9th Circuit nominee grilled over Prop 8

Goodwin Liu

Goodwin Liu

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores—over Democratic passage of a major health reform law, gun control, and over the current nominee’s opposition to certain nominees of President Bush.

And Democrats seemed all too happy to trot out evidence that every weakness Republicans complained about in the nominee had been true of numerous Republican nominees who had been approved.

For his part, the nominee—Goodwin Liu of California—sought to distance himself from his many public statements in support of various liberal positions on a wide range of social issues.

Very soon along the way, Proposition 8 came up.

Senator Tom Coburn (R-Okla.) brought it up, noting that in Liu’s writings, the law professor had appeared to argue for the democratic process on some issues, like gun control, but against it on others, like same-sex marriage.

“Can you please explain why a court should consider the will of the majority as it is expressed through the legislative process when restricting gun rights but not when upholding the law protecting traditional marriage?” asked Coburn.

Liu suggested his legal position on Proposition 8 was mischaracterized. He said that, in October 2008—just before California voters passed Proposition 8 to ban same-sex marriage—he testified as a “neutral” legal scholar before a California legislative committee. And he said he told the legislature, “Proposition 8 should be upheld by the California Supreme Court.”

“Not struck down, but upheld by the California Supreme Court under existing precedents,” said Liu. “Despite whatever other views I might have had about Proposition 8 on the merits – my personal views, whatever, and even my legal views of the past—I testified before that committee that the California Supreme Court should uphold that proposition in deference to the democratic process.”

Coburn challenged Liu’s recollection, saying Liu had testified that the California Supreme Court “could” uphold the proposition, not that it “should,” as Liu recalled.

Inconsistency might be a polite word for Coburn’s own remarks. He arrived at the confirmation hearing late and, before posing the first question, told Liu he was sorry he had missed Liu’s opening statement. But, he added, “I’ve read it.” Liu had not made an opening statement.

Liu’s decision not to make an opening statement was a surprise to many.

“Oh, my goodness, that’s very unusual,” said an apparently startled Senator Dianne Feinstein (D-Calif.), who was acting as chair of the proceeding, even though Senate Judiciary Chairman Patrick Leahy was at the hearing.

Feinstein then, almost without missing a beat, posed the first question, tackling the recent news report that Senator Jeff Sessions (R-Ala.) was accusing Liu of deliberately withholding 117 documents from the committee.

Every judicial nominee fills out a lengthy questionnaire to provide a great deal of information to the Senate Judiciary Committee, including a list of all “published writings and public statements.”

Liu acknowledged having provided an incomplete list and apologized for having to make a supplemental submission. (He did not offer any excuses, but parents watching the proceedings probably took note of the fact that his second child was born just four weeks ago.)

Liu said he “redoubled” his efforts to search for additional materials, including occasions on which he conducted brown bag lunch conversations as a law professor.

“I’m sorry that the list is long and I’m sorry that I missed things the first time,” said Liu. “For better, for worse, I’ve lived most of my professional life in public and my record is an open book. I absolutely have no intention, and frankly no ability, to conceal things I’ve said, written or done.”

But Sessions implied that Liu’s failure was deliberate. And Senator John Cornyn (R-Tex) echoed Sessions complaint, saying he was concerned with Liu’s “sloppiness” in his response to the questionnaire and implying that it rose to the level of contempt.

The attacks rang hollow some minutes later when Senator Feinstein noted that Chief Justice John Roberts Jr. “failed to provide documentation for over 75 percent” of his speeches and writings and had to submit—not 117 but—15,000 supplemental documents “just four days before his confirmation hearings were scheduled to being.

Many of the Republican Senators seemed intent on grilling Liu over remarks he had made in opposing the nominations of both Roberts and Sam Alito—both appointees of Republican President George W. Bush.

In opposing Alito’s nomination, Liu had stated: “Judge 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; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

Senator Jon Kyl (R-Ariz.) these words, characterizing Alito’s various decisions, demonstrated that Liu lacked the “tempered language” of a judge. He said the critique amounted to a “vicious, emotionally and racially charged, very intemperate” attack on the nominee that “calls into question your ability to approach and characterize people’s positions in a fair and judicious way.”

Sessions accused Liu of advocating for unlimited power for the courts; Kyl accused him of advocating for unlimited power of the federal government.

Liu repeated that his personal views would not be part of his approach to an issue on the court. Although he did not discuss his personal views on Proposition 8 during the hearing, in one of many essays he has published in various newspapers and publications, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will eventually “become an unremarkable thread of our social fabric” and that those opposing it now will eventually be viewed as a “narrow and ultimately temporary majority.”

There is no date scheduled for the full Senate to take up Liu’s nomination but the aggressiveness of Republican opposition to Liu demonstrated at the confirmation hearing suggests a filibuster is likely.

President Obama nominated Liu, a professor of law at the University of California Berkeley School of Law, in February and his confirmation hearing has been delayed twice due to Republican opposition.

If confirmed, he would take a seat on the 9th Circuit U.S. Court of Appeals, which covers California and eight other western states. The American Bar Association gave him a “unanimously well-qualified” rating.

One Response to 9th Circuit nominee grilled over Prop 8

  1. John says:

    Why should a court should consider the will of the majority when restricting gun rights but not when upholding the law protecting traditional marriage?

    The answer seems a simple one: No rights are absolute. For instance, on June 26, 2008, the Supreme Court of the United States, in a 5-4 decision, held that residents of the District of Columbia have an individual right to handguns for self-defense within the home in the case District of Columbia v. Heller while at the same time reaffirming a broad range of federal restrictions on firearms as being constitutional.

    The court held that “[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court’s opinion, although refraining from an exhaustive analysis of the full scope of the right, “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

    As to marriage, the same principal applies except that there are no federal restrictions on marriage, as with hand guns. Marriage is a fundamental right under federal law, and the states simply do not have the right to regulate marriage in a manner that violates the ‘due process’ and ‘equal protection’ provisions of the 14th Amendment. Ergo marriage is not a ‘states’ rights’ issue. Authority? Loving v. Virginia!

    It is therefore idiotic for politicians (especially Obama!) to claim sensitivity to the issue (citing Loving and his own parents’ marriage) at the same time they trash the substance of that decision by arguing the very ‘states’ rights’ argument that very decision struck down.

    The best answer from Goodwin Liu (awfully young to be sitting on the 9th Circuit) should have been taken from the late Justice Robert H. Jackson who wrote, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to PLACE THEM BEYOND THE REACH OF MAJORITIES AND OFFICIALS and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other FUNDAMENTAL RIGHTS MAY NOT BE SUBMITTED TO VOTE; THEY DEPEND ON THE OUTCOME OF NO ELECTIONS.”

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