SAN FRANCISCO Goodwin Liu was perplexed.
Hearing a capital appeal last month, the California Supreme Court justice seemed troubled that the trial judge had quickly rejected jurors who held strong anti-death penalty views, but seated pro-death penalty jurors so long as they promised to follow the law.
"There is a discrepancy, but for good reason," deputy attorney general Catherine Nieto explained to him. "There are people that feel that they cannot be responsible for another's death, and that's a gut reaction, it's a very emotional reaction."
"I grant you that's definitely true, but the same is true on the other side," Liu said. "It just seems to me a lopsided presumption to say that people with a certain kind of belief, though strongly held and very absolute, are capable of [following the law], whereas people of a different kind of belief are not."
Liu argued the point with passion, but his colleagues seemed headed toward a more technical ruling: that the defense lawyer had failed to preserve any objection to the jury. And if the brief history of Liu's membership on the court is any indication, he might wind up agreeing with them, too.
In 15 months at the state's highest court, Liu is emerging as a brainy, independent thinker who nevertheless puts a premium on consensus and judicial restraint. Of the 12 majority opinions he's penned to date 10 have been unanimous. Although he has written separately 24 times quite frequent by Supreme Court standards 15 have been concurring opinions, versus only nine dissents.
The former UC-Berkeley School of Law professor has generally avoided sweeping, ideological pronouncements the kind Senate Republicans foresaw in blocking his nomination to the U.S. Court of Appeals for the Ninth Circuit in 2011. "He's proving he's not an outlier, not a wayward loner who isn't going to attract votes," said Reed Smith appellate specialist Paul Fogel.
Instead, Liu has brought an engaged style to the bench, an outgoing approach toward colleagues, and a straightforward writing style free of footnotes.
"He really enjoys the process of crafting an opinion and expressing the view of the court in a way that is helpful to lawyers and judges," says Justice Carol Corrigan.
The avoidance of footnotes, says Horvitz & Levy partner Bradley Pauley, is "part and parcel of his desire for free, easy to read opinions. It goes to the whole notion of restraint and only deciding the issues before you using only the words necessary."
Simplicity and restraint might not be qualities expected from a judge arriving directly from academia. But Liu, who focused on constitutional law and education before his appointment by Governor Jerry Brown, said he stays mindful of his audience.
"Courts are, of course, in the continuity business," he says. "Meaning what we're trying to do generally is build upon things that have happened before, not to blow things up and start over again. Academics do that. They tell you why entire lines of doctrine are misbegotten, why huge conceptual flaws exist. I mean, they may be right, but often that's not relevant."
Liu, who's 42 years old and lives with his wife and two children in Oakland, at once possesses the formality of a professor and the casual style of a long-time Californian. Over a cup of tea in chambers, he can set out, bullet-point style, a "catalogue" of theories of judicial restraint, all the while dotting the conversation with words like "really," "totally" and "you know."
He's also quick to poke fun at himself. Accepting an award from the Asian Pacific American Legal Center last year, Liu, who is Chinese-American, began his address by noting that he was sharing honors with the website angryasianman.com. "I am not an angry Asian man," he told the audience, "but I sometimes play one when I sit on the bench."
Actually, Liu never appears angry on the bench. He will hold counsel's feet to the fire in a polite manner, engaging in extended colloquy or pivoting off answers to other justices' questions. He and Justice Corrigan often appear to be jousting with each other from their perches at opposite ends of the bench.
"He frames questions well, so lawyers don't stand at the lectern scratching their head saying, 'What does this mean?'" said Charles Bird, an appellate specialist at McKenna Long & Aldridge.
"In my mind that's sort of the professor in him," says Justice Kathryn Mickle Werdegar. "He very much enjoys the back and forth."
Liu says outcomes are in play at argument more often than advocates think. "It is not an academic exercise," he said. Even when agreeing, "you're often trying to find out what the limits of the advocate's position are. Because courts have to write a rule or a principle, and we need to know how broadly or narrowly to write it, know what we're getting ourselves into."
When Liu is doing the writing, there won't be any footnotes. His philosophy, which he developed while clerking for D.C. Circuit Judge David Tatel, is "if it's important enough to put in the opinion, you should put it in the text." In that respect he is an outlier on the court, where 30 footnotes or more are not unheard of in majority opinions.
Liu points out that he did drop three footnotes in one of his first concurring opinions, Vandermost v. Bowen. "It was before I hardened into the more stubborn position that I'm in now," he jokes.
Reed Smith's Fogel notes that Liu begins every opinion the same way: by "setting forth in plain language" the issue, the holding and the reason for the holding. "The takeaway for appellate practitioners is to look at how simply and elegantly he frames the issue, because that's what you want to do" in petitions for review.
Liu has also set himself apart by allotting three of his five research attorney positions to annual law clerks. "I think it's very important to have fresh thinking, not as in overturning precedent, but as in fresh eyes on problems," he says. A couple of his recent predecessors, Justices Carlos Moreno and Stanley Mosk, experimented with annual clerks, too, but eventually switched back to permanent staff.
The biggest challenge with temporary clerks is death penalty cases, which typically take many years to process. "Yes, it's true. It's a cost," says Liu, ever willing to acknowledge the competing argument. But the clerks and the institution benefit, he says. "They will become the lawyers who bring the cases to us, the academics who can provide us useful commentary. Right now we don't have those benefits because we don't graduate people out into the world."
Liu appears to be the only California Supreme Court justice ever to have clerked at the U.S. Supreme Court. He worked in Justice Ruth Bader Ginsburg's chambers during the court's 2000 term.
CONCURRING WITH CORRIGAN
Although the use of annual clerks and the swearing off of footnotes may suggest a maverick style, when it comes to hammering out opinions Liu has emphasized restraint and consensus.
His colleagues describe him as eager to iron out legal issues face to face. "We both begin with the notion that we really are interested in the other person's point of view," says Corrigan. "'What am I missing? Is there something I'm not giving enough weight to?'"
Corrigan may be one of the court's more conservative members, but she has yet to dissent from any of Liu's opinions, and he has dissented only once from hers. "He's not a pushover," Corrigan says, but she believes his experience at the U.S. Supreme Court, where opinions often wind up splintered into multiple factions, informs his approach. "There's a fair amount of discussion about where a middle ground might lie," she says. "And I think that's the very best way for a court to work, in California, Washington or anywhere else."
"We agree on lots of things," says Justice Ming Chin. "We disagree on some things, but it is never disagreeable."
Liu's majority opinions so far have not borne an ideological bent. In June he struck down a burglary conviction in Magness v. Superior Court because a would-be thief who opened a garage door remotely had not "entered" the residence. "The line we adopt something outside must go inside for an entry to occur is simple, workable and consistent with common sense," he wrote.
But in August he issued two opinions upholding death judgments, including one stemming from the 1992 mass shooting and hostage taking at Lindhurst High School in Yuba County. "Although defendant appeared to have harbored no personal animosity toward [students] Davis, Hill and White," Liu wrote, "a reasonable trier of fact could have concluded he believed that killing students would draw attention to himself and his plight, or that they were simply innocent targets of his misdirected anger."
He's come down on both sides in civil cases, too. Liu's opinion in Kirby v. Immoos Fire Protection spared plaintiffs from having to pay attorney fees in rest-break litigation, but his ruling in Parks v. MBNA America Bank held that federal law pre-empted a California consumer protection measure for credit card holders.
COUNSELING RESTRAINT USUALLY
Liu has used his separate opinions to counsel judicial restraint. In Vandermost v. Bowen, Liu cautioned against getting involved in legislative redistricting litigation, which he saw as "fundamentally political." In People v. Ahmed he said the majority was right to apply a statutory limitation on multiple punishments, but that it went too far in explaining why. "I would not opine on how [Penal Code] §654 applies to enhancements until we are called upon to resolve an actual dispute on that question," he wrote.
In one concurrence, though, Liu seemed less restrained. In In re Bacigalupo, Liu joined Justice Joyce Kennard's unanimous opinion throwing out a death judgment for prosecutorial misconduct. "I write separately to highlight three additional points in favor of the court's holding," Liu explained.
Asked about it, Liu says Bacigalupo was "an extraordinary case." A court-appointed referee held a years-long hearing before concluding that a DA investigator withheld evidence that a killer was coerced into committing his crime by a Colombian drug lord.
"I thought it was important that the referee Judge [Richard] Arnason, who was very dutiful, very complete, very thoughtful in what he produced as a report that his findings be given their due," Liu said.
Three other justices signed his concurrence.
Asked if his experience before the Senate informs his views on judicial restraint, Liu laughs softly. "You know what?" he says. "The confirmation experience informed my understanding of politics. But it didn't really do much to inform what I do day-to-day here. I think the most any of us could say here is that we call 'em as we see 'em."
Liu has seemed especially eager so far to weigh in on criminal law. Twelve of his 15 separate concurring opinions have come in criminal cases, as have seven of his nine dissents. One of those opinions appear to be developing a following among California appellate justices.
In In re Shaputis, Liu agreed with the majority that parole board decisions must be upheld so long as they're not arbitrary or capricious. But, Liu said confronting an issue that has vexed the state's appellate courts judges must examine "the evidence and reasoning on which the board or governor actually relied." Appellate Justices Miguel Marquez, James Richman, James Lambden and Coleman Blease have already cited Liu's Shaputis concurrence with approval.
Liu has been dissenting somewhat more during his second year on the court. One quarter of the way through the 2012-13 term, he's parted company three times half his output from last term.
One dissent came on a hot-button criminal law issue that has splintered the U.S. Supreme Court: whether the confrontation clause of the Sixth Amendment is violated when a routine forensic report is admitted into evidence without testimony from the technician who prepared it. Reed Smith partner Fogel, a former superior court judge, says the issue comes up constantly in everyday criminal cases such as DUIs and red-light violations.
For Justice Chin, the task was determining whether the set of facts would give rise to a confrontation clause violation under the U.S. Supreme Court's most recent precedent, Williams v. Illinois, 132 S.Ct. 2221. The problem is that only four justices signed the plurality opinion in that case, with Justice Clarence Thomas' concurrence expressly rejecting their reasoning.
Liu disagreed with Chin's approach. "It is easy enough to count noses and determine what the outcome would be if we were to apply the various opinions in Williams to alternative fact patterns," he wrote in People v. Lopez. "But such nose-counting is a job for litigators, not jurists. As a court tasked with applying an evolving line of jurisprudence, our role is not simply to determine what outcome will likely garner five votes on the high court. Our job is to render the best interpretation of the law in light of the legal text and authorities binding on us."
In an interview he expands on the idea. "How could a predictive judgment really be the operative rule?" he asks. "What if one justice were to retire tomorrow, and a new one replace him or her? Does the rule of law then change simply because personnel changes on the Supreme Court? That can't be the way people are supposed to behave."
Liu concluded in Lopez that the court should focus on the process and purpose underlying the report, not the formality of the report itself, as the California Supreme Court majority concluded.
Liu's dissent "resonated with me," said Fogel, who taught the case in a class last year at Berkeley Law. "It reminded me of how difficult it was to rule on these issues."
It appeared to resonate with a panel of the Second District Court of Appeal, too. Retired Justice Paul Coffee cited Liu's dissent with approval Dec. 24. "But," he added, "the majority's opinion is controlling authority in this state and we are compelled to follow it."
Lawyers who watch the court say Liu could be a powerful intellectual force there for many years.
Gary Strankman, a former presiding justice of the First District who is now a JAMS neutral, says Liu's youth, academic background and willingness to assert himself could propel him into a role such as former Supreme Court Justice Matthew Tobriner played. "He could have a larger shaping voice on the court than as one of seven votes," Strankman says.
Others wonder privately if Liu will be content to spend the rest of his career on the state's highest court, and whether he might be tapped again for the Ninth Circuit or even the U.S. Supreme Court.
"I'm surprised that they think I wouldn't be happy forever here," he says. "I'm very happy, actually, with my job. And the voters of California willing, I'd be delighted to serve as long as they'll have me."
The failure of the Ninth Circuit nomination process was a low point personally, he says. "So the idea that three or four months later I would somehow be sitting on the California Supreme Court was just, first of all, the farthest thing from my mind but secondly just the greatest blessing one could imagine coming out of the process I went through, you know?"
Talk of other courts is just rumor and speculation, he says. "So I don't spend a lot of time on that, frankly, and I devote 110 percent of my energies to this job, which is at least what it requires."