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 California'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 timesquite frequent by California Supreme Court standards15 have been concurring opinions, versus only nine dissents.
The former UC-Berkeley School of Law professor has generally avoided sweeping, ideological pronouncementsthe 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."