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.