Professor Goodwin Liu

  • June 3, 2011

    Following the demise of Professor Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit, Jessica Jackson, a student member of the ACS Board, wonders in an op-ed for the San Francisco Chronicle whether “a progressive” can be confirmed to a seat on the federal bench by this Senate.

    Even though Liu, a UC Berkeley law school professor and former member of the ACS Board, was supported by conservative lawyers like Kenneth Starr and John Yoo, some of his academic writings proved too progressive for the vast majority of Republican senators who successfully blocked his nomination. (Liu has asked the president to withdraw his nomination).

    Jackson, a third-year law student at Santa Clara University, defends Liu’s writings as falling “well within the boundaries of popular thought,” but concludes the Senate’s conservatives apparently were bent on sending a message.

    She writes:

    The unfortunate message sent by the Senate conservatives is clear: There is no longer room for those who advocate progress on the federal bench. This lack of judicial diversity in the federal courts frustrates the very purpose of the multiple judicial panels employed by the Ninth Circuit. Without a diverse range of perspectives to draw upon, there is a heightened risk that the application of law will result in a denial of justice.

    Ian Millhiser, a blogger for Think Progress Justice, examining the Liu “debacle” details how right-wing Senators distorted the professor’s academic writings. (Liu, as Millhiser points out, is a prolific academic scholar.)

    Millhiser, in his Los Angeles Times op-ed, says future presidents remembering the Liu situation are likely to forgo brilliant legal thinkers, who share their thoughts, to fill seats on the federal judiciary. And for young “brilliant” lawyers, Millhiser says the lesson here is that they should reign in their creative impulses. Both outcomes, he says, weaken our democracy.

    “In the end, the American people will be much poorer because of the Goodwin Lius of the future will be silenced,” Millhiser writes. “Democracy depends on an informed electorate, and it is better-informed when brilliant voices share their expertise.”   

    The federal bench has nearly 100 vacancies, with more coming open. For more news, commentary and other resources on the effort to fill court vacancies, visit JudicialNominations.org.

  • May 31, 2011

    The successful filibuster of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit represents an “enormous step backward,” for the judicial confirmations process that will take extraordinary action to reverse, writes Professor Richard W. Painter for the Star-Telegram.

    Painter, who served as the chief White House ethics lawyer for President George W. Bush, writes for the Fort Worth, Texas daily, that during his years in the White House, senators had filibustered some of Bush’s appellate court nominees, and that he saw “firsthand the damage that Senate filibusters do to the judicial selection process, and the hardships they impost on nominees and their families.”

    But, Painter said consensus began to build among lawmakers and voters that “filibusters were undemocratic and that senators had an obligation to vote and to allow their colleagues to vote.” Painter notes a “well-researched and well-argued law review article” by Sen. John Cornyn on filibusters of judicial selections. (Painter provides a link to that law review at the Legal Ethics Forum blog.)

    In the 2004 law review piece, as Painter notes, Cornyn wrote:

    Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. … Filibusters are by far the most virulent form of delay imaginable.

    Cornyn’s words, however, were forgotten in the case of Liu. As Painter notes Cornyn along with nearly all the Senate’s Republicans voted to block the nomination.

    Painter writes that Bush had taken leadership on the matter during his presidency by “clearly stating that filibusters are wrong no matter which party is in the White House,” and that Republicans should follow his example, and not just with words.

    He concludes:

    To make that point clear, a Republican president could nominate and send to the Senate for confirmation Goodwin Liu and any other nominee who was filibustered during the past two administrations. And the president should demand an up or down vote. Period – no exceptions.

    Visit JudicialNominations.org to get the latest news and commentary on the judicial nominations process.

  • May 26, 2011

    by Jeremy Leaming

    Goodwin Liu, nominated to the U.S. Court of Appeals for the Ninth Circuit, withdrew his nomination, citing the federal bench’s dire need for judges, after Republicans successfully blocked the nomination last week.

    In a May 25 letter to President Obama, Liu wrote:

    The nomination has been a source of tremendous pride for my family and community, and it would be a great privilege and responsibility for me to serve our country as a member of the judiciary.

    In light of last week’s unsuccessful cloture vote, however, I respectfully ask that you withdraw my nomination from further consideration by the United States Senate. With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for use to regain the ability to make plans for the future. In addition, the Judicial Council of the Ninth Circuit has noted ‘desperate need for judges’ to fill current vacancies, and it is now clear that continuing my nomination will not address that need any time soon.

    ACS Executive Director Caroline Fredrickson scored Republican senators for obstructing the nomination:

    The Republican senators who filibustered the Goodwin Liu nomination did so only a few years after demanding up-or-down votes on President Bush's judicial nominees. Many of these senators even claimed that filibusters of judicial nominees are unconstitutional. But now for partisan advantage, they have abandoned their principles in favor of obstructionism.

    The Senate Republicans' efforts to delay and obstruct President Obama's judicial selections are harmful to our democracy and have caused a crisis in our judiciary. Vacancies on the federal bench have skyrocketed, causing lengthy delays in our courts' ability to dispense justice. Our judicial branch is not a political plaything but an indispensable part of our system of government. It is time for Senate Republicans to rise above their party’s short-sighted gamesmanship and serve their country.

    The New York Times in a recent editorial on the Senate filibuster of Liu said the “Republican argument against him was laughably thin.” It had little to do with Liu’s academic writings, the editorial noted, and more with Republicans’ need to satisfy a base instinct.

    “Mr. Liu dared to criticize Justice Samuel Alito Jr. as harshly conservative before he was confirmed to the Supreme Court," the editorial states. "The filibuster was payback, and the Republican eagerness for revenge has broken faith and a clear understanding on the Senate floor [regarding confirmation of judicial nominations]. That will make it harder to fill benches during this administration and many more to come.”

    In a piece for Slate, Dahlia Lithwick wrote:

    Liu was caricatured as a left-wing "radical" and "activist" although he had the unconditional backing of conservatives such as Kenneth Starr and Clint Bolick. Yet Republicans who were willing to judge him in print and on the Senate floor were unwilling to put his nomination to a vote.

    Following the failure of the cloture motion last week, Fredrickson said, “Those senators who voted against cloture are ushering in an era of unprecedented obstructionism, and threaten to bring our system of justice to a grinding halt.” ACS Board Chair and University of Chicago law school Professor Geoffrey R. Stone blasted Republican senators for “meritless obstruction ….” Their entire statements are available here.  

    Stone also wrote about the obstruction of Liu’s nomination in a May 24 piece for the Chicago Tribune saying it shows “how destructively polarized national politics has become ….”

    Follow the latest on judicial nominations and the rising number of vacancies on the federal bench at JudicialNominations.org.

  • May 19, 2011
    Guest Post

    By Adam Winkler, Professor of Law, UCLA School of Law


    Does Goodwin Liu’s stalled nomination to the federal bench signal the end of judicial nominations for academics? Law professors have never been the darlings of the Senate Judiciary Committee – or even of presidents considering appointments to the federal courts. What’s happening with Goodwin Liu may yet further reduce the likelihood of law professors receiving nominations in the future.

    Law professors aren’t natural choices for federal judgeships to begin with. Nominations for the lower federal courts often come from the senators in the state in which the vacancy arises, and law professors don’t tend to be politically connected players close with elected officials. As a general matter, we don’t make much money, contribute much to campaigns, or raise much for candidates. So when senators recommend nominees to the president, they are more likely to be partners at big firms than professors from big schools. (The Supreme Court is an obvious exception; over the past century, the Court was filled with law professors, from Frankfurter and Douglas to Scalia and Kagan.)

    Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.

    Of course, not all law professors will face the same difficulty. Elena Kagan was confirmed despite being a former law professor. Kagan, however, had written only a handful of scholarly articles and most of them argued for broad free speech rights – a position that both Republicans and Democrats could accept. When staffers went out to search her articles for statements they could use against her, the only “gotcha” they found was her criticism of judicial nominees who refuse to discuss their views. 

    It’s no longer just the nominee’s writings that matter. Before Kagan was named, ACS Board member Pamela Karlan, of Stanford Law School, was one name bandied about as a potential nominee. But it was easy to go on YouTube and find videos of Karlan, who speaks at numerous events, making sarcastic, biting remarks on nearly every hot-button issue of the day. Though those who see her in person know that her most outrageous statements are meant to be humorous -- Karlan gets more laughs than any other law professor I know -- they are easy fodder for opponents.

    The message for law professors from these examples is clear: if you want to become a judge one day, don’t write too much, write on non-controversial topics, and watch what you say at speaking events. The world is watching.

  • May 19, 2011

    Although bipartisan calls resound in favor of confirming the nomination of Goodwin Liu to the federal appeals court bench, reports suggest Senate Republicans are in lock-step with the Party’s far-right base, which has demanded defeat of the nomination.

    In a piece for Politico, University of Minnesota law professor Richard Painter, the former White House Chief Ethics Lawyer for President George W. Bush, urges confirmation of Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit, which was made by President Obama more than a year ago.

    Painter writes:

    Liu is well suited for the bench. He is a highly regarded constitutional law professor at the University of California, Berkeley, School of Law. His nomination is supported by Whitewater prosecutor Ken Starr, Goldwater Institute lawyer Clint Bolick and other leading conservatives — as well as by moderates and liberals.

    Most important, Liu has demonstrated in both scholarly writings and in extensive Senate testimony that he knows the difference between making law — the job of elected officials — and interpreting law — which is the job of a judge.

    California Senator Barbara Boxer said yesterday from the Senate floor that a vote on the nomination was "long overdue."

    Boxer continued:

    In the face of more than 12 months of attacks, misrepresentations and unfounded distortions of his record, Professor Liu has shown courage, character and dignity. 

    I was pleased when President Obama nominated Goodwin Liu to serve on the U.S. Ninth Circuit Court of Appeals. He is considered one of the brightest legal scholars in the country. He is a respected authority on constitutional law. At UC Berkeley’s Boalt Hall School of Law – where he is an associate dean and professor – he is widely admired both for his writings and his devotion to his students. 

    In a May 19 editorial, the Los Angeles Times concludes Liu’s nomination has “unfairly languished for more than a year.”

    The editorial continues:

    Republicans — and Democrats — inclined to oppose Liu's nomination are free to vote against it. But they would do an injustice to Liu and the Senate by refusing to allow his nomination to come to a vote. The Senate should make such a vote possible — and then approve Liu.

    ACS Executive Director Caroline Fredrickson decried the Senate’s obstruction of judicial nominations, noting that vacancies on the federal bench are at nearly 100. “For too long,” Fredrickson said, “some senators have chosen meritless obstruction of some judicial nominees over a fully functioning court system.”

    For more updates on the rising number of vacancies on the federal bench and status of judicial nominations see JudicialNomninations.org.