Friday, April 30, 2010

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.


StanH said...

Wow! This guy sounds like a real liberal nightmare. Thanks for the post!

Joel Farnham said...


Being obstructionist is not a bad thing. That was what World War II was all about. As well as Desert Storm.

I wish that the Beltway Republicans will get so obstructionist and filibuster everything else from this administration. I don't care what.

Obama and his cohorts have time and again demonstrated their willingness to destroy all that makes America Great. Liu would be a fine addition to their ranks.

You can call me reactionary, but the time to make a stand is long past. We can't let Obama have any more. We just can't.

BevfromNYC said...

LawHawk, isn't the hypocrisy of politicians getting boring and predictable? I think they assume that we don't remember what they have said or done in the past. And this "Trust me, I didn't mean it really" thing with Liu is just nonsense. Since he has no judicial record, he should have to sign a blood oath that he will rule by the law and not by politics.

Joel, what we need is balance again. And the only way to get that is to take the Supermajority away from the Democrats, and make sure NEITHER side has a supermajority ever again. That way our Congresscritters will have to negotiate across the aisle for any new legislation. No more ramming unread and bad legislation through "just for a win". We need watered down, do-nothing legislation that harms no one. Dill Pickle Day every day!

LL said...

It's all so depressing.

Unknown said...

StanH: The closer I look at him, the worse it gets. During the hearings, one of the Senators (I don't remember which one) asked him some questions about his most radical writings. Liu sat there looking like a deer in the headlights, shaking his head in agreement as the Senator read. Then he proceeded to give completely nonsensical responses that didn't explain them away at all.

Unknown said...

Joel: I'm not quite sure I see the parallel between a Senate filibuster and WW II, though I'm beginning to think that the Obama administration is just about as bad.

We still have a lot of elections to win, and being an obstruction is not the same as being an obstructionist. We're going to get plenty more nominees to office from Obama who will be distasteful to us. That's the way of politics, and we can't stop them all by being obstructionist (simply rejecting them all). But we can vet the hell out of them, and obstruct their free ride to confirmation. That means full hearings and up-or-down votes. The filibuster should be used only in special, genuinely repulsive nominations. Liu may very well be one of those nominations.

We Republicans and conservatives can say "we don't care" what independents and moderates think, and assign ourselves to permanent minority status at the electoral polls. Vetting, full exposure, and "no" votes on bad nominations is good politics. Use of the filibuster (even if we could be successful in getting enough votes in the Senate) on every nomination we just don't like is a recipe for a permanent liberal Democrat majority.

Unknown said...

Bev: There's a sad and significant truth in your comment. I expect deviousness and disingenuousness from politicians. That's as old as politics itself. But there was a time, not so long ago, that nominees for the courts were jurists first, and the political element was a poor second. Having a judicial philosophy is one thing. Treating a seat on the bench as just another political activist position like Congress or the presidency is quite another. Obama's judicial candidates are pure politicians with scarcely a trace of genuine legal and constitutional motivation.

AndrewPrice said...

The Democrats have zero credibility with me on anything judicial. To them, this is just another primary to elect another Democratic politicians to a different office. They lie, they politicize, and they specialize in hypocrisy.

These are the same people who dug through Robert Bork's garbage and tried to find out what videos he rented. They have no credibility.

Unknown said...

LL: It is depressing, isn't it? But our ray of hope is that Republicans will continue to take principled stands, get their views out to the public, and avoid being tagged as obstructionist. If they can do that, this nightmare will reach the beginning of the end in November. Do it wrong, and the nightmare could become permanent.

Joel Farnham said...


We went to war against Hitler and Hirohito. Why Hitler? To obstruct his National Socialist take-over of the world. Hirohito? To hit back for Pearl Harbor.

Obstructing bullies is THE AMERICAN WAY. Obama and his regime are the new definition of bullies.

Groucho said it best.

I do hesitate to actually listen to what Obama and like minded people propose, but I have yet to see anything from them I like.

Unknown said...

Andrew: So true. And though Liu was a bit too young to actively participate in the original "Borking," he was very active in the borking of Roberts and Alito. His political activities will continue, now untethered, if he is confirmed to the Ninth Circuit bench.

I've watched enough of recent Senate hearings on judicial nominations to see that one of the Republicans' major flaws is that they do occasionally get in a few solid licks at the nominees, but fail almost entirely to counter the lies, distortions and demagoguery coming from the Democratic committee members.

Leahy, Feinstein, Specter and now Franken make utterly outrageous, idiotic, inflammatory and dishonest comments to and about the nominees, and the Republicans just let most of them slide. It almost makes me miss Ted Kennedy.

Unknown said...

Joel: If we can figure out how to enlist the military to attack the Democrats, I suppose the parallel holds up. I just don't see judicial nominations as war, or even in the words of the inestimable Jimmy Carter, "the moral equivalent of war." The kind of bullies Republicans face in Congress (and specifically in this discussion, in the Senate Judiciary Committee) are not exactly in the same category as Hitler or Tojo.

We need to stand up to them, and use every electoral and congressional tool reasonably available to us that will accomplish the dual goal of winning over the voters while standing in the way of the socialist agenda. I don't think we're quite at the point of atom-bombing the Democratic National Committee or Patrick Leahy's house.

Joel Farnham said...


Remember a few days ago, Obama's associates called the riot squad out on Tea Partiers? On it's face, it was ludicrous. Police in full riot gear ready to combat septuagenarians. The only more harmless thing is a small kitten.

We are already there. No shots have been fired. Show of force has.

We are going to talk and we are going to vote in November. I cringe when I think of what happens when a narcissist gets stymied.

Unknown said...

Joel: The SWAT appearance at the Grannies Tea Party was truly appalling. The Democrats are imbued with paranoia, particularly when it comes to their messiah. I just don't want to see solid conservatives starting to match paranoia for paranoia. The Quincy thing was an extreme overreaction to an imagined, potential, threat to the president. It was stupid, dangerous, and just plain wrong. But I still don't see it as a declaration of war.

BevfromNYC said...

Lawhawk, I think you are right about the overplaying in Quincy. On the video, even the TP participants seemed more amused than threatened. It is kind of shocking, but at the same time, its just absurd. I don't think we should get too worked up about it, but we still have to point it up for it's absurdity.

Unknown said...

Bev: Yes, we need to keep this kind of lefty nonsense in front of the public. I'm just cautious about overreacting and producing the same kind of negative reactions from independent people who might see it as "the flip side of the same coin."

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