Court Of Appeals Nomination Drones On

We're coming down to the wire on the nomination of far-left law professor Gordon Liu to the Ninth Circuit Federal Court of Appeals. I covered Liu in an earlier post (A Perfect Nominee) in case you need to get up-to-speed on Liu's background. But now I'd like to cover some of the circus that has surrounded his nomination hearing.

First, let's visit the hypocrisy of Sen. Dianne Feinstein. She has spent the past few weeks damning Republicans for daring to question Liu's stand supporting extreme judicial activism. She is particularly bothered that Republicans have criticized Liu's large paper-trail of personal views supporting affirmative action absolutism, consideration of race, ethnicity and social status in deciding cases, and using regulatory agencies to skirt the Constitution.

Not fair, says Feinstein. "His personal views won't affect his judicial rulings." How she knows that when Liu has never served as a judge is a mystery. But she's quite sure of it, and doesn't think Republicans should be considering it. This is the same Feinstein who in 2006 rejected the nomination of future Supreme Court Justice Samuel Alito by saying: "If one is pro-choice in this day and age, in this structure, one can't vote for Judge Alito." Feinstein, her fellow California crazy, Sen. Barbara Boxer, and an unknown Senator from Illinois, Barack Obama, attempted to thwart the majority in the process by suggesting that Alito's personal views were so radical that a filibuster was appropriate. They tried, but failed, to organize a filibuster.

But now the Democrats are the majority and their candidate for the Court of Appeals is far from the mainstream of American thought. Suddenly, personal criticisms of the nominee are unfair. Says DiFi: "Professor Liu's critics are all 'attack, attack, attack,' which is unfair because he is exemplary." So it's perfectly OK for the Democrats to summarily dismiss a nominee based on his legal philosophy, but unfair if Republicans attempt to do the same thing. And so far, at least, the Republicans haven't threatened a filibuster despite having sufficient votes with the election of Republican Scott Brown in Massachusetts.

The Judiciary Committee hasn't completed its vetting of the nominee, but dangerous indicators are showing up that Liu has no intention of being impartial once on the bench. Though I have yet to be convinced that the Senate should do anything other than review the Committee findings and take an up or down vote, I'm beginning to smell some things that might indicate a filibuster would be in order. And the primary one would be Liu's views on the death penalty.

Liu is an anti-death penalty zealot. Liu has made it very clear that he thinks the Supreme Court's decisions on the death penalty since Roberts and Alito joined the Court have been wrongly decided. And his grounds for that belief? Liu decided that the high court upheld death penalty verdicts in such a way as to lead "to a conclusion of racism." Three of the four cases he referred to involved African-American defendants, so that automatically means the affirmation of the death penalty verdicts was, ipso facto racist.

Since Liu has never been a judge (unlike Alito), there is nothing to prove that his personal views would not be intimately intertwined with his judicial rulings in the future. Liu has been evasive in providing background material to the committee, and left out reams of his radical articles until they were produced by investigators who were not in the hip-pocket of the Democrats. And then he claimed it was just a simple error on his part. He also directly contradicted himself on several issues in his testimony that were quite different from what he had written or lectured on at UC Berkeley's Boalt School of Law. He was unable to explain the disparities.

This absolutist stand on racism and the death penalty should be thoroughly vetted and pursued by the committee before making its recommendation to the full Senate. Unlike the deaf, dumb and blind Feinstein and Boxer, many of us Californians, particularly any who practiced law in California, are aware of where a death penalty opposition purist can go when there is no judicial trail to follow. Law school professor Rose Bird was nominated and confirmed to be Chief Justice of the California Supreme Court by then-governor Jerry Brown. Both Brown and Bird were rabid opponents of the death penalty, which had recently been reinstated in California to conform to the US Supreme Court standards.

Bird swore before the state senate judiciary committee that she would never allow her personal beliefs opposing the death penalty to interfere with her judicial opinions. But of course, there was no judicial paper-trail to follow. Once she was confirmed as Chief Justice, she ruled in favor of the death penalty defendant/appellant in every single case that came before her. Her creation of all new legal roadblocks and crazed logic finally became too much to continue. Sixty-four capital cases came before her, and in all sixty-four, she reversed the death penalty.

Finally, she once again decided that a death penalty case in which the defendant had put five bullets into the back of the head of a victim who was tied to a chair required reversal of the capital punishment conviction. Her opinion stated "the prosecution had failed to prove the defendant's 'intent to kill' the victim." She and two of her fellow leftist judges were voted off the bench by the California voters (governors appoint the justices originally, but then they are subject to voter reconfirmation every twelve years).

Although Feinstein seems to be getting a bit dotty in her old age, she can't claim she doesn't know the story of the ultraliberal Rose Bird. Feinstein was mayor of San Francisco during exactly the same time Bird was Chief Justice. At Bird's confirmation hearing, Feinstein said pretty much the same things about Bird that she's now saying about Liu. Oh, what a tangled web she weaves.

But somehow, Feinstein and Boxer think the Senate Committee should just take Liu's word, as we took Bird's word, that he will not let his personal views interfere with his decisions on the bench. Pretty risky concept, in my opinion. Liu actually testified that unlike his written treatises and lectures at the law school, "I have no opposition to the death penalty. I have never written anything questioning its morality or constitutionality. I would have no problem enforcing the law as written in this area." Well, he's bold. I'll give him that. To emphasize his fairness, he admitted that his language about Justice Alito was "perhaps unnecessarily flowery." Yes, he actually said "flowery."

Kent Scheidegger of the Criminal Justice Legal Foundation has studied Liu's work carefully, and concludes that Liu would "overrule death penalty convictions given any excuse, no matter how far-fetched." To this California retired lawyer, that sounds frighteningly familiar. Scheidegger believes that on this issue alone, the Republicans should filibuster the nomination if necessary. I'm not sure I agree yet, but I'm not willing to rule out the possibility. It could be a very close call, and it would only take one Republican defection to turn a principled stand into the appearance of foolish obstructionism.