Different Story This Time as Goodwin Liu Confirmed For California Supreme Court

It was a lengthy and protracted battle to nominate Goodwin Liu, a UC Berkeley Law Professor, to a seat on the Ninth Circuit Court of Appeals.  Ultimately he would lose, as Senate Republicans filibustered his nomination and he eventually withdrew.

“It has been a long journey for my family, and it has definitely ended with the most pleasant, enjoyable confirmation,” Mr. Liu said, who would marvel that the state process took “a mere 36 days,” whereas his federal nomination was bogged down by partisan fighting and rancor in the U.S. Senate for more than a year.

He will succeed Justice Carlos Moreno, who was the only Democratic appointee on the court that leans slightly to the right.

“Professor Liu is an extraordinary man and a distinguished legal scholar and teacher,” Governor Brown said in a press release upon his nomination. “He is a nationally-recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state supreme court.”

Prior to joining the Berkeley faculty in 2003, Liu was an appellate litigator in the Washington, D.C. office of the Los Angeles-based law firm O’Melveny & Myers. He previously clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and was special assistant to the Deputy Secretary at the U.S. Department of Education.

Liu was born in Georgia to parents who had emigrated from Taiwan, and in 1977 he moved with his family to Sacramento, where he attended public schools. He received a bachelor’s degree in biology from Stanford University and a master’s from Oxford University, where he was a Rhodes Scholar. Liu received his Juris Doctor (J.D.) degree from Yale Law School, where he was a member of the Yale Law Journal.

Two years ago he won the UC Berkeley Distinguished Teaching Award, the university’s most prestigious honor for excellence in teaching. Liu currently serves on the Board of Trustees of Stanford University and is former Chair of the Board of Directors of the American Constitution Society. He was elected to the American Law Institute and he is also on the boards of the National Women’s Law Center, the Public Welfare Foundation and the Alliance for Excellent Education. He and his wife, Ann O’Leary, have a daughter and a son.

Although U.S. Senate Republicans blocked his appointment to the federal bench, his nomination was supported by noted legal conservatives, including former Whitewater prosecutor Kenneth Starr; Richard Painter, who was legal counsel to President George W. Bush; and former Rep. Tom Campbell, now dean of Chapman University’s law school. Liu received a strong endorsement from the American Bar Association, and others supporting his nomination included the California Correctional Police Officers Association, the California Labor Federation, the Hispanic National Bar Association, the National Asian Pacific American Bar Association and the three most recent Presidents of Stanford University.

Back in March of 2010, 42 of California’s 58 District Attorneys, including Yolo County’s Jeff Reisig, signed a letter in opposition to Mr. Liu’s appointment to the Ninth Circuit Court of Appeal.

“For many years, our ability to enforce the law and protect the citizens of our jurisdictions has been hampered by erroneous decisions of the United States Court of Appeals for the Ninth Circuit. This court has been far out of the judicial mainstream, as indicated by its frequent and often summary reversal by the Supreme Court, at a rate far above the national average,” they wrote

They continued, “Despite the efforts of Congress to rein in the federal courts with the 1996 passage and subsequent amendment of the Antiterrorism and Effective Death Penalty Act, miscarriages of justice remain routine.”

It was the death penalty that these DA’s were particularly concerned with.

“This is particularly true in the most heinous of crimes, those where a jury has unanimously decided that only the death penalty is sufficient punishment,” they added.

They continue, “The paper written by Goodwin Liu in opposition to the nomination of Justice Samuel Alito shows that he would vote to reverse nearly every death sentence. He exaggerates minor issues in jury instructions that no one at trial thought were problems, while simultaneously brushing off the brutal facts of heinous crimes as inconsequential.”

They add the race card as well, “He jumps to the conclusion that prosecutors are guilty of racism on scant evidence and despite the considered judgment of the state trial court to the contrary. “

In short, they argue, “Professor Liu’s paper demonstrates beyond serious question that his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is.”

When Governor Brown appointed Mr. Liu to the California Supreme Court, law enforcement groups continued to oppose his appointment.

“While some are upset that a Hispanic was not nominated to fill Justice Moreno’s seat, the overriding issue for law-abiding Californians should be how Professor Liu views their safety, particularly when it comes to criminals,” said Michael Rushford, President of the Criminal Justice Legal Foundation.

At the heart of their concern was the 2007 paper that Mr. Liu wrote criticizing the appointment of Samuel Alito to the Supreme Court.

In the five cases selected by Professor Liu, Judge Alito voted to deny the convicted murderers’ claims in opinions which Professor Liu believed “. . .show a disturbing tendency to tolerate serious errors in capital proceedings.  They reveal troubling perspectives on federalism, race, and due process of law, and they have worrisome implications for the protection of individual liberties in the war on terror.”

A later analysis by the Criminal Justice Legal Foundation examined those death penalty cases and concluded that Professor Liu’s paper mischaracterized Judge Alito’s judgments in capital cases and reflected the Professor’s apparent willingness to “seize on every excuse to reverse a capital sentence and brush aside every reason to affirm one.”

Given this, it might surprise some that only one district attorney showed up at Mr. Liu’s nomination to the California Supreme Court – a body that will likely have a far more direct impact over the state’s death penalty than the federal court of appeals – and that was Alameda County DA Nancy O’Malley, who supported Liu.

As the San Francisco Chronicle Politics Blog asked on Thursday, “Where were the DA’s?”

Mr. Rushford told the Chronicle that the DA’s probably determined that they had no way to stop Mr. Liu’s confirmation and therefore “didn’t want to risk antagonizing the court’s newest justice.”

“I can’t speak for all the DA’s,” Mr. Rushford told the paper, but “we (the foundation) didn’t go in because it was a waste of time.” By testifying against a judicial candidate who’s certain to be confirmed, he said, “you’re kicking him on the way in the door, and he might remember it.”

A point that the Chronicle does not make is the changing landscape, especially in the last year, regarding the death penalty issue, particularly in California.

“The death penalty in California is broken and it is unfixable,” longtime death penalty supporter and practitioner Gil Garcetti, himself the former DA of Los Angeles County, said at a news conference announcing an initiative to end the death penalty and convert death sentences to life without parole.

Mr. Garcetti is not the only former supporter to have turned.  Don Heller helped write the death penalty initiative in the 1970s, and now he too has turned against it.

Mr. Heller said, “I wrote the death penalty initiative for Senator Briggs in 1977, it was passed in November 1978.  It’s a well-drafted document, except, it doesn’t work.  It’s flawed because the process has become so incredibly expensive that it cannot be remedied by any legitimate means.”

“Thirty-three years ago I made a mistake. Now we have the opportunity to fix that mistake and improve public safety,” Mr. Heller added.

The Stockton Record, of all papers, came out against the death penalty this week.  “The charade must end,” the paper said in an editorial.

“Nobody is going to argue that those on death row don’t deserve severe punishment,” the editorial continues.  “But victims’ families, friends and taxpayers shouldn’t be punished, too. And they are.”

“Pretending we have capital punishment when we don’t punishes the families and friends of victims. Paying for this charade punishes taxpayers,” they continue, concluding, “This must end.”

The Alarcon report suggests the state spends $184 million a year on death penalty cases and incarceration, and that taxpayers have spent more than $4 billion on capital punishment since it was reinstated in 1978. That translates to $308 million for each of the 13 executions carried out since then.

Perhaps the opposition to Mr. Liu simply did not think, in this climate, that their death penalty card would play as well as it did a year ago in the US Senate, where Republicans had more than enough support to stop his nomiation through filibuster.

On Thursday, Mr. Liu was sworn in.  Governor Brown called him “an individual who will exemplify the finest of scholarship and also the kind of character and temperament that brings people together.”

Governor Brown, reflecting on the struggle for civil rights in California, called Mr. Liu’s appointment “a real milestone.”

“Maybe our forebears, wherever they are, will turn over in their respective graves,” he said, “but also enjoy the progress that we’ve made, following in their footsteps, but not being held back by them.”

For some this will be another in a long line of controversial appointments for Governor Brown.  After his first tour as governor from 1975 to 1983, during which his appointees included Rose Bird and Cruz Reynoso, those appointees were removed from the bench due to their opposition to the death penalty.

—David M. Greenwald reporting

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