California Gov. Jerry Brown just nominated Berkeley Law Professor and former Ninth Circuit nominee Goodwin Liu to a seat on the California Supreme Court. Liu, a former law clerk to Justice Ruth Bader Ginsburg and one of the nation’s leading constitutional scholars, was the subject of a blistering smear campaign by conservatives determined to prevent Obama’s youngest and one of his most talented nominees from becoming a judge:
Yet if you spent just a few minutes listening to Liu’s opponents, you would think he was the second coming of Mao Tse-tung. Sen. Chuck Grassley (R-IA) literally accused Liu of wanting to make America more like “communist-run China.” Other senators fixated on a pair of law review articles Liu wrote as proof that Liu would use a position on the federal bench to create all kinds of new welfare programs and somehow seize control of America’s schools. […]
[T]he suggestion that Liu would somehow create massive new welfare programs by judicial fiat stems from an article where he actually called for the opposite. That article explicitly calls for “legislative supremacy” in defining the scope of welfare rights, and it explains that it would have been utterly inappropriate for the courts to second-guess Congress’s decision to roll back welfare rights in its 1996 welfare reform law.
Liu’s article also explains that the Constitution provides certain protections that ensure fair and equal access to welfare—but this view is shared by conservative Justice Antonin Scalia. Scalia joined the Supreme Court’s decision in Saenz v. Roe, which struck down a California law on constitutional grounds because it denied some California residents a portion of their welfare benefits. In other words, if Liu’s stance on constitutional welfare rights disqualifies him from the federal bench, it also disqualifies Scalia.
Brown’s nomination of Liu will almost certainly receive the same drummed-up outrage from the right that his nomination to the federal bench triggered, but conservatives will likely be unable to obstruct Liu from taking a seat on the state supreme court. Under the California Constitution, Liu’s nomination must be confirmed by a Commission on Judicial Appointments that includes the Chief Justice, the Attorney General and a sitting court of appeals judge. Given Liu’s sterling legal credentials, this commission will have a tough time finding objectionable in Liu’s record.
It’s worth noting, however, that Liu’s appointment is only temporary unless it is confirmed by the electorate in the next general election. So there is a very real risk that wealthy right-wing interest groups will try to buy Liu’s seat on the state Supreme Court with attack ads and other campaign funding just like they dumped money into similar efforts in Wisconsin and Iowa.