Good! Win!
Update 01/21/2010: A non-password protected version of the article is here.
Update 01/22/2010: You can find Volokh Conspiracy discussion of the issue here.
Update 01/22/2010: You can find Volokh Conspiracy discussion of the issue here.
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The Daily Journal is reporting (behind password protection) that Obama is "poised to nominate" Professor Liu to the 9th Cir:Jan. 20, 2010: Three Californians Up for Federal Bench (Daily Journal) "The Obama administration is poised to nominate three Northern Californians to the federal bench, sources have told the Daily Journal. The nominations could come as soon as today, when the U.S. Senate reconvenes. Goodwin H. Liu, a UC Berkeley School of Law associate dean and constitutional scholar, is said to be an Obama pick for one of the two vacant seats on the 9th U.S. Circuit Court of Appeals . . . .Question of the day: what professor is next in line for collective student adoration?
Labels: Classes/Professors, Shiny Gold Stars
posted by Patrick Bageant at 2:01 PM
45 Comments:
Good professor? Absolutely. Good judge? That remains to be seen, but I would venture to guess not. I hope he proves me wrong.
Why would you venture to guess not?
This comment has been removed by the author.
Based on what I have heard students say of Professor Liu, he is clearly a brilliant man. His academic record speaks for itself, and the ability to win over students of so many different political persuasions demonstrates the fact that he is an excellent professor. That said, I have attended a number of his talks/debates, and believe that, though brilliant, he would join the 9th with a personal agenda. That can obviously be said of a number of judges, both right and left. I don't particularly believe that any of them are good for the bench.
Hey 3:07, did you major in vagueness?
I like that you are trying to avoid being bombastic and controversial, but you might want to strike a balance between that and actually making a point. I would love to hear what you have to say. If it's worth saying, you shouldn't be afraid to say it.
I don't think Liu was a very good professor. He's clearly got a huge ego and does a really poor job of mentoring students.
Liu was an amazing professor, one of my favorites at Boalt.
I think he would make an equally amazing judge. He's quite liberal, but I get the sense he has a pretty good sense of the limits of the federal judiciary. In fact my most vivid memory from his con law class were his constant screeching about how could we possibly allow "nine men in robes" to make such broad-reaching policy decisions. He was talking about Brown v. Board.
i adore and love prof. liu as a professor and person, but his class was also the most single-minded class i've ever taken. it was left-leaning and right-criticizing beyond belief.
many worry about prof. yoo taking his viewpoints into the classroom (which he's never done), but prof. liu is obviously biased. to his credit, he makes no effort to conceal it either.
with that said, i echo the first comment: great prof; iffy as judge.
I am 100% in agreement with the first comment and with the comment just above this one.
I _loved_ Professor Liu's class. He's brilliant, insightful, human, and incredibly educated. But I would not want him actually deciding cases.
Two things that could be trouble for Liu.
1. The Republicans blocked S.F. Magistrate Judge Edward Chen from being appointed to a full District Judge. The basis was that he had done a fair amount of work for the ACLU. I am a Republican and I think this was absolute crap. Having met Judge Chen and observed him on the bench, I think he was fully qualified to be a district judge and I was saddened to hear he was blocked. Now imagine what they'll say about Liu. Especially given his close affiliation with ACS. If FedSoc was considered a negative for Roberts and Alito, I imagine ACS will be a negative by the R's. Again, I personally think that's dumb, but it's politics.
2. Liu was one of the people who testified before the Senate Judiciary Committee against the elevation of then-Judge Alito to SCOTUS. Much of his opposition was ideologically based. Sauce for the goose will be sauce for the gander.
I echo the sentiments above. Liu was a good professor, but man did he wear his views on his sleeve. When I gave conservative counterpoints, he was respectful. But his outspokenness didn't exactly foster open debate. It makes me wonder how receptive he will actually be to the merits of each dispute.
Liu's anti-Alito testimony was tasteful for that genre, but that's like saying a food fight was tasteful. Bear in mind that as Liu sat there, he was well aware of the "sauce for the gander" problem, and was already triangulating to preserve his dreams of a federal judgeship. The larger problem is the one lots of people have mentioned: the possibility that he'll engage in result oriented judging.
It would be one thing if he had taught, "look, the conservative judges and Prof. Yoo had the steering wheel and they could do what they wanted to achieve what they desired. If I get the chance I'll do the same but in a different direction." But that's not what he taught.
OMG! The majority of these comments are totally out of sync with both my experience of Liu's class, and the sentiments of students I've talked to about it. I actually think this is a better example then all of the protest stuff of how the comments on this blog don't represent the broad sentiments of boalt students.
9:08, just to be clear, I ADORE Professor Liu. I would take any class from him I could, and I recommend everyone else do the same. He's one of the most brilliant, insightful minds at Boalt, and has made a tremendous impact on me and my education.
His approach to judicial analysis is fantastic. I do not, however, think this approach is well-suited to judicial decision making. He is after the result (and results I tend to agree with) as opposed to being after a rigorous, principled, consistent approach to get there. Of course he desires both, but I don't think he would argue that given the choice, he would sacrifice consistence, precedent, and predictability for what he personally views as the "right" answer. Personally, although I agree with him about what answers are "right" I also feel that his approach is dangerous and undesirable.
I have no idea what the majority of students at Boalt think, or if they have even thought about this at all. My initial reaction to this post was wow great news, but the more I think about the approach he would likely use to decide cases (the approach, mind you, not the result) the more uncomfortable I feel.
Just my two cents.
-6:43
Professor Liu’s constitutional law class was one of the best classes I have taken in law school. He was clear, engaging, and extremely bright. He understands not only the law but the human impact of the issues. Few people can engage the theoretical and practical the way Professor Liu can. Not only is he extraordinarily sharp, but he is also extremely fair-minded and balanced. If these aren’t the qualities of a good professor and a great judge, then I don’t know what are!
Professor Liu will be a wonderful addition to the federal bench. As a Boalt student, I would be proud to have someone from our school nominated! Good luck Professor Liu!!!
6:43: Sounds like you think "consistence, precedent, and predictability" are the most important values in our judicial system. How would you have decided Brown?
What are the chances that these posts get brought up in the confirmation hearing?
To quote Jack Donaghy: "Very to a lot."
10:04, I don't know. I mean, I honestly don't know. Brown v. Board, like Roe v. Wade, was a decision with results I applaud, but are also a decision that is hard if not impossible to justify as a matter of honest con law. My short answer is that the dissent in Plessey v. Ferguson makes a lot more sense to me then the reasoning behind the unanimous decision in Brown. I suppose that means I would have concurred in the judgment in Brown, but not the reasoning. That might be a cop-out on my part, but I think it is the most defensible position to take.
-6:43
*is also a decision...
10:04,
Judges are not supposed to create American public policy. They are supposed to intrepret what the legislature has created. While there have to be occaisional departures from that, we should still aim to limit judicial policy by fiat.
To encourage judicial activism is to be anti-democratic, putting the power of government in lifetime appointed individuals with zero oversight except, perhaps, another set of lieftime appointed Justices.
Scalia said it well in his Planned Parenthood v. Casey dissent:
"The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"—with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment. . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982)."
While there have to be occaisional departures from that
Yeah like around 10 AM EST this morning.
I'm not so sure Armen. If anything, it was the prior decisions that allowed targeted restriction of campaign donations which was policy-making, not the most recent one.
Courts do not create policy by intrepreting whether Congress can restrict campaign donations by particular groups.
McWho, paragraph one: Wrong. Austin was in part about the policy of unfettered public discussion - a policy with strong originalist support, and not one the Court made up on the spot. The Court concluded that the statute at issue furthered those originalist policies - it did not create new ones - by leveling the playing field, and so was permissible.
McWho, paragraph two: Circular and unintelligible, and classic question begging.. As a matter of definition, nobody "creates" by "interpreting."
How can you have unfettered public discussion by banning certain groups from participating?
. . . in roughly the same way that we encourage unfettered discussion in a jury room by criminalizing bribery. The issue isn't the nature or content the speech. The issue is its tendency to overwhelm.
I thought that Liu was very deliberate about emphasizing the importance of separation of powers, and the limited role the judiciary should play. The message I got from his class, if any, was that liberal overreaching on the bench can have long-term negative consequences for liberal political goals (see the abortion issue post-Roe). His teaching has led me defend opinions with "bad" results, in order to leave the law-making to the popularly elected branches. I think he would be a fabulous judge, and would approach the role with great integrity.
Boo to undergrads in the library.
We're there with ya, 1:41.
I just want to note that anyone can leave comments on this blog . . . including non-Boalt students. I think lots of Boalt students would agree with me that Professor Liu is a great prof and would be a great judge.
He's a great prof and he will be a great judge. And he's honest about his liberal views, which is a hell of a lot more than you can say about Roberts or Alito.
A lot of judging is not just rule-appyling but value-balancing because a lot of the rules require judges to balance opposing concerns. What is sufficient? What is significant? Unlike a lot of conservatives that have been ramrodded through the Senate the past 8 years, Liu has far too much respect for the judiciary to allow results to make bad law.
But Republicans are completely unreasonable. They think the average American is 'liberal' and the average Republican 'moderate'. I predict a replay of the Fletcher nomination...
"But Republicans are completely unreasonable. They think the average American is 'liberal' and the average Republican 'moderate'."
That's right. Because all Republicans hold the same views. Excellent point. I wish someone had pointed this out to me earlier.
Professor Liu seems like a nice guy and a decent professor, but the Cult of Goodwin never made very much sense to me.
I must admit--I've never taken his class. But his graduation speech last May was terrible. Not only did it go far too long, but it relied two completely hackneyed schticks. Rainstorm sounds? Are we in the fifth grade? (Granted, he could hardly have done worse than DE that day.)
I would say that GL "deserves" to be on the Court--to the extent that anyone is qualified. But he is likely to be the most controversial (and easily caricatured) Obama nominee--even more so than Sotomayer. If Republicans are able to successfully oppose any judicial candidate, it will be GL.
Professor Liu would make an excellent judge. He's thoughtful and principled. If the Ninth Circuit has room for torture memo guy, I can't believe we're debating whether it has room for GL.
I'm with 9:08. This is WAY worse than the protester posts.
And another thing, why are liberals so willing to throw their judicial nominees under the bus? I endlessly admire Republicans' ability to get behind a set of nominees and unleashing all the fury they can muster until they are confirmed.
Liu is intelligent, pragmatic and has shown utter respect of the law. For these reasons he would make an incredible judge...
Honestly, as a former circuit court clerk, i can tell you that minimum 90% of the time, political views make absolutely no difference to the job. people really do want to get it right.
that 10% matters, you might say, but someone like Liu who is wicked smart and a workaholic like all the others, will be great. pure intellectual firepower goes a long way.
Yeah, another 9C clerk here, seconding that notion. Only I'd guess the number is more like 95% -- the number of cases that come out the same way, no matter who is on the three-judge panel. Berzon signs onto plenty of "conservative" results she abhors, because the law is clear; same in the other direction for Kleinfeld or O'Scannlain.
With those last 5% of cases that divide judges ideologically, the law is *not* so clear. As a result, as Richard Posner has argued, the judge is left with little more than instinct, a sense of pragmatism and fairness, and morality as it is filtered through the caselaw in which to decide the issues. (Oh, and the bench memo!).
To therefore say that Liu would be any worse (or better) than any other competent, sharp appellate judge in "following the law" is just nonsense. They ALL apply the law when it is clear; they ALL act out of ideological/jurisprudential conviction when it is not.
Given that, it seems distinctly in the left's interest to nominate someone who will be razor-sharp in arguing for and (more likely) writing for his or her positions. That sounds like Liu. It is the right's interest to oppose such a nominee. That's the lay of the land.
Anyone arguing that it's fine for Obama to nominate "liberal" judges so long as they will "follow the law" but not "really liberal" judges who will "not follow the law" -- as if there is any articulable or defensible distinction between the two -- honestly just doesn't know what the fuck they are talking about when it comes to the appellate courts.
12:01 - 9:44 again - you are totally right on. I had written 95% but then changed it to "minimum 90%" because I like to hedge like that. :)
So I guess you two clerks don't have an issue with Bybee, then?
I have a lot of issues with Bybee -- but none have to do with his conduct on the 9C. And I think you'll hear that from anyone who has worked at the Court. I didn't wrestle with much of his work, but I had a (very liberal) co-clerk who did, and he remarked that he was amazed with the thoroughness and detail of his opinions. He said something like, "It was the last thing I expected from someone who signed off on those torture memos..."
Which I think only reinforces the point that, most of the time, in the vast majority of the cases, the law is clear and judges of different ideological persuasions will reach the same result. When the law is not so clear, judges will divide along (somewhat) predictable lines, and a variety of different forces and beliefs determine that decision. The "law" -- as some sort of objective, formalist ideal that everyone recognizes -- is not one of them.
Professor Liu is a pretty fantastic teacher of and scholar in the law. He does not set out to indoctrinate, only impart the tenets of the law. There's not much more that I can say beyond that.
I find it telling that very few of the posters who have criticized Professor Liu have had the guts to attach their name to their post. I took Constitutional Law with Professor Liu, and I don't think I've had a more even-handed professor in law school. One of the main themes of his course was the limited role of the judiciary and the fact that the political process is often the most legitimate and lasting way to achieve social change.
As a teacher, Professor Liu was fair, kind, and thoughtful. It's no surprise that he won the campus-wide UC Berkeley Distinguished Teaching Award last year. He did a wonderful job of fostering class discussions (despite the enormous size of our class), all while remaining politically neutral himself. Goodwin Liu is exactly the kind of person I want on the federal bench, and I have no problem signing my name to that.
As anyone who knows Professor Liu can attest, the comments posted here characterizing him as some sort of wild-eyed socialist are absurd. Professor Liu is anything but a radical.
I'm a student at Boalt who's taken a couple of classes from him. Politically, we don't necessarily see eye to eye. But I'm confident that as a judge, he would demonstrate the same traits he's shown as a teacher and scholar: brilliance, thoughtfulness, thoroughness, curiosity, intellectual honesty, modesty (about himself and about the role of the courts in a democracy), a sense of history, humor, and absolute integrity.
To those who think that Liu, if appointed to the bench, would be a far-left activist — you should read some of his law review articles. He's hardly a radical. You might start with "Rethinking Constitutional Welfare Rights," 61 Stanford Law Review 203 (2008) (http://lawreview.stanford.edu/content/vol61/issue2/Liu.pdf), in which Professor Liu challenges all sorts of liberal orthodoxies. I don't agree with everything in the article, but it demonstrates Liu's keen awareness of the limitations of judges and courts. The article also shows the honest, nuanced, and careful way in which he approaches tough legal questions. There's no reason to think he would approach these questions any differently as a judge.
If you want to see the kind of judge Professor Liu would be, read his work.
Professor Liu is thoughtful, measured, and well aware of the damage judges do when they disregard the law. We would be lucky to have him on the Ninth Circuit.
I had the pleasure of taking more than one class from Professor Liu at Berkeley. He's the best teacher I've ever had — not just in law school, but anywhere. I agree with the three posters immediately above me: as a professor and as a person, Liu is measured, fair, and thoughtful.
In class, I remember how he challenged liberal students to reconsider their arguments, and how he supported conservative students when they offered their comments. He welcomed all opinions, and not just in an "on the one hand, on the other hand" way — he really encouraged a meaningful, open, robust exchange of ideas in the classroom.
Professor Liu is anything but dogmatic or partisan. His views are well within the legal mainstream. He's pragmatic, precise in his thinking, whip smart, and fair. He would make a magnificent judge.
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