Goodwin Liu has blended in easily on California’s Supreme Court
SAN FRANCISCO — Goodwin Liu was tired and disappointed. The law professor had returned from Washington the night before, having lost his bruising 16-month battle to win Senate confirmation for a federal appeals court seat. Conservative Republicans had tarred the Obama nominee as a liberal activist, and all of Liu’s efforts to dispel the label had failed.
He had his key in the door to his office at UC Berkeley’s law school when the telephone rang. An aide to Gov. Jerry Brown wanted to know if he would be interested in the California Supreme Court. Apprehensive about being “put through the wringer again,” Liu replied that he was “interested in the conversation.”
Liu met with Brown that afternoon. Instead of querying Liu on such litmus test issues as abortion, the death penalty or affirmative action — matters that can doom a judicial candidate — Brown wanted to discuss English philosopher John Locke and the French social commentator Montesquieu.
“What do you think is the basis of law?” the governor asked.
That two-hour intellectual volleyball eventually landed Liu on California’s highest court, a resurrection that defied political expectations and underscored the vast difference between state and federal judicial nominations.
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.
At a relatively youthful 41, Liu could have a long tenure and leave a deep imprint on California law. He could still become the liberal voice of the court, modeling himself after the late Justice Stanley Mosk, who favored consumers and protecting the rights of the criminally accused. Or Liu could build a record that might one day make him a politically palatable nominee for the U.S. Supreme Court.
In an interview in his spacious San Francisco chambers, Liu said his career has been more accidental than planned. He had been accepted to medical school before he shifted to the law, and the California Supreme Court was “not even on my radar,” he said.
But since landing there just over a year ago, the legal scholar who had never before served on a bench has written 12 majority decisions and penned an equal number of concurring opinions. Legal analysts who reviewed his rulings say they revealed high productivity, a strong streak of independence and a tendency to explore cases deeply.
When assigned to write the court’s holding in a case, Liu said, he strives for unanimity, a goal he has fallen short of only twice. “I come to the case with some view about it, but I am definitely open to being convinced otherwise,” Liu said.
He joined the rest of the court in ruling that conservative Christians had the right to defend Proposition 8’s ban on same-sex marriage because state officials had refused to do so. He drew on Justice Felix Frankfurter, known for his insistence that legislatures, not courts, make laws, in urging courts to refrain from entering disputes over election boundaries. And he complained in a criminal case that the court had ruled on a question that was not before it.
“He is a ball of fire” in productivity and “a restrained liberal, at least so far,” in his jurisprudence, Santa Clara’s Uelmen said. “I think he is going out of his way to completely discredit the attacks that were made on him in the 9th Circuit process.”
Jon Eisenberg, an appellate lawyer, agreed, observing that Liu’s concurring opinions “demonstrate a very non-activist judicial philosophy.”
Liu said he did not set out to build a record that would rebut the critics who derailed his 9th Circuit nomination, but he acknowledged that he wants to be judged based “on the actual record.”
“There are plenty of cases I wish could come out a different way,” he said, “but they are not going to because the law compels a different result.”
Liu likes to discuss cases, to probe and punch, and has found an intellectual sparring partner in Justice Carol A. Corrigan, who generally votes with the court’s more conservative wing and whose counsel Liu prizes.
Even on different sides of an issue, Corrigan — “such a generous person,” Liu says — will advise him of cases that support his viewpoint. “Not everyone wants me to barge into their office and take up 30 minutes of their day” on the fine points of the law, said Liu, seated at a glass-covered conference table covered with personal photographs and a pot of tea.
A persistent interrogator at oral argument, Liu politely asks questions and just as politely insists they be answered. He said the job has humbled him, and he is grateful to the other members of the court, whose backgrounds and stories he said inspire him.
When asked which justice he is closest to, he mentioned Corrigan, then described a trip to the Central Valley with the conservative Justice Marvin R. Baxter, a “model of decorum and grace.” Liu also plays tennis with Justice Ming W. Chin, another of the court’s conservatives.
Liu said he wrestles over whether to write a concurring opinion that expresses his separate analysis of a ruling — the 12 he has penned are considered numerous. Conceding the exercise can be “a little bit narcissistic,” Liu said he tries to limit those opinions to analysis that might be useful to lower courts and lawyers. He also reminds himself that he is writing court opinions, not law review articles.
“The dynamic of each case presents such interesting and deep issues, but you can’t sit around like an academic and plumb a case down to its first principle,” he said. “It’s hard for me sometimes because I get really into the case.”
Liu said he listens carefully and likes having his views “tested against the perspective” of his six colleagues. “One of the most important things about this job is knowing what you don’t know,” he said. “You could really mess up the law.”
He described the court’s workload as manageable, though as a father of two young children he often must spend the evenings after their bedtime to get his work completed.
Justice Kathryn Mickle Werdegar, a Republican appointee considered part of the court’s more liberal wing, said Liu has “the power to persuade” if other justices are amenable. “He definitely displays a professor’s interest in Socratic questioning on the bench and really enjoys kicking around ideas,” she said.
Unlike the other six justices, Liu has filled three law clerk positions with recent law school graduates who will serve annual terms, a practice that he said provides fresh thinking and allows the teacher still inside of him to mentor. Those clerks and permanent staffers draft rulings, which Liu says he heavily edits to insert his voice.
Liu said he was surprised to hear from Brown’s office after he lost the 9th Circuit confirmation battle, though a Brown aide had queried him about the court months earlier. At that time, he was “trying my utmost to get confirmed,” so he told the aide he was not interested and “forgot all about it.”
Politically, Liu had the wrong ethnic background and address, according to the conventional wisdom at the time. The retirement of Justice Carlos Moreno, whose seat Liu was to fill, had left the court with no Latino and no Southern Californian. The last African American justice left in 2005.
Liu is Chinese American — the court already had three justices of Asian heritage — and lives in Oakland. When Brown began considering him, Liu said he told his wife “not to get her hopes up.”
But Brown wanted a major intellect, and Liu had already been vetted. Brown said he saw in Liu a successor to the late, legendary Justice Roger Traynor, who developed enduring legal principles during his 30 years on the state high court.
Federal appeals court judges are appointed for life and must be approved by the U.S. Senate, but state appellate justices are confirmed by a three-member nonpartisan panel after an unbinding state bar evaluation. They face voters during the next gubernatorial election and periodically thereafter in retention votes.
Liu’s nomination sailed through. Like Traynor, Liu appears personally modest and unassuming. Liu noted that he, like Traynor, also joined the court as a 40-year-old Berkeley law professor without any judicial experience.
But Liu ends the comparison there.
“I’ve got a lot to learn,” Liu said. “Some of these cases are so difficult they make my head spin.”
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