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



Write a comment
  1. John Seiler
    John Seiler 1 August, 2011, 07:57

    Jerry’s radio show diatribes could have been used against him last year by Meg Whitman. She didn’t, wasting her $180 million on the worst campaign I’ve ever seen. Maybe next time Republicans will nominate somebody who understands politics, instead of billionaire airheads and steroid-bloated adulterous movie idols.

    Reply this comment
  2. Keep da Peace
    Keep da Peace 1 August, 2011, 15:01

    You had me until the last paragraph… I thought I was actually going to read an article by Steve that didn’t mention unions LOL.

    Seriously, Lui is a bad pick for our Supreme Court for all the reasons stated and more. That Brown would choose him is evident that he has intentions of moving this state even farther left (if that is possible) than it already is. Will Lui survive the nomiation process and subsequent votes by the public? I suspect so. Even though this is one of the most important positions (if not the most important) in state government, few people can name the justices or care what their true role in government is.

    Republicans in this state suffer from a lack of likeable candidates. Meg Whitman certainly was not liked, even by the rank-and-file of her own party. And, as you say, being rich does not necessarilly make you the best candidate. Schwarzenegger could have brought a refreshing change to the then tainted office of governor. But, his get-tough, “blow up the boxes” routine got old fast and he attempted to bully a legislature that wasn’t about to be bullied.

    Where does that leave us? We lost before we began in the redistricting process where the arguments have declined to near racial slurs between legislators and wannabe legislators. Unless the Republicans can produce a “good” candidate for governor that can appeal to the decline-to-states and the middle-road Democrats, we have no chance and the state is likely to be lost to socialist reform, even while the rest of the country moves farther right.

    It is funny that I heard some Dem politico the other day state that “California is a leader in the nation. As California goes, so goes the nation”. Now, the funny part is, I used to live in Alabama (yes, I was a cop there too, Steve). The folks there used to laugh at California and their wierd ways. They weren’t just talking about San Francisco either. Coincidentally, I lived there from 1979-1983. Guess who was guv?

    Reply this comment
  3. Bruce Ross
    Bruce Ross 4 August, 2011, 17:47

    “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.”

    Yes and no. In fact, after the disastrous experience with the decentralized structure of the Articles of Confederation, a stronger central government was exactly the point of the Constitution. The main argument of the anti-ratification faction was that the Constitution created too strong a central government.

    Even among the Founders whose pictures you could find in your wallet, philosophies varied widely. Alexander Hamilton, especially, believed in a strong central government. Jefferson didn’t in principle but nor did he let the law get in the way of a good deal like Louisiana Purchase.

    Saying that the Founders held an opinion makes about as much sense as saying today’s members of Congress hold an opinion. In both cases, members of the class disagree strongly about a lot.

    Reply this comment
  4. Steven Greenhut
    Steven Greenhut 8 August, 2011, 13:17

    I agree that there were enormous differences among founders and that the Constitution expanded federal powers after the Articles of Confederation. I also agree that once in power even Jefferson became willing to toss aside limits on that power. My basic point, though, is that the very nature of the founding experiment was to create a system of negative rights in which the government, especially the national government, was severely limited in its power. Liu and his book argue for positive rights and his school of thinking argues against real limits on government power.

    Reply this comment

Write a Comment

Leave a Reply

Related Articles

I'm Not Flying!

John Seiler: Fortunately, California is such a beautiful state that there’s no reason to leave anyway, except to get a

Valley Legislators Bring New Verve

JAN. 6, 2011 By KATY GRIMES It only took one brief legislative session before newly elected Assemblywoman Shannon Grove (R-Bakersfield)

LAUSD board confirms its union-occupied status

Dec. 18, 2012 By Chris Reed When I heard that the Los Angeles Unified school board had passed a resolution