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Nomination of Goodwin Liu to the California Supreme Court: reaction, timeline and impact on the Prop 8 case

Prop 8 trial

By Adam Bink

Yesterday’s news here. Reaction, from the Bay Area Reporter:

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.


  • 1. Alan_Eckert  |  July 28, 2011 at 7:55 am

    In what capacity was he involved in Prop 8? That should be irrelevant anyways because the question at hand is not the constitutionality of Prop 8, but rather the question of standing.

  • 2. Kathleen  |  July 28, 2011 at 8:38 am

    I agree Alan. The questions before the California Supreme Court have nothing to do with the constitutionality of Prop 8, per se, and only ask about what authority proponents of a state initiative have to defend that initiative in court when the state declines to do so.

  • 3. Mtn bill  |  July 28, 2011 at 8:54 am

    while we are focused on Prop 8 and the issue of standing, the CA supreme court decision has much broader applications as it will determine who gets to represent the state in all future appeals, regardless of the issue, when the AG or the Governor decide not to appeal. While there are likely very few instances (in this case any others preceding prop 8?), the decision will guide future cases.

  • 4. Ronnie  |  July 28, 2011 at 9:12 am

    Subscribing & sharing….

    Alexander McQueen bequeathes £100,000 to Terrence Higgins Trust
    The late fashion designer Alexander McQueen has bestowed £100,000 of his fortune to gay men's charity Terrence Higgins Trust.

    (me) That is about 163, 430 USD.

    I saw his exhibition at the Metropolitan Museum of Art in NYC yesterday. That place was insane. There was a 2hour wait just to get into the exhibition. Then they pack you in like sardines in this maze of couture. His amazing shoe & headpieces were featured & most of the mannequins were dressed from head to toe giving the illusion of a real person standing there (it was a little surreal). I felt bad for the kids that were seeing it because they really couldn't see over the crowd. They wouldn't allow photos but the staff was no match for my stealthy iPhone prowess…lol….. I got some pretty good photos. The man was an amazingly talented designer, a genius really. The exhibition is open until August 7th.

    Here is the exhibition website from the Met:

    Here is a video about the exhibition……… <3…Ronnie:
    [youtube Rgiyk_oPE-E youtube]

  • 5. Ann S.  |  July 28, 2011 at 9:38 am


  • 6. veritasfiles  |  July 28, 2011 at 11:26 am

    Liu seems to be an incredible ally and will do well on the court, but I predict he will in fact recuse himself from the case should it come before the court after he is seated. To have signed a document in support of the No on 8 campaign is a clear case for recusal, even if this is only a question of standing.

    I hope we have the votes without Liu to refuse standing, and if we do, it will serve us better as the case trudges through the appeals process should he recuse himself here. I think we would pull out all the stops if there were a justice that had submitted a similar letter for the Yes on 8 campaign, and rightfully so. This seems pretty cut and dry, and I predict Liu will get out in front of it and recuse himself without a fight.

    Remember, we are the only position with the law on our side. Let's keep playing by the rules, as we always have, and we will be victorious.

  • 7. David Henderson  |  July 28, 2011 at 11:49 am

    I agree that his recusal is likely in this case (if he is even on the bench at the time), and it would probably be a voluntary recusal rather than only doing so in response to a motion from the proponents.

  • 8. Kathleen  |  July 28, 2011 at 10:07 pm

    I don't know why you think Liu not recusing wouldn't be playing by the rules.

    Should every California Supreme Court Justice who voted on the question of whether Prop 8 constituted a legal amendment to the California Constitution (as opposed to a revision) also recuse? How about every Justice who voted in the In re Marriage case?

    Those were distinct questions from those that were certified to the Court by the 9th Circuit, as is the question of whether or not one supports Prop 8 (which Liu has expressed an opinion on) or even whether Prop 8 violates the U.S. Constitution (which Liu has never expressed an opinion on, AFAIK).

    Anyone know if Liu has ever expressed an opinion on the rights of an initiative's proponents to defend the initiative in absence of the state officials?

  • 9. veritasfiles  |  July 29, 2011 at 10:32 am

    When it comes to prior opinion or potential bias, I think there is a very clear difference between how a judge or justice has ruled in a case, and how a private citizen has engaged in a political campaign. That, in essence, is what we're talking about here.

    The fact that these justices ruled one way or another in the marriage cases simply sets a precedent. When a private citizen engages in a political campaign on an issue, it is always brought up later as potential bias once that citizen is on the bench. The difference being that judges are given the presumption on objectivity, and that they came to whatever ruling having all of the facts in a legal setting. Private citizens, before their confirmation, do not have that presumption. How one has ruled WHILE a judge is very different from how a person would rule when they BECOME a judge. Expressing opinions before becoming a judge on a particular issue is always fodder for the other side to question that person's impartiality. That's why judicial nominees always refrain from stating a position during confirmation hearings.

    Here we have a case where a future judge has not only given an opinion on an issue, but has participated in the political campaign of that issue. And, by the way, I applaud him for doing it. But, since that happened, he would need to recuse himself from this case, and any case that might have direct impact on this case. Resolving the question of standing has direct impact on this case.

    The distinction between the questions may be enough to separate him from his past opinions, but I don't think he would allow a fight over it to occur.

    Just my opinions… 🙂

  • 10. Kathleen  |  July 29, 2011 at 10:17 pm

    "Here we have a case where a future judge has not only given an opinion on an issue, but has participated in the political campaign of that issue."

    Yes, but the issue on which he gave an opinion is not the issue before the Court. That's the point I'm trying to make. The California Supreme Court is not being asked to decide anything to do with the merits of Proposition 8. It's being asked to decide a matter of California law having to do with whether or not proposition proponents (proponents of ANY proposition) have the authority to stand in the place of the state's officials to appeal a court decision.

    OTOH, it's possible that the California SC has rules about justices participating in oral arguments if they haven't had time to get up to speed on the briefs. The close proximity of his swearing in to the date of the oral arguments might play a role, but I don't see why the subject matter should.

  • 11. Sagesse  |  July 30, 2011 at 7:26 am

    The Proponents (intentionally) confuse the issue when they submit an argument for recusal. Their argument starts from the (offensive) premise that the 'biased' judge wants a certain outcome and will rule in a way that gets to the desired outcome. Judges rule on the facts and the law before them… in the case of the California SC, whether, as Kathleen says, the proponents of ANY initiative have any rights with respect to an appeal under California law

    This is an important, unsettled question which is completely independent of what the particular initiative was. The side trip to the CA court is about getting whatever clarity is to be had on the issue of standing. The other point that gets lost is that not all states permit ballot initiatives, and those that do have different laws setting out the rights and responsibilities of proponents. What applies in CA is not necessarily what would apply in another state.

    If Proponents do not have the right to appeal under CA law (to put themselves in the place of the state officials who have not appealed), they definitely do not have standing under Article III of the Constitution. If they do have the right under California law, they may or may not have Article III standing, and that is what the 9th Circuit gets to decide. The 9th Circuit did not 'choose' to jump through these hoops on standing to get to the merits of Judge Walker's decision… they have to.

  • 12. Straight Dave  |  July 28, 2011 at 11:41 pm

    It will be a tight squeeze for Liu's approval, but I don't understand all the steps in his approval process. Is Aug 31 the last hurdle? If he was smart and had no intention to recuse himself, he would start reading the briefs now.

    Case: S189476, Supreme Court of California

    Date (YYYY-MM-DD):2011-07-28
    Event Description:Case ordered on calendar
    Notes: to be argued Tuesday, September 6, 2011, at 10:00 a.m., in San Francisco

    For more information on this case, go to:

  • 13. Prop 8 Trial Tracker &raq&hellip  |  August 30, 2011 at 1:00 pm

    […] wrote a month ago about Goodwin Liu, the UC-Berkeley law professor whose nomination to the 9th Circuit […]

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