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Controversial law professor tapped for California high court

By Bill Mears, CNN
  • Goodwin Liu's nomination to a federal appeals court was blocked by Republicans
  • California Gov. Brown nominated him to the state's Supreme Court
  • He's "an extraordinary man and a distinguished legal scholar and teacher," Brown says
  • Conservatives dislike Liu's statements on same-sex marriage and affirmative action

(CNN) -- A University of California law professor whose nomination to a federal court was blocked by Senate Republicans may have found a new home on the bench.

Goodwin Liu was tapped Tuesday to sit on the California Supreme Court by Gov. Jerry Brown.

The move comes two months after a rarely used filibuster was invoked to stop a final U.S. Senate vote on Liu's nomination to the U.S. Court of Appeals for the 9th Circuit, based in San Francisco. Liu, 40, then withdrew his name from further consideration.

Brown, a Democrat, praised Liu in making the appointment.

"Professor Liu is an extraordinary man and a distinguished legal scholar and teacher," said the governor. "He is a nationally recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state Supreme Court."

The state's Commission on Judicial Appointments will now conduct public hearings and will have the power to confirm the nomination, which is expected.

Liu was the first of President Barack Obama's judicial picks to be successfully filibustered, after months of delays over an up-or-down U.S. Senate vote. Republicans complained he is inexperienced and a partisan ideologue. Democrats countered he is a thoughtful mainstream candidate well-qualified to serve.

Liu has become a political lightning rod because of his liberal views and testimony given at confirmation hearings last year. Lawmakers on both sides traded barbs over his qualifications and his past statements on a variety of hot-button topics such as same-sex marriage and health care reform.

If he had been confirmed, Liu would have been only the second Asian-American currently on the nation's federal appeals courts, the level just below the Supreme Court. Obama nominated him in February 2010.

During separate Senate testimony this past March and last year, Liu apologized for omitting 117 items from a committee questionnaire on his background. The items were eventually submitted.

Republicans and other conservatives had questioned whether Liu was purposely withholding certain information on his background. Republicans said the material included statements on affirmative action and the effect that Obama's 2008 presidential win would have on the Supreme Court.

Opponents say he lacks prior experience as a judge or practicing attorney, and has spent most of his career in academia.

Democrats strongly defend Liu's record, saying opponents are unfairly characterizing his words and qualifications. He had assured lawmakers that despite some provocative statements he made as a law professor, he would act impartially as a judge.

"My personal beliefs have no role in the act of judging," he said. As an example, he noted, "I would have no difficulty or objection of any sort to enforcing the law as written in enforcing the death penalty."

Many court watchers had seen Liu's federal nomination as a political test case of sorts for the next U.S. Supreme Court nomination. A number of left-leaning activists hope Obama, if given the chance, would choose a strong-voiced progressive high-court nominee, and saw Liu as a potential candidate for that exclusive bench some day. His appointment to a top state court would give him valuable judicial experience.

Liu's supporters point to his years of scholarship, and especially his personal background. He was born to Taiwanese immigrant parents, attended public schools, then Yale Law School and was a Rhodes Scholar. He later clerked at the Supreme Court for Justice Ruth Bader Ginsburg.

Conservatives had made much of Liu's statements in support of same-sex marriage and affirmative action. A recent book he co-authored supports the idea of the "living" Constitution, which conservatives have disdained. Liu said judges should interpret the Constitution "in light of the concerns, conditions and evolving norms of society," which many on the right deem a playbook for activist liberal judges.

Liu also openly opposed President George Bush's 2005 nominations of Chief Justice John Roberts and Justice Samuel Alito. Sen. Jon Kyl, R-Arizona, told Liu his nationally televised remarks during Alito's Senate hearing were out of line.

At that time Liu said, "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 a black man may be sentenced to death by an all-white jury for killing a white man. ... This is not the America we know. Nor is it the America we aspire to be."

Liu's supporters applauded his new appointment.

"Governor Brown's nomination of Goodwin Liu to the state's highest court is absolutely brilliant," said University of California Berkeley Law School Dean Christopher Edley Jr., where Liu currently teaches.

"Anyone who watched Professor Liu testify during the rigorous Senate hearings on Capitol Hill knows that he's an exemplary scholar with enormous constitutional knowledge and intellectual rigor," Edley said. "Liu is widely admired for his decency, moderation, and admirable judicial temperament. Our students and faculty will miss his leadership and scholarship dearly, but it's a higher calling and California's gain."

Liu would replace Justice Carlos Moreno, who announced his retirement earlier this year. Moreno had been considered for a seat on the U.S. Supreme Court by Obama.

Both the 9th Circuit appeals court and the California high court are currently considering the constitutionality of that state's voter-approved ban on same-sex marriage. In particular, the California Supreme Court will decide the issue of "standing" -- whether state or county officials have the authority to defend Proposition 8, the 2008 initiative defining marriage as being only between one man and one woman.

Top state officials -- including Brown, a former attorney general and the current governor -- have refused to defend the initiative in court, prompting others to seek to step in and setting up a fight over the so-called "gateway" legal issue.

If California's high court fails to provide any guidance to the 9th Circuit, the federal court could decide on its own either to grant standing or refuse to issue a final ruling on the case. Top state officials, including the governor, also could have the discretion to allow other individuals to defend Proposition 8 in court.

It is unclear what role Liu would play as a new justice in deciding the ongoing issue.