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FLOOR.
A SENATOR: MADAM PRESIDENT?
THE
SENATOR FROM DELAWARE.
MADAM PRESIDENT, I
RISE TODAY TO CONTINUE TO
EXPRESS MY VIEWS IN SUPPORT OF
THE NOMINATION OF PROFESSOR
GOODWIN LIU, A NOMINEE, AS YOU
KNOW, TO THE NINTH CIRCUIT COURT
OF APPEALS.
MANY DIFFERENT THINGS HAVE BEEN
SAID ON THE FLOOR HERE IN RECENT
HOURS, AND I RISE TO OFFER MY
COMMENTS ON SOME OF THE CONCERNS
THAT ARE BEING DEBATED.
FOR ONCE, IT IS GREAT TO
ACTUALLY HEAR DEBATE ON THE
FLOOR OF THIS CHAMBER.
I HAVE BEEN HERE, AS YOU KNOW,
MADAM PRESIDENT, JUST SIX
MONTHS, AND AS SOMEONE WHO IS
NEW TO THE JUDICIARY COMMITTEE,
NEW TO THE DEBATES AND DIALOGUE
OF THIS CHAMBER, I AM STRUCK AT
THE THINGS THAT I'M HEARING
ABOUT PROFESSOR GOODWIN LIU AND
THE SIGNIFICANT DIVERGENCE
BETWEEN WHAT I HAVE FOUND IN
QUESTIONING HIM AND LOOKING AT
HIS RECORD, IN SPEAKING TO MY
COLLEAGUES, AND IN WHAT I HAVE
HEARD HERE ON THE FLOOR JUST
TODAY.
SO I WILL DO MY BEST, IF I
MIGHT, MADAM PRESIDENT, IN A FEW
MOMENTS TO TRY AND LAY OUT WHAT
I SEE AS THE REAL RECORD OF THE
REAL PROFESSOR OF GOODWIN LIU,
OUR NOMINEE TO THE NINTH CIRCUIT
COURT OF APPEALS.
SOME HAVE COME TO THE FLOOR
TODAY AND ARGUED THAT PROFESSOR
LIU LACKS THE CANDOR OR THE
TEMPERAMENT TO SERVE ON A
CIRCUIT COURT, AND AS SOMEONE
WHO CLERKED FOR THE THIRD
CIRCUIT COURT OF APPEALS FOR A
DISTINGUISHED JUDGE, I WILL
SUGGEST SOMETHING THAT I THINK
IS COMMONPLACE, WHICH IS THAT
CANDOR AND AN APPROPRIATE
TEMPERAMENT ARE CRITICAL TO
APPEAL.
SERVICE ON A CIRCUIT COURT OF
A LOT OF THESE CHARGES RAISED
AGAINST PROFESSOR LIU SEEMED TO
CENTER ON A FEW COMMENTS THAT
PROFESSOR LIU MADE DURING THE
NOMINATION HEARING FOR NOW
JUSTICE ALITO OR SOME PURPORTED
DEFICIENCIES IN HIS DISCLOSURES
TO THE JUDICIARY COMMITTEE.
LET ME SPEAK BRIEFLY TO BOTH OF
THOSE, IF I MIGHT.
PROFESSOR LIU HAS APOLOGIZED AT
LENGTH AND IN DETAIL FOR THE
INTEMPERATE TONE OF ONE BRIEF
PASSAGE THAT HE WROTE AS A PART
OF HIS TESTIMONY BEFORE THE
JUDICIARY COMMITTEE DURING THE
ALITO NOMINATION HEARINGS NOW
SOME SIX YEARS AGO.
I TAKE THIS APOLOGY AT FACE
VALUE.
I TAKE HIS EXPRESSION OF REGRET
AT THE TONE AT FACE VALUE.
BUT ANYONE WHO HAS TAKEN THE
TIME TO MEET HIM, TO INTERVIEW
HIM, TO QUESTION HIM I THINK HAS
TO CONCLUDE THAT DESPITE THIS
ONE BRIEF EPISODE OF THE USE OF
INTEMPERATE LANGUAGE, HE IS NOT
AN INTEMPERATE PERSON.
IN FACT, THE AMERICAN BAR
ASSOCIATION, AS MY COLLEAGUE,
SENATOR BOXER, POINTED OUT
PREVIOUSLY TODAY, SPECIFICALLY
CONSIDERED PROFESSOR LIU'S
TEMPERAMENT WHEN IT GAVE HIM ITS
HIGHEST RATING OF UNANIMOUSLY
WELL QUALIFIED IN THE
RECOMMENDATION FOR HIS
CONSIDERATION BY THIS BODY.
LET ME NEXT TURN BRIEFLY, IF I
MIGHT, TO CLAIMS ABOUT CANDOR
BEFORE THE COMMITTEE, WHICH I
BELIEVE ARE EQUALLY UNFOUNDED.
HE HAS, IN FACT, TESTIFIED
BEFORE THE JUDICIARY COMMITTEE
FOR A TOTAL OF FIVE HOURS AND
ANSWERED HUNDREDS OF QUESTIONS
AND REQUESTS FOR ADDITIONAL
INFORMATION.
HE HAS BEEN SHARPLY CRITICIZED
FOR MISSING SOME DOCUMENTS FROM
HIS INITIAL RESPONSE TO WHAT IS
A SEARCHING COMMITTEE
QUESTIONNAIRE, BUT I WILL
COMMENT FOR THOSE FOLLOWING THIS
THAT PROFESSOR LIU HAS BEEN A
PROLIFIC SCHOLAR AND SPEAKER.
HE IS SOMEONE WHO HAS PUBLISHED
EXTENSIVELY, HE IS SOMEONE WHO
HAS SPOKEN EXTENSIVELY, AND HE
IS THE FIRST CONTROVERSIAL
CIRCUIT COURT NOMINEE TO HAVE
HIS CONFIRMATION TAKE PLACE, NOT
JUST IN THE COMPUTER AGE BUT IN
THE YOUTUBE AGE, WHEN A
COMBINATION OF CELL PHONES AND
VIDEO RECORDERS HAVE LITERALLY
MADE A RECORD OF EVERY BROWN BAG
LUNCH, EVERY FIVE-MINUTE SPEECH,
EVERY OFF THE CUFF REMARK MADE
BY THIS NOMINEE BEFORE US.
THE ARGUMENT THAT IS NEEDED TO
SUPPLEMENT THE RECORD TO INCLUDE
SOME DOCUMENTS NOT INITIALLY
PRODUCED IN MY VIEW AND THAT
SOMEHOW THAT REFLECTS SOME LACK
OF CANDOR AND THAT SOMEHOW THAT
SUGGESTS A LACK OF TRUTHFULNESS
THAT SHOULD DISQUALIFY HIM, NOT
FOR A VOTE BUT NOT EVEN FOR
CONSIDERATION OF A VOTE I THINK
IS WHOLLY WITHOUT MERIT.
AS THE CHIEF WHITE HOUSE ETHICS
COUNSEL UNDER PRESIDENT BUSH,
RICHARD PAINTER, HAS WRITTEN,
PROFESSOR LIU'S -- QUOTE --
"ORIGINAL ANSWERS TO THE
QUESTIONS ASKED BY THE JUDICIARY
COMMITTEE WERE A CAREFUL AND
GOOD-FAITH EFFORT TO SUPPLY THE
SENATE WITH THE INFORMATION IT
NEEDED TO ASSESS ITS
NOMINATION."
CLOSE QUOTE.
IT MEANS A GREAT DEAL TO ME THAT
SOMEONE LIKE MR. PAINTER
CONCLUDED THAT PROFESSOR LIU
PROVIDED A LOT MORE INFORMATION
THAN MOST NOMINEES DO IN SIMILAR
CIRCUMSTANCES, AND FRANKLY IT
SEEMS TO ME OVERREACHING TO TRY
AND SUGGEST THAT SIMPLY BECAUSE
IN THE YOUTUBE AGE, THIS
PROFESSOR WHO PROVIDED US WITH
HOURS OF TESTIMONY, PAGES OF
RESPONSES FAILED TO NOTICE THE
COMMITTEE ABOUT SOME BROWN BAG
LUNCHES AND OFF THE CUFF
COMMENTS DOES NOT RISE TO THE
STANDARD OF JUSTIFYING A
FILIBUSTER.
LET ME NEXT TURN TO THE
SUGGESTION THAT HE IS
INSUFFICIENTLY QUALIFIED TO HOLD
THE POSITION OF CIRCUIT JUDGE.
AN IMPORTANT CONCERN, BECAUSE WE
WANT JUDGES OF JUDICIAL
TEMPERAMENT, OF OPENNESS AND
CANDOR AND GOOD CHARACTER AND
ALSO THOSE WHO ARE SUFFICIENTLY
EXPERIENCED.
AS I SAID A MOMENT AGO, THE
AMERICAN BAR ASSOCIATION, AFTER
A SEARCHING, CONFIDENTIAL,
COMPREHENSIVE REVIEW OF HIS
QUALIFICATIONS, CONCLUDED HE WAS
UNANIMOUSLY WELL QUALIFIED, ITS
HIGHEST POSSIBLE RATING.
IN PREVIOUS NOMINATION DEBATES,
SENATORS OF THIS BODY, SENATORS
OF THE OTHER PARTY, HAVE TOUTED
THE A.B.A. RATING AS A
COMPREHENSIVE AND EXHAUSTIVE
EVALUATION THAT PROVIDES
VALUABLE INSIGHT THAT OUGHT TO
BE TRUSTED.
SEVERAL FOLKS, SEVERAL MEMBERS
OF THIS BODY, SEVERAL SENATORS,
INCLUDING SOME WHO SPOKE
IMMEDIATELY BEFORE ME, HAVE MADE
THOSE EXACT REFERENCES TO THE
VALUE OF THE A.B.A. RATING
PROCESS.
REASONABLE MINDS MAY BE ABLE TO
DIFFER ON THE MARGINS, BUT IT IS
NOT CREDIBLE, IN MY VIEW, TO
CLAIM THAT A CANDIDATE WITH
PROFESSOR LIU'S REMARKABLE LEGAL
EDUCATION, LONG RECORD OF PUBLIC
SERVICE AND EXPERIENCE AND THE
A.B.A.'S HIGHEST RATING IS NOT
QUALIFIED TO SERVE ON A CIRCUIT
COURT.
THE CHARGES OR SUGGESTION THAT
IS PROFESSOR LIU WAS UNQUALIFIED
BECAUSE HE IS YOUNG OR BECAUSE
HE LACKS SIGNIFICANT COURTROOM
EXPERIENCE ARE ALSO HOLLOW AND
ONE-SIDED WHEN WE LOOK AT THE
REAL RECORD.
SINCE 1980, 14 NO, MA'AM YOUNGER
THAN PROFESSOR LIU ADVANCED BY
REPUBLICAN PRESIDENTS HAVE ALL
BEEN CONFIRMED.
JUDGES, FOR EXAMPLE, NEIL
GORSUCH ON THE 10th CIRCUIT,
WHO WAS 38 WHEN NOMINATED.
JUDGE BRETT KAVANAUGH, AN
ACQUAINTANCE AND I WOULD SAY
FRIEND OF MINE FROM LAW SCHOOL,
NOW ON THE D.C. CIRCUIT, WAS 38
WHEN NOMINATED.
NOW JUSTICE SAMUEL ALITO WAS 39
CIRCUIT.
WHEN NOMINATED TO THE THIRD
REPUBLICAN NOMINEES WITH SIMILAR
OR LESSER PRACTICAL COURTROOM
EXPERIENCE THAN PROFESSOR LIU
CONFIRMED.
HAVE ALSO BEEN NOMINATED AND
CIRCUIT COURT JUDGES FRANK
EASTERBROOK AND HARVEY WILKINSON
WERE BOTH UNDER 40 WHEN
NOMINATED WITHOUT ANY PRACTICING
LEGAL EXPERIENCE AT ALL.
AND YET THIS LACK OF PRACTICAL
EXPERIENCE DIDN'T PREVENT EITHER
OF THESE JUDGES FROM BECOMING
AMONG THE BEST RESPECTED, MOST
WIDELY REGARDED IN THEIR
RESPECTIVE CIRCUITS.
I WOULD ASK THAT MY COLLEAGUES
SERIOUSLY CONSIDER INSTEAD
LOOKING AT THE STANDARD THAT WAS
APPLIED WHEN A SIMILARLY
CONTROVERSIAL PROFESSOR CAME
BEFORE THIS BODY.
I WAS NOT HERE AT THE TIME BUT I
UNDERSTAND FROM THE RECORD THAT
DEMOCRATIC SENATORS APPROACHED
THE NOMINATION OF MICHAEL
McCONNELL, PRESIDENT GEORGE W.
BUSH'S NOMINEE TO THE 10th
CIRCUIT, IN A WAY THAT WAS
GENEROUS, THAT ACCEPTED AT FACE
VALUE SOME OF HIS ASSERTIONS.
LIKE PROFESSOR LIU, PROFESSOR
McCONNELL WAS A WIDELY
REGARDED LAW PROFESSOR WHO WAS
NOMINATED TO A FEDERAL APPEALS
COURT WITHOUT HAVING FIRST
SERVED AS A JUDGE.
MANY DEMOCRATIC SENATORS AT THE
TIME HAD CONCERNS ABOUT
PROFESSOR McCONNELL'S
CONSERVATIVE WRITINGS WHICH
INCLUDED STRONG OPPOSITION TO
ROE v. WADE, CONGRESSIONAL
TESTIMONY THAT THE VIOLENCE
AGAINST WOMEN ACT WAS
UNCONSTITUTIONAL, AND HARSH
CRITICISM OF THE SUPREME COURT'S
8-1 DECISION IN THE BOB JONES
CASE.
DESPITE THESE POSITIONS, WHICH
ONE COULD ARGUE ARE AT THE OUTER
EDGE, EVEN THE EXTREME OF THE
LEGAL CANNON OF THE TIME,
PROFESSOR McCONNELL WAS
CONFIRMED NOT AFTER A
FILIBUSTER, NOT AFTER A LONG
SERIES OF GRINDING NOMINATION
HEARINGS AND PUBLIC DISCOURSE,
BUT PROFESSOR McCONNELL WAS
CONFIRMED BY VOICE VOTE OF THIS
CHAMBER JUST ONE DAY AFTER HIS
NOMINATION WAS CONFIRMED BY THE
JUDICIARY COMMITTEE.
IN SUPPORTING PROFESSOR
McCONNELL'S NOMINATION,
DEMOCRATIC SENATORS AT THE TIME
CREDITED HIS ASSURANCES THAT HE
UNDERSTOOD THE DIFFERENCE
BETWEEN THE ROLE OF LAW
PROFESSOR AND JUDGE, THAT HE
RESPECTED AND WOULD FOLLOW
PRECEDENT.
IN MY VIEW, THE SENATORS OF THIS
BODY SHOULD CREDIT SIMILAR
ASSURANCES THAT PROFESSOR LIU
HAS PROVIDED DURING HIS
CONFIRMATION HEARINGS AND THAT
PROFESSOR LIU HAS PROVIDED TO ME
IN A INDIVIDUAL INTERVIEW, IN
ANSWER TO HUNDREDS OF WRITTEN
QUESTIONS FROM MEMBERS OF THE
COMMITTEE, AS WELL TO IN ANSWER
TO CHALLENGES PRESENTED HERE.
LET ME NEXT TURN, IF I MIGHT, TO
SOME CHALLENGES OR CONCERNS THAT
HAVE BEEN RAISED ABOUT PROFESSOR
LIU'S VIEW ON EDUCATION.
A BIPARTISAN GROUP OF 22 LEADERS
IN EDUCATION LAW, POLICY AND
RESEARCH HAVE WRITTEN TO SUPPORT
PROFESSOR LIU'S NOMINATION AND
TO HIGHLIGHT HIS SCHOLARSHIP AND
REPUTATION IN THE FIELD OF
EDUCATION LAW AND POLICY.
THEY WROTE -- AND I QUOTE --
"BASED ON HIS RECORD, WE BELIEVE
PROFESSOR LIU IS A CAREFUL,
BALANCED AND INTELLECTUALLY INTELLECTUALLY
HONEST SCHOLAR JUAN OUTSTANDING
SET OF ACADEMIC QUALIFICATIONS
AND THE PROPER TEMPERAMENT TO BE
A FAIR AND DISCIPLINED J." LATER
THEY WROTE IN THIS LETTER THAT
HIS WORK IS NUANCED AND
BALANCED, NOT DOGMATIC OR
IDEOLOGICAL.
AND I ASK UNANIMOUS CONSENT,
MADAM PRESIDENT, THAT THIS
LETTER BE INCLUDED IN THE
RECORD.
WITHOUT
OBJECTION.
A SENATOR: DURING HIS
CONFIRMATION HEARINGS, PROFESSOR
LIU TESTIFIED TO THE JUDICIARY
COMMITTEE -- AND I QUOTE -- "I
ABSOLUTELY DO NOT SUPPORT RACIAL
QUOTAS AND MY WRITINGS I THINK
HAVE MADE VERY CLEAR THAT I
BELIEVE THEM TO BE
UNCONSTITUTIONAL."
PROFESSOR LIU ALSO STATED TO THE
COMMITTEE THAT "I THINK
AFFIRMATIVE ACTION AS IT WAS
ORIGINALLY CONCEIVED WAS A
TIME-LIMITED REMEDY FOR PAST
WRONGS AND I THINK THAT IS THE
APPROPRIATE WAY TO UNDERSTAND
WHAT AFFIRMATIVE ACTION IS."
REFLECT PROFESSOR LIU'S
THESE TWO STATEMENTS WHICH
TESTIMONY TO THE COMMITTEE ARE
WELL WITHIN THE MAINSTREAM.
PROFESSOR LIU HAS WRITTEN AND
SPOKEN ABOUT HIS SUPPORT FOR
DIVERSITY IN PUBLIC SCHOOLS, AND
IN MY VIEW, THERE IS NOTHING
EXTREME IN THIS VIEW.
EVER SINCE BROWN v. BOARD OF
EDUCATION WAS DECIDED BY A
UNANIMOUS SUPREME COURT IN 1954,
THE SUPREME COURT OF THE UNITED
STATES HAS RECOGNIZED THE
DESEGREGATE SCHOOLS.
LEGITIMACY OF STATE ACTION TO
IN FACT, THE SUPREME COURT
UPHELD THE USE OF RACE AS ONE
FACTOR IN ADMISSIONS DECISIONS
BALLINGER.
IN THE 2003 CASE GRUDER v.
ALTHOUGH SOME -- SOME -- ON THE
FAR RIGHT OF THE SUPREME COURT
HAVE ARGUED THAT BOTH BROWN AND
GRUDER SHOULD BE DISREGARDED TO
THE EXTENT THEY RECOGNIZE THE
PERMISSIBILITY OF EFFORTS TO
ACHIEVE DIVERSITY IN PUBLIC
INSTITUTIONS, IT IS, I WOULD
ARGUE, THOSE JUSTICES OUT OF
STEP WITH THE MAINSTREAM OF
FEDERAL JURISPRUDENCE AND OF THE
CONSTITUTIONAL TRADITION OF THIS
COUNTRY.
EVEN IN ITS MOST RECENT CASE ON
POINT, THE 2007 SUPREME COURT
DECISION, PARENTS INVOLVED v.
SEATTLE SCHOOL DISTRICT, WHICH
STRUCK DOWN A SPECIFIC
DESEGREGATION PROGRAM, FIVE OF
THE NINE JUSTICES THAT MADE UP
THE MAJORITY OPINION AGREED WITH
LIU THAT ACHIEVING DIVERSITY
REMAINS A COMPELLING
GOVERNMENTAL INTEREST.
THE NOTION THAT SOMEHOW
PROFESSOR LIU IS AN IDEOLOGUE ON
THESE ISSUES IS BELIED BY HIS
ACTUAL RECORD.
AS A SCHOLAR, PROFESSOR LIU HAS
SUPPORTED MARKET-BASED REFORMS
TO PROMOTE SCHOOLHOUSE DIVERSITY
DIVERSITY, REFORMS THAT ARE
OFTEN LABELED CONSERVATIVE.
PROFESSOR LIU BELIEVES AND HIS
WRITTEN IN SUPPORT OF SCHOOL
CHOICE AND SCHOOL VOUCHERS,
STATING THAT THEY HAVE A ROLE TO
PLAY IN IMPROVING EDUCATIONAL
STUDENTS FOR DISADVANTAGED
CHILDREN.
HE HAS PUBLICLY ADVOCATED FOR
THESE PROGRAMS ON A NATIONWIDE
SCALE, EARNING PRAISE FROM
CONSERVATIVES IN THE PROCESS.
CLINT BOLICK, DIRECTOR OF THE
CONSERVATIVE GOLDWATER
INSTITUTE, REFERRED TO BY MY
COLLEAGUE, SENATOR SENATOR BOXER,
PREVIOUSLY HAS WRITTEN --
QUOTE -- "I HAVE KNOWN PROFESSOR
LIU AND SINCE READING AN
INFLUENTIAL LAW REVIEW ARTICLE
THAT HE COAUTHORED, SUPPORTING
SCHOOL CHOICE AS A CRISIS OF
INNER CITY PUBLIC EDUCATION, I
BELIEVE IT TOOK A GREAT DEAL OF
COURAGE FOR HIM TO TAKE SUCH A
STRONG PUBLIC POSITION AND I
FIND PROFESSOR LIU TO EXHIBIT
FRESH, INDEPENDENT THINKING AND
INTELLECTUAL HONESTY."
HE CLOSES HIS LETTER BY SAYING,
"PROFESSOR LIU CLEARLY POSSESSES
THE SCHOLARLY CREDENTIALS AND
EXPERIENCE TO SERVE WITH
DISTINCTION ON THIS IMPORTANT
CIRCUIT COURT."
PROFESSOR LIU HAS, IN MY VIEW,
MADE VERY CLEAR THAT HE
UNDERSTANDS THE DIFFERENCE
BETWEEN BEING A LAW PROFESSOR, A
SCHOLAR, AN ADVOCATE AND A JUDGE
AND HAS ASSURED US DURING HIS
NOMINATION HEARINGS BEFORE THE
COMMITTEE AND AGAIN IN PERSONAL
CONVERSATIONS WITH ME THAT HE
WOULD FOLLOW THE COURT'S
PRECEDENT IF CONFIRMED.
DURING HIS CONFIRMATION
HEARINGS, PROFESSOR LIU
TESTIFIED TO OUR COMMITTEE --
QUOTE -- "IF I WERE FORTUNATE
ENOUGH TO BE CONFIRMED IN THIS
PROCESS, IT WOULD NOT BE MY ROLE
TO BRING ANY PARTICULAR THEORY
OF CONSTITUTIONAL INTERPRETATION
TO THE JOB OF AN INTERMEDIATE
APPELLATE JUDGE.
THE DUTY OF A CIRCUIT JUDGE IS
TO FAITHFULLY FOLLOW THE SUPREME
COURT'S INSTRUCTIONS ON MATTERS
OF CONSTITUTIONAL INTERPRETATION
NOT ANY PARTICULAR THEORY."
AND SO THAT IS EXACTLY WHAT I
WOULD DO.
I WOULD APPLY THE APPLICABLE
CASE."
PRECEDENCE TO THE FACTS OF EACH
AS I SAID BEFORE AND I WILL SAY
AGAIN, THIS QUOTE, I KNOW, FROM
PROFESSOR LIU DESERVES EXACTLY
THE SAME WEIGHT AND DEFERENCE
AND CONFIDENCE AS SIMILAR
ASSERTIONS BY THEN-PROFESSOR
McCONNELL, NOW CIRCUIT COURT
JUDGE McCONNELL WHEN HE WAS
CONFIRMED BY VOICE VOTE OF THIS
CHAMBER.
TO SPEAK OTHERWISE I
THINK IS TO DO VIOLENCE TO THE
TRADITION OF DEFERENCE TO THOSE
WHO GIVE SWORN TESTIMONY TO
HEARINGS AND TO THE
DELIBERATIONS OF THIS BODY.
LAST, LET ME TURN TO SOME POINTS
THAT WERE RAISED JUST RECENTLY
ABOUT WHETHER OR NOT PROFESSOR
LIU BELIEVES THAT AMERICANS HAVE
A CONSTITUTIONAL RIGHT TO
WELFARE BENEFITS LIKE EDUCATION,
SHELTER OR HEALTH CARE, AND, IF
CONFIRMED, WOULD SOMEHOW DECLARE
THOSE CONSTITUTIONAL RIGHTS FROM
THE BENCH.
PROFESSOR LIU HAS AUTHORED, AS
I'VE SAID, MANY DIFFERENT LAW
REVIEW ARTICLES AND IN ONE, THE
2008 STANFORD LAW REVIEW ARTICLE
ENTITLED "RETHINKING
CONSTITUTIONAL WELFARE RIGHTS,"
HE, IN FACT, CRITICIZED ANOTHER
SCHOLAR'S ASSERTION FROM A 1969
ARTICLE THAT COURTS SHOULD
RECOGNIZE CONSTITUTIONAL WELFARE
RIGHTS ON THE BASIS OF A
SO-CALLED COMPREHENSIVE MORAL
THEORY.
PROFESSOR LIU REJECTED THAT.
IN 2006, HE PENNED A YALE LAW
REVIEW ARTICLE THAT ARGUED THAT
THE 14th AMENDMENT AUTHORIZES
AND OBLIGATES CONGRESS TO ENSURE
A MEANINGFUL FLOOR OF
EDUCATIONAL OPPORTUNITY.
HIS RECORD IS REPLETE WITH
SOURCES THAT MAKE IT CLEAR THAT
PROFESSOR LIU RESPECTS AND
RECOGNIZES THE ROLE OF THIS BODY
BODY, OF CONGRESS, AND THE ROLE
OF THE SUPREME COURT IN
ESTABLISHING, INTERPRETING AND
APPLYING BOTH PRECEDENT AND
CONSTITUTIONAL THEORY AND THAT
HE ACCEPTS, ACKNOWLEDGES AND
WILL RESPECT THE VERY REAL
LIMITS ON A CIRCUIT COURT JUDGE
IN INNOVATING IN ANY WAY.
MADAM PRESIDENT, IN CLOSING,
ALLOW ME TO SIMPLY SHARE WITH
YOU AND WITH THE MEMBERS OF THIS
BODY THAT NEW TO THIS BODY, NEW
TO THE FIGHTS THAT HAVE DIVIDED
THIS CHAMBER AND HAVE SO I THINK
DEFLECTED REAL DELIBERATION ON
NOMINEES TO CIRCUIT COURTS TO
THE SUPREME COURT, I HAVE TAKEN
THE TIME TO REVIEW HIS WRITINGS,
TO INTERVIEW HIM INDIVIDUALLY,
TO ATTEND A NOMINATION HEARING
AND HAVE COME TO THE CONCLUSION
THAT CANDIDATE, NOMINEE,
PROFESSOR GOODWIN LIU IS A
QUALIFIED, CAPABLE, COMPETENT,
IN FACT, EXCEPTIONAL LEGAL
SCHOLAR WHO UNDERSTANDS AND WILL
RESPECT THE DIFFERENCES BETWEEN
ADVOCACY AND SCHOLARSHIP AND
SERVING AS A MEMBER OF THE
CIRCUIT COURT IN THE JUDICIARY
OF THE UNITED STATES.
I URGE THE MEMBERS OF THIS BODY,
I URGE MY COLLEAGUES TO TAKE A
FRESH LOOK AT THE RECORD AND TO
ALLOW THIS BODY TO VOTE.
WHY ON EARTH THIS RECORD OF THIS
EXCEPTIONALLY QUALIFIED MAN
WOULD JUSTIFY A FILIBUSTER IS
UTTERLY BEYOND ME AND SUGGESTS
THAT UNFORTUNATELY WE'VE BEEN
MIRED IN PARTISANSHIP RATHER
THAN ALLOWING DEBATE AND VOTES
ON THIS FLOOR, WHICH, IN MY
VIEW, IF WE FOLLOW THE BEST
TRADITIONS OF THIS BODY, WOULD
LEAD TO THE CONFIRMATION OF
CIRCUIT.
GOODWIN LIU TO THE NINTH
THANK YOU.
MADAM PRESIDENT, I YIELD THE
FLOOR.
THE
SENATOR FROM OKLAHOMA.
THANK YOU,
MADAM PRESIDENT.
AND I WOULD TELL MY COLLEAGUE
FROM DELAWARE THAT HE MAKES SOME
VERY EXCELLENT POINTS AND VERY
WELL SAID.
I'VE SPENT A NUMBER OF YEARS,
NOW ALMOST SEVEN, ON THE
JUDICIARY COMMITTEE AND MY
OBSERVATIONS ARE PAINFULLY
AWARANT TO ME ABOUT OUR PROCESS.
GOODWIN LIU IS A STELLAR
INDIVIDUAL.
THERE'S NO QUESTION ABOUT IT.
HE'S A STELLAR SCHOLAR.
THERE'S NO QUESTION ABOUT IT.
BUT MY OBSERVATIONS HAVE TAUGHT
ME, AS WE'VE VOTED AND PUT
JUDGES ON THE APPELLATE COURT
AND TO THE HIGHEST COURT, THAT
WHAT IS SAID IN TESTIMONY BEFORE
THE COMMITTEE REALLY DOESN'T
BEAR OUT ANY IMPACT ON WHAT
HAPPENS ONCE SOMEBODY BECOMES A
JUDGE.
AND MY OBSERVATION IS, IS PEOPLE
ARE WHO THEY ARE.
I ACTUALLY SPENT A SIGNIFICANT
TIME WITH GOODWIN LIU.
I THINK HE'S A GENUINE GREAT
AMERICAN.
THE QUESTION, HOWEVER, IS NOT
WHETHER HE'S A STELLAR SCHOLAR,
A STELLAR INTELLECT OR A GREAT
AMERICAN.
THE QUESTION IS, IS DO HIS
BELIEFS MATCH WHAT THE
CONSTITUTION REQUIRES OF
APPELLATE JUDGES AND HIGHER
JUDGES?
AND I'VE COME TO THE CONCLUSION
THAT BEING STELLAR, BEING A
GREAT TEACHER AND PROFESSOR,
BEING A WONDERFUL JUDGE IS NOT
ENOUGH.
AND I REALLY TAKE THE WORDS TO
HEART THAT MY COLLEAGUE SAID
MAKE MISTAKES.
HIS COMMENTS ON JUDGE ALITO AND
JUDGE ROBERTS HE SAID WERE POOR
JUDGMENT, HE SHOULDN'T HAVE DONE
IT.
THERE'S NOT ANYBODY IN THIS BODY
THAT HASN'T DONE THE SAME THING.
SO WE CAN'T HOLD THAT AGAINST
HIM, AND I DON'T.
BUT WHAT I -- WHAT I DO THINK
MATTERS IS WHETHER OR NOT THE
OATH TO THE CONSTITUTION AND OUR
LAWS AND OUR TREATIES AND THE
FOUNDATIONAL DOCUMENTS OF OUR
CONSTITUTION DO MATTER.
AND I BELIEVE THAT WHERE WE FIND
OURSELVES TODAY AS A COUNTRY,
NOT HAVING THE DEBATE ON THE
SENATE FLOOR AS WE SHOULD BE
HAVING THE DEBATES ON THE SENATE
FLOOR IS PARTIALLY A BLAME
BECAUSE OF WHERE THE JUDGES HAVE
PUT US.
THAT THEY HAVEN'T BEEN LOYAL TO
THE DOCUMENT, THEY'VE EXPANDED
THE COMMERCE CLAUSE WELL BEYOND
ITS EVER ANYWHERE CLOSE INTENT
IN THE GENERAL WELFARE CLAUSE
THAT NOW FINDS US AT A TIME WHEN
WE'RE NEARING BANKRUPTCY, WE
CAN'T GET OUT OF OUR PROBLEMS
WITHOUT RETRACTING TREMENDOUSLY
THE SIZE AND SCOPE OF THE
FEDERAL GOVERNMENT, WE CAN'T
GROW OUR ECONOMY WITH THE TAX
REVENUE INCREASES THAT ARE GOING
TO BE REQUIRED TO GET OUT OF
THIS PROBLEM, THAT IT COMES BACK
DOWN IS WHAT DO THEY REALLY
BELIEVE ABOUT THE CONSTITUTION.
AND THE BEST WAY TO FIND THAT
OUT IS BEFORE THEY WERE EVER
THOUGHT ABOUT BEING NOMINATED
AND BEFORE THEY'RE TRYING TO BE
CONTROVERSIAL IN A TEACHING
ENVIRONMENT, IS WHAT ARE THEIR
GREAT THOUGHTS AND WHAT ARE
THEIR BELIEFS.
AND I DON'T BELIEVE PROFESSORS
CONTROVERSIAL.
WRITE ARTICLES TO BE
I THINK THEY WRITE ARTICLES
BASED ON WHAT THEIR LEARNED
RESEARCH TELLS THEM.
AND I JUST HAVE A FRANK
DISAGREEMENT WITH PROFESSOR LIU
ON THE ROLE OF A FEDERAL JUDGE.
I ACTUALLY BELIEVE WHAT THE
CONSTITUTION SAYS.
AND IT SAYS, "THE JUDICIAL
POWERS SHALL EXTEND TO ALL CASES
IN LAW ARISING UNDER THIS" --
AND THE WORD IS "THIS" --
"CONSTITUTION AND THE LAWS OF
THE UNITED STATES AND THE
MADE."
TREATIES MADE OR WHICH SHALL BE
AND THE PROBLEMS I HAVE WITH
PROFESSOR LIU IS THAT I BELIEVE
HE ADVOCATES FOR AN
UNCONSTITUTIONAL ROLE FOR
JUDGES.
HE BELIEVES THE CONSTITUTION IS
A LIVING DOCUMENT.
THAT IT IS INDETERMINE INDETERMINANT.
I RECOGNIZE I'M JUST A DOCTOR
FROM OKLAHOMA AND I DON'T HAVE A
LAW DEGREE, BUT I CAN READ THESE
WORDS LIKE ANYBODY ELSE.
I THINK SOME OF THE THINGS THE
FOUNDERS DID WERE WRONG AND
WE'VE CORRECTED THEM THROUGH THE
YEARSES, BOTH THROUGH WISE
SUPREME COURT DECISIONS BUT ALSO
THROUGH AMENDMENTS TO THE
CONSTITUTION.
AND HE ALSO BELIEVES THAT THE
CONSTITUTION SHOULD BE SUBJECT
TO SOCIALLY SITUATED MODES OF
REASONINGREASONING THAT APPEAL CULTURALLY
AND 0 HISTORICALLY TO CONTINGENT
MEANINGS.
WHAT THAT SAYS TO ME IS -- WHAT
THIS SAYS IS WIDE OPEN.
AND I REALLY LIKE THE GUY.
I GOT ALONG FABULOUSLY WITH HIM.
HE IS A WONDERFUL INDIVIDUAL.
BUT I DON'T THINK THAT'S WHO WE
WANT ON THE APPELLATE COURT.
AND I THINK WHAT JUDGES SAY --
POTENTIAL JUDGES SAY AND WRITE
WHEN YOU TAKE THE TOTALITY OF
WHAT THEY SAY AND WRITE, NOT
WHAT THEY SAY IN A HEARING,
BECAUSE IT ALL CHANGES ONCE
THEY'RE NOMINATED -- WHAT THEY
SAY AND WRITE IS VERY IMPORTANT
ABOUT WHAT THE JUDGES ARE GOING
TO BECOME.
AND YOU HEARD SENATOR CORNYN
HERE'S HER TESTIMONY.
RELATE TO JUSTICE SOTOMAYOR.
AND THE FIRST CASE SHE DOES IS
EXACTLY OPPOSITE OF WHAT HER
TESTIMONY WAS.
SO, YOU KNOW, IT USED TO, THE
JUDICIARY COMMITTEE DIDN'T BRING
THE JUDGES BEFORE IT.
WE LOOKED AT THE HISTORY.
NOW, LET ME ADDRESS SOMETHING
ELSE.
WHAT THE A.B.A. SAYS DOESN'T
MATTER TO ME ANYMORE BECAUSE
THERE'S BEEN A CONTROVERSIAL
NOMINATION FROM OKLAHOMA THAT
THE A.B.A. HAS RATED
"QUALIFIED," THAT FOUR DISTINCT
PEOPLE WHO WERE INTERVIEWED BY
THE A.B.A. SAID THE INDIVIDUAL
WASN'T QUALIFIED.
THAT WAS TOTALLY DISCOUNTED BY
THE EAFNLT A.B.A.
THE PEOPLE THAT WERE ACTUALLY
INTERVIEWED SAID THE PERSON
WASN'T QUALIFIED.
THE A.B.A. GAVE THEM A
"QUALIFIED" RATING ANYWAY.
SO THAT BASIS FOR SOMETHING THAT
WE HAVE QUALIFICATION IS NO
LONGER TRUSTWORTHY IN MY MIND.
IT HASN'T BEEN FOR SOMETIME.
I THINK THE DUE DILIGENCE IS
LACKING ON THE A.B.A.
AND THEIR METHOD FOR SCORING WHO
IS "QUALIFIED" OR WHO IS NOT.
THE FINAL POINT THAT I WOULD
MAKE IS THAT LOWS A WRITTEN A
LOT -- A LOST IT HAS BEEN
CONTROVERSIAL -- A LOT OF IT HAS
BEEN CONTROVERSIAL, ONE OF THE
THINGS THAT REALLY BOTHERS ME IS
HIS PROFOUND BELIEF THAT HE HAS
THE RIGHT TO USE FOREIGN LAW TO
INTERPRET THE U.S. CONSTITUTION.
WHAT THAT REALLY IS A CODE WORD
FOR SAYING, IF I DON'T LIKE
WHAT'S WRITTEN IN THIS DOCUMENT,
I'LL GO FIND SOME JURISPRUDENCE
SOMEWHERE ELSE AND ALLY IT THAT
GETS ME THE RESULT THAT I WANT
RATHER THAN BEING TRUTHFULLY AND
DOCUMENT SAYS.
HONESTLY OBEDIENT TO WHAT THIS
I KNOW THAT SOUNDS OVERLY
SIMPLE, BUT IT'S NOT.
THE FACT THAT WE'RE NOT APPLYING
OUR CONSTITUTION AND ITS MEANING
AND WHAT OUR FOUNDERS SAID ABOUT
WHAT IT MEANT AND WE'RE IGNORING
IT IS ONE OF THE THINGS THAT HAS
PUT US IN THE PERIL 0OUS STATE
THAT WE'RE IN -- THAT'S PUT US
IN THE PERILOUS STATE THAT WE'RE
IN TODAY.
WE'RE GOING TO HAVE A GREAT TEST
SOMETIME IN THE NEXT YEAR ON THE
MACE SIMPLIFY EXPANSION OF THE
COMMERCE CLAUSE THAT WAS -- ON
THE MASSIVE EXPANSION OF THE
COMMERCE CLAUSE THAT WAS PUT
INTO LAW THROUGH THE AFFORDABLE
CARE ACT.
AND I WILL PREDICT IN THIS BODY
TODAY, IF THAT IS UPHELD, THERE
WILL BE NO NEED FOR STATE AND
LOCAL GOVERNMENTS ANYMORE
BECAUSE THERE WILL BE NO
LIMITATION ON WHAT WE AS A
FEDERAL GOVERNMENT CAN DO TO
LIMIT THE FREEDOM AND FREE
EXERCISE OF THE TENTH AMENDMENT
TO THE STATES.
THE IDEA THAT YOU CAN TAKE WHAT
THIS CONSTITUTION VERY CLEARLY
SAYS -- ALL CASES IN LAW OF
EQUITY ARISING UNDER THIS
CONSTITUTION, NOT FOREIGN LAW,
NOT FOREIGN CONSTITUTION, NOT
FOREIGN THOUGHT, BUT OUR LAW.
IT DOESN'T MEAN WE CAN'T LEARN
FROM OTHER THINGS, BUT YOU CAN'T
USE FOREIGN LAW TO INTERPRET OUR
CONSTITUTION.
IT IS A VIOLATION OF A JUDICIAL
OATH EVERY TIME ONE OF OUR
SUPREME COURT JUSTICES
REFERENCES THEIR OPINION BASED
ON FOREIGN LAW.
IT'S A VIOLATION OF THEIR OATH.
BECAUSE THEIR OATH IS TO THIS
CONSTITUTION, NOT SOME OTHER
CONSTITUTION.
AND SO WE SEE THAT OCCASIONALLY,
ESPECIALLY IN MINORITY OPINIONS,
AND OFTENTIMES IN PREVIOUS
MAJORITY OPINIONS THAT HAVE GOT
OUR COUNTRY INTO THE TROUBLE
THAT WE'RE IN.
SO I BELIEVE GOODWIN LIU IS A
GENERALLY WONDERFUL MAN.
HE'S STELLAR INTELLECTUAL
THINKER.
BY REPORTS, HE IS AN OUTSTANDING
PROFESSOR AND IS A GREAT HUMAN
BEING.
THAT DOES NOT QUALIFY HIM TO BE
ON THE NINTH CIRCUIT COURT OF
APPEALS.
WHAT WILL QUALIFY HIM IS AN
ABSOLUTE FIDELITY TO OUR
CONSTITUTION AND OUR FUTURE, AND
NOT THE CREATIVE WAYS THAT WE
CAN CHANGE THAT THROUGH OUR OWN
WILLS OR WHIMS OF JUDGES TO GET
A RESULT THAT'S DIFFERENT THAN
WHAT OUR CONSTITUTION WOULD SAY
WE SHOULD HAVE.
AND SO I REGRETTABLY AND -- AND
TRULY WITH REGRET -- WILL BE
DON'T LIKE THIS PROCESS.
VOTING AGAINST CLOTURE BECAUSE I
I THINK IT HURTS US, AND I THINK
IT DIVIDES OUR BODY -- FOR HIS
NOMINATION.
AND MY HOPE WOULD BE THAT WE CAN
HANDLE THESE IN THE FUTURE MUCH
BETTER THAN WHAT WE'VE HANDLED
THEM IN THE PAST.
I SIGH SEE THE ASSISTANT
MAJORITY LEADER ON THE FLOOR AND
I WOULD YIELD TO HIM.
MADAM PRESIDENT?
THE
SENATOR FROM ILLINOIS.
MADAM PRESIDENT, I
HAVE 10 UNANIMOUS CONSENT
REQUEST FOR COMMITTEES TO MEET
DURING TODAY'S SESSION OF THE
SENATE WITH THE APPROVAL OF THE
MINORITY AND MINORITY LEADERS'S
MAJORITY LEADERS.
I ASK UNANIMOUS CONSENT THAT
THESE REQUESTS BE AGREED TO AND
PRINTED IN THE RECORD.
OFFICER WITHOUT OBJECTION.
MADAM PRESIDENT,
AT 2:00 WE'LL HAVE A VOTE ON THE
FLOOR.
A MAN IS SEEKING A JUDGESHIP.
THERE'S NO QUESTION IN ANYBODY'S
MIND THAT THIS IS A JUDGESHIP
THAT SHOULD BE FILLED.
PROFESSOR GOODWIN LIU WANTS TO
SERVE ON THE U.S. CIRCUIT COURT
CIRCUIT.
OF APPEALS FOR THE NINTH
HE WAS NOMINATED IN JANUARY OF
2009.
HERE WE ARE IN MAY OF 2010.
THE SIGNIFICANCE OF THAT DELAY
IS THE FACT THAT THIS IS A
VACANCIES THAT CAUSES A PROBLEM.
THE ADMINISTRATIVE OFFICE OF THE
U.S. COURT -- NO POLITICAL
OFFICE BUT THE COURT'S OFFICE --
DECLARED A JUDICIAL EMERGENCY IN
THIS CIRCUIT AND SAID THEY
THEY'D NEEDED THIS VACANCY
FILLED.
SO NOBODY QUESTIONS THAT THERE
WAS AT LEAST A SENSE OF URGENCY
IN FILLING THE SEAT.
YOU ASK YOURSELF, IF THE
PRESIDENT NOMINATED SOMEONE BACK
IN JANUARY OF 2009, WHY IN MAY
OF 2010 ARE WE JUST GETTING
AROUND TO IT?
I THINK THAT QUESTION NEEDS TO
BE DIRECTED TO THE OTHER SIDE OF
THE AISLE.
THEY HAVE FOUND REASONS TO DELAY
THIS AND TO RAISE QUESTIONS,
WHICH HAVE BROUGHT US TO THIS
MOMENT.
SO HOW ABOUT THIS PROFESSOR?
IS HE QUALIFIED TO SERVE AT THE
SECOND-HIGHEST LEVEL OF THE
COURTS IN AMERICA, THE NINTH
CIRCUIT?
WELL, THE AMERICAN BAR
ASSOCIATION DIDN'T WASTE ANYTIME
EVALUATING PROFESSOR GOODWIN
LIU.
THEY AWARDED HIM THEIR HIGHEST
POSSIBLE RATING -- "UNANIMOUSLY
WELL-QUALIFIED."
IF YOU LOOK AT HIS BACKGROUND,
IT IS NO SURPRISE.
HE IS THE SON OF IMMIGRANTS.
HE AATTENDED STANFORD RUST OF
UNIVERSITY WHERE HE GRADUATED
PHI BETA CAP PARKS WON A RHODES
SCHOLARSHIP, ATENTDZED YALE LAW
SCHOOL WHERE HE WAS EDITOR OF
THE YALE LAW REVIEW.
SERVED AS A LAW CLERK TO JUDGE
DAVID TATEL OF THE D.C.
SAIRNGHTDZ TO SUPREME COURT
JUSTICE RUTH BADER GINSBURG.
AFTER FINISHING HIS SECOND
CLERKSHIP, THE ONE AT THE
SUPREME COURT, HE WORKED FOR
YEARS AT THE LAW FIRM OF
O'MEDICAL HAVE EN KNEE & MEYERS
THIS WALKING.
THEN HE JOININGED THE FACULTY AT
THE UNIVERSITY OF BERKELEY LAW
SCHOOL.
HE HAS WON NUMEROUS AWARDS FOR
HIS TEACHING AND ACADEMIC
SCHOLARSHIP, COMPLUG THE HIGHEST
TEACHING AWARDS GIVEN AT THE CAL
BERKELEY LAW SCHOOL.
SO WHAT'S THE POINT OF THIS
DEBATE?
WE KNOW HE IS WELL-EQUAL
FIEVMENTD WE KNOW THERE IS A
JUDICIAL EMERGENCY THAT REQUIRES
US TO FILL THIS SEAT, AND WE
AGO.
SHOULD HAVE DONE IT A LONG TIME
AND WHEN YOU LOOK AT HIS RESUME,
IT WOULD PUT EVERY LAWYER,
INCLUDING MYSELF, TO SHAME.
WHEN YOU CONSIDER ALL THAT HE
HAS DONE LEADING UP TO THIS
MOMENT IN HIS CAREER.
WCIALTION ITWELL, IT
TURNS OUT THAT THEY THINK HE HAS
THE WRONG PHILOSOPHY, THE WRONG
VALUES.
THEY CRITICIZED HIM FOR A
HANDFUL OF STATEMENTS HE MADE
WHILE SEARVETION A PROFESSOR.
ISN'T IT INTERESTING THE DOUBLE
HERE.
STANDARD THAT'S BEING APPLIED
I WAS HERE IN 2002 WHEN A TENTH
CIRCUIT COURT OF APPEALS NOMINEE
BY THE NAME OF MICHAEL
McCONNELL WAS UP TO BE
CONSIDERED.
HE'D BEEN A LAW PROFESSOR AT THE
UNIVERSITY OF UTAH AND THE
UNIVERSITY OF CHICAGO.
AT HIS NOMINATION HEARING,
SENATOR ORRIN HATCH, WHO
STRONGLY SUPPORTED HIS
NOMINATION, SAID, "I THINK WE
SHOULD PRAISE AND ENCOURAGES THE
PROLIVE OF SCHOLARLYITING
ASSUMING THEY KNOW THE KNOWLEDGE
TO FOLLOW THE LAW AS WRITTEN AND
TO FOLLOW PRECEDENT."
WHAT WAS SENATOR HATCH DEFENDING
IN PROFESSOR McCONNELL'S
BACKGROUND?
IT WAS THE FACT THAT HE HAD
CALLED ROE v. WADE A LANDMARK
SUPREME COURT DECISION
ILLEGITIMATE.
PROFESSOR McCONNELL HAD
DEFENDED BOB JONES UNIVERSITY'S
RACIST POLICIES ON THE GROUNDS
THAT THEY WERE -- QUOTE --
"CHURCH TEACHINGS."
EVEN THOUGH THE SUPREME COURT
REJECTED HIS ARGUMENT IN AN 8-1
DECISION.
AND HE CLAIMED THE VIOLENCE
AGAINST WOMEN ACT WAS
UNCONSTITUTIONAL.
NOW, THAT WAS FODDER FOR A LOT
OF QUESTIONS THAT SHOULD HAVE
BEEN ASKED AND WERE ASKED.
HE HAD MADE SOME VERY EXTREME
STATEMENTS AS A PROFESSOR.
BUT PROFESSOR McCONNELL
ASSURED THE SENATE THAT WHEN HE
LEFT THE CLASSROOM AND ENTERED
THE COURTROOM HE'D PUT HIS VIEWS
ASSIGNED FOLLOW THE LAW.
THE SENATE DID NOT STOP HIM WITH
A FILIBUSTER.
THE SENATE TOOK PROFESSOR
McCONNELL AT HIS WORD AND GAVE
HIM AN UP-OR-DOWN VOTE ON THE
FLOOR, AND HE WAS CONFIRMED.
THAT'S ALL WE'RE ASKING FOR WHEN
THIS COMES TO PROFESSOR LIU.
I'D POINT OUT THAT OTHER
WELL-RESPECTED FEDERAL JUDGES
HAVE ALSO SERVED IN ACADEMIC
BENCH.
ROLES BEFORE COMING TO THE
RICHARD POSER IN, SEVENTH
CIRCUIT IN CHICAGO, IS A FRIEND
OF MINE.
EVERY ONCE IN A WHILE WE GOAT
TOGETHER FOR AN AMAZING LUNCH P.
HE IS SUCH A BRILLIANT GUY.
WE DISAGREE ON SO MANY THINGS
BUT I CAN'T HELP BUT SIT THERE
IN AWE OF THIS MANNS KNOWLEDGE
OF THE LAW AND OF THE WORLD AND
HIS PROLIFIC AUTHORSHIP OF BOOKS
ON SO MANY SUBJECTS AND I THINK
MOST WOULD AGREE, HE'S HE TAKEN
SOME PRETTY CONTROVERSIAL VIEWS
HIMSELF N2005 DEBATE ON CIVIL
LIBERTIES WITH JEFFREY STONE,
JUDGE POSNER SAID "LIFE WITHOUT
SELF-INCREME NATION CLAUSE,
WITHOUT THE FOURTH AMENDMENT'S
DISCLOSUREARY RULE, WITHOUT ON
AMENDED PATRIOT BEING A, WITH
THE DEPICTION OF THE 10
EXPHANDZMENTS ON THE CEILING OF
THE SUPREME COURT, EVEN LIFE
WITHOUT ROE v. WADE, WOULD
STILL IN MY OPINION ANYWAY BE
EMINENTLY WORTH LIVING."
IS THERE ANY FODDER THERE FOR
POLITICAL COMMENTATORS?
HE WAS A SIGNATURE JUDGE WHEN HE
SAID THAT.
SOMEHOW MY FRIENDS ON THE LEFT
COULD HAVE HAD A FIELD DAY WITH
THAT QUOTE.
SOME OF MY FRIENDS ON THE RIGHT
MIGHT HAVE GREED STRONGLY WITH
JUDGE POSNER'S 2008 WHEN HE
WROTE ABOUT HECIALTION A CASE
WHERE THE COURT STATED THE
SECOND AMENDMENT CONFERS AN
INDIVIDUAL RIGHT.
JUDGE POSNER WROTE THAT THE
COURT'S DECISION IN HELLER --
QUOTE -- "IS QUESTIONABLE IN
BOTH MESSAGE & RESULT AND IT'S
EVIDENCE THE SUPREME COURT IN
DECIDING CONSTITUTIONAL CASES
EXERCISES A FREEWHEELING SCRERKS
IDEOLOGY."
STRONGLY IS FLAVORED WITH
END OF QUOTE.
I'LL BET YOU THERE ARE A LOT OF
SENATORS ON THE OTHER SIDE OF
THE AISLE THAT DISAGREE WITH
THAT YOAT.
SO LET'S GET DOWN TO THE BOTTOM
LINE HERE.
WE RECOGNIZE THE VALUE OF
ACADEMIC FREEDOM AND DISCOURSE.
WE UNDERSTAND THAT A PROFESSOR
HAS A DIFFERENT ROLE IN AMERICA
THAN SOMEONE SIGNATURE ON A
BENCH JUDGING A CASE.
WE TRUST THEM.
WE GIVE THEM BASIC CREDIT FOR
INTEGRITY WHEN THEY SAY THEY CAN
SEPARATE THE TWO LIVES.
THEY UNDERSTAND THE TWO
RESPONSIBILITIES.
PROFESSOR LIU IS A MAN WIDELY
RECOGNIZED FOR HIS INTEGRITY AND
INDEPENDENCE.
THAT'S WHY HE HAS THE SUPPORT OF
PROMINENT CONSERVATIVE LAWYERS.
KENNETH STARR, NO HERO ON THE
DEMOCRATIC SIDE OF THE AISLE,
HAS SAID HE WOULD BE A GREAT
JUDGE.
BOB BARR, FORMER REPUBLICAN
CONGRESSMAN, AND GOLDWATER
INSTITUTE DIRECTOR CLINT ***
EXPRESS SUPPORT FOR HIS
NOMINATION.
IT WAS WRITTEN -- QUOTE -- "IN
OUR VIEW, THE TRAITS THAT SHOULD
WEIGH MOST HEAVILY IN THE
EVALUATION OF AN EXTRAORDINARILY
QUALIFIED NOMINEE SUCH AS
GOODWIN ARE THE PROFESSIONAL
INTEGRITY AND ABILITY TO
DISCHARGE FAITHFULLY AN ABIDING
DUTY TO FOLLOW THE LAW, BECAUSE
GOODWIN POSSESSES THESE
QUALITIES TO THE HIGHEST DEGREE,
WE ARE CONFIDENT HE WILL SERVE
ON THE COURT OF APPEALS NOT ONLY
FAIRLY AND COMPETENTLY BUT WITH
GREAT DISTINCTION.
CONFIRMATION."
WE SUPPORT AND URGE HIS SPEEDY
END OF QUOTE.
WELL, WE'RE NOT GOING TO MEET
CONFIRMATION.
THEIR WISHES WITH A SPEEDY
THE QUESTION IS WHETHER OR NOT
60 SENATORS WILL DECIDE TODAY
THAT PROFESSOR GOODWIN LIU IS
ENTITLED TO A VOTE, A VOTE, AN
UP-OR-DOWN VOTE IN THE UNITED
STATES SENATE.
PROFESSOR LIU SAID IN HIS
CONFIRMATION HEARING, "THE ROLE
OF A JUDGE IS TO BE AN IMPARTIAL
AND OBJECTIVE ARBITER IN
SPECIFIC CASES AND CONTROVERSY
THAT COME BEFORE HIM.
THE WAY THAT PROCESS WORKS IS
THROUGH ABSOLUTE FIDELITY TO THE
APPLICABLE PRECEDENTS AND
LANGUAGE OF THE LAW, STATUTE OR
REGULATIONS THAT ARE ISSUED IN
THIS CASE."
PROFESSOR LIU IS COMMITTED TO
RESPECT AND FOLLOW THE JUDICIAL
ROLE.
I'M CONFIDENT THAT HE WILL
FULFILL THAT ROLE WITH
DISTINCTION.
THIS IS A GOOD MAN, A GREAT
LAWYER, AN EXTREMELY
WELL-QUALIFIED NOMINEE.
HIS NOMINATION HAS BEEN
LANGUISHING BEFORE THIS SENATE
SINCE FEBRUARY OF THIS YEAR.
HE HAS HAD TO PUT HIS LIFE ON
HOLD, MANY RESPECTS WAITING FOR
THE SENATE TO ACT.
WE'LL HAVE A CLOTURE VOTE IN
JUST ABOUT AN HOUR.
HERE.
I THINK WE KNOW WHAT'S GOING ON
FOR MANY ON THE OTHER SIDE OF
THE AISLE, THEY ARE GUIDED BY
ADVISORS WHO TELL THEM KEEP AS
MANY CRITICAL JUDICIAL POSTS
OPEN FOR AS LONG AS POSSIBLE.
ELECTION.
HELP IS ON THE WAY IN THE NEXT
WE DON'T WANT TO ALLOW THIS
PRESIDENT TO FILL THESE
VACANCIES.
AND PARTICULARLY WHEN IT COMES
TO THE CIRCUIT COURTS BECAUSE OF
THE TREMENDOUS RESPONSIBILITY
AND OPPORTUNITY THERE IS FOR
DECISIONS.
IMPORTANT AND HISTORIC
AND SO PROFESSOR LIU HAS BEEN
CAUGHT IN THIS MAELSTROM.
HE HAS NOW SUBJECTED TO THIS
FILIBUSTER VOTE.
I SINCERELY HOPE THAT MY
COLLEAGUES WILL BE FAIR AND
HONEST IN THEIR VOTE.
I HOPE THAT THEY WILL LOOK AT
THE OBVIOUS RECORD OF THIS MAN
TO FILL AN IMPORTANT VACANCY, A
MAN FOUND UNANIMOUSLY WELL
QUALIFIED BY THE AMERICAN BAR
ASSOCIATION, A PERSON WITH A
LEGAL RESUME THAT IS PEERLESS,
SOMEONE WHO HAS STATED CLEARLY
AND UNEQUIVOCALLY THAT HE WILL
FOLLOW THE LAW, TO DWELL ON
STATEMENTS THAT HE HAS MADE AS A
PROFESSOR IS TO DO A GREAT
DISSERVICE TO ACADEMIC FREEDOM
AND TO IGNORE THE OBVIOUS.
WE HAVE WHEN REPUBLICAN NOMINEES
CAME BEFORE US USED OUR
DISCRETION TO SEPARATE OUT THEIR
ACADEMIC LIVES WITH THE PROMISE
THAT AS JUDGES THEY WILL LOOK AT
THE WORLD IN A VERY SOBER,
HONEST WAY.
I INTEND TO VOTE IN SUPPORT OF
CLOTURE IN SUPPORT OF THIS
NOMINATION.
I URGE MY COLLEAGUES TO DO THE
SAME.
MADAM PRESIDENT, I YIELD THE
FLOOR.
A SENATOR: MR. PRESIDENT?
THE
SENATOR FROM UTAH.
SEVERAL OF MY
COLLEAGUES HAVE EXPRESSED
CONCERNS ABOUT THE NOMINATION OF
GOODWIN LIU.
I SHARE MANY OF THOSE CONCERNS
AND DO NOT WISH TO BLAIB POINTS
THAT THEY HAVE -- TO BELABOR
MADE.
POINTS THAT THEY HAVE ALREADY
I WILL LIMIT MY COMMENTS TODAY
TO TWO FUNDAMENTAL REASONS WHY I
AM MYSELF UNABLE TO SUPPORT THE
NOMINATION OF PROFESSOR LIU TO
SERVE AS A JUDGE ON THE U.S.
CIRCUIT.
COURT OF APPEALS FOR THE NINTH
FIRST, I'M TRULY DISMAYED BY THE
LACK OF JUDGMENT DISPLAYED IN
PROFESSOR LIU'S 2006 TESTIMONY
REGARDING THE CONFIRMATION OF
SAMUEL ALITO AS AN ASSOCIATE
JUSTICE OF THE UNITED STATES
SUPREME COURT.
THROUGHOUT EXTENSIVE WRITTEN
TESTIMONY AND DURING AN
APPEARANCE BEFORE THE SENATE
JUDICIARY COMMITTEE, PROFESSOR
LIU UNFAIRLY CRITICIZED
THEN-JUDGE ALITO AND HIS LONG
JUDICIAL RECORD AS, AMONG OTHER
THINGS, HAVING SHOWN -- QUOTE --
"A UNIFORM PATTERN OF EXCUSING
ERRORS AND ERODING NORMS OF
BASIC FAIRNESS."
IN PARTICULAR, IN THE FINAL
PARAGRAPH OF PROFESSOR LIU'S
WRITTEN TESTIMONY, WHICH SERVED
AS A SUMMARY OF HIS ENTIRE
ANALYSIS ON THEN-JUDGE ALITO,
WAS NOTHING SHORT OF AN
INFLAMMATORY ATTACK.
HE WROTE -- QUOTE -- "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
OR THE F.B.I. 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."
PROFESSOR LIU'S UNSEEMLY ATTACK
ON JUSTICE ALITO GENERATED
CONSIDERABLE ATTENTION AT THE
TIME, AS WELL AS UNDERSTANDABLE
CONCERN ABOUT PROFESSOR LIU'S
TEMPERAMENT, HIS JUDGMENT AND
HIS BASIC ABILITY TO BE FAIR.
SO FAR AS I KNOW, IT WAS ONLY
AFTER HE WAS NOMINATED TO BECOME
A JUDGE ON THE U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT
THAT PROFESSOR LIU OFFERED ANY
APOLOGY FOR HIS TESTIMONY ABOUT
JUSTICE ALITO.
JUST A FEW WEEKS AGO, PROFESSOR
LIU TOLD MEMBERS OF THE
JUDICIARY COMMITTEE THAT HE HAD
LEARNED FROM THE OUTRAGE HIS
REMARKS CAUSED -- QUOTE --
"THAT STRONG LANGUAGE LIKE THAT
IS REALLY NOT HELPFUL IN THE
PROCESS."
CLOSE QUOTE.
PROFESSOR LIU'S OBSERVATION IS
CERTAINLY TRUE, BUT IT MISSES
THE CENTRAL POINT.
HIS COMMENTS ABOUT JUSTICE ALITO
WERE OFFENSIVE NOT SIMPLY
BECAUSE THEY WERE UNHELPFUL IN
HIS CONFIRMATION PROCESS BUT
BECAUSE THEY WERE MISLEADING AND
THEY WERE AN UNWARRANTED
PERSONAL ATTACK ON A DEDICATED
JUDGE AND PUBLIC SERVANT.
PROFESSOR LIU'S TREATMENT OF
JUSTICE ALITO AND HIS
LAST-MINUTE AND INCOMPLETE
HANDLING OF THE CONCERNS RAISED
BY HIS REMARKS LEAD ME TO
BELIEVE THAT HE LACKS THE BASIC
JUDGMENT AND DISCRETION
NECESSARY TO BE CONFIRMED TO A
LIFE TENURE POSITION IN THE
JUDICIARY.
THE SECOND REASON I FEEL
COMPELLED TO OPPOSE THIS
NOMINATION HAS TO DO WITH THE
INTEGRITY OF OUR NATION'S SYSTEM
OF CONSTITUTIONAL GOVERNMENT AND
THE RULE OF LAW.
IN MY CAREFUL AND CONSIDERED
JUDGMENT, THE JUDICIAL
PHILOSOPHY ESPOUSED BY PROFESSOR
LIU IS FUNDAMENTALLY
INCONSISTENT WITH THE JUDICIAL
MANDATE TO BE A NEUTRAL ARBITER
OF THE CONSTITUTION AND TO
UPHOLD THE RULE OF LAW.
I DO NOT BASE THIS CONCLUSION ON
THE FACT THAT HIS APPROACH TO
THE LAW IS IN MANY RESPECTS
DIFFERENT FROM MY OWN.
THAT'S NOT A PREREQUISITE AND
THAT'S NOT THE BASIS OF MY
OPPOSITION TO THIS NOMINEE.
MOST OF THE JUDGES NOMINATED BY
PRESIDENT OBAMA DO NOT SHARE MY
PERSONAL TEXTUALIST AND
ORIGINALIST COMMITMENTS.
YET, IN MY SHORT TIME AS A
MEMBER OF THE SENATE, I HAVE
VOTED TO CONFIRM MANY NOMINEES
DISAGREE.
WITH WHOM I FUNDAMENTALLY
PROFESSOR LIU, BY CONTRAST, IS
NOT SIMPLY A PROGRESSIVE NOMINEE
WITH A SOMEWHAT MORE EXPANSIVE
VIEW OF CONSTITUTIONAL
INTERPRETATION THAN IS COMMON
AMONG MANY SITTING JUDGES, NOR
IS HE A NOMINEE WHOSE
CONTROVERSIAL REMARKS ARE FEW
AND CAN BE OVERLOOKED.
YOU HAVE HAD A LONG HISTORY OF
MAINSTREAM LEGAL PRACTICE AND
OBSERVATIONS.
THROUGHOUT THE COURSE OF HIS
NUMEROUS SPEECHES, ARTICLES AND
BOOKS, PROFESSOR LIU HAS
CHAMPIONED A PHILOSOPHY THAT, IN
MY JUDGMENT, IS INCOMPATIBLE
WITH FAITHFULLY DISCHARGING THE
DUTIES OF A FEDERAL APPELLATE
JUDGE IN OUR CONSTITUTIONAL
REPUBLIC.
HIS APPROACH ADVOCATES THAT
JUDGES GO FAR BEYOND THE WRITTEN
CONSTITUTION, STATUTES AND
DECISIONAL LAW TO ASCERTAIN AND
INCORPORATE INTO CONSTITUTIONAL
LAW, IN PROFESSOR LIU'S OWN
WORDS, SHARED UNDERSTANDINGS,
EVOLVED UNDERSTANDINGS, SOCIAL
MOVEMENTS AND COLLECTIVE VALUES.
IN A 2008 STANFORD LAW REVIEW
ARTICLE DESCRIBING THE JUDICIAL
ROLE, PROFESSOR LIU WROTE --
QUOTE -- "THE PROBLEM FOR
COURTS IS TO DETERMINE AT THE
MOMENT OF DECISION WHETHER OUR
COLLECTIVE VALUES ON A GIVEN
ISSUE HAVE CONVERGED TO A DEGREE
THAT THEY CAN BE PERSUASIVELY
CRYSTALLIZED AND CREDIBLY
ABSORBED INTO LEGAL DOCTRINE.
"IN SO FRAMING THE PROCESS OF
JUDICIAL DECISIONMAKING, HE
ADVOCATED A CONCEPTION OF THE
JUDICIARY AS A -- QUOTE -- "
CULTURALLY SITUATED INTERPRETER
OF SOCIAL MEANING."
CLOSE QUOTE.
IN A 2009 BOOK ENTITLED "KEEPING
FAITH WITH THE CONSTITUTION," HE
WROTE THAT THE CONSTITUTION --
AND THAT CONSTITUTIONAL
INTERPRETATION RIGHTLY -- QUOTE
-- "INCORPORATES THE EVOLVING
CONSTITUTION FORGED THROUGH
UNDERSTANDINGS OF THE
SOCIAL MOVEMENTS, LEGISLATION
AND HISTORICAL PRACTICE."
CLOSE QUOTE.
IN AN INTERVIEW LATER THAT YEAR,
PROFESSOR LIU SUGGESTED THAT THE
JUDICIAL ROLE IS AN INDIVIDUAL
PROCESS THAT INCLUDES -- QUOTE
-- "LESSONS LEARNED FROM
EXPERIENCE AND AN AWARENESS OF
THE EVOLVING NORMS AND SOCIAL
UNDERSTANDINGS OF OUR COUNTRY."
CLOSE QUOTE.
THESE ARE JUST A FEW EXAMPLES OF
A CLEAR, CONSISTENT AND EXTREME
APPROACH TO JUDGING THAT
PROFESSOR LIU HAS CHAMPIONED IN
MANY SETTINGS OVER THE COURSE OF
MANY YEARS.
HIS APPROACH NECESSARILY
REQUIRES A JUDGE TO VIOLATE A
SEPARATION OF POWERS PRINCIPLES
MAKING LAW BASED ON THE JUDGE'S
SUBJECTIVE UNDERSTANDING OF
PUBLIC OPINION, COMMUNAL VALUES,
HISTORICAL TRENDS OR PERSONAL
PREFERENCES RATHER THAN
FAITHFULLY INTERPRETING AND
APPLYING THE LAWS MADE BY THE
BRANCHES.
LEGISLATIVE AND EXECUTIVE
A NOTED JUDGE WHO HAS FAITHFULLY
SERVED IN THE ROLE TO WHICH
PROFESSOR LIU HAS BEEN NOMINATED
AND WHO AS A RESULT IS
INTIMATELY FAMILIAR WITH THE
VERY REAL DANGERS OF LEGISLATING
FROM THE BENCH SHARED THIS VITAL
INSIGHT -- QUOTE -- "IT IS AS
IMPORTANT TO FREEDOM TO CONFINE
THE JUDICIARY'S POWER TO ITS
PROPER SCOPE AS IT IS TO CONFINE
THAT OF THE PRESIDENT, CONGRESS
OR STATE AND LOCAL GOVERNMENTS.
INDEED, IT IS PROBABLY MORE
IMPORTANT FOR ONLY COURTS MAY
NOT BE CALLED TO ACCOUNT BY THE
PUBLIC."
CLOSE QUOTE.
I RISE TODAY IN DEFENSE OF OUR
NATION'S CONSTITUTIONAL
SEPARATION OF POWERS AND
ULTIMATELY IN DEFENSE OF THE
ESSENTIAL LIBERTY THAT IT
PROTECTS.
I ALSO FEEL THE NEED TO RESPOND
TO THE POINT MADE BY MY
DISTINGUISHED COLLEAGUE, THE
AGO.
SENATOR FROM ILLINOIS MOMENTS
THIS IS NOT AN OPPOSITION THAT
IS BASED ON A DISAGREEMENT WITH
A PARTICULAR SET OF LEGAL
ANALYSES.
MY COLLEAGUE FROM ILLINOIS NOTED
THAT THERE WAS SOME OPPOSITION
TO JUDGE McCONNELL WHO WAS
CONFIRMED BY THIS BODY TO SERVE
ON THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT.
NOTWITHSTANDING THE FACT THAT
MANY IN THIS BODY DISAGREED WITH
PARTICULAR LEGAL CONCLUSION THAT
IS HAD BEEN REACHED BY
THEN-PROFESSOR McCONNELL.
THIS IS DIFFERENT THAN THAT.
THIS IS NOT ABOUT A DISAGREEMENT
CONCLUSION.
WITH A PARTICULAR LEGAL
IT IS INSTEAD ABOUT A CONCERN OR
RISING OUT OF A SYSTEMIC,
BROAD-BASED INTERPRETIVE
APPROACH, ONE THAT I BELIEVE
DOESN'T GIVE DUE REGARD TO THE
RULE OF LAW, TO THE NOTION THAT
WE ARE A NATION THAT LIVES UNDER
THE RULE OF LAW, THAT OUR LAWS
CONSIST OF WORDS, THAT WORDS
HAVE DEFINED FINITE MEANING,
THAT IN ORDER FOR OUR LAWS TO
WORK PROPERLY, THAT MEANING
NEEDS TO BE RESPECTED AND
INTERPRETED IN AND OF ITSELF AND
HELD AS AN INDEPENDENT GOOD BY
BASIS.
THE JUDICIARY ON A CONSISTENT
PROFESSOR LIU'S APPALLING
TREATMENT OF JUSTICE ALITO
LEAVES GREAT DOUBT IN MY MIND AS
TO WHETHER HE POSSESSES THE
REQUISITE JUDGMENT TO SERVE AS A
LIFE-TENURED JUDGE, AND I HAVE
COME TO THE CONCLUSION THAT
PROFESSOR LIU'S EXTREME JUDICIAL
PHILOSOPHY IS SIMPLY
INCOMPATIBLE WITH THE PROPER
ROLE OF A JUDGE IN OUR
CONSTITUTIONAL REPUBLIC.
FOR THESE REASONS, AS WELL AS
THOSE ARTICULATED BY MANY OF MY
COLLEAGUES, I'M COMPELLED TO
OPPOSE THIS NOMINATION.
THANK YOU.
MADAM PRESIDENT?
THE
SENATOR FROM CONNECTICUT.
I THANK THE
PRESIDENT.
I RISE IN SUPPORT OF THE
NOMINATION OF GOODWIN LIU TO BE
A MEMBER OF THE U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT.
I BELIEVE THAT MR. LIU'S
ACADEMIC QUALIFICATIONS, STRONG
INTELLECT, HIS CHARACTER, HIS
TEMPERAMENT MAKE HIM A -- A
PERSON WHO WOULD BE A VALUABLE
ADDITION TO THE FEDERAL BENCH,
AND THEREFORE I URGE MY
COLLEAGUES TO VOTE FOR CLOTURE
AND THEN IN FAVOR OF HIS
CONFIRMATION.
PROFESSOR LIU BRINGS AN
OUTSTANDING ACADEMIC AND
PROFESSIONAL BACKGROUND TO THIS
NOMINATION AND A PERSONAL LIFE
AMERICAN.
STORY THAT IS QUINTESSENTIALLY
IT'S NOT A REASON IN ITSELF
CERTAINLY TO VOTE TO CONFIRM HIM
AS A JUDGE OF THIS HIGH COURT,
BUT IT SPEAKS TO THE ENDLESS
OPPORTUNITIES FOR UPWARD
MOBILITY IN THIS COUNTRY FOR
PEOPLE WHO WORK HARD.
WHERE YOU END UP IS NOT
DETERMINED BY WHERE YOU START
OUT IN THIS COUNTRY.
GOODWIN LIU IS THE SECOND SON OF
TAIWANESE IMMIGRANTS.
AS A YOUNG BOY, HIS FAMILY
SETTLED IN SACRAMENTO.
HE BEGAN TO WORK HARD FROM THE
BEGINNING, ULTIMATELY GRADUATING
FROM STANFORD UNIVERSITY,
RECEIVED A RHODES SCHOLARSHIP TO
OXFORD AND EVENTUALLY GRADUATED
FROM YALE LAW SCHOOL.
SHOULD HE BE CONFIRMED TO THE
NINTH CIRCUIT, PROFESSOR LIU
WOULD BECOME THE SECOND ASIAN
AMERICAN CURRENTLY SERVING ON A
FEDERAL APPEALS COURT.
HE IS NOW THE ASSOCIATE DEAN AND
PROFESSOR OF LAW AT THE
UNIVERSITY OF CALIFORNIA
CALIFORNIA-BERKELEY SCHOOL OF
LAW.
HE IS WIDELY RECOGNIZED AND
RESPECTED BROADLY THROUGHOUT
ACADEMIC AND LEGAL COMMUNITIES
IN THE UNITED STATES.
I NOTE THAT PRIOR TO ENTERING
ACADEMIA, HE WAS AN APPELLATE
LITIGATOR WITH O'MELVENY AND
MEYERS, A FIRST-RATE FIRM HERE
IN WASHINGTON, AND CLERKED FOR
BOTH CIRCUIT COURT JUDGE DAVID
TATEL AND SUPREME COURT JUSTICE
RUTH BAIDER GINSBURG,
REPRESENTING DIFFERENT POINTS ON
THE IDEOLOGICAL LEGAL SPECTRUM
SERVED THEM BOTH I KNOW WITH
GREAT DISTINCTION
THOUGH I DO NOT AGREE WITH
EVERYTHING GOODWIN LIU HAS HE
HAVE WRITTEN OR SAID, HIS VIEWS,
IT SEEMS TO ME, HAVE BEEN
WELL-EXPRESSED AND WELL-REASONED
AND QUITE INTELLIGENT.
I THINK HE'S GOT A THOUGHTFUL
APPROACH TO COMPLEX LEGAL
QUESTIONS AND I'M IMPRESSED THAT
HE'S EARNED THE RESPECT AND
SUPPORT OF THINKERS AND LAWYERS
FROM ALL SIDES OF -- OF THE
LEGAL, IDEOLOGICAL SPECTRUM,
WHICH I THINK SPEAKS ULTIMATELY
TO HIS PERSONAL EVENHANDEDNESS,
TO THE POWER OF HIS INTELLECT
AND TO WHAT WE CAN EXPECT OF HIM
AS A JUDGE OF THE CIRCUIT COURT.
I WAS PARTICULARLY IMPRESSED.
I KNOW IT'S BEEN QUOTED BEFORE
BUT IT SPEAKS VOLUMES BY THE
COMMENTS OF FORMER JUDGE KEN
STARR, FORMER DEAN ALSO, WHO
SAID THAT GOODWIN LIU IS -- AND
I QUOTE -- "A PERSON OF GREAT
INTELLECT, ACCOMPLISHMENT AND
INTEGRITY AND HE IS EXTREMELY
WELL QUALIFIED TO SERVE ON THE
COURT OF APPEALS."
MADAM PRESIDENT, I KNOW THAT
MANY OF MY COLLEAGUES HAVE
CONCERNS ABOUT THIS NOMINATION,
ABOUT THINGS PROFESSOR LIU HAS
EITHER WRITTEN OR SAID, AND I
UNDERSTAND THOSE.
I HAVE SOME OF THOSE CONCERNS.
I READ THE STATEMENT THAT HE
MADE ABOUT JUDGE ALITO.
IT HAS THE RING OF A PASSIONATE
LITIGATOR MAKING AN ARGUMENT
WITH PROBABLY MORE ZEAL THAN HE
HIMSELF APPRECIATES AS HE LOOKED
AT IT IN THE AFTERMATH.
BUT FOR THOSE WHO HAVE CONCERNS,
I URGE MY COLLEAGUES TO VOTE
ACCORDINGLY ON AN UP-OR-DOWN
VOTE NOT TO SUSTAIN THIS
FILIBUSTER AND, THEREFORE,
PREVENT AN UP-OR-DOWN VOTE ON
THIS NOMINATION.
MADAM PRESIDENT, I ALWAYS FELT
THAT IN OUR ADVICE AND CONSENT
RULE, AND THIS IS MY OWN
PERSONAL READING OF IT, THE
PRESIDENT, BY HIS ELECTION,
EARNS THE RIGHT TO MAKE THESE
NOMINATIONS.
WE DON'T HAVE TO DECIDE IN
CONFIRMING A NOMINEE THAT WE
WOULD HAVE MADE THIS NOMINATION,
ONLY THAT THE NOMINEE IS
ACCEPTABLE, IS WITHIN THE RANGE
OF THOSE ACCEPTABLE AND CAPABLE
OF DOING THE JOB FOR WHICH HE'S
NOMINATED.
NOT SO LONG AGO, 2005, THERE WAS
A MOVE TO REDUCE THE RIGHT TO
FILIBUSTER AND ACQUIRE 60 VOTES,
PARTICULARLY WITH REGARD TO
SUPREME COURT NOMINEES, BUT
OTHERS AS WELL, AND THAT LED TO
THE FORMATION OF THE SO-CALLED
GANG OF 14.
I WAS PROUD TO BE A MEMBER OF
THAT GROUP AND WE REACHED AN
AGREEMENT, ONE OF WHOSE PARTS I
WANT TO READ NOW.
OF FUTURE NOMINATIONS -- AND
THIS IS ONE OF THEM, GOODWIN
LIU -- SIGNATORIES WILL EXERCISE
THEIR RESPONSIBILITIES UNDER THE
ADVICE AND CONSENT CLAUSE OF THE
UNITED STATES CONSTITUTION IN
GOOD FAITH.
NOMINEES SHOULD ONLY BE
FILIBUSTERED UNDER EXTRAORDINARY
CIRCUMSTANCES AND EACH SIGNATORY
MUST USE HIS OR HER OWN
DISCRETION AND JUDGMENT IN
DETERMINING WHETHER SUCH
CIRCUMSTANCES EXIST, END OF
QUOTE FROM THE AGREEMENT OF THE
GANG OF 14.
I JUST -- I JUST DON'T THINK
THESE ARE EXTRAORDINARY
CIRCUMSTANCES HERE WHEN YOU
CONSIDER GOODWIN LIU'S INTELLECT
INTELLECT, HIS VARIED BACKGROUND
BACKGROUND, THE CHARACTER THAT
HE HAS AND THIS BROAD RANGE OF
ENDORSEMENTS FROM PEOPLE.
TO ME, A DISAGREEMENT ABOUT A
STATEMENT MADE IN THE HEAT OF AN
ARGUMENT OR EVEN THE SUBSTANCE
OF AN ARTICLE PUBLISHED IS NOT
STRONG ENOUGH TO PREVENT THIS
NO,NOMINEE FROM HAVING WHAT I THINK
IS HIS RIGHT.
AND THE PRESIDENT'S RIGHT TO GET
A VOTE UP-OR-DOWN, NOT TO BLOCK
HIM BY REQUIRING 60 VOTES.
FOR CLOTURE.
SO I URGE MY COLLEAGUES TO VOTE
I'M GOING TO DO SO WITH A FULL
MEASURE OF COMFORT AND
CONFIDENCE ABOUT THE KIND OF
JUDGE GOODWIN LIU WOULD BE BUT,
REALLY, WITH A FULL MEASURE OF
COMFORT THAT I AM EXERCISING MY
RESPONSIBILITY UNDER THE ADVICE
AND CONSENT CLAUSE AS I'VE
ALWAYS SEEN IT, INCLUDING AS IT
HAS BEEN INFORMED BY MY PROUD
PARTICIPATION IN THE MEMORANDUM
OF UNDERSTANDING OF THE GANG OF
14 IN 2005.
MADAM PRESIDENT, I THANK YOU
VERY MUCH AND I YIELD THE FLOOR.
MADAM PRESIDENT?
THE
SENATOR FROM SOUTH CAROLINA.
THANK YOU,
MADAM PRESIDENT.
I WOULD RISE IN REGRETFUL
OPPOSITION, QUITE FRANKLY, TO
HAVING TO VOTE TO DENY CLOTURE
FOR A JUDICIAL NOMINEE.
I ALSO WAS IN THE GANG OF 14 AND
THE WHOLE EFFORT WAS TO MAKE
SURE THAT THE SENATE FOLLOWS
CONSTITUTIONAL HISTORICAL NORMS
AND THAT IS GIVING GREAT
DEFERENCE TO PRESIDENTIAL
JUDICIARY.
SELECTIONS WHEN IT COMES TO
TO MY CONSERVATIVE COLLEAGUES,
THE BEST WAY TO MAKE SURE YOU
HAVE CONSERVATIVE JUDGES IS TO
WIN ELECTIONS, BECAUSE IF WE
STOP -- START BLOCKING ALL THE
JUDGES THAT WE DON'T LIKE THAT
HAVE A DIFFERENT VIEW OF THE LAW
THAN US, OUR FRIENDS ON THE
OTHER SIDE WILL RETURN THE FAVOR
AND YOU'LL WIND UP HAVING A
CHAOTIC SITUATION.
THERE'S A REASON THAT JUDGE
GINSBURG -- JUSTICE GINSBURG GOT
90-SOMETHING VOTES AND JUSTICE
SCALIA GOT 90-SOMETHING VOTES.
IT USED TO BE THE WAY YOU DID
BUSINESS AROUND HERE, WHEN THE
PRESIDENT WON THE ELECTION, THEY
WERE ABLE TO PICK QUALIFIED
NOMINEES FOR THE COURT UNLESS
YOU HAD A DARNED GOOD REASON,
THEY WENT FORWARD.
AND I THINK THAT SHOULD BE THE
STANDARD.
AND TO ME, I DO GIVE A LOT OF
DEFERENCE.
ARTICLE.
IT'S NOT ONE SPEECH, IT'S NOT AN
JUSTICE SOTOMAYOR, WHO I VOTED
FOR, HAD MADE A FAMOUS SPEECH AS
SHE THOUGHT THE EXPERIENCES OF A
LATINO WOMAN MAYBE WERE MORE
VALUABLE TO THE COURT THAN THAT
OF A WHITE MALE AND PEOPLE GOT
UP IN ARMS ABOUT THAT.
IT BOTHERED ME.
SHE EXPLAINED HERSELF.
I LOOKED AT THE WAY SHE LIVED
HER LIFE.
AND I UNDERSTOOD, BASED ON THE
WAY SHE LIVED HER LIFE, THAT SHE
WAS A FAIR PERSON.
THAT DID NOT REPRESENT BIGOTRY
ON HER PART TOWARD WHITE MALES.
AND WE ALL MAKE STATEMENTS AND
WRITE ARTICLES AND GET IN
DEBATES AND I'M NOT GOING TO USE
THAT AS A REASON TO DISQUALIFY
JUDICIARY.
SOMEBODY FROM SITTING ON THE
I WOULDN'T WANT THAT DONE TO OUR
INSPECT KNEES AND I DON'T INTEND
TO DO IT -- DONE TO OUR NO,
MA'AM DISMEEZ I DON'T INTEND
TO -- NOMINEES, AND I DON'T
INTEND TO DO THAT TO THE OTHER
SIDE.
BUT HERE'S WHAT MR. LIU DID TO
ME WHICH WAS A BRIDGE TOO FAR.
WHEN A CONSERVATIVE WINS THE
WHITE HOUSE, YOU EXPECT PEOPLE
LIKE ROBERTS AND ALITO AND
SCALIA.
WHEN A LIBERAL WIRNTIONZ WINS, YOU EXPECT
PEOPLE LIKE JUSTICE GINSBURG AND
ELENA KAGAN AND SOTOMAYOR.
THAT'S THE WAY IT WORKS.
AND ALL OF THEM ARE WELL
QUALIFIED.
THEY JUST HAVE A DIFFERENT
APPROACH TO THE LAW.
BUT THERE ARE A LOT OF 9-0
DECISIONS.
THE ONE THING THAT WOULD -- THAT
DRIVES MY THINKING HERE IS THAT
MR. LIU CHOSE NOT IN A ARTICLE
THAT HE WROTE AS A YOUNG MAN,
NOT IN SOME DEBATE THAT GOT
CARRIED AWAY BUT TO APPEAR
BEFORE THE JUDICIARY COMMITTEE
AND BASICALLY SAY THAT JUDGE
ALITO'S PHILOSOPHY WOULD CREATE
AN AMERICA WHERE POLICE MAY
SHOOT AND KILL AN UNARMED BOY TO
STOP HIM FROM RUNNING AWAY WITH
A STOLEN PURSE.
THAT LINE PROBABLY COMES FROM
SOME CASE THAT JUDGE ALITO WAS
INVOLVED IN WHERE FEDERAL AGENTS
MAY POINT GUNS AT ORDINARY
CITIZENS DURING A RAID EVEN
AFTER NO SIGN OF RESISTANCE,
WHERE THE F.B.I. 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.
THESE STATEMENTS ABOUT JUDGE
ALITO AND THE DECISIONS HE'S
RENDERED AND HIS PHILOSOPHY ARE
DESIGNED TO BASICALLY SAY THAT
PEOPLE WHO HAVE THE PHILOSOPHY
OF GENTLEMAN ALITO ARE UNCARING,
HATEFUL, AND REALLY SHOULD BE
DESPISED.
THAT IS A BRIDGE TOO FAR BECAUSE
I SHARE JUDGE ALITO'S PHILOSOPHY
PHILOSOPHY.
AND WE MAY COME OUT AT A
DIFFERENT RESULT ON A PARTICULAR
CASE BUT I DON'T THINK I FALL IN
THE CATEGORY OF BEING HATEFUL,
UNCARING, AND SOMEONE YOU SHOULD
DESPISE.
THESE STATEMENTS GIVEN TO THE
JUDICIARY COMMITTEE WERE
DESIGNED TO INFLAME PASSION
AGAINST JUDGE ALITO BASED ON HIS
ANALYSIS OF CASES BEFORE HIM
DURING HIS JUDICIAL TENURE.
AND IF THAT'S NOT ENOUGH, JUDGE
ROBERTS' RECORD, ACCORDING TO
MR. LOUISIANA LIEU LIU, IS A RIGHT-WING LAW
AGAINST CURRENT RIGHTS WE ENJOY.
IT'S ANOTHER THING TO DEBATE
YOUR OH OPPONENT.
I THINK ANOTHER THING TO HAVE
STRONG OPINIONS.
BUT THIS IS NOT AN ACCIDENTAL
STATEMENT.
THIS WAS CALCULATED, DELIVERED
AT A TIME WHERE IT WOULD DO
MAXIMUM DAMAGE.
AND ALL I AM SAYING TO FUTURE
NOMINEES, I EXPECT PRESIDENT
OBAMA TO NOMINATE PEOPLE OF A
LIBERAL JUDICIAL PHILOSOPHY.
I DO EXPECT -- DO NOT DENY YOU
ACCESS TO THE COURT BECAUSE YOU
MAY HAVE SAID SOMETHING IN AN
ARTICLE I DON'T LIKE.
YOU MAY HAVE REPRESENTED A
CLIENT THAT I DISAGREE WITH.
BUT THE ONE THING THAT I WILL
NOT TOLERATE IS FOR A
CONSERVATIVE OR A LIBERAL PERSON
SEEKING A JUDGESHIP TO BASICALLY
IMPUGN THE CHARACTER OF THE
OTHER WAY OF THINKING.
THESE WORDS ARE NOT THAT OF A
PASSIONATE ADVOCATE WHO MAY HAVE
WENT TOO FAR, ACCORDING TO
SENATOR LIEBERMAN, IN MY VIEW.
THESE WORDS WERE DESIGNED TO
DESTROY AND THEY RING OF AN
IDEOLOGUE.
AND HE SHOULD BE RUNNING FOR
OFFICE NOT SITTING ON THE COURT.
THERE'S A PLACE FOR PEOPLE WHO
THINK THIS WAY ABOUT
CONSERVATIVE JUDICIAL PHILOSOPHY
PHILOSOPHY -- RUN FOR PRESIDENT,
RUN FOR THE SENATE.
DON'T SIT ON THE COURT.
BECAUSE THE COURT HAS TO BE A
PLACE WHERE YOU ACCEPT
DIFFERENCES, YOU HASH IT OUT,
YOU RENDER VERDICTS, AND BASED
ON THE WAY HE VIEWS JUSTICE
ALITO AND ROBERTS AND HIS
DISDAIN FOR THEIR PHILOSOPHY, I
DO NOT BELIEVE HE COULD GIVE
SOMEONE LIKE ME A FAIR SHAKE.
SO AT THE END OF THE DAY, I ASK
ONE THING OF MY DEMOCRATIC
COLLEAGUES, I WILL TRY MY BEST
TO MAKE SURE THE SENATE STAYS ON
TRACK AND THAT WE DO NOT GET IN
THE ROAD OF FILIBUSTERING JUDGES
HAPHAZARDLY BASED ON THE FACT
THAT THERE'S SOMEBODY WE DON'T
AGREE WITH.
I HAVE TRIED MY BEST NOT TO GO
DOWN THAT ROAD BECAUSE I THINK
IT WILL DESTROY THE JUDICIARY
AND DISRUPT THE SENATE.
IF YOU'RE A CONSERVATIVE IN THE
FUTURE WANTING TO BE A JUDGE AND
YOU COME BEFORE OUR COMMITTEE
WHEN A LIBERAL NOMINEE?
BEFORE THE COMMITTEE -- WHEN A
LIBERAL NOMINEE IS BEFORE THE
COMMITTEE, AND YOU QUESTION
THEIR PATRIOTISM AND YOU SUGGEST
THAT THEY'RE HATEFUL PEOPLE WHO
SHOULD BE DESPISED FOR THEIR
PHILOSOPHY, THEN I WILL RENDER
THE SAME VERDICT AGAINST YOU.
WE WANT PEOPLE ON THE COURT WHO
ARE WELL-ROUNDED, WHO ARE
QUALIFIED, WHO UNDERSTAND THAT
AMERICA IS A BIG PLACE NOT A
SMALL PLACE.
AND JUDGE -- IN MR. LIU'S WORLD,
I THINK HE HAS A VERY SMALL VIEW
OF THE LAW.
THOSE ON THE OTHER SIDE WHO
THINK DIFFERENTLY NOT SHOULD BE
ENGAGED INTELLECTUALLY OR
CHALLENGED THROUGH ACADEMIC
DEBATE, HE'S TRIED TO BASICALLY
RIP THEIR CHARACTER APART.
AND HE WILL NOT GET MY VOTE.
AND A CONSERVATIVE WHO FEELS THE
SAME WAY ABOUT LIBERAL
PHILOSOPHY WOULD NOT GET MY VOTE
EITHER.
I'M LOOKING FOR THE MODEL OF
MIGUEL AESTRADA, WHO WAS POORLY
TREATED, WROTE A LETTER ON
BEHALF OF ALLANE AKAGAN.
SAYING SHE WAS MY LAW SCHOOL
CLASSMATE, WE DON'T AGREE ON THE
LAW BUT SHE'S A WONDERFUL
PERSON, WELL QUALIFIED, DESERVES
TO BE ON THE BENCH.
THAT'S THE WAY LIBERALS AND
CONSERVATIVES SHOULD ENGAGE EACH
OTHER IN MY VIEW WHEN IT COMES
TO THE JUDICIAL NOMINATION
PROCESS.
THIS WAS A BRIDGE TOO FAR FOR
LINDSEY GRAHAM.
I YIELD.
MR. PRESIDENT?
I'D LIKE TO INQUIRE HOW MUCH
TIME WE HAVE ON OUR SIDE.
3 MINUTES
AND 45 SECONDS.