Virgil Roberts, Esq. | Special to the Black Voice News
Our country’s racial reckoning and the global pandemic have forced many people to grapple with the reality of being Black in America.
With Xavier Becerra leaving for Washington, California needs an Attorney General that puts racial justice at the center of the public agenda. There is one candidate who has shown he can do this, California Supreme Court Justice Goodwin Liu.
Long before the killing of George Floyd and Black Lives Matter, Justice Liu has been a leading voice on issues of racial justice. In his ten years on the court, the harms wrought by the criminal justice system on Black people have been front and center in his judicial opinions.
He has called out the fact Black people are disproportionately arrested without any charges ultimately being filed. As a result, he has explained, policies that require an arrestee to provide DNA, while facially race neutral, disproportionately burden African Americans.
During the pandemic, he has urged courts to take a more active role in protecting prisoners from COVID-19. He dissented from his court’s decisions to deny review in cases where prisoners challenge their conditions of confinement. His dissents say what is obvious but inconvenient for responsible officials.
Noting, “the burdens of the pandemic do not fall equally upon all,” he has said that inaction by the courts “unnecessarily delay[s] resolution of issues with potentially dire consequences for inmates, correctional staff, the health care system, and our state as a whole.”
Justice Liu has been the court’s most vigorous and often lone voice highlighting the injustices of racial discrimination in jury selection. Despite all we know about the ubiquity of racism, the California Supreme Court has not found a single case of discriminatory removal of a Black juror in over 30 years. We know this thanks to Justice Liu’s meticulous examination of the case law, and his written opinions on this subject are legion — much like his mentor Justice Ruth Bader Ginsburg brought gender discrimination to the consciousness of many Americans.
Justice Liu recently dissented from the court’s decision to deny review in a case where the prosecutor removed all the prospective Black jurors because of their negative experiences with law enforcement and the criminal justice system. “To many people,” he wrote, “excluding qualified Black jurors based on their negative experiences with law enforcement or the justice system must seem like adding insult to injury.”
These dissents were the blueprint for Assemblymember Shirley Weber’s recently enacted AB 3070, which requires courts to more closely scrutinize specious justifications that prosecutors frequently cite to remove Black jurors.
Justice Liu has also been a consistent voice against police brutality and excessive force. This summer, as Americans of every background demanded justice for the killing of George Floyd and many others, the California Supreme Court decided a little noticed case with sadly familiar facts. In 2012, an officer in Compton pressed his knees on Darren Burley’s neck and back with the full weight of his 200-pound body. Witnesses saw Burley, a Black man, gasping for air as he died. Justice Liu joined the court in upholding a tort judgment against the officer. But he went further in a separate opinion to urge a “serious effort to rethink what racial discrimination is, how it manifests in law enforcement and the justice system, and how the law can provide effective safeguards and redress for our neighbors, friends, and citizens who continue to bear the cruel weight of racism’s stubborn legacy.”
Just days ago, Justice Liu published another dissent in a case in which two police officers grabbed a 13-year-old Black child by her arms. In response, she flailed her legs, kicking one officer in the stomach, which culminated in the child being thrust into the juvenile justice system. Justice Liu’s dissent underscored “the social reality that interactions between police and Black youth are often fraught with distrust and risk of violence. . . “When the two deputies grabbed J.E.’s arms, she may well have thought that the deputies were trying to harm her.”
And long before these examples, in 2006, Justice Liu (then a law professor) testified in the U.S. Senate against the confirmation of Samuel Alito to the U.S. Supreme Court. Justice Liu carefully explained how Alito’s “narrow view of what constitutes excessive force” was dangerous and out of step with mainstream legal thought.
Justice Liu highlighted one case in which Alito — asserting that “the state is justified in using whatever force is necessary to enforce its laws” — found no constitutional violation in the killing of a 15-year-old African American boy fleeing a burglary with $10 and a stolen purse.
Throughout his career, Justice Liu has shown courage in highlighting historical injustice. In a 2008 panel discussion about a documentary exploring the role of New Englanders in the slave trade, Justice Liu explained that “all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to—make things right. And that’s a moral duty that’s incumbent upon everybody who inherits this nation, regardless of whatever the history is.”
After President Obama nominated Justice Liu to be a federal judge in 2010, Republican Senators filibustered his nomination because of his statements on racial justice and his truthful testimony about Justice Alito’s record.
Even before he became a professor, his research foregrounded the importance of affirmative action in employment and education. As a scholar, he wrote the template for the Legislature’s 2013 overhaul of school finance and its adoption of the Local Control Funding Formula, which maximizes state funding for schools in low-income, urban communities. And on the bench, he has written opinions condemning the school-to-prison pipeline and its disproportionate harm to Black, Brown, and Indigenous children, prompting recent legislative reform.
As an attorney, professor, and judge, Justice Liu has time and again stood up for equal justice under the law and let the chips fall where they may. I have no doubt he will do the same as Attorney General. Governor Newsom must make an appointment that, in his own words, “meets the moment.” Justice Goodwin Liu is the right person to meet this moment for all Californians.
Virgil Roberts is managing partner and founder of the law firm Bobbitt & Roberts. His early work as a civil rights attorney included representing the NAACP in the Los Angeles school desegregation case Crawford v. Board of Education. He holds a bachelor’s degree from UCLA and a juris doctor degree from Harvard Law School, where he was a Felix Frankfurter Scholar.