By David Alan Sklansky, Daily Journal
President Barack Obama’s nomination of Goodwin Liu for the 9th U.S. Circuit Court of Appeals has been applauded by legal scholars across the ideological spectrum, including conservatives like Tom Campbell, Kenneth Starr, and John Yoo. That’s because Liu is widely admired not just for his intellect, but also for his decency, his open-mindedness, and his moderation. So for anyone who knows Liu, it’s been a through-the-looking-glass experience to hear opponents of his nomination suggest that he somehow lacks judicial temperament. None of those suggestions have come — or could come — from anyone who has ever worked closely with Liu.
Unable to find anything in Liu’s record raising genuine doubts about his character, critics have latched onto a single sentence in his written testimony five years ago opposing Samuel A. Alito Jr.’s elevation to the U.S. Supreme Court.
At the end of 16 pages analyzing Alito’s work as a lawyer with the U.S. Department of Justice, and later as an appellate judge, Liu concluded that “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.”
Liu has since apologized for this language and called it unduly harsh. But for some critics that isn’t enough. Sen. Mike Lee (R-Utah), a former Alito clerk and the son of Alito’s boss at the Justice Department, complains that Liu leveled “an unfair personal attack on a dedicated public servant.” Sen. Jon Kyl (R-Ariz.) — who joined Lee and all the other Republicans on the Senate Judiciary Committee in voting against Liu’s nomination — says the characterization of Alito’s record was “vicious,” “emotionally and racially charged,” and “intemperate.” According to Kyl, it calls into question Liu’s “ability to approach and characterize people’s positions in a fair and judicious way.” Does it?
Not by a long shot. Here are the facts. At the Justice Department, Alito did argue that a lower court had erred in finding a Fourth Amendment violation when a police officer fatally shot an unarmed eighth-grader fleeing from a residential burglary with $10 and a purse; he suggested that the police should be allowed to use deadly force against anyone they reasonably suspect is a fleeing felon. On the 3rd U.S. Circuit Court of Appeals, Alito did in fact uphold a decision by federal marshals carrying out an eviction to point shotguns and semi-automatic rifles at residents who were apparently offering no resistance; he explained that the force was reasonable because the family had resisted an earlier eviction effort, was reported to own firearms, and had threatened to shoot any agents that came onto their property.
Alito also upheld the FBI’s warrantless installation of a hidden camera and microphone in a suspect’s hotel room, on the ground that the agents turned on the equipment only when a confidential informant, who consented to the surveillance, was in the room. And Alito did in fact dissent when the 3rd Circuit overturned the death sentence imposed on a black defendant by an all-white jury in Kent County, Del. He took that position in part because he thought that, at least without expert statistical analysis, it wasn’t determinative that Kent County prosecutors struck all the black jurors not only in the defendant’s trial, but also in the three other capital trials held within a year of the defendant’s. Finally, in two separate cases, Alito did dissent from the invalidation of searches that seemed to exceed the literal scope of the underlying warrants; in each case, he argued that the warrant should be read more expansively.
Plainly, the single sentence that rankles Liu’s critics didn’t capture all the complexities of these cases: that was the point of the 16 pages of preceding testimony. But, just as clearly, there was a factual basis for Liu’s closing characterization of Alito’s record. Liu distilled from that record a distinct and unattractive social vision, and he described that vision in terms Alito himself might have repudiated. That was advocacy, but it wasn’t irresponsible.
And although it was unusually biting rhetoric for Liu, it wasn’t especially harsh by the prevailing standards of jurisprudential argument. It pales, for example, beside some of what Justice Antonin Scalia has found latent in the opinions of his colleagues on the Supreme Court — like “czarist arrogance,” or a “Nietzschean vision of…unelected, life tenured judges…leading a Volk.” Liu’s comments weren’t remotely on that level. It’s worth remembering, too, that Liu made his comments as a law professor, not as a judge or a public official.
There’s something else noteworthy about Liu’s testimony. Though he criticized Alito’s judicial philosophy, he did not malign his character or his professionalism. In fact, he went out of his way to praise Alito’s opinions for their “sharp analysis” and “lawyerly craft.”
That was typical. I’ve been Liu’s colleague for half a decade, and I’ve worked with him repeatedly on contentious questions of law school governance. I’ve watched him mediate faculty conflicts as associate dean and assess personnel cases objectively and without ideological favoritism. I’ve never seen him to be anything but thoughtful, evenhanded, and painstakingly fair.
That’s not just my impression. It’s the widely shared view of those who have been fortunate enough to have Liu as a colleague or as a teacher. We know he would be an exemplary — and fair-minded — judge.
– David Alan Sklansky is a law professor at UC Berkeley School of Law and a former federal prosecutor.