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Goodwin Liu Vote Tomorrow

    The US Senate will likely vote tomorrow afternoon on cloture on the disastrous nomination of Goodwin Liu for the Ninth Circuit Court of Appeals.  This nomination needs to be stopped.

    The Ninth Circuit is the worst federal court in the country when it comes to reviewing criminal cases.  Here are a few of its decisions:

    -- It overturned, on patently erroneous grounds, the conviction of a man who had brutally raped and nearly killed a 9-year-old girl, and it did so on a basis that would have prevented retrial and put him back on the street.  Fortunately, the Supreme Court unanimously reversed.

    -- It usurped to itself the power to second-guess parole decisions of the parole board and governor in murder cases, and it did so for years until the Supreme Court finally, and without dissent, ruled that this was no part of that court's business.

    -- It overturned a conviction for premeditated murder because the defense lawyer abandoned a hopelessly weak insanity claim.  The Supreme Court unanimously reversed.

    But the wrong decisions the Supreme Court reverses are only the tip of the iceberg.  In most cases, the federal court of appeals decision is the final decision.  It is vitally important that we have good judges who understand the need for justice on these courts.  For a court as bad as the Ninth presently is, it is essential that new appointments make the court better.  Appallingly, President Obama has nominated someone who would make this court even worse.
    When Samuel Alito was nominated for the Supreme Court, Berkeley law professor Goodwin Liu attacked him as supposedly "out of the mainstream."  He specifically chose Alito's decisions in habeas corpus review of state capital cases as his point of attack.

    In fact, Alito's record was quite moderate.  He voted for the defendant in 40% of the cases.  But that was not good enough for Liu.  Liu's paper attacking Alito went through the cases and the issues decided and criticized every disputed point where Alito voted for the prosecution position.  He did not attack any of the decisions in favor of the defendant.  The overall picture here is more important than the individual points -- Liu thinks that the correct decision was the one in favor of the murderer on every single disputed point.

    Liu's paper demonstrates a heavy bias in favor of the murderers.  I explained its distortions in detail in a rebuttal paper published in January 2006.  If Liu were merely mistaken in his paper, he has had three opportunities to correct himself -- the Alito hearing and his own two hearings.  He has not done so.  Although he has backed off from his inflammatory rhetoric in attacking Alito, he has not retracted or corrected the substance.

    In short, Goodwin Liu is exactly the sort of person we do not need on our federal courts.  This particular court covers nine western states, but Senators from elsewhere will cast the deciding votes.

    Prior to the Bush Administration, filibusters were almost never used in judicial nominations.  However, the Democrats then began using the filibuster, and as a result President Bush was not able to reform the defense-leaning federal courts to the degree that he should have been.  Whatever reluctance one may have about using this tactic, one side cannot unilaterally disarm and let the other side skew the process in its favor.

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