Liu on Judicial Usurpation of Legislative Power. 

In the following interview, Goodwin Liu, President Obama's nominee to the United States Court of Appeals for the Ninth Circuit, explains why judges exercising judicial power should not limit themselves to legislative texts.  The interview can be viewed here (the portion regarding Liu's Activist / "Progressive Jurisprudence" begins at the 1:54 mark).  A transcription of his selected remarks is as follows:

     "Conservatives have I think been remarkably successful in using language about strict construction of the Constitution or originalism as a way or reading the Constitution to try to reduce constitutional interpretation, and adjudication more generally, into something formulaic and mechanical that you can hold judges accountable for."

     "I think that’s nice in theory, but the reality is every judge really knows, and every lawyer really knows, is that the job of courts really involves fundamentally acts of judgment, especially in the hard cases.  And how do people come at their judgments?  Well, I think they, in our system, they’ve come at it through a variety of ways that, over time, represents the gradual accretion of precedent, of principal, lessons learned from experience and an awareness of the evolving norms and social understandings of our country."

     "And I think that to say that all we do is we look at the text and we read the words literally, or all we do is we look at the text and ask how did the people in 1789 or the people in 1868 understand it – that I think misses an entire range of experience that the nation has itself learned and that judges can rightly take into account in reading legal principles and legal text."

     "So I would hope that the Obama administration would appoint judges who are broad minded in their view of the kinds of sources that are legitimate to take into account in reading especially the Constitution but broadly legal texts of all sorts."