Having reviewed a paper Liu co-wrote against the confirmation of now-Justice Samuel Alito, the Criminal Justice Legal Foundation's legal director, Kent Scheidegger, concluded that Liu is "intensely hostile to capital punishment" and would "vote for the murderer on every remotely debatable point." Of course: "None of the cases involves a genuine claim of actual innocence."
Last month, 42 of California's 58 district attorneys signed a letter urging the Senate Judiciary Committee to reject Liu, as "his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is."
UC Berkeley law professor Jesse Choper called the district attorneys' letter "unfortunate." "I know of no evidence whatever that he is opposed philosophically to the death penalty," Choper told me. "He may be, but there isn't any." In a letter to the committee, Choper pointed out that Alito's view prevailed in only one of the four cases Liu examined.
Choper considers Liu to be "a moderate liberal." He wrote to the committee, "I am confident that, if confirmed to the Ninth Circuit, (Liu) will not seek to enforce his views as law."
Other senators, no doubt, will question Liu about the statements that the National Journal's Taylor quoted. In writing that courts should "leverage the legislature's own publicly stated commitment to welfare provision," was Liu arguing welfare is a constitutional right? When Liu discussed a "moral duty to ... give up (something) to make things right" at a 2008 panel on the slave trade, was he supporting reparations?
I have a more parochial concern. As a citizen subject to 9th Circuit sensibilities, I want to know how much this appointment would cost Californians.
Consider the decisions out of this circuit that have cost Californians precious time, peace of mind and money the state doesn't have. There's the 2009 9th Circuit ruling that found overcrowding in California prisons -- which are operating at 190 percent capacity because 100 percent capacity means one inmate per cell -- impairs prisoners' right to "constitutionally adequate medical and mental health care." The court's remedy? It ordered the release of 40,000 inmates in two years.
Then there's the 9th Circuit ruling that put the prison system under receivership and drove up annual health care costs per inmate to $13,778 in 2007-08.
Federal judges repeatedly have overruled murder convictions based on improper jury instructions or inadequate defense because attorneys failed to present evidence about a "difficult childhood." Can Liu explain which capital convictions, if any, he would uphold?
Just what is a judge's obligation to the general public, which has to absorb the cost of his decisions? Does he even care?
Liu himself opposed the confirmation of now-Chief Justice John Roberts on the grounds that Roberts might prove to be a conservative extremist. Well, the 9th Circuit already is extreme, on the liberal side. I want to know whether Liu wants to right a listing ship or steer it into the drink.
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