Tomorrow is the Senate Judiciary Committee confirmation hearing for Cal law associate dean and professor Goodwin Liu, whom President Barack Obama has nominated to the 9th U.S. Circuit Court of Appeals, and his allies have been stepping up their defenses of him.
The Republican National Committee last week had directed reporters to a letter in which 42 California District Attorneys urge Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala., to reject Liu’s nomination. The only greater Bay Area DAs to sign the letter were Marin’s Ed Berberian, Solano’s David Paulson and San Joaquin’s James Willett.
“The paper written by Goodwin Liu in opposition to the nomination of Justice Samuel Alito shows that he would vote to reverse nearly every death sentence. He exaggerates minor issues in jury instructions that no one at trial thought were problems, while simultaneously brushing off the brutal facts of heinous crimes as inconsequential. He jumps to the conclusion that prosecutors are guilty of racism on scant evidence and despite the considered judgment of the state trial court to the contrary,” the prosecutors had written. “Professor Liu’s paper demonstrates beyond serious question that his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is.”
“Professor Liu has expressed a belief that every United States judge must exercise the utmost care to ensure that the fundamental due process rights of persons accused of crimes are protected. While our individual views about the propriety of the death penalty may vary, we all believe that it is the appropriate role of an appellate judge to ensure that these due process rights have not been violated and that every defendant is afforded a fair trial. This is especially true in death penalty cases, where the nature of the punishment is uniquely irreversible.
“We applaud Professor Liu’s commitment to ensuring the constitutional rights of defendants facing the death penalty. Contrary to his critics’ claims, his commitment to the Constitution is commendable and vital for anyone seeking a position in what is often the court of last resort for individuals seeking to protect their constitutional rights.”
This letter followed another, similar one sent to the Judiciary Committee last week by two co-chairs of the Constitution Project’s Death Penalty Committee, former Texas Governor Mark White and former Florida Supreme Court Chief Justice Gerald Kogan. It said, in part:
“As a former governor of Texas who oversaw the executions of 19 condemned criminals, and a former Florida Supreme Court justice who upheld numerous death sentences and, before that, headed the Dade County capital crimes prosecution unit, we are well-acquainted with the death penalty and its application. We decry the baseless claim that Professor Liu’s commitment to upholding constitutional safeguards, such as competent counsel, a fair trial, and full judicial review, is anything other than appropriate — indeed vital — for any judge, particularly in capital cases where a person’s life hangs in the balance.”
“While there may be many reasons to oppose Liu’s confirmation, his concern for due process in capital cases should not be among them. And in fact, his views are shared by many scholars, lawyers, and public officials from across the ideological spectrum.”
“A more accurate reading of Liu’s analysis reveals simply his commitment to the Constitution and to a fair criminal justice system. Far from being scandalous, radical, or reflecting a knee-jerk anti-death penalty stance, Liu’s critique of Judge Alito’s opinions reflects a belief that appellate judges in capital cases must carefully examine the record for serious error and overturn convictions that are obtained in violation of the defendant’s due process rights. If these are ‘radical’ ideas worthy of rejection, then we as a country have drifted far away from our founding principles.”
Today, U.S. Sen. Dianne Feinstein, D-Calif., delivered some choice words at the Judiciary Committee’s executive business meeting for critics who claim Liu didn’t go far enough in disclosing past speeches and articles:
“Mr. Chairman, I just absolutely deplore what’s happening here. It’s attack, attack, attack. It’s ruin somebody before they’ve had an opportunity. It’s using these kinds of arguments, you know, let me give you some other cases. Judge Michael McConnell, appointed by President Bush to the Tenth Circuit, was a prolific law professor. From 1985 to 2001, his questionnaire also asked for all speeches on issues involving Constitutional law or legal policy. He did not list a single speech or talk in response to this question. He got confirmed, there was not an issue.
“Judge Jeffrey Sutton, appointed by President Bush to the 6th Circuit, submitted a questionnaire containing the following statement on page 4 regarding speeches with no listing of the items requested, and here’s his quote, ‘I have given numerous speeches to local bar associations, Ohio judges, through the Ohio Judicial College, the Federalist Society, and continuing legal education seminars regarding the United States Supreme Court and the Ohio Supreme Court. In each of these instances I either spoke from informal notes or spoke extemporaneously.’ I remember his confirmation, the issue wasn’t even raised. He was somewhat controversial, but he was confirmed.
“Judge Brett Kavanaugh, appointed by President Bush to the D.C. Circuit, submitted a questionnaire that listed 22 speaking events prefaced by this statement on page 18, ‘I’ve given remarks on occasion in official and personal capacities. These remarks have most often occurred at legal conferences and on panels. I have also guest taught classes at various law schools. In the White House Counsel’s Office I have spoken to visitors, etc. I have generally spoken with short written points which I have not ordinarily retained, rather than prepared speeches. I have also not maintained an ongoing list of remarks. But I have attempted to reconstruct a responsive list for this purpose.’
“In his original submission, Goodwin Liu listed 66 speaking events in addition to 22 scholarly articles, 27 other published works, reports, or testimony, and 96 media interviews. With or without his supplemental materials, Liu has made one of the most extensive disclosures of any recent Circuit Court nominee. Additionally, a letter favoring his nomination was written by the present President of Stanford and two past Presidents.
“This man is exemplary. If we want to dumb down the Judiciary, this is a good way to do it – by challenging anybody that comes from a slightly different walk of life than a Circuit Court Judge. And I must tell you, one of the things I’ve learned in 17 years is what goes around comes around. I don’t see why the constant attacks have to go on. If people don’t agree with a judge, vote against him. But this business of not even giving a person an opportunity. I sent a letter to each Republican member on this committee. Only one, Senator Kyl, has said ‘look I’m happy to sit down with him, I can do it Friday afternoon. We’re working on that.’ I’ve asked everybody, please give this man a chance. That is the American way, members. It’s not to besmirch, it’s not to be snide. It’s not to attack, it’s to have the hearing – be present at the hearing. It’s tomorrow morning, I have the pleasure of chairing it. Be present, ask your questions. Give this man a chance.
“Thank you, Mr. Chairman.”