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As Judicial Nominee, Law Professor Goodwin Liu Lingers in Limbo

A year after President Barack Obama nominated him to the federal bench, it remains uncertain whether University of California, Berkeley law professor and associate dean Goodwin Liu will ever assume the post.

That’s because the Senate has yet to vote on Liu, who would serve on the U.S. Court of Appeals for the Ninth Circuit. And questions fired at Liu during two confirmation hearings, the most recent occurring last week, have underscored his status as one of Obama’s most controversial judicial nominees.

The San Francisco-based Ninth Circuit has jurisdiction over cases from California, Hawaii, Oregon, Washington, Idaho, Montana, Alaska, Arizona and Nevada. Political and legal observers estimate that 40 percent of this country’s Asian-Americans live in these states, but none currently sits on this appellate court. Furthermore, of the nation’s 875 federal judgeships, only 13 are held by Asians, and only one of those is at the appellate level, according to the National Asian Pacific American Bar Association.

Critics have blasted Liu for what they describe as judicial activism in his legal writings in areas such as affirmative action and the death penalty. Senators at both hearings have peppered him with questions about his 2006 testimony opposing confirmation of Supreme Court Justice Samuel Alito Jr. Liu had criticized portions of Alito’s record as a judge, suggesting he “envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse (and) where a Black man may be sentenced to death by an all-White jury for killing a White man.” Last week, Liu told senators his then-conclusion about Alito was too harsh.   

Liu’s nomination did not reach the Senate floor last year; Republicans have been rumored to filibuster if it does. The nomination expired last December when Congress adjourned for its year-end break. Obama re-submitted Liu’s name in January.

As is customary among many prospective appointees, Liu hasn’t given news interviews since the original February 24, 2010 nomination. However, he has steadily gained support from a multicultural swath of legal scholars spanning the legal spectrum. UC-Berkeley law dean Christopher Edley called him “one of the most capable colleagues I’ve had in my three decades in academia. I hate the thought of losing him, but it’s a higher calling.” John Yoo, the former deputy assistant attorney general who came under fire for authoring “torture memos” under President George W. Bush, told the Los Angeles Times that “for a Democratic nominee, (Liu) is a very good choice.” Yoo is now a UC-Berkeley law professor.

University of Minnesota law professor Richard Painter has publicly downplayed Liu’s 2006 testimony against Alito, calling Liu’s legal analysis of Alito’s judicial writings “responsible commentary, whether one agrees with it or not.” The former White House chief ethics lawyer under Bush, Painter has described Liu as “an excellent choice” for the Ninth Circuit job and “qualified, measured and mainstream.”

A 2008 Diverse Emerging Scholar, Liu is a former law clerk to Supreme Court Justice Ruth Bader Ginsburg. He also was an appellate litigator for the Washington D.C. law office of O’Melveny & Myers. Liu has never served as a judge, even though his name surfaces in some political circles as a future Supreme Court nominee.

He dropped notions of a career in medicine while studying philosophy as a Rhodes Scholar at Oxford University. A Yale Law School graduate, he joined UC-Berkeley in 2003. Four years later, he was the inaugural recipient of the Educational Law Association’s Stephen S. Goldberg Award for Distinguished Scholarship in Education Law. 

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