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."
The Californian
Liu, who's 42 years old and lives with his wife and two children in Oakland, Calif., 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.
