Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 10

2006—Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.

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