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By Peter Schrag

Despite the complaints of conservatives, Gov. Jerry Brown couldn’t have chosen a better state Supreme Court nominee than Goodwin Liu.  For California schoolchildren and their parents it may turn out to be particularly good news.

The 40-year-old Liu, now a professor of constitutional law at Berkeley, was a Rhodes Scholar, clerked for a justice of the U.S. Supreme Court, and has a record of pioneering legal scholarship that would bring distinction to someone twice his age.

But beyond that, Liu has a deep understanding of the inequities in school finance; of the history of civil rights going back to the Civil War, and of constitutional law in general. As two major law suits challenging California’s unfair and inefficient school finance system wind their way through the state’s judicial system and eventually, one assumes, to the Supreme Court, no judge will be better qualified to deal with their legal and administrative complexities.

Liu had a national reputation well before President Obama nominated him to the Ninth U.S. Circuit Court of Appeals last year, but Republicans filibustered that nomination to death. Was he not good enough, or was he too good?

Liu had the highest possible ratings from the American Bar Association and endorsements for fairness and judicious temperament even from some leading legal conservatives.

But his support for same-sex marriage and affirmative action, his use of florid language in opposition to the appointment of Samuel Alito to the U.S. Supreme Court and his association with the liberal American Constitution Society generated uncompromising resistance on the right. Very likely conservatives also saw a future Supreme Court justice in the making.

Obama sent the nomination up three times; three times it was blocked by a Senate minority. After the third rejection this spring, Liu withdrew his name.

In appointing Liu to the seat on the state court vacated by Justice Carlos Moreno, who retired in February, Brown also got some heat from Latino groups for not naming another Hispanic: Liu would be the fourth Asian on the seven-member court, which now has no Latinos.

But Brown’s overall record makes him relatively immune to such complaints. Thirty years ago he appointed Cruz Reynoso, the first Latino ever to sit on the high court, and just last week he signed a part of the California DREAM Act granting some undocumented alien university students the right to get privately funded financial aid.

When Brown announced the Liu nomination last week, there was immediate speculation about whether he’d get seated in time to participate in the court’s decision in the Proposition 8 gay marriage case. That was quickly answered by the surprisingly rapid scheduling – August 31 – of the confirmation hearings by the state Commission on Judicial Appointments. Liu will almost certainly participate.

But the issue before the state court deals only with a secondary question: Whether, given the refusal of both the governor and attorney general to defend the initiative, the private groups opposing the legal challenge to the measure in the courts even have standing to appear for it.

The case itself, assuming they have standing, will be decided in the federal courts. If they don’t, then Judge Vaughn Walker’s lower court ruling declaring the measure unconstitutional probably stands and gay marriage would again be legal in California.

Yet given the rapidly changing public attitudes about same-sex marriage, the Proposition 8 prohibition probably doesn’t have much of a future either way.

On the thorny issues of equity and adequacy in public education, it’s a very different story. While there’s no predicting what major disputes the state Supreme Court will confront even in the immediate future, it’s hard to imagine many that would be of greater consequence in the long run than the two education funding suits now before the California courts.

They’re similar cases. One was brought by a group of establishment organizations, among them the CSBA, the California School Boards Association, ACSA, the Association of California School Administrators, and the state PTA, the other by a coalition of community groups represented by Public Advocates, a public interest law firm in San Francisco, and associated legal counsel.

Both ask the courts to declare California’s school funding system unconstitutional. Its failure to provide, “all students a reasonable opportunity to obtain a meaningful education that prepares them for college, career, and civic engagement,” in the words of a Public Advocates summary, “is a violation of their fundamental right to education.”

Liu has written searching legal articles about school finance. Probably the most original was a long piece in 2006 in the Yale Law Journal demonstrating how close Congress came in the post Civil War years to reading the newly ratified 14th Amendment’s national citizenship clause as imposing a federal responsibility for education and passing legislation to exercise it.

It didn’t happen, but Liu argues that the principle still stands and that the provision of equal educational opportunity is constitutionally inherent in – and integral to – citizenship.

In a more informal piece, written in 2007 with Alan Bersin, once Gov. Arnold Schwarzenegger’s secretary of education, and Michael Kirst, currently president of the state Board of Education, Liu and his co-authors briefly parse the inefficiency and unfairness of California’s current convoluted school funding scheme.

They propose, among other things, weighted school funding formulas based both on student needs– more for English learners, more for poor kids, more for special education and for those with other handicaps – and on the economic conditions of the region where a school is located. The system should also be simple and transparent. Finally, all reforms “should apply to new money going forward, without reducing any district’s current allocation.”

At a time when schools are trying to decide how many teachers to lay off, what programs to eliminate and how many weeks to cut from the school year, any bright fiscal reforms – certainly any that cost money – are a long way off, regardless of what the courts do. Still, even when budgets are being cut, maybe especially when they’re cut, equity and fairness should govern, not sheer economic or political muscle. It’s at such times that good judges are needed more than ever.

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Peter Schrag, whose exclusive weekly column appears every Monday in the California Progress Report, is the former editorial page editor and columnist of the Sacramento Bee. He is the author of Paradise Lost: California’s Experience, America’s Future and California: America’s High Stakes Experiment. His new book, Not Fit for Our Society: Nativism, Eugenics, Immigration is now on sale.