University of California, Berkley law professor Goodwin Liu was back before the Senate Judiciary Committee yesterday. Nominated by President Barack Obama in 2010 to fill a vacancy on the federal 9th Circuit Court of Appeals, Liu's confirmation fizzled out last year so Obama renominated him. Depending on who you ask, Liu is either a mainstream legal scholar or a dangerous judicial activist. He's definitely no constitutional originalist, having written that what matters for judicial decision-making "is not how the Constitution would have been applied at the founding, but rather how it should be applied today…in light of changing needs, conditions and understandings of our society."
But that doesn't mean the legal right is uniformly opposed to his nomination. At the Huffington Post, Richard Painter, a former chief ethics lawyer for George W. Bush's White House who worked on both the John Roberts and Samuel Alito Supreme Court nominations, calls Liu "exceptionally qualified, measured, and mainstream" and points out that he has been endorsed by former Whitewater prosecutor Ken Starr, Institute for Justice co-founder Clint Bolick, and a number of other notables. As Painter writes:
Liu's Republican supporters also include William T. Coleman, Jr., former Secretary of Transportation under President Ford and one of President Bush's appointees to the Court of Military Commission Review (Liu is a "bright, intelligent and understanding person" and "will become an outstanding judge on the Ninth Circuit."); John Yoo, former Justice Department attorney under President Bush ("for a Democratic nominee, he's a very good choice."); and Tom Campbell, former congressman, law professor, and business school dean ("Goodwin will bring scholarly distinction and a strong reputation for integrity, fair-mindedness, and collegiality to the Ninth Circuit.").
Ironically, one of the biggest roadblocks may be Liu's own unsavory role in previous judicial confirmation battles. In 2006 Liu testified against Samuel Alito's confirmation, telling the Senate that Alito "envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse" and "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." As David Ingram reports at the blog of The Legal Times, those words came back to haunt Liu yesterday:
Liu was asked about the 2006 statement several times as he testified during his second confirmation hearing for a spot on the U.S. Court of Appeals for the 9th Circuit. In one exchange, Sen. Tom Coburn (R-Okla.) asked, "Is that a case of poor judgment? Or is it a case of just lack of knowledge and insight?"
"Senator, it was a case of poor judgment," Liu responded.
At another point, Liu said his conclusion about Alito was "unduly harsh" and inappropriate. "I should have omitted that paragraph," Liu said, in response to a question from Sen. Dianne Feinstein (D-Calif.). "And quite frankly, senator, I understand now more than I did then that strong language like that is not very helpful in this process."