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Liu Coverage and Defining "Mainstream"

Maura Dolan, Maria LaGanga, and Jessica Garrison of the LA Times have this story on the Liu nomination.  A quote in the story confirms what I have long suspected about those who make the seemingly indefensible argument that Liu is "mainstream" while Alito is not.

UC Berkeley Law School Dean Christopher Edley said Liu is "non-ideological, slightly left of the center for judges. Among law professors, he is quite centrist."

Edley said Liu would not change the balance on the court, but "I think it will be very interesting to add Goodwin's style to the mix, his ability to be both pragmatic and cerebral."

Does Edley not know that he lives in Bizarro World?  Given that the median law professor is two standard deviations to the left of the median American, a person who is "quite centrist" among law professors is quite leftist when measured by the correct benchmark -- the American median.

"Slightly to the left of center for judges" is nonsense unless Edley's frame of reference is the judges of the Ninth Circuit and the U.S. District Court for the Northern District of California.

Jesse McKinley has this story in the NYT.


It's so unfortunate that we even have to use the labels, conservative and liberal, for judges. A judge's personal ideology shouldn't matter, but unfortunately, judges who are liberals in ideology tend to exercise very little judicial restraint. That's the real problem. Why can't liberals on the bench simply follow the law and leave the lawmaking to the elected branches?

It's worth pointing out that the most obvious example of a lack of judicial restraint on the SCOTUS is actually a "conservative" justice, i.e., Scalia. Between writing Blakely and Crawford, and casting a deciding vote in Gant, he's caused more sweeping upheaval in the law in the last decade than anyone else. Perhaps he's the exception that proves the rule, but it's not just the so-called "liberal" judges who engage in so-called "judicial activism."

Scalia made a limited error in Blakely, but it had far-reaching and disastrous results. Uncharacteristically, he defined "statutory maximum" not as the term set forth by the statute under which the conviction was had, but as the potential sentence under the general state statute that had established the state's guidelines. That was just flat-out wrong, and inconsistent with his typically more literalist way of viewing statutes. Without that error, the decision goes the other way, as does Booker.

I think it's very difficult to argue that Scalia's "Apprendi-Land" and the cases emanating therefrom are judicial activism. Change in the understanding of the law is NOT necessarily judicial activism. The Sixth Amendment does have a jury trial right, which is clearly implicated by judicial findings of fact which elevate the maximum sentence a defendant faces.

With respect to Blakely, was the defendant's sentence capped at the guidelines sentence, unless there was a judicial finding of additional facts? If so, that seems pretty close to what Apprendi held. Basically, it seems to me that the real dispute about Apprendi is whether the jury trial right is to be protected by absolute rules or rules that simply prohibit things from going to far. So, I think most people would agree that a statute that made a crime of violence with a gun punishable by up to five years unless a judge found that the gun violence caused the death of another person, in which case the penalty was LWOP would violate the Sixth Amendment right to jury trial in the case of someone convicted and sentenced to LWOP. So then the question becomes line-drawing, and Scalia's position doesn't look all that activist.

What about Crawford? That's the most blatant example, in my opinion. Given that several in-depth exegeses/analyses have shown that the "historical" analysis in Crawford is just flat-out wrong, the result in that case was basically made up out of whole cloth. I was never a big fan of the Ohio v. Roberts "reliability" analysis, but all that was accomplished by Crawford and its progeny was the replacement of one squishy multi-factor test for another squishy multi-factor test with an alleged "historical" analysis for a fig leaf.

Don't get me wrong -- I am much more frequently a fan of Scalia's on criminal law issues than I am a critic. I'm merely trying to make the point that activists come in all stripes.

No one really defends Ohio v. Roberts, but Crawford has become a bit of a mess. The problem, of course, is that, once again, you have a Constitutional provision that is implicated. In Crawford, it's the right to confront witnesses. Thus, Roberts' "well, we'll let it in if reliable" simply does not address the bottom-line nature of the right at stake. So we have to go to something--what? Does Crawford have issues? Of course, but it's a hell of a lot more faithful to the constitutional right of confrontation than is Roberts.

But even if you deem that changing something that is clearly wrong for something that is, on the whole, less wrong is judicial activism (as opposed to the difficulty of figuring out how to apply the right to confrontation to a myriad of factual scenarios), Crawford is child's play when compared to the metastization of the right to counsel in death cases or the goofiness in the racial preference cases. The idea that the EPC allows 6 year-old kids to be burdened with incredibly long bus rides to school because they happen to be of a certain race is, to put it bluntly, preposterous, yet four of our Justices wanted to come to such a conclusion.

The other point I would like to make, and it harkens back to my original point, is that Scalia is NOT imposing conservative ideology on the law. Clearly, Blakely and Crawford are not decisions with conservative outcomes. Obviously, that would not excuse whatever judicial activism, if any, in such cases, but it's far different from the type of activism we see from others.

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