Goodwin Liu lived through 15 months of pummeling by U.S. Senate Republicans before asking President Barack Obama to withdraw his nomination to the 9th U.S. Circuit Court of Appeals.
In the Senate battle more than two years ago, Liu endured two grueling Judiciary Committee hearings and reams of Republican criticism that he was an extreme ideologue unfit for the bench.
None of what the University of California, Berkeley, law professor experienced in that highly public Senate drubbing or in any other job application process prepared him for the two interviews he had with Jerry Brown as the governor considered him for the California Supreme Court in 2011.
The Democratic governor “was interested in discussing the theoretical underpinnings of our legal system – social contract, natural law, positive law – and he was totally conversant in these deep topics,” Liu told me in a recent chat in his office.
While Liu found Brown an engaging man with a tremendous intellect, he said nothing led him to think Brown would name him to the state’s highest court. After both interviews, Liu went home and told his wife: “I’m not getting the job.”
But months later, Brown called Liu to say he was appointing him.
Looking back at the hearing by the state’s three-member Commission on Judicial Appointments that confirmed Liu’s nomination, the Sacramento-reared jurist characterized the discourse as respectful and rigorous. He added: “I didn’t know a lot about the California system before going through it, but it was certainly interesting to see that a judicial confirmation process can be swift, thorough and nonpartisan.”
Liu’s interviews with Brown occurred upon his return to his law school position after Senate Republicans succeeded in squashing Obama’s nomination of Liu to the San Francisco-based court of appeals.
This turnaround in Liu’s life – losing one judgeship and quickly winning another – has a Hollywood-script feel to it as if it happened in a movie but wouldn’t occur in real life.
Now, two years after Brown appointed Liu, court watchers view the 42-year-old jurist as a moderate liberal – nothing akin to the left-wing extremist that the GOP painted him to be. The only Democrat on the state’s highest court, Liu wins praise for his scholarship and his capacity to weigh all sides of an issue. In speeches, he says he wants to see a society where all people can thrive.
“I wouldn’t call him a firebrand liberal: On the court, he just about anchors the liberal side, but that is not saying a lot because the court on the whole is rather a conservative court,” said Gerald Uelmen, a University of Santa Clara School of Law professor who is widely regarded as the foremost analyst of decisions handed down by the seven-member California Supreme Court.
“In terms of the quality of his work, I am really impressed. He displays a very independent streak. His opinions are very well thought out and well reasoned.”
Bob Egelko, a legal affairs reporter who has followed the court closely for decades, said, “Liu is a pragmatic, moderate liberal. I think his dissents come within the ideological boundaries of this court, which is an institution that in general moves incrementally.”
The court that Liu joined agrees most of the time: In the past year, from July 1, 2012, to June 30, 2013, 80 percent of the court’s rulings were unanimous, Uelmen said. Like his fellow justices, Liu voted to uphold the death penalty in the vast number of capital punishment cases that came before the court. That sets him apart from Brown’s most controversial judicial appointment – Chief Justice Rose Bird – which he made decades ago during his first term as governor. Voters removed Bird from office in 1986 after she refused to affirm any death penalty conviction that came before the court.
Since Liu joined the court, it has decided 47 capital punishment cases, affirming the death judgment in 42 cases and voting unanimously to reverse in five others. In all but three instances, Liu agreed with the outcome: In one he recused himself, and in two others he dissented.
As for Liu’s record, he has a higher dissent rate on criminal cases than he does on civil cases, Uelmen said.
In one criminal case in which Liu dissented, the court held that a police officer who discovers the passenger in the front seat of a car is on parole may search “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stored (items) when aware of police activity.” Liu’s dissent stated: “This holding is unduly broad. After today, a commuter who picks up a rider in a casual carpool … and is stopped for speeding may be subject to a search of all open areas of the car’s passenger compartment if an officer learns that the rider is on parole.”
Another Liu dissent came in a case where the court held that although a trial judge failed to instruct a jury about reasonable doubt, it was harmless error because “there was no reasonable probability that the outcome” would have been any different had the instruction been given. Liu’s dissent stated: “Until today, no California case has ever held or even suggested that despite a trial court’s failure to instruct the jury with a standard reasonable doubt instruction … an appellate court can still be certain beyond a reasonable doubt that the jury understood its obligation.”
Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, which advocates for crime victims’ rights, said: “Nothing about Liu’s record on the state Supreme Court in any way refutes the fears expressed when he was nominated to the 9th Circuit.”
“The way he is behaving is not necessarily how he would have behaved on the 9th Circuit, which is much more defendant-oriented,” Scheidegger said. “There would have been a lot more cases there where one vote would have determined a case’s outcome.”
The son of immigrant Taiwanese physicians, Liu began his path to the state’s highest court in Sacramento. He attended public schools and graduated from Rio Americano High School. Kids sometimes laughed at him for “having Chinese hair – spiky with cowlicks,” and when his mother put a container of fried rice noodles in his lunch box, kids would ask, “Eeew, what’s that?”
Talking to me about what being Asian American has meant to him, Liu said: “It gives me a little window into what it feels for people to be outsiders. Being Asian American is a small window into understanding the nature of difference and how it can limit the aspirations people have.”
In speeches, Liu emphasizes he doesn’t want to see anyone’s aspirations curtailed. He admits he has made mistakes in life but says the conclusion never should be “don’t take risks.”
In a commencement speech to the University of Southern California’s School of Law graduates last year, Liu said: “Maybe when your generation’s epitaph is written, it will say you put an end to global warming … reformed our schools and educated our neediest kids. … You expanded peace throughout the world. … You helped everyone get a fair shot at the American dream. Those are my hopes and dreams for you and for all of us, and I do believe those hopes and dreams are within your reach.”
In his own life, Liu achieved spectacular success in the realm of academia. He obtained an undergraduate biology degree at Stanford; after that, he deferred his acceptance to medical school at the University of California, San Francisco, and spent two years at Oxford as a Rhodes Scholar, earning a master’s degree in philosophy and physiology. At Oxford, he realized he wanted to study law, and in 1998 he graduated from Yale Law School. In 2003, Liu joined the faculty at the University of California, Berkeley, School of Law where he won UC Berkeley’s Distinguished Teaching Award.
In 2010, Obama nominated him for a position on the 9th Circuit, and Republicans went on the attack.
“Most of my career had been in academia, and I left behind a paper trail that, shall we say, was a target-rich environment,” Liu told the USC law school graduates. He had promoted equal opportunities for poor people and minorities, and supported affirmative action and same-sex marriage.
Perhaps, in the eyes of Republicans, his biggest sin was that he testified at a Senate hearing against President George W. Bush’s appointment of Samuel Alito to the U.S. Supreme Court, warning Alito would be extremely conservative. Alito won confirmation, and some analysts see the GOP’s rejection of Liu’s appointment as payback for Liu’s testimony. Another theory is that the GOP was slamming Democrats for rejecting earlier nominees who were well qualified but also conservative. Others say the GOP didn’t want a bright, liberal Asian on a federal appeals court where he might stand a good chance of being nominated to be the U.S. Supreme Court’s first Asian American justice.
From time to time, Liu, who in 2009 co-wrote a book on the U.S. Constitution, talks about the experience he had with the Senate. In a speech in February, Liu said he thought the framers of the Constitution intended the Senate confirmation process to be political. But, he added, his real problem was with the Senate requiring 60 votes just to allow a vote on a nominee.
Liu said he did not believe that practice reflects the intent of the framers; the Constitution specifies whenever more than a majority vote is required – to approve a treaty, for example. The Constitution contains no such specification regarding Senate votes on presidential nominees.
“Historically,” Liu told me, “senators of both parties have recognized that majority rule is the default unless the Constitution states otherwise. But in recent times, senators of both parties have ignored this principle when faced with a nominee they don’t like. It’s a vicious cycle that, for the sake of the judiciary, needs a lasting solution.”
Susan Sward is a San Francisco writer whose career in journalism has included coverage of court battles over environment, crime and social issues.