Jerry Brown Picks His Kind of Judge

Gov. Jerry Brown’s decision to nominate UC Berkeley law professor Goodwin Liu to the California Supreme Court is a highly partisan poke in the eye at Republicans, given that GOP congressional criticisms led Liu, in May, to withdraw his name from contention for a slot on the 9th U.S. Circuit Court of Appeals. Liu might be too radical for a post on a federal appellate court, but not for a job on our state’s highest court, which is yet another reminder of California’s leftward drift.

The nomination also is a reminder that the new Jerry Brown isn’t all that different from the old Jerry Brown. Remarking on the Liu nomination, the Wall Street Journal explained, “During his previous stints as governor … Brown’s track record on judicial appointments was notoriously problematic. Former California Chief Justice Rose Bird was removed from office after her 1986 retention election in a wave of anger against her history of liberal rulings. The same fate befell two other Brown appointees, Justices Cruz Reynoso and Joseph Grodin.”

A lot has changed in California in the past 25 years, so perhaps the electorate has caught up with Brown’s ideology. I can’t imagine what it would take for today’s California voters to bounce a judge from office or even to elect a Republican to statewide office.

Brown is an interesting and entertaining character, someone who often defies categorization with his many personas, ranging from environmental guru to law-and-order mayor. But it’s easy to forget that, underneath it all, Brown is a leftist ideologue. It’s that Brown that is on display with the nomination of Goodwin Liu.

As Californians, we’re used to liberal judges. But Liu is a step beyond the usual given that he is a leader in a movement that argues that the U.S. Constitution provides few restrictions on the power of government and is a living document that changes with the times.

The Founders’ Constitution

Traditional constitutional scholars understand that the nation’s founders devised this document to put constraints on the central government. They viewed the government itself as posing the gravest danger to American liberties. Not this group.

I do appreciate that Liu is forthright about his views, which he spelled out in a 2005 book he co-authored, “Keeping Faith with the Constitution.” As the book points out, “Our Constitution retains its vitality because it has proven adaptable to the changing conditions and evolving norms of our society. Its words and principles still resonate centuries after they were written because time and again, as Justice Holmes urged, we have interpreted the Constitution in light of ‘what this country has become.'”

The book celebrates the growth in government power and essentially depicts the traditional view of limited government as an arcane outgrowth of the slave-holding era. Most telling is that Liu’s chapter on “Liberty” deals almost exclusively with gay marriage and abortion-related issues rather than with the traditional negative rights (the right to be left alone) valued by the founders.

In the gotcha world of Washington, D.C., Liu was mostly maligned during the Ninth Circuit confirmation debate for this statement he made in 2005 opposing President George W. Bush’s nomination of Samuel Alito to the nation’s high court: “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance.”

Actually, that’s the one statement from Liu that gives me a sliver of hope about his nomination, given that he seems to recognize the degree to which the nation’s law-enforcement policies allow routine abuses of individual rights. But the rest of Liu’s record is one of eroding legal restraints on government expansion.

Typical for California’s political environment, Liu’s nomination is being discussed in ethnic terms — Latino activists are angry that an Asian man is replacing a retired Latino justice while Asian-American activists celebrate a potential Asian majority on the state high court. But the ethnicity of the justices doesn’t matter. Their philosophy does. And Liu reminds us of the thinking of those who currently run our state.

Radical Views

When Brown was running for state attorney general, I had a short phone conversation with him in which I challenged some of the more radical ideas he championed as a talk show host in the 1990s on a program known as “We The People.” Brown bristled at the question and told me that one shouldn’t take the views out of context because as a radio host his role was to stir debate.

That was a good answer, but it is clear Brown believed the things he said about, say, the evils of modern capitalism. During last year’s gubernatorial campaign, Brown’s spokesman assured me that Brown stood by what he said on those shows, although I was told Brown would phrase things differently these days.

It’s too bad the show’s transcripts were removed from the “We The People” website before the campaign, but the site still posts a speech Brown gave in 1995: “James Hillman talked about how the root of injustice is taking more out of an exchange than you put into it. If you take enough out of it, you really create evil. Well, isn’t that the system? Isn’t that late industrial capitalism? You want to take out more than you put in.”

Forget the obvious ironies — the fact that Brown is a huge defender of the public employee unions that have mastered the art of taking out more from the system than they put in (can we say, “unfunded pension liabilities”?). The statement is pure Brown. For all his brilliance and heterodoxy, Brown is still an old leftist who sees the free market as a zero-sum game and government as our salvation. Liu comes out of that school of thought. This doesn’t bode well for the state.

— Steven Greenhut