To look at him now, one would never suspect California Supreme Court Justice Goodwin Liu was the failed federal appeals court nominee tarred by some Republican senators as a radical who wanted to make America more like “communist-run China.” After the Senate filibustered his Ninth Circuit nomination, Liu was snapped up by Gov. Jerry Brown to join the California Supreme Court, where he has already developed a record of striving for unanimity with his Republican-appointed colleagues. The Los Angeles Times explains:
During his first year on the California Supreme Court, the failed nominee for the U.S. 9th Circuit Court of Appeals has been anything but extreme. He has affirmed the death penalty 21 times, joining the majority in all the capital cases he considered and writing two of the affirmances himself. He has favored limiting the reach of the court on such matters as redistricting and bowing to the authority of the Legislature in a dispute over a wage law.
Although it’s still too early to assess the kind of judge Liu will become, the former board member of an ACLU chapter has blended easily with the six other judges, all Republican appointees. “A paragon of judicial restraint,” opined Santa Clara University law professor Gerald Uelmen in describing Liu’s early record. […]
If you asked the prominent legal figures from across the ideological spectrum who backed Liu’s nomination from the start, they never doubted that Liu would be the careful and rigorous jurist who follows the law as it is and not as he wishes it could be. Former Clinton inquisitor Ken Starr called Liu an “extraordinarily qualified nominee,” torture memo author John Yoo called him “very well qualified,” and Goldwater Institute lawyer Clint Bollock said he “clearly possesses the scholarly experience and credentials to serve with distinction on this important court.”
But the young and brilliant U.C. Berkeley legal scholar — a potential U.S. Supreme Court pick — could not overcome the bitter Republican obstruction that has come to characterize the judicial nominations process since President Obama took office, enduring 18 months of waiting and two lengthy Senate Judiciary Committee hearings during which his academic writings were picked apart and distorted.
The federal courts’ loss is the California Supreme Court’s gain, and what Justice Liu’s record has shown is that alarm bells about Liu’s alleged extreme views were entirely without merit. Liu’s failed nomination stood for the disheartening proposition that anyone who produced a breadth of scholarship or criticized a public official was putting their federal judicial future at risk, and that those best positioned to be nominated to federal courts would have to refrain from ever publicly offering their opinions.
Fortunately, Liu has also demonstrated that there is still a place on the bench for those who speak frequently and openly. Contrast the California vetting process to the one Liu experienced on the federal appeals court. Gov. Brown came to Liu because he wanted to put a major intellectual on the court. And when he approached him to discuss his candidacy, they didn’t discuss his policy preferences on issues like abortion and affirmative action. Brown instead probed Liu on his philosophical approach to the law, raising English philosopher John Locke and the French social commentator Montesquieu.
Reflecting on his experience as a justice, Liu told the Los Angeles Times this week, “There are plenty of cases I wish could come out a different way, but they are not going to because the law compels a different result.”