Nomination of Goodwin Liu to the California Supreme Court: reaction, timeline and impact on the Prop 8 case
July 28, 2011
By Adam Bink
Bay Area Lawyers for Individual Freedom, the nation’s oldest and largest LGBT bar organization, told the Bay Area Reporter following the announcement Tuesday, July 26 that, “We are proud that the governor is committed to having a judiciary that reflects the diversity of the citizens of California.”
Out lesbian Assemblywoman Toni Atkins, (D-San Diego), who sits on the Assembly Judiciary Committee, told the B.A.R. that Liu “has an excellent reputation as a thoughtful and knowledgeable legal scholar and professor. I congratulate Governor Brown on the appointment.”
In a statement released by Brown’s office, Liu stated he was “deeply honored” to be chosen for the position and looks “forward to the opportunity to serve the people of California on our state’s highest court.”
Liu, 40, a professor at UC Berkeley’s Law School, had been President Barack Obama’s nominee for a seat on the liberal San Francisco-based 9th U.S. Circuit Court of Appeals. But he withdrew his nomination two months ago due to a filibuster by Republican senators that prevented a vote being taken on his confirmation.
The opposition was partly based on Liu’s affiliation with LGBT-friendly legal groups such as the American Civil Liberties Union. He was also critical of Proposition 8, the voter-approved 2008 ballot initiative that banned same-sex marriage in the Golden State.
He was one of 59 legal scholars who signed on to what was deemed a “rare joint statement” released by the No on 8 campaign that called the pro-Prop 8 side’s electoral tactics false and misleading.
After the anti-gay constitutional amendment passed, Liu penned an op-ed for the Los Angeles Times in which he wrote, “There is no question that it targets a historically vulnerable group and eliminates a very important right.” He added that the more people see married same-sex couples “… the more gay marriage will become an unremarkable thread of our social fabric.”
He also filed a brief with the state’s highest court in which he backed the legal challenge to Prop 8. When asked about it during a hearing before the Senate Judiciary Committee in March, Liu insisted that his brief did not argue for same-sex marriage on a national level, but rather was only talking about California law at the time.
“I have not previously expressed any view on whether the federal Constitution confers a right to same-sex marriage and because that issue may come before me as a judge if I am confirmed, I believe it is not appropriate for me to do so now,” said Liu.
Susan Bluer, who chairs BALIF’s Judiciary Committee, stated that “so many of us were saddened by the politics that prevented Professor Liu from being confirmed by the Senate to the 9th Circuit due in part to his affiliation with progressive organizations such as the ACLU, and we feel justice is served by this appointment.”
Jennifer Pizer, the legal director and Arnold D. Kassoy Senior Scholar of Law at the Williams Institute on Sexual Orientation Law and Public Policy at UCLA School of Law, wrote in an email from Barcelona, where she is currently teaching, that Liu has ” a brilliant legal mind, and is sensible, focused on solving problems, and an awfully nice person.”
Pizer added that, “I think people found him impressive during his federal confirmation hearings, both in substance and in temperament. Many continued to hope he’d become a judge, despite his confirmation having become blocked in the Senate.”
Some information on the timeline and whether Liu will be seated (or hear the case at all) before the Court hears the certified question submitted by the 9th Circuit on the issue of standing in the Perry case:
Liu is likely to face a more welcoming reception to the state court. He is set to replace former Associate Justice Carlos Moreno, a strong backer of LGBT rights, who retired from the court earlier this year.
The State Bar’s Commission of Judicial Nominees Evaluation must first review Liu’s nomination before it goes to the Commission on Judicial Appointments, consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal.
The three women will consider the proposed appointment at 3 p.m. Wednesday, August 31 in San Francisco. Atkins said she “fully” expects Liu will be confirmed and “will go on to serve with distinction for many years to come.”
It is unclear if he will be seated in time for when the court hears oral arguments on whether Prop 8 can be defended in federal court by its backers. Due to his involvement in the fight over Prop 8 three years ago, it is likely the law’s supporters would request he recuse himself should his nomination be approved prior to the hearing, expected to take place as early as September.
It would not be surprising if the same crowd that is trying to throw out Walker’s ruling over his sexual orientation will demand that Liu recuse himself here.