Nominee’s death penalty views being distorted

Now well into its second year, the administration of President Barack Obama is encountering increasing flak in its already lagging efforts to fill vacancies on the federal bench.  In one pending nomination — that of Goodwin Liu to the Ninth Circuit Court of Appeals – Republican roadblocks have significantly slowed this important but controversial appointment. 

Much of the opposition to Liu – a Georgia native and currently a Berkeley law professor – is legitimate and based on relevant policy disagreements.  At the same time, at least some of the criticism falls well outside the bounds of legitimate and relevant objections to a judicial nominee.   In particular, Liu’s views on the death penalty have been distorted.  Based largely if not solely on a single paper he wrote some six years ago, critics have suggested quite erroneously that Liu possesses an “anti-death penalty agenda.”  This conclusion appears based on the notion that Liu has promoted the idea that appellate judges must be concerned about the due process rights of criminal defendants in capital cases. 

While there may be many reasons to oppose Liu’s confirmation, his concern for due process in capital cases should not be among them.  And in fact, his views are shared by many scholars, lawyers, and public officials from across the ideological spectrum.

For example, I believe the death penalty is an appropriate and necessary punishment in certain cases.  At the same time, I recognize that no legitimate criminal justice system can incorporate the death sentence in the absence of providing robust safeguards.  That is why I joined the Constitution Project’s Death Penalty Committee, a bipartisan group of individuals — including several who support capital punishment — who are familiar with the administration of the death penalty and believe we have a duty to ensure it is enforced fairly.

Moreover, no less a conservative jurist than Clarence Thomas cautioned at his 1991 confirmation hearings that this “harshest penalty” must always be carefully considered and  applied only with “all due process that can be provided.”

Still, Liu has been attacked by dozens of district attorneys from California who fear he would apply what they term extreme, “hostile” view towards capital punishment and overturn all death penalty cases brought before him.  Labeling as “extreme” calls for death sentences to comport with constitutional mandates of due process, access to counsel, and fair judicial review, seems in and of itself to be rather, well, “extreme.”  Considering the job of any prosecutor is to ensure that justice is served, it seems to me those district attorneys should view themselves as colleagues, not adversaries, with justices who also attach importance to due process and equal protection for all.

Still, Liu’s 2005 examination of then-Third Circuit Judge Samuel Alito’s opinions in five capital cases has resulted in demands that the Senate reject his nomination for being “too far outside the mainstream.”  What his opponents fail to mention is that in two of the five cases Liu analyzed, Alito’s opinion failed to win over a majority of his colleagues; and in a third, the U.S. Supreme Court overturned his opinion. In only two cases did Alito’s opinion prevail, and in those two cases, four Third Circuit judges disagreed with that opinion.  Regardless of what you think of Liu as a nominee, his views on due process for criminal defendants certainly are not radical. 

A more accurate reading of Liu’s analysis reveals simply his commitment to the Constitution and to a fair criminal justice system.  Far from being scandalous, radical, or reflecting a knee-jerk anti-death penalty stance, Liu’s critique of Judge Alito’s opinions reflects a belief that appellate judges in capital cases must carefully examine the record for serious error and overturn convictions that are obtained in violation of the defendant’s due process rights.  If these are “radical” ideas worthy of rejection, then we as a country have drifted far away from our founding principles.

12 comments Add your comment


April 12th, 2010
8:17 am

I do not know Liu and his “paperwork trail”. But I do know the Constitution. That document requires a Presidential nomination and an
“advise and consent” role for the Senate. That means an up or down vote on any nominee. The leadership of the Senate, be it Republican or Democratic, that allows a “hold” on nominees is guilty of violating the Constitution.

Gavel Grab » Monday Media Summary

April 12th, 2010
9:48 am

[...] Atlantic Journal Constitution/The Barr Code: Nominee’s death penalty views being distorted Bob Barr – 4/12/2010 [...]

Ragnar Danneskjöld

April 12th, 2010
10:02 am

I believe the individual state court systems are sophisticated enough, here in the 21st century, to proved a robust due process for the harshest of penalties. With my magic want I would dissolve jurisdiction of both US District Courts and US Appellate Courts over any decision litigated in a state court system. I also believe there is sufficient mischief among the US District Courts and US Appellate Courts to believe they undermine justice as often as they render it, and my second wave of the magic wand would amend the Constitution to make every judicial appointment for a period of 10 years.

william mcniff

April 12th, 2010
12:12 pm

I cannot believe Barr on the Liu case. His personal relations must be interfering. Why would the conservative media get all over Liu if he is as good as Barr says? One would think the conservative media would welcome Liu if he is as good as Barr says.


April 12th, 2010
1:36 pm

Justice is not being served in a manner that deters future crime.

Due process is a trial, and I can understand 1 appeal to cover any human error that may possibly have occured but is actually exceedingly rare. This is all the process needed,or else the crime and punishment become so far removed from each other that it doesn’t effectively serve as a deterent.

[...] Barr, the conservative former GOP congressman from Georgia, says critics of Goodwin Liu are distorting his position on the death penalty. Writing for the online edition of the Atlanta Journal-Constitution, Barr states: In fact his views [...]


April 12th, 2010
2:58 pm

This is a great question: “Why would the conservative media get all over Liu if he is as good as Barr says? One would think the conservative media would welcome Liu if he is as good as Barr says.”

I believe the answer is pretty apparent. Conservative media places loyalty to party over country. The means, in this case opposing everything this President says, does or proposes, justify the ends, taking back power for their “side”.


April 12th, 2010
3:43 pm

Re: Abrazos . You nailed it. It is nothing more than political obstructionism. Politicians don’t care what happens to this country unless they, or their party gets the credit for the accomplishment.

Bryan G.

April 13th, 2010
9:48 am

For those of you who argue that “one appeal is enough” or that “we already have enough safeguards,” please see all the people who have been set free years after their convictions. It happens several times a year that someone who has been in jail for a decade gets out because it is found that they did not have a fair trial.

We must ALWAYS err on the side of due process and giving a defendant MORE chances rather than less. It is naieve to think that the system (which is a great system) always gets it right at the trial court level. It usually does, but it too often does not (please note…even once is too often).


April 13th, 2010
10:05 am

JConservative, yet the Democrats held up almost 50% of the Bush nominees for Federal Court appointments. So why complain NOW and not THEN?

[...] Republican Congressman and 2008 Libertarian presidential nominee Bob Barr concurred Monday on his blog for the Atlanta Journal-Constitution: “While there may be many reasons to oppose Liu’s confirmation, his concern for due [...]


April 20th, 2010
6:33 pm

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