approach to law and policy in its students. And Liu is a classic example. His right wing opponents are absolutely right that he supports activist judges, but he does so only to save the system. And that is why some very smart conservatives, like Ken Starr, actually heartily endorse Liu. They see his value to the system as a whole.
In particular, Liu and other liberal figures like the new Supreme Court Justice Sonia Sotomayor, Liu’s Berkeley colleague Chris Edley or his Stanford colleague Linda Darling-Hammond are advocates of multiculturalism and race-based approaches to social welfare and education policy because they view the racial and ethnic divisions in the US as fixed and thus inevitably divisive. This is a sign of course of another instance where liberalism has veered away from its once deeply held commitment to racial integration and intellectual pluralism.
Liu et. al serve as advocates of one side of the multicultural debate, and go out of their way to disrupt and oppose those who stand in their way (as Liu and Darling-Hammond did a few years ago when they showed up at a conference at the last minute and proceeded to try to lead an impromptu walkout during a speech on the need for reform of California higher education).
The sad aspect of this is to watch yet again liberalism fail its professed values. On questions of war, human rights and economic policy, and now clearly with respect to judicial appointments, the Obama Administration is clearly suffering from the Yale Law Disease. The courts are a troubling and usually inappropriate venue for leading even needed social change. But the multiculti crowd insists that it is there that such change should take place. Liu will likely get confirmed, as did Sotomayor before him, and the left will once again be channeling its energy into saving the system from itself.