Gov. Jerry Browns decision to nominate Berkeley Law Professor Goodwin Liu to Californias Supreme Court is a highly partisan poke in the eye at Republicans, given that GOP congressional criticisms led Liu, in May, to withdraw his name from contention for a slot on the Ninth Circuit Court of Appeal. Liu might be too radical for a post on a federal court, but not for one on our states highest court, which is yet another reminder of Californias leftward drift.
The nomination also is a reminder that the new Jerry Brown isnt all that different from the old Jerry Brown. Remarking on the Liu nomination, the Wall Street Journal reminded readers of the previous Brown justices who were recalled by voters in 1986. A lot has changed in California in the past 25 years, so perhaps the electorate has caught up with Browns ideology.
As Californians, were used to liberal judges. But Liu is a step beyond the usual. He is a leader in a movement that argues that the U.S. Constitution provides few restrictions on the power of government and is a living document that changes with the times. Traditional constitutional scholars understand that the nations Founding Fathers devised this document to put constraints on the central government.
Liu is forthright about his views, which he spells out in a 2005 book that he co-authored, Keeping Faith with the Constitution. As the book points out, Our Constitution retains its vitality because it has proven adaptable to the changing conditions and evolving norms of our society. Its words and principles still resonate centuries after they were written because time and again, as Justice Holmes urged, we have interpreted the Constitution in light of what this country has become.
The book celebrates the growth in government power. Most telling, Lius chapter Liberty deals almost exclusively with modern social issues rather than with the traditional negative rights (the right to be left alone) valued by the founders.
Liu was mostly maligned during the Ninth Circuit debate for this statement he made in 2005 opposing President George W. Bushs nomination of Samuel Alito to the nations high court: Judge Alitos 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.
Actually, thats the one statement from Liu that gives me a sliver of hope about his nomination given that he seems to recognize the degree to which the nations law-enforcement policies allow routine abuses of individual rights. But the rest of Lius record is one of eroding legal restraints on government expansion.
Typical for Californias political environment, Lius nomination is being discussed in ethnic terms Hispanic activists are angry that an Asian man is replacing a retired Hispanic justice while Asian-American activists celebrate an Asian high-court majority. But the ethnicity of the justices doesnt matter. Their philosophy does. And Liu reminds us of the thinking of those who currently run our state.
For all his brilliance and heterodoxy, Brown is still an old leftist who sees the free market as a zero-sum game and government as our salvation. Liu comes out of that school of thought. This doesnt bode well for the state.