Opinion: Et tu, Liu? A liberal justice faults a California ballot measure

Liberal hearts leapt in 2010 when President Obama nominated UC Berkeley professor Goodwin Liu to a seat on the U.S. 9th Circuit Court of Appeals. The Alliance for Justice gushed that Liu “has spent his career advocating for the right of equal justice for all, not a select, privileged few.” Here, liberals thought, was a true believer who might be able to move from the farm team of the appeals court to the U.S. Supreme Court, where he might be the first Asian American justice.

Unfortunately, the liberals’ dream was a nightmare for Senate Republicans. In a time-dishonored tradition, they blocked Liu’s confirmation, and he withdrew his name from consideration. But then, in 2011, Gov. Jerry Brown nominated Liu for a seat on the California Supreme Court. State supreme courts also have proved to be on-deck spots for future U.S. Supreme Court justices, including the liberal lion Justice William Brennan, who had served on the New Jersey Supreme Court.

But Liu, who faces a retention vote in the November election, may have blotted his copybook in the eyes of some liberals this week. Liu joined his colleagues in ordering the removal from the November ballot of a question asking voters if Congress should propose, and the California Legislature ratify, an amendment to the U.S. Constitution overturning the Citizens United ruling.

That’s the 2010 decision in which the U.S. Supreme Court held that corporations have a 1st Amendment right to spend unlimited money on independent political expenditures. As I have noted before, Citizens United is for some progressives what Obamacare is for some conservatives — an obsession that sometimes leads to derangement.

Liu didn’t just join his colleagues in shelving the anti-Citizens-United Proposition 49 until the court could hear arguments on a challenge to its legality. He filed a concurring opinion that, without committing himself to a final conclusion, suggested strongly that the Legislature exceeded its power in voting to put Proposition 49, a purely advisory measure, on the ballot.

It’s a fascinating (and I think persuasive) opinion that examines the proposition in the light of the California Constitution’s apportioning of power between the Legislature and the people, both of whom can make binding law. Liu wrote that both parties in the case conceded that “Proposition 49 is not an initiative or a referendum because it does not propose to enact any law.”

Liu explained that a measure asking voters to advise legislators on how to vote blurs the line between the roles of the Legislature and the people. “The California Constitution draws a clear line between lawmaking by the Legislature and lawmaking by the citizenry through the ballot,” he wrote. “It does not contemplate a mix-and-match approach.”

Will Liu’s opinion cost him retention votes in November or chill liberal ardor for him as a potential U.S. Supreme Court justice? I hope not, but emotions run high on anything connected to Citizens United.

After the state Supreme Court’s order, I got an email from a group called “Yes On 49/Money Out Voters In.” It said in part: “The California Supreme Court is trying to ensure that we will not be able to speak. Instead, we are determined to be even louder. Now is your chance to make your voice heard... We’ve started a petition to the court letting them know that California voters want a chance to speak out on this issue. Please sign it today. This is not over. We the People will not be silenced!”

Even by liberal judges.

Follow Michael McGough on Twitter @MichaelMcGough3