Two days after President Barack Obama nominated Goodwin Liu, of Berkeley, to the 9th U.S. Circuit Court of Appeals, Republicans fired the first shot across his confirmation's bow.
"Instead of nominating an individual who has demonstrated an impartial commitment to following the Constitution and the rule of law, President Obama has selected someone far outside the mainstream of American jurisprudence," said U.S. Sen. Jeff Sessions, R-Ala., the Senate Judiciary Committee's ranking Republican. "Professor Liu believes that judges should look to 'evolving norms and social understandings' in interpreting the Constitution, he has a history of advocating for racial preferences, and he served on the board of the directors of the ACLU."
Sessions said he will withhold final judgment until a full, fair review of Liu's record is completed. "But it seems to me that his judicial philosophy does not respect the American ideal of judges as neutral arbiters of the law. I hope my initial impressions are wrong."
Given this and Republicans' record of stalling Obama's judicial nominees, Liu — professor and associate dean at UC Berkeley's Boalt Hall Law School — seems to have a rocky road ahead to this judicial seat.
One rung down
Based in San Francisco, the 9th U.S. Circuit Court of Appeals is the largest of the nation's 11 federal judicial circuits by far, hearing federal trial-court appeals for California, Nevada, Washington, Oregon, Alaska, Hawaii, Arizona, Idaho and Montana, plus the territories of Guam and the Northern Mariana Islands. Federal circuit appeals courts are extremely influential via the legal precedents they can set, one rung down the judicial ladder from the U.S. Supreme Court's ultimate authority.
At a glance, Liu's record seems sure to give conservatives a case of the vapors. A 39-year-old Democrat up for a lifetime seat on this powerful court, he chairs the progressive American Constitution Society's board of directors; he's a former member of the boards of the American Civil Liberties Union of Northern California and Chinese for Affirmative Action; and he served on the Obama-Biden Presidential Transition's education policy and agency review teams.
Some critics say Liu lacks experience: He earned his law degree only 12 years ago; spent three years as a law clerk and a Clinton-era Education Department official; worked in private practice for two years; and has been in academia ever since.
But that's not unprecedented. Alex Kozinski, a libertarian conservative who is now the 9th Circuit appeals court's chief judge, was 35 and only 10 years out of law school — including stints in the White House Counsel's Office and the U.S. Court of Federal Claims — when President Ronald Reagan nominated him to the bench in 1985.
As Sessions alluded, Liu cowrote a 2009 book describing a theory of "constitutional fidelity," which the authors say "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 order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society."
That doesn't sit well with conservative "originalists" who believe the Constitution must be interpreted according to how those who wrote or ratified the text would have done so at the time.
Yet Liu, who once told state lawmakers "the term 'judicial activism' is simply a shorthand that people use for any decision that they don't like," hasn't always toed a straight liberal line. For example, he co-authored a 2005 article touting school vouchers — anathema to many liberals — as a possible means of achieving desegregation.
"It took a great deal of courage and integrity for Prof. Liu and Mr. Taylor to take such a strong and public position," Clint Bolick, constitutional litigation director at the Goldwater Institute, a pro-privatization think tank in Phoenix, wrote in January to two Judiciary Committee Republicans in anticipation of Liu's nomination. "Having reviewed several of his academic writings, I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."
Attorney and former District of Columbia Councilman Kevin Chavous, whose school-choice advocacy has put him at odds with fellow Democrats in Congress and the White House, last week said he doesn't know Liu but recalled admiring the 2005 article. "He separated himself from the politics, and that is a risk-taking move "... He had to know that going in, but he did it anyway and I think that speaks a lot to his character," Chavous said. "Him taking that stand says a lot about him that I like, that you'd like to see in jurists."
James Guthrie, education policy studies director at the George W. Bush Institute in Dallas, said he and Liu served on a Gates Foundation-funded task force on school finance, trading papers and ideas over two years. Guthrie, who called himself "probably the most neoconservative member of that group," said he and Liu found common ground in probing whether the 14th Amendment's national-citizenry language could provide a foothold to overturn case law and equalize school funding among the states.
"I suppose in many ways we were ideologically opposed but not on this," Guthrie said. "On this one issue of national citizenship and using it for leverage for a national system of finance, he was really my partner on that, we worked hard together on it and I liked him. "... More than an ideologue, I think he's a pragmatist."
Prop. 8 views
Liu was among 59 California law professors who signed an October 2008 letter attesting that Proposition 8 — the constitutional amendment barring same-sex marriage — discriminates against gays and lesbians; wouldn't affect churches' tax exemptions; and wouldn't affect teaching or protection of parental rights already provided by state law.
But he didn't question its constitutionality: At a joint hearing of the Assembly and state Senate judiciary committees that same month, he predicted a state-court challenge to the measure would probably fail — which it eventually did — while a federal-court challenge probably would find more traction but ultimately be rejected by the U.S. Supreme Court. A federal case is still in progress before a judge in San Francisco.
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Goodwin Liu seems likely to get as good as he gave when he spoke against President George W. Bush's U.S. Supreme Court nominees.
He wrote a July 2005 article calling nominee John Roberts "a conservative thoroughbred" who'd had a legal career "studded with activities unfriendly to civil rights, abortion rights, and the environment."
"With remarkable consistency throughout his career, Roberts has applied his legal talent to further the cause of the far right. His activities and positions fit the profile of a social, political, and economic conservative and, importantly, not a judicial conservative," Liu wrote. And Liu testified to the Senate Judiciary Committee in January 2006 about Samuel Alito, who he said has "an exceptionally talented legal mind," but shows a "lack of skepticism toward government power that infringes on individual rights and liberties. ... In cases pitting individual rights against government power, Judge Alito's instincts are clear. He is at the margin of the judicial spectrum, not the mainstream."