At this hour, the U.S. Senate is meeting in executive session to debate the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.

If Liu’s supporters are able to muster 60 votes in favor of cloture, which is scheduled to be voted on around 2:00pm ET, this will end the threatened filibuster and result in an up-or-down vote on the nomination itself.

The situation does not look promising for Professor Liu, as three key senators who believe that filibusters should be rare—John McCain (R-Ariz.), Lindsey Graham (R-S.C.), and Johnny Isakson (R-Ga.)—have said they will vote to extend debate indefinitely, thus filibustering the nomination.

After the jump, I discuss the controversial video of Liu speaking at one of our events, and what role it does (and should) play in his nomination.

What is our role in the controversy surrounding Liu’s nomination?

Conservative opponents of Liu’s nomination argue that his academic writings suggest that his judicial philosophy as an appellate judge would be too liberal, that he would espouse an activist judicial philosophy. They also argue that his career has been spent largely in academia, and that his practical legal experience has been limited.

Liu’s supporters, on the other hand, contend that Liu’s legal views are solidly within the mainstream of his profession and that his experience more than qualifies him to serve on a federal appeals court. It has also been suggested that both sides are anticipating that Liu would be a promising candidate for the Supreme Court.

Perhaps the most incendiary issue to come up, however, has been Goodwin Liu’s appearance on a panel following a screening of our PBS documentary, Traces of the Trade: A Story from the Deep North, in Washington, D.C. in 2008.

For instance, the video of Liu’s remarks at our event was the subject of a post by Ed Whelan at the National Review Online last year as the Senate was beginning to consider the nomination. In that post, Whelan argued that Liu was endorsing a “grandiose reparations project” that would necessarily entail racial quotas. Whelan also argued that what he considered to be Liu’s “grievance-mongering” ignores the “innocent victims of racial preferences,” by which Whelan apparently means those who benefit, without having done anything wrong themselves, from past and present racial discrimination.

Just yesterday, the video of our event resurfaced at Andrew Breitbart’s Breitbart.tv, where it was called a “new video” which “could be a devastating blow to Mr. Liu’s nomination.” The video and the accompanying suggestion that Professor Liu endorses reparations for slavery was immediately picked up by such outlets as Weasel Zippers.

Meanwhile, the conservative blog Verum Serum opined yesterday that Liu’s views on reparations, as shown in the video of our panel, more than anything else ought to disqualify him from serving on the federal bench.

Here is the video in question and in context. The video shows remarks by, first, Ambassador James Joseph, and, second, by Professor Liu. They are speaking as part of a panel moderated by Judy Woodruff and Charles Ogletree (who addresses questions to the panelists in this clip). The panelists are responding to a screening of our documentary about our slave-trading family from New England, Traces of the Trade: A Story from the Deep North.

Should this really be controversial?

There’s no question that, in the U.S. context, any mention of “reparations” for slavery is highly controversial. The same is true of any other explicit discussion of repairing the lingering damage done by our long, shared history of slavery and racial discrimination.

Why is this topic so controversial? One reason is exactly the one which Liu discusses, in an analytical, professorial manner,  in this video: that any effort to redress the disadvantaged position in which many of our citizens find themselves will necessarily entail a loss to others. That loss would, at least in the aggregate, be no more than the loss of unearned privilege, the loss of benefits derived from this history to which no one is entitled. Yet, of course, our society is convinced that everything that any one of us has is rightfully theirs, not just in the sense of stability of property rights, but in the sense that each of us deserves what we have.

It is very difficult for most American citizens to confront the simple reality that, if millions of American families were deprived of much during slavery and Jim Crow, then millions of other families benefited enormously from that history. Just as no one has ever given the first group their “forty acres and a mule,” no one has ever deprived the second group of their unearned benefits. It isn’t at all obvious that these benefits should now, after all this time, be taken away, and it’s important to note that no one alive today asked to be given these benefits. However, these undeserved privileges exist nevertheless, distributed among all Americans to varying degrees, and it would not be possible to remedy this history (providing equal access to education, housing, and jobs, for instance) without tampering with these unearned benefits.

This, of course, is precisely what Liu was pointing out in his remarks, which clearly do not endorse reparations for slavery, but rather seem to take for granted that a national conversation needs to be had on remedying the past. In fact, in this video, Liu seems to be honestly and sympathetically assessing what the cost would be to the innocent beneficiaries of this history of redressing the past.

Liu does suggest quite clearly that we ought to have a conversation in this country about giving up some of our collective, unearned privileges in order to address the disadvantages still faced by millions of citizens as a result of the same history which gave rise to those privileges.

It is, of course, possible to argue that no one ought to be asked to give up anything, even if what they have is unearned and necessary to remedying the wrongs which brought them these benefits in the first place. But this is not an unreasonable conversation for the nation to engage in, and the request of millions of American families to be free, after all these generations, from the consequences of a nation’s slavery and discrimination is not something which can simply be dismissed with the wave of a hand.

Leave a Reply