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Goodwin Liu's "unnecessarily flowery" language

By Tung Yin

Boalt law prof Goodwin Liu was raked over the coals last week for, among other things, his testimony against then-Judge Alito during Alito's confirmation hearings for the Supreme Court.  This particular statement from Liu's testimony drew a lot of attention:

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; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.

When I read that paragraph, it reminded me of a couple of things -- the infamous "Robert Bork's America" diatribe delivered by the late Sen. Ted Kennedy (and which I use as a focal point in my short paper on legal blogs and the Supreme Court confirmation process), as well as the letter opposing John Roberts that was written by Dean Erwin Chemerinsky and signed by 160 lawprofs (which I criticized here).  The block quote above from Liu sounds like little more than a personal attack on Alito, bereft of any demonstration of analytical shortcomings in Alito's analysis.  While the idea of an all-white jury sentencing an African-American male to death for killing a white man sounds pretty bad, there's nothing in there about the context of the case to suggest that Alito was upholding or even urging on something racially malicious.

So I went and looked for the entire text of Liu's speech, which is here.  This is what Liu had to say about the jury selection case:

In 2001, Judge Alito sided with the state against a black man, James Riley, convicted of killing a white man by an all-white jury in Kent County, Delaware, whose population is 20 percent black. Before trial, the prosecutor had struck all three prospective black jurors from the jury pool. Riley challenged this action as racially discriminatory under Batson v. Kentucky, which forbids prosecutors from removing potential jurors based on race. To support his claim, Riley showed that the prosecution had struck black but not white jurors who had given the same testimony at voir dire. He also showed that the prosecution had struck every prospective black juror in the three other capital murder trials in Kent County within the prior year. 

Judge Alito refused to infer racial discrimination from this pattern, stating that "a careful multiple-regression analysis" would be necessary to determine whether the strikes were based on race or some other variable. To support his point, he said: "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. . . . But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?" The Third Circuit en banc disagreed with Judge Alito and upheld the Batson claim, criticizing his analogy for "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

That strikes me as quite different from the Kennedy speech or from the Chemerinsky letter, as Liu actually provides his own analytical criticism of Alito's decisionmaking process.  Now, I'm not suggesting that Liu is right and that Alito is wrong, or the reverse; merely that I think criticism of Liu's attack needs to take into account the full context of his testimony.  Yes, the summary of his analysis of his perceived problems with Alito's judicial decisionmaking comes across as more personal (and obnoxious) than necessary, but it's a summary of legal analysis conducted earlier.

Full post as published by The Yin Blog on April 19, 2010 (boomark / email).