Commentary: Obama, Senate must step up on judicial nominees

Dan Morain of the Sacramento Bee. (Sacramento Bee/MCT)
Dan Morain of the Sacramento Bee. (Sacramento Bee/MCT)

Some fights are worth having, like the one to confirm Goodwin Liu.

Liu is the UC Berkeley law professor trapped in Senate limbo, hoping for a vote on his confirmation to the 9th U.S. Circuit Court of Appeals, and not sure that it will happen any time soon.

President Barack Obama nominated him last year for the appellate court that covers the western United States. Given Liu's intellect and relative youth – he's 40 – Senate Republicans see him as a future Supreme Court nominee, and took a buzz saw to his record. Exacting retribution for his past rebukes of Republican jurists, Senate Republicans blocked his confirmation in 2010.

Obama renominated him earlier this month, but his fate will remain uncertain unless Obama and California Sens. Dianne Feinstein and Barbara Boxer push his cause to the fore, as they should.

Liu's predicament reflects the toxicity of the confirmation process, and serves as a cautionary tale for any ambitious scholar who would dare to speak out on issues of consequence, as Liu has done.

Liu came to the president's attention thanks to UC Berkeley law school dean Christopher Edley. Edley had been one of Obama's professors at Harvard Law School and became part of Obama's presidential transition team.

"The stakes are elevated because (Liu) is correctly perceived as a plausible Supreme Court nominee," Edley said, sitting in his Boalt Hall office the other day.

At the White House's request, Liu, like others in confirmation fights, does not discuss his nomination. But by any measure, he's the sort of All-American who should be part of the nation's leadership.

His parents, Wen-Pen and Yang-Ching Liu, are Sacramento-area physicians who emigrated from Taiwan in the 1960s, when the United States was recruiting doctors to work in distressed regions.

After living in the South, they migrated West, and sent their sons to Rio Americano High School, where Goodwin and his older brother Kingsway, now a physician, were valedictorians.

"He was always laughing and joking – and acing his tests. Everybody loved him," said Rio Americano physics teacher Dean Baird, who taught Goodwin Liu 25 years ago.

In 1987, the year Liu graduated from high school, Gov. George Deukmejian selected him in a statewide competition to take a special science course at Lawrence Berkeley Laboratory. That inspired The Bee to write about the "implacable, intellectual, unlimited" potential of Liu, then all of 16.

From here, he went to Stanford, then Yale Law School, became a Rhodes Scholar, clerked for U.S. Supreme Court Judge Ruth Bader Ginsburg and settled at UC Berkeley, where students use words like "beloved" and "star" when talking about him.

Perfect, right? Not quite.

In 2006, Liu obliged Senate Democrats by analyzing the record of President George W. Bush's Supreme Court nominee, Samuel A. Alito.

Not one to veil his views in hazy platitudes, Liu spun out a sharply worded 15-page analysis and, in conclusion, amped up the rhetoric, saying Alito's "record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse, where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance," and more.

You get the idea. He has since recanted the impolitic coda, saying that it was hurtful and unnecessary. Clearly, his words did not carry the day. Alito was confirmed by a 58-42 vote.

"His testimony was neither memorable nor impactful," said a political strategist, who was a senior Bush administration official at the time of the Alito confirmation fight.

That said, Republicans see his comments as a political hit job. Now, it's payback time. Senate Republicans and the Republican National Committee are attacking, and conservative commentators are distorting Liu and his writings into a caricature.

"The guy's a loon," Fox News' Bill O'Reilly bloviated cluelessly last year.

Liu has several defenders from the right, including Baylor University President Kenneth Starr, the special prosecutor who investigated President Bill Clinton.

Starr co-signed a letter to the Senate that said, "Goodwin knows the difference between what the law is and what he might wish it to be, and he is fully capable and unafraid of discharging the duty to say what the law is."

His biggest supporters are his colleagues and students. Spend a few hours talking to them, and it's clear they view Liu as extraordinarily bright, diligent, decent – and moderate. They're taken aback by the attacks.

"I don't recognize the person they're talking about," said professor Herma Kay Hill, who has taught law at Berkeley for 50 years.

As chairman of the committee that granted Liu tenure (early, of course), professor Jesse H. Choper, who has taught law at Berkeley for 46 years, read almost everything Liu has written.

In a letter to the Senate, Choper said: "His writings indicate that he would be relatively moderate and pragmatic, and an especially fair jurist, one with a clear understanding of the limited role that courts should occupy."

That view should matter. Senate Republicans should think hard about whether they want to continue this fight. They should consider how it looks outside the Beltway.

Diversity on the bench is important, especially in the minority-majority state of California. Of the 179 federal appellate judgeships nationwide, only one is held by an Asian American, and he is back East.

Republicans blocked several Obama judicial nominees last year, including three African Americans, three Latinos, five women, one Arab American and two Asian Americans, including Liu.

Without a doubt, Liu is left of center. Obama wouldn't nominate a right-winger. The next Republican president will not place a lib on the bench. Partisans should recognize that presidents have prerogatives.

Then again, if Republicans outmaneuver Democrats on Liu's confirmation, there is another court a few blocks from the 9th Circuit Court headquarters in San Francisco. California Supreme Court Justice Carlos Moreno is retiring, and Gov. Jerry Brown is searching for a replacement.

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