California Supreme Court Justice Goodwin Liu addresses attorney George… (Paul Sakuma, Associated…)
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.