Gov. Jerry Brown appoints Goodwin Liu to California Supreme Court

Reporting from San Francisco and Los Angeles -- Gov. Jerry Brown has appointed UC Berkeley law professor Goodwin Liu to the California Supreme Court, picking a liberal legal scholar whose nomination for a seat on a federal appeals court was stubbornly blocked by conservative Republicans.

Liu, 40, whose nomination is expected to be approved by a three-member confirmation panel, will become the fourth Asian on the seven-member, moderately conservative court and probably its most liberal member. He will take the seat left vacant by Justice Carlos Moreno, the court’s sole Latino and Democrat who retired Feb. 28.

Liu became a top candidate for the post after Republicans scuttled his nomination by President Obama to the U.S. 9th Circuit Court of Appeals. The day after a U.S. Senate vote ensured that Liu would not get the federal judgeship, the governor’s office called him about the state high court.

Rather than viewing the lost confirmation battle as a strike against Liu, Brown said he considered it an asset. His advisors said they considered Liu’s opponents in the Senate to be conservative extremists.

“The dysfunctionality in Washington and the blockage at all costs by the more extreme Republicans — I don’t think that should be given a lot of intellectual weight,” said Brown, who sources said offered Liu the job Sunday.

The appointment of Liu stunned several legal analysts, including some of the state’s top judges, because his name had rarely been mentioned among Brown’s top candidates. But Brown, who had been preoccupied by the state’s budget crisis, saw the vetting of Liu in Washington as an advantage.

“There’s a great body of material on Goodwin Liu,” Brown said, speaking to reporters in San Francisco. “That made it easier. Also, you have the American Bar Assn. that reviewed his qualifications. He’s been well vetted. He’s been attacked by the best and sharpest politicians in the country. That was an unusual predicate for examining his credentials.”

Liu’s writings suggest he is skeptical of the death penalty, although he has said he would have no difficulty enforcing it.

In 2006, during U.S. Supreme Court Justice Samuel Alito’s confirmation hearings, Liu wrote: “Whatever one may think of the death penalty, Alito’s record should give pause to all Americans committed to basic fairness and due process of law” because his “opinions show a troubling tendency to tolerate serious errors in capital proceedings.”

Liu later said he regretted some of his hard-edged remarks about Alito.

Liu is considered a supporter of gay rights, including same-sex marriage, and civil rights for other minority groups. He is expected to be on the court in time to hear arguments in the challenge against Proposition 8, the 2008 ballot measure that reinstated a ban on same-sex marriage.

The state high court will decide whether initiative proponents have the legal right to appeal court orders against the measures they sponsored.

Brown had been expected to replace Moreno with another Latino, and Liu’s nomination angered some bar activists.

“It should have been a Latino and somebody who was native to Southern California,” said Victor Acevedo, president of the Mexican-American Bar Assn. No current member of the court now lives in Southern California.

“We are almost the majority of the people of the state of California,” Acevedo said, “and for the governor to say there isn’t one Latino who is qualified to serve on the court is extremely troubling. That to me is like the governor turning a cold shoulder to the Latino community in Southern California.”

Conservatives also criticized the nomination, saying Liu would be too protective of the rights of criminal defendants.

“It is very clear that he is on the murderers’ side right down the line,” said Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, a conservative law-and-order group.

But others were effusive in their praise of Liu, repeatedly remarking on his intellect and collegiality.

“He is very persuasive because unlike most people of his intellectual caliber, he is not a pretentious person,” said Court of Appeal Justice J. Anthony Kline, who was involved in Brown’s search for a candidate. “He has a lot of humility and is kind of self-deprecating. This is a deep thinker, a guy who is going to be an outstanding judge and going to be considered one day for the U.S. Supreme Court.”

Brown said Liu, who was unavailable to comment, was delighted to be chosen.

“There’s no doubt in my mind that he has the background, the intellect and the vision to really help our California Supreme Court be again one of the great courts in the country,” Brown said.

During his campaign, Brown said he would not appoint another Rose Bird, the late chief justice whom voters ousted along with other liberal Brown appointees to the court during his earlier gubernatorial tenure. Bird, who had no judicial experience, was widely criticized for voting against every death sentence she reviewed.

Brown wanted his first pick this time around to be a legal luminary who would enhance the court’s reputation among scholars and bring a different voice to the Republican-dominated court, said judges familiar with the governor’s thinking.

Brown said he was not concerned that Liu has never served as a judge. Among California’s greatest judges was the late Roger Traynor, who was a tax professor at UC Berkeley when appointed to the state high court, he said.

Brown’s advisors said Liu did not wish to be considered while he was awaiting confirmation to the 9th Circuit, becoming a candidate only after he withdrew that nomination in late May.

Brown said he never asked Liu his views on the death penalty or other so-called litmus test questions. He said he and his wife, Anne Gust Brown, held a lengthy meeting with Liu at their Oakland loft.

“My first question to him was, ‘What is your theory of the law?’” Brown said.

Brown personally vetted several candidates for the court.

He said that a majority Asian court doesn’t say anything in particular about the state. “We’re all Americans. We’re all Californians,” he said. “The accidents of birth, though they indicate biography and life experience, it’s just part of a larger mosaic.”

Pressed about his failure to choose a Latino, Brown replied: “What about the African American community? What about the Irish American community? Whenever you select one, I guess you exclude the other. That’s inherent in any choice.

“I picked what I thought was a well-rounded, good human being.”

UC Irvine Law School Dean Erwin Chemerinsky said Liu’s writings suggest he is “a liberal but not very far left.”

“I think it would have been inappropriate to reject someone who is terrific by saying we already have too many Asians,” Chemerinsky said.

UC Berkeley Law School Dean Christopher Edley said Liu is “non-ideological, slightly left of the center for judges. Among law professors, he is quite centrist.”

Edley said Liu would not change the balance on the court, but “I think it will be very interesting to add Goodwin’s style to the mix, his ability to be both pragmatic and cerebral.”

President Obama originally nominated Liu to the 9th Circuit in February 2010. If he had been selected, he would have been the youngest appeals court judge on that circuit and the only active Asian American appeals court judge. But Republicans almost immediately mounted an assault. They had never forgiven Liu for his testimony against Supreme Court nominee Samuel Alito during his 2006 confirmation hearings. Liu also wrote an op-ed in The Times criticizing Alito’s approach to the death penalty, and he coauthored an American Constitution Society report on the same subject.

Republicans also complained that legal journal articles by Liu expressed support for constitutional rights to education and child care.

Liu “would use his position as a federal judge to advocate his ideological theories and undermine well-settled principles of the United States Constitution,” Sen. John Cornyn (R-Texas) contended.

Some conservatives defended Liu. Among the most prominent was his colleague at UC Berkeley, conservative legal scholar and former George W. Bush administration lawyer John C. Yoo, who called him “very well-qualified,” adding that “he’s someone who would be chosen by a Democratic president, not a Republican one, but that doesn’t mean he wouldn’t be a good judge on the bench.”

Liu has taken some positions that are embraced by conservatives. Considered a leading scholar on education law, he supported the use of school vouchers to achieve desegregation — a position primarily taken by the right in the debate over how to improve urban schools. He has defended the No Child Left Behind policy drafted by the George W. Bush administration and has been critical, at times, of teachers unions in their power to thwart reforms.

During testimony before the Senate, Liu said he would be bound by judicial precedent — court rulings in previous cases — and said there was no room for a judge to insert personal views into a case.

“I would approach every case with an open mind,” he told the panel. “The role of a judge is to faithfully follow the law as it is written.”

Last August, the Senate blocked Liu’s nomination, sending it back to the White House. In September, Obama renominated Liu; but in May of this year, Senate Republicans filibustered his nomination.

A few days later, Liu withdrew his nomination, writing in a letter to the president: “With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future.”

Liu, born to Taiwanese immigrant parents, is married to Ann O’Leary, founding executive director of Berkeley’s Center on Health, Economic and Family Security. They have a son and a daughter, both under age 5.

Liu didn’t learn English until he attended school in rural Florida. His parents, eager for him to achieve academically, used to leave math problems for him on the kitchen table in the morning.

He said he wasn’t a naturally good reader and studied the dictionary to improve his SAT score.

He succeeded: He got into Stanford University.

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