Obama Taps Berkeley Law Professor to Sit on the 9th Circuit

By John Roemer and Robert Iafolla

Daily Journal Staff Writers

Constitutional law scholar Goodwin Hon Liu of UC Berkeley School of Law is President Obama's first nomination for one of the two open seats at the 9th U.S. Circuit Court of Appeals, the White House announced Wednesday.

The 39-year-old son of immigrant Taiwanese physicians, Liu will become the only Asian American among the 159 active judges on the federal courts of appeal, if confirmed by the Senate.

Currently the only Asian American circuit judge in the nation is the 9th Circuit's A. Wallace Tashima of Pasadena, who took senior status in 2004, according to a federal court spokesman.

Liu might be joined by Denny Chin, a New York district court judge whose nomination is pending to the 2nd Circuit seat vacated by U.S. Supreme Court Associate Justice Sonia Sotomayor.

"I am very humbled by this nomination and grateful to President Obama for this honor," Liu said in a statement released by UC Berkeley. He declined to be interviewed.

Liu's nomination drew praise from California's Democratic senators, Barbara Boxer and Dianne Feinstein.

"He's as sharp as they come, with a kind demeanor and a good temperament, and he's someone who has earned the broad respect of his colleagues on the left and the right," Feinstein said. 

Liu's confirmation is anything but certain, however, given the ruthless political warfare in Washington. Liu's record of having strongly opposed President Bush nominee Samuel A. Alito for the U.S. Supreme Court in 2006 won't smooth his path.

He's also offered red meat to cultural conservatives. In 2008 Liu urged the California Supreme Court to overturn a state law banning same-sex marriage and applauded when the high court did just that. He said the ruling "reminds us that 'separate but equal' is not truly equal."

Curt Levey of the conservative advocacy group the Committee for Justice said that outside of Supreme Court justices, Liu will spark "the biggest confirmation battle" of this Congress.

"Liu is a leading light on the left among legal thinkers," Levey continued. "He's been very outspoken in advocating for a very progressive, activist, living Constitution view, which is exactly what conservatives fear having on the federal court."

Political analysts said Liu represents a bold pick from an Obama administration that appears to be shifting away from the modest and passive stance it had on judicial nominees during its first year in power.

"This is the sort of lightning rod nomination some people expected and hoped for at the beginning of administration," said Elliot E. Slotnick, an Ohio State University political scientist who focuses on the judiciary. "In many ways, he's the first radioactive nominee that the administration has put out there."

Liu joins eight other nominees to appellate courts and 18 to district courts awaiting confirmation.

When the Daily Journal reported Liu's likely nomination in January, conservatives were quick to assay the problems he'll face.

"Prof. Liu is an accomplished scholar with an impressive background," wrote Jonathan H. Adler of Case Western Reserve University on the right-leaning Volokh Conspiracy legal affairs blog.  "But I also suspect his nomination could face a chilly reception from Senate Republicans, and not simply because he is a liberal academic."

He pointed out that Liu chairs the board of the American Constitution Society, the liberal answer to the conservative Federalist Society. "Senate Democrats fiercely opposed, and ultimately blocked, confirmation of Peter Keisler to the U.S. Court of Appeals for the D.C. Circuit, largely because he was a co-founder of the Federalist Society," Adler wrote.

Adler amplified his remarks in an interview Wednesday. "I wish Liu well, but I doubt it will be easy for him," said Adler, a contributing editor to National Review Online who has himself won awards from the Federalist Society.

"If I were king for a day, Liu would go through, but so would a lot of people Bush nominated. He's likely to provoke a significant backlash in part because his conservative equivalents did not get fair treatment from Democrats.

"Professor Liu's own participation in efforts to make a case against Republican nominees will work against him. He wasn't particularly mild in his opposition to Judge Alito, plus he expressly recommended that the Senate consider ideology in deciding whether to vote for confirmation."

Liu is an associate dean and professor of law at UC Berkeley School of Law and a former appellate litigator at O'Melveny & Myers' Washington, D.C., offices.

A 1998 Yale Law School graduate, Liu was a Rhodes scholar who holds degrees from Stanford and Oxford universities. He has clerked for U.S. Supreme Court Associate Justice Ruth Bader Ginsburg and for Judge David Tatel of the D.C. Circuit.

One court-watcher called the nomination timely and necessary.

"It's important to fill the open slots on the 9th Circuit," said Shaun Martin, a professor of law at UC San Diego School of Law who writes the California Appellate Report blog.  

"It's a large and incredibly busy circuit, and can use all the active judges it can get. The 9th Circuit already relies heavily on judges sitting by designation from other circuits and from district courts to fill its panels.  It would be helpful to have those panels instead filled by active judges rather than borrowing from other courts."

Will Liu's lack of prior judicial experience hurt his chances?

Actually, he'd be in good company at the 9th Circuit. In 1996, President Bill Clinton appointed the jurist currently next in line to be chief judge, Sidney R. Thomas of Billings, Mont., despite his having never sat on any court bench. Nor did Circuit Judge Raymond C. Fisher of Los Angeles, whom Clinton nominated in 1999.

"Several others on the 9th Circuit don't have prior judicial experience - William A. Fletcher, who was also a professor at Berkeley when he was nominated, is the most obvious - and I don't at all think this should be a disqualifying fact," Martin said. 

"Indeed, many of the best and brightest candidates for the court of appeals will not have substantial judicial experience because their current jobs are more prestigious and intellectually challenging than being a judge on a lower court."

Liu was born in Augusta, Georgia, to Wen-Pen and Yang-Ching Liu, both of whom came to the United States from Taiwan in the late 1960s when foreign doctors were being recruited to work in under-served areas.

Liu is married to Ann O'Leary, the daughter of a social worker and a union leader who grew up in Orono, Maine. She is the founding executive director of the UC Berkeley Center on Health, Economic & Family Security. They have a two-year-old daughter and a baby boy due in March.

Regarding his own interracial marriage, Liu's Berkeley biography notes, "Students who have studied Loving v. Virginia, the 1967 Supreme Court case invalidating restrictions on interracial marriage, in Liu's constitutional law class are familiar with a wedding photo that shows him and his new bride at the end of their ceremony, with an American flag visible in the background-an image that Liu uses to illustrate the law's impact on everyday life and his own faith in the Constitution."

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