Bench Memos

New California Justice Goodwin Liu and the Anti-Prop 8 Case

Yesterday, California’s three-member Commission on Judicial Appointments confirmed Governor Jerry Brown’s nomination of Berkeley law professor (and failed Ninth Circuit nominee) Goodwin Liu to the state supreme court. That confirmation was routine: As the linked article states, “The commission has not failed to confirm a state high court judicial appointment since the 1940s.”

As regular readers know, two matters that I have blogged about extensively since early 2010 are the anti-Prop 8 case in California and Liu’s failed nomination to the Ninth Circuit.

In what I’ll call a disharmonic convergence, next Tuesday, September 6, the very first case that Liu will hear as a state supreme court justice is the question of state law that the Ninth Circuit panel deciding the anti-Prop 8 appeal certified to the state supreme court—namely whether under California law

the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

As the Ninth Circuit panel explained in its order, that question of state law bears directly on Prop 8 proponents’ Article III standing to appeal the anti-Prop 8 ruling.

Liu, I’ll note, is an ardent supporter of same-sex marriage. In addition to his amicus brief in 2007 that advocated invention of a state constitutional right to same-sex marriage, Liu has criticized Prop 8 for creating a “separate-but-equal regime” and for “target[ing] a historically vulnerable group and eliminat[ing] a very important right.” On a topic more closely related to the certified question, he’s signaled his hostility to using the initiative process to override the state supreme court and to restore the traditional definition of marriage: “Changing the Constitution—the state’s paramount law—in such a momentous way arguably calls for deliberative rather than direct democracy.”

All that said, having reviewed the competing briefs (available here), I’d still be very surprised if even Liu can bring himself to embrace the position that Prop 8 proponents don’t have the authority under state law to defend Prop 8.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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