7468 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 and great-grandchildren, we need to Maybe we can somehow break this log- p.m. will be equally divided and con- get this done. Frankly, it ought to be jam. The American people have a right trolled between the two leaders or done in the Budget Committee and not to watch us and not be happy when we their designees. by rule XIV on the floor. The reason it are not doing the kind of work nec- The Senator from California. should be done in the Budget Com- essary to put this country on a sound Mrs. BOXER. Mr. President, I am mittee is because I know the minority financial path. very honored to speak in favor of the will weigh in and at least have their I yield the floor. Goodwin Liu nomination and to urge viewpoints expressed. There will be The ACTING PRESIDENT pro tem- my colleagues on both sides of the aisle amendments, and people can vote up or pore. The Senator from Utah is recog- to cast a proud vote for an extraor- down on whatever it is. Then they can nized. dinary person, a remarkable young bring it to the floor, and we should Mr. HATCH. Is it time to move to the man who, for want of a better word, is have a complete consideration of it Liu nomination? just a star in everything he has ever here as well. That is the way it ought The ACTING PRESIDENT pro tem- done. to be done. pore. Not until 11 o’clock. There are a This is a picture of Goodwin. To say As a former member of the Budget few minutes remaining. Goodwin personifies the dream of Committee, I have to admit it is a dif- Mr. HATCH. Mr. President, I ask America is an understatement. To say ficult process, but it is not difficult if unanimous consent to move to the this is a good nomination understates we all work together to get spending nomination, if the leader has no objec- the way I feel about it. I thank the under control and quit taxing the tion, so I may give my opening re- President for moving forward with American people to death. We can do marks. Goodwin on two occasions, two nomi- this if we work together. I withdraw my unanimous consent nations—or three times. I thank the I hate to say it, but I think our request and suggest the absence of a Judiciary Committee for reporting him friends on the other side are not work- quorum. out on more than one occasion. Of ing together in their own caucus. The The ACTING PRESIDENT pro tem- course, I thank Senators LEAHY and distinguished Senator from Alabama pore. Without objection, it is so or- REID and FEINSTEIN for their hard work has pointed that out—I think cour- dered. in getting us to this point. teously—today. I hope they will get to- The clerk will call the roll. It is rather stunning for me to hear gether, even though I am pretty sure The legislative clerk proceeded to conservative Republicans come to the they are going to come up with a budg- call the roll. floor and blast this nominee because et that continues to spend and tax such Mr. HATCH. Mr. President, I ask Goodwin Liu, Professor Liu has support as we have had in the past. I hope they unanimous consent that the order for from some of the most conservative do not. If they do not, I think the the quorum call be rescinded. legal minds in the country. Ken Starr, American people will breathe a sigh of The ACTING PRESIDENT pro tem- who, as we all know, was the special relief and say they did a good job. If pore. Without objection, it is so or- counsel on the White Water matter and they do, I think it will be more of the dered. who was considered at that time quite same. Mr. HATCH. Mr. President, I suggest partisan and was one of the conserv- Mr. SESSIONS. I thank Senator the absence of a quorum, and I ask that ative, I think—I want to say stars of HATCH. I have enjoyed sharing these the time be divided equally. their thought, said: thoughts. I will note again that we are The PRESIDING OFFICER (Mr. In our view— looking at a period in history in which BROWN of Ohio). Without objection, it And he writes this with Professor our systemic debt problem is greater, I is so ordered. Amar, and this was published. The clerk will call the roll. believe, than any time in our history. In our view, the traits that should weigh World War II was serious, but we could The bill clerk proceeded to call the most heavily in the evaluation of an extraor- see our way out of it as soon as that roll. dinarily qualified nominee such as Goodwin war was over, and we bounced back The PRESIDING OFFICER. The Sen- are professional integrity and the ability to rapidly. ator from California. discharge faithfully an abiding duty to fol- Every expert tells us it is not going Mrs. BOXER. Mr. President, I ask low the law. Because Goodwin possesses unanimous consent that the order for those qualities to the highest degree, we are to be easy to bounce back out of the confident that he will serve on the Court of systemic problems we have. We need to the quorum call be rescinded. The PRESIDING OFFICER. Without Appeals not only fairly and competently, but have leadership. To have gone this objection, it is so ordered. with great distinction. We support and urge long, 750 days without a budget in the his speedy confirmation. Senate. Last year we did not pass a f This is Kenneth Starr. budget, and there were 59 Democrats in CONCLUSION OF MORNING So I say to my Republican conserv- the Senate. BUSINESS ative friends, before you come here and One may say: Don’t be so partisan, The PRESIDING OFFICER. Morning start attacking Goodwin Liu for things Senator SESSIONS. We are calling their business is closed. he has never done, read what some of names this morning. We like our col- your conservative leaders in the legal f leagues, but the truth is, when you profession are saying. have the majority, you have a responsi- EXECUTIVE SESSION Just today in Politico there is yet bility. The responsibility at this point another op-ed written by the chief in history could not be greater than to White House ethics lawyer under NOMINATION OF GOODWIN LIU TO produce a blueprint, a plan for the fu- George W. Bush for 21⁄2 years, Richard ture, such as the House has done, that BE A U.S. CIRCUIT JUDGE FOR Painter, a Republican serving a Repub- the American people can see: Does that THE NINTH CIRCUIT lican administration. This is what he solve our problems? Does it put us on The PRESIDING OFFICER. Under said: the right path? I think the House bill the previous order, the Senate will pro- All that is required is for Senate Repub- does. ceed to executive session to resume the licans to practice what they preached for so We have yet to see anything out of following nomination, which the clerk long under Bush. Give Liu an up-or-down the Senate that does. It is our responsi- will report. vote rather than a filibuster. bility in this body to pass legislation, The bill clerk read the nomination of Well, we are facing a filibuster. I because if we do not, we cannot con- Goodwin Liu, of California, to be want the American people to know— ference with the House, and we can United States Circuit Judge for the and everyone who is supporting Good- never get a budget passed. Ninth Circuit. win Liu and everyone who supports I thank Senator HATCH. I look for- The PRESIDING OFFICER. Under giving young, extremely talented peo- ward to working with our colleagues. the previous order, the time until 2 ple a chance to prove their mettle—

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00006 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7469 that this is someone who has been a law clerk to Justice Ruth Bader Gins- is an emergency vacancy. This is an star his whole life, someone who burg on the U.S. Supreme Court. emergency because they need to fill caught the dream. Give this man a I say to my Republican colleagues, this position. What they are doing by chance. Don’t filibuster this. Let’s what are you thinking? We should playing politics with this is making have an up-or-down vote. thank Goodwin for being willing to sure the people of this country—be- I think the ramifications—and I feel continue his life of public service. We cause the Ninth Circuit is a very im- very strongly about this. I don’t say should be praising his decision to put portant circuit—will not get justice, this very often on the floor. I think the up with all of this confirmation proc- unless they change their minds and ramifications of this filibuster are ess. Instead, they have given him a come to their senses and do what they going to be long and difficult for those horrible time, an awful time, a miser- said they would do. who caused this good man to be filibus- able time. I said yesterday on the floor I won’t quote who said these things, tered, unless, of course, we get the 60 while addressing his wife and his kids: but I have heard many on the other votes we need. Why do I think that? I You be proud of your dad and you be side say: Oh, we don’t want to fili- am going to tell my colleagues why I proud of your husband, because I say buster judges. Let them get an up-or- think that. I am going to spend the this: If he doesn’t get this, it is about down vote. Then we hear they are not next few minutes talking about Good- politics. It says more about the people going to vote to give Goodwin an up-or- win and telling my colleagues about here in this place than it does about down vote. What is the reason? There his life and his achievements and his Goodwin. Throughout this period they is no reason. Nobody can find a more amazing recognition by so many in his have made all these attacks on him, all qualified person. What is the message short 40 years. Goodwin Liu has been these ideological attacks, frankly, on to the people in this country when we extremely successful at each stage of someone they made him become. have someone who was a star in high his academic and professional career. This is a man with huge support from school, a star in college, a star in law He has reached for the stars, and he has conservatives, moderates, and liberals. school, a star in everything he did, a grabbed them. He brings people together because of law clerk? He was the covaledictorian and cap- his personality, his kindness, how in- Now, he gave a lot of his life to pub- tain of his tennis team in high school. telligent he is, how he listens to peo- lic service in the Corporation for Na- Let’s start with Goodwin in high ple. That is what people tell us about tional Service, where he helped launch school. He was born to Taiwanese im- him. Yet, still he has been viciously at- the AmeriCorps public service pro- migrants who are both physicians, they tacked, and we see politics being gram. As a senior adviser in the pro- moved to Sacramento, and they were played. gram, he led the agency’s efforts to quite an influence on Goodwin. They This will not be lost on the American build the AmeriCorps program at col- used to leave out math problems for people, I will tell my colleagues that leges and universities across this coun- him to solve even after he finished his right now, because this isn’t just some try. homework. They said to Goodwin: You guy whom the President bumped into Between his clerkships, Goodwin re- work hard and you can get what you one day and said: I think you would be turned to government service as a Spe- want. They forgot to mention there is good on the court. This is an extraor- cial Assistant to the Deputy Secretary a filibuster that could interfere, but dinary American who has fought so of Education. let’s not go there because we certainly hard in every job he ever had to be the He won praise from Republicans, hope we get the 60 votes. best, to bring the best qualities to his from Democrats, from conservatives, So it starts in high school where we work. That is why he has won the sup- from liberals, from moderates in every have a covaledictorian, a captain of the port of former Bush officials and Ken- position he ever held until he got to tennis team at Rio Americano High neth Starr, the conservatives I know this Senate floor, where the conserv- School in Sacramento. Then he goes to support Goodwin. But it is not good ative Republicans turned their backs Stanford, where he graduates Phi Beta enough for the politics that are being on Kenneth Starr, turned their backs Kappa—a very big honor—from Stan- played around here, and this is not on Bush administration lawyers, ford. While he is at Stanford, he is going to go down easy if he doesn’t get turned their backs on the facts of elected copresident of the student his up-or-down vote. This is not going Goodwin Liu’s life for some agenda. I body. He receives an award called the to go down easy. I have had experience am telling you, this will not go down Lloyd Dinkelspiel Award. It is the uni- in this political world for a long time. easy for them. This will not go down versity’s highest honor for outstanding I won 11 straight elections. They have easy. service to undergraduate education. all been really—not all but most of Goodwin served in the private sector. So in high school, he is a star. He is them—very hard. I know when there is He worked for a very well respected a star at Stanford. Then he goes to Ox- an issue that touches the heart, and I law firm, O’Melveny & Myers. He ford University, where he was a Rhodes know when there is a person who worked on a wide ring of matters from Scholar, which is considered one of the comes along who deserves better than antitrust to white-collar crime. He also most prestigious academic accomplish- what Goodwin Liu is getting from the maintained an active pro bono prac- ments. Republicans. I am speaking of the Re- tice—pro bono. He did things for free to Following his time at Oxford, he de- publicans here in this Chamber, not the help people who needed his help. cides to attend law school at Yale Uni- Republicans outside. Walter Dellinger of O’Melveny said versity. Once again, Goodwin goes to Let me read what Kenneth Starr said Goodwin was ‘‘widely respected in law Yale and he is a star. He was an editor about this man. Let me read it again to practice and for his superb legal abil- of the Law Journal. Along with a class- my colleagues. ity, his sound judgment, and his warm mate, he won the law school’s moot The traits that should weigh most heavily collegiality.’’ court competition. He wrote an article in the evaluation of an extraordinarily quali- Well, let me tell you, the kind of fied nominee such as Goodwin are profes- during his third year of law school that treatment he is getting here is far from won two awards, one for best paper by sional integrity and the ability to discharge faithfully an abiding duty to follow the law. warm. It is cold. It is wrong. It is a third-year law student and another Because Goodwin possesses those qualities to harsh. for the best paper on taxation. the highest degree, we are confident that he I want to read again what Kenneth He had such a distinguished record in will serve on the Court of Appeals not only Starr said. This is the third time. Ken- law school that it earned him a clerk- fairly and competently, but with great dis- neth Starr—you cannot get more con- ship with Judge David Tatel of the U.S. tinction. We support and urge his speedy servative. confirmation. Court of Appeals for the District of Co- The traits that should weigh most heavily lumbia, and then he does so well there That was Kenneth Starr. Well, Ken- in the evaluation of an extraordinarily quali- that he serves in one of the most pres- neth Starr’s Republican friends are not fied nominee such as Goodwin are profes- tigious clerkships in the country—a listening. ‘‘Speedy confirmation.’’ This sional integrity and the ability to discharge

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00007 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7470 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 faithfully an abiding duty to follow the law. else Richard Painter wrote about Good- And he says: Because Goodwin possesses those qualities to win. These supporters of Goodwin’s are I am convinced, based on his record and my the highest degree, we are confident that he passionate. That is why I say this is own experiences with him, that he is will serve on the court of appeals not only going to go down hard if we do not get thoughtful, fair-minded and well-qualified to fairly and competently, but with great dis- this cloture vote. This is interesting. be an appellate judge. tinction. We support and urge his speedy Well, all those wonderful letters—and confirmation. He writes: let me thank everyone who is engaged Kenneth Starr. I’ve done my share of vetting judicial can- didates and fighting the confirmation wars. I in this battle, from Kenneth Starr to Again, today, in an op-ed piece in Po- the Goldwater Institute, and all the litico, George W. Bush’s White House didn’t know much about Liu before his nomi- nation to the Ninth Circuit. But I became in- conservatives who have gotten in- ethics lawyer said: trigued by the attention the nomination gen- volved in this campaign on Goodwin’s All that is required is for Senate Repub- erated, and I wondered if his Republican crit- side and all the liberals and all the licans to practice what they preached . . . : ics were deploying the same tactics the moderates. Give Liu an up or down vote rather than a Democrats had used [against] Republican filibuster. Here is a man whose family came nominees. They were. If anything, the at- from Taiwan. They taught him every But, no, we are facing a filibuster tacks on Liu have been even more unfair. ... value of family. Goodwin has a beau- against someone who is a star. So as tiful family. They taught him every we follow Goodwin’s career—star in More unfair. value of hard work, every value of edu- high school, star in college, star in law Based on my own review of his record, I be- cation, every value of fairness and jus- school—everywhere he goes he is recog- lieve it’s not a close question that Liu is an tice. Why we would not give this man nized. outstanding nominee whose views fall well an up-or-down vote—that is all we are within the legal mainstream. That conclu- In 2003 he joined UC Berkeley’s fac- asking. No, they bring out the fili- ulty as a law professor where he has ex- sion is shared by leading conservatives who are familiar with Liu’s record. buster, and it is going to go down hard celled as a scholar and a teacher. He is if this man does not get this oppor- That is not good enough for my considered in this Nation one of the tunity. leading constitutional law and edu- friends on the other side. Well, I will So, Mr. President, this has been an cation law experts—but not in this give them another quote. honor for me to stand here for 2 days to Chamber. What do they want from a Former Republican Congressman Bob lay out the strong support that Good- nominee—backing from conservatives, Barr has also offered praise of Pro- win Liu has, not just from the two backing from liberals, backing from fessor Liu’s ‘‘commitment to the Con- home State Senators—and let’s keep the mainstream? stitution and to a fair criminal justice that one in mind, Senators. When you His article on education law issues system,’’ as he puts it. He noted: and your colleague in your State are won the Education Law Association’s [Liu’s] views are shared by many scholars, backing a nominee, just keep in mind, award for distinguished scholarship in lawyers and public officials from across the do not ever tell us, well, that does not 2006. ideological spectrum. matter because it should matter. He He received the Distinguished Teach- But Bob Barr’s opinion is not good has strong support from the two home ing Award in 2009, the university’s enough for my friends on the other State Senators, strong support across most prestigious award. side. the political spectrum, strong support I have never—let me say this: I have I am even going to read a quote from by community organizations. seen some wonderful people come to a former Congressman who tried to get In closing, let me say this: Diversity this floor for confirmation, Democrats the Republican nomination twice to is important on the bench. Why do I and Republicans. I have seen qualifica- run against me, Tom Campbell. He and say that? I say that because America, tions. I have voted for Republican I have had a couple of disagreements, we are a melting pot, and we are proud judges, for Democratic judges. Honest but not on Goodwin. Tom Campbell, of this American dream. But if our to God, it is hard for me to recall some- who served 9 years as a Republican court does not reflect this diversity, it one who, at every stage of his life—and Congressman from California, said: could still be fair, it could still be just, he is only 40 years old—has been able Goodwin will bring scholarly distinction but not as good as if we have a diver- to achieve such excellence. and a strong reputation for integrity, fair- sity of thought and ethnic diversity. What is the message coming from mindedness and collegiality to the Ninth The Ninth Circuit—this is inter- this body if we do not give this man an Circuit. esting. The Ninth Circuit covers an up-or-down vote? I am telling you, it Reflecting on Liu’s many years of area where 40 percent of Asian Ameri- will go down hard. work in serving the public interest, cans live. Forty percent of Asian Amer- The American Bar Association gave Campbell also said: icans live within the Ninth Circuit him the highest rating—the highest I am not surprised that [Liu] has again boundaries, and we do not have an rating—and yet we are facing a fili- been called to public service. Asian American judge. buster. So it goes on and on. I will give you Is the Asian American community The Goldwater Institute—everybody excited about this nomination? Abso- knows Barry Goldwater, idol of con- another Republican. Brian Jones, who served as the general counsel at the lutely. Whether they are Republicans— servatives—the director of the conserv- and many of them are—whether they ative Goldwater Institute endorsed Department of Education from 2001 to 2005 under George W. Bush, after Liu’s are Democrats—and many of them are. Goodwin Liu. But that is not good I think it is almost like a 50–50 split in enough for my Republican friends. tenure there, this is what he said about Goodwin that speaks to the heart and the Asian American community. They said they are endorsing him be- Well, pay attention to this. This is a soul of this good human being: cause of his ‘‘fresh, independent think- moment. It should be a moment of ing and intellectual honesty.’’ But that During [2001 and 2002], and even after he be- great celebration. I am fearful—I am is not enough for my friends on the came a law professor in 2003, [Goodwin] vol- unteered his time and expertise on several fearful—it might not be, but I am for- other side. They said they were endors- occasions to help me and my staff sort ever hopeful that it will be. If people ing him also because of his ‘‘scholarly through legal issues. . . . In those inter- listen, and they see the breadth of sup- credentials and experience to serve actions, Goodwin’s efforts were models of bi- port for this man, and they take poli- with distinction on this important partisan cooperation. tics out of the equation and ideology court.’’ Listen: out of the equation, they will vote for So we have heard from Kenneth In those interactions, Goodwin’s efforts ending this filibuster, and they will Starr, a conservative icon. We have were models of bipartisan cooperation. vote for Goodwin. heard from George Bush’s White House He brought useful knowledge and careful I yield the floor. ethics lawyer for 21⁄2 years, Richard lawyerly perspectives that helped our admin- Mr. HATCH. Mr. President, I rise in Painter. He wrote today. Let’s see what istration to achieve its goals. strong opposition to the nomination of

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00008 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7471 Goodwin Liu to the U.S. Court of Ap- The Constitution cannot limit gov- That would be a surprise to Amer- peals for the Ninth Circuit. ernment if it cannot limit judges and it ica’s founders, who had a much more As he said at the first hearing before cannot limit judges if they control pedestrian view of the judiciary, which the Judiciary Committee, his record is what the Constitution means. The Con- Alexander Hamilton described as the public, and he has written what he has stitution belongs to the people, not to weakest and least dangerous branch. written; he has said what he has said. judges. Thomas Jefferson warned that if That record is what we have to go on, President Obama takes the opposite judges could control the Constitution’s the basis on which we have to make a view. When he was a Senator and op- meaning it would be nothing but a decision about his nomination to the posed the nomination of Chief Justice lump of wax that judges could twist Federal bench or his confirmation by John Roberts, one of the greatest ap- and shape into any form they please. the Senate. pellate lawyers in the history of the There is no room in this modest judi- Professor Liu’s record endorses a country—he said that judges decide cial role for something as grand as in- powerful judiciary that can take con- cases based on their deepest values and terpreting social meaning. trol of the law in general and of the core concerns, their perspective on how I grant that there are individuals or Constitution in particular. His activist the world works, their empathy, and institutions in our society that should judicial philosophy is fundamentally at what is in their heart. That is what play this role. I think elected rep- odds with the principles on which our then-Senator Obama said. resentative bodies, such as the one in system of government is based. As a Presidential candidate he made which I am proud to serve, should play I examine a judicial nominee’s entire the same case to the Planned Parent- this role. But the last body of people in record to determine if he is qualified hood Action Fund and said these were our society who should play this role of by legal experience and, even more im- the criteria by which he would pick culturally interpreting social meaning portant, by judicial philosophy. judges. are judges in whose hands is placed the As to Professor Liu’s legal experi- President Obama certainly kept that interpretation and application of the ence, I know the ABA has rated him campaign promise in the person of Pro- supreme law of the land. unanimously ‘‘well qualified.’’ That is fessor Goodwin Liu. Professor Liu has I, for one, did not take an oath to more than a little baffling since the written that judges are literally on a support and defend a judge’s empathy ABA’s own criteria state the nominee search for new constitutional meaning. or perspective on how the world works, should have at least 12 years of actual In article after article, in speech after whether that judge is liberal or con- law and practice and substantial trial speech, he argues that judges on this servative. I did not take an oath to experience as a lawyer or trial judge. quest for new constitutional meaning support and defend a judge’s view of So it is a little bit more than baffling. may find it in such things as the con- evolving social norms or shifting cul- Professor Liu has none of that. None of cerns, conditions, and evolving norms tural understandings. I took an oath to the actual law practice and substantial of society; social movements and prac- support and defend the Constitution of the United States, a document that be- trial experience as a lawyer—none. Suf- tices; and shifting cultural under- longs, in its words and its meaning, to fice it to say that understanding the standings. No matter how you cut it, the people of the United States. The mysteries of the ABA’s judicial nomi- these are simply alternative ways of Constitution I have sworn to support nee ratings has eluded me for many saying the Constitution means what- and defend places limits on govern- years. Sometimes they do a great job. ever judges say it means. This is a ment, including limits on the judiciary A lot of times they do not and politics blueprint for a judiciary that controls and the people alone have authority to enter in. the Constitution. The more important qualification for change those limits. Professor Liu’s approach treats the Professor Liu advocated an activist judicial service is the nominee’s judi- Constitution as if it were written in judiciary before he had been nominated cial philosophy and his understanding some kind of code or disappearing ink to the judiciary, but when he came be- of the power and the proper role of gov- and treats judges as the only ones who fore the Judiciary Committee in each ernment in our system of government. have the key to figuring it out. of two hearings he painted a very dif- Professor Liu has been unequivocal Professor Liu, of course, is hardly the ferent picture. Before his nomination, about his views on this issue, writing only one to make this argument. It is for example, he wrote in the Stanford and speaking directly about how judges pretty standard fare for those who Law Review that judges must deter- should go about judging. He has writ- want our Constitution to say and mean mine ‘‘whether our collective values on ten and spoken extensively about how something other than what it does. a given issue have converged to a de- judges should interpret and apply the When these folks want government to gree that they can be persuasively law, especially the Constitution, to de- have power the real Constitution de- crystallized and credibly absorbed into cide cases. nies, they urge judges to change the legal doctrine.’’ After his nomination The debate about judicial philosophy Constitution’s meaning to be what he told the Judiciary Committee that comes down to this. We can all read they want. When these folks do not there is no room for judges to invent or what the Constitution says. The real want government to have power the create new theories. question is what the Constitution real Constitution allows, they urge Now it is anybody’s guess what all of means, where the meaning of its words judges to make up so-called rights that that collective value convergence and properly may be found. The debate is are not there at all. credible crystallization means. But if about who gets the final say on what Whether seeking liberal or conserv- that is not a new theory, I don’t know the Constitution means, the people or ative political results, this is real judi- what it is. the judges. cial activism: judges taking control of Before his nomination, Professor Liu America’s founders clearly took the our law by taking control of its mean- wrote directly and forcefully about people’s side in this debate. In his fare- ing; judges remaking the Constitution where judges should look for the mean- well address in 1796, President George in their own image. In my 35 years of ing of the Constitution. He made a ca- Washington said that the very basis of actively participating in the judicial reer of it, received awards for it, and our political system is that the people confirmation process, I don’t recall became one of the stars of the leftwing control the Constitution. He said until someone who more forcefully and di- legal universe. After his nomination the people change the Constitution, it rectly advocated such an activist judi- when I raised some of his controversial is sacredly obligatory upon all. That ciary. writings at his first hearing, Professor certainly includes, in fact that pri- In a 2008 article published in the Liu told me ‘‘whatever I may have marily includes, government because Stanford Law Review, for example, written in the books and articles would that is what the Constitution exists to Professor Liu argued that the judiciary have no bearing on my role as a judge.’’ do, to both empower and to limit gov- is ‘‘a culturally situated interpreter of At the end of that same hearing last ernment. social meaning.’’ year, Professor Liu told one of my

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00009 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7472 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 committee colleagues that ‘‘as you cial activists, either from the right or It is a real legal world testing ground look across my entire record, there are left, interpreting the Constitution in in which persons can prove their judg- many things I think relevant to the accordance with their own predi- ment and their integrity and their kind of judge I would be.’’ lections rather than what the Constitu- skill. It also provides a maturing expe- Which is it? Before he wants to be a tion actually says. rience, where one learns that words judge he argues that judges can find Goodwin Liu has a long history of po- have reality and that a single word in new meaning for the Constitution in sitions that are outrageous to those of a deed, a contract, a letter or even an changing cultural understanding and us who want the courts to be what they e-mail can determine which party re- evolving social norms. After he wants should be, interpreters of the laws, not ceives millions of dollars in a lawsuit to become a judge he tells critics to ig- makers of the law. They are not elect- or even whether they go to jail. nore that record but tells supporters to ed to anything and they are appointed Seasoned lawyers bring much to the consider that record. This has been for life on the basis that they will do bench, as do judges who have had pre- about the most stunning confirmation what is right and that they will uphold vious experience when they go on to conversion I have seen in all my time the law regardless of whether they the courts of appeals. This lack of liti- in the Senate. agree with it. gation experience leaves me with only In closing, the fight over judicial I have to say folks on our side who two sources of how to evaluate how nominees is a fight over judicial power. have listened to Goodwin Liu, we know this nominee would behave on the Judges must either take the law as what he stands for and what he has bench: his writings, which are exten- they find it, as the people and their taught in schools. What he has written sive, and his testimony before the com- elected representatives make it, or in books and law review articles is con- mittee, which frankly, I thought did judges may make the law into what- trary to what judges should do. I don’t not have much value. ever they want it to be. Those are the care that the American Bar Associa- From his writings, one cannot help two choices. Our liberty requires that tion has given him such a sterling rat- but see that Mr. Liu has extraordinary people to whom the Constitution be- ing. beliefs about our laws and Constitu- longs alone have the authority to This is an important issue. I wish I tion, beliefs that fall far outside the change it. Our liberty requires judges didn’t have to vote against Goodwin mainstream. They just do. Professor who will be controlled by that Con- Liu because I like him personally. In Liu does not believe judges are bound stitution. fact, this is not about him as a person to apply the Constitution according to President Obama and Professor Liu but whether he will be the right kind of what it actually meant at its drafting instead advocate a judiciary able to judge. I am convinced that he will not or what it plainly says. But he believes control the Constitution, to change the and, therefore, I must strongly oppose judges are free to adapt the Constitu- Constitution, to literally create from his nomination. tion according to how they perceive scratch a new Constitution. That will The PRESIDING OFFICER. The Sen- the needs of modern society. destroy our liberty. ator from Alabama. In fact, he has written this: When I look at Professor Liu’s record Mr. SESSIONS. Mr. President, I Interpreting the Constitution requires ad- I see he consistently and strongly ad- would like to speak on the Liu nomina- aptation of its broad principles to the condi- vocates an approach that allows judges tion. I appreciate the good advocacy of tions and challenges faced by successive gen- erations. The question is not how the Con- to find the meaning of the Constitution Senator BOXER. But I would remind her stitution would have been applied at its virtually anywhere they want to. That that she and her Democratic colleagues founding, but rather how it should be applied is the opposite of the defined, limited changed the ground rules of the Senate today in light of changing needs, conditions, role judges properly have in our system and created filibusters that had here- understandings of our society. of government. I cannot support some- tofore not been done in early 2001. This is an untethering of a judge one for appointment to the Federal I opposed that, but after much de- from law, in my opinion. He has also bench, especially to what is already the bate, several years in which a half written that the Constitution has no most activist circuit in the country, dozen fabulous nominees to the courts fixed meaning. He has written that who believes judges should have that were being blocked by filibusters, the ‘‘our Constitution has shown a remark- much power. Gang of 14 decided that matter and able capacity to absorb new meaning The Ninth Circuit Court of Appeals is said: Well, we all agree now. We will and new commitments forged from pas- indeed the most activist court in the not filibuster except in extraordinary sionate dialogue and debate, vigorous country. It is a court that ignores the circumstances. dissent and sometimes disobedience.’’ law consistently—or at least some of I think as a matter of law, not as a He goes on to say: ‘‘Fidelity to the the judges on that court. Judge matter of character and personality Constitution requires judges to ask not Reinhardt, who is a brilliant man by but as a matter of approach to law, ex- how its general principles would have any measure, apparently doesn’t even traordinary circumstances exist in this been applied in 1789 or in 1868, but rath- care what the words of the Constitu- case. er how those principles should be ap- tion say. He is going to interpret I have heard my colleague talk about plied today in order to preserve their things the way he wants. He is just Professor Liu’s unusual intellectual power and meaning in light of con- one. There is a whole raft of them abilities, his academic career, clerk- cerns, conditions, and evolving norms there. Judge Reinhardt gets reversed ship on the Supreme Court, and his of our society.’’ almost every time he writes an opin- prolific writings—and certainly I do To that, I would disagree and say: ion—by the Supreme Court of the not dispute he is a good man and in- Words do have meaning. They mean United States. The problem is that peo- volved in debate about law in America. something specific. When they are ple can say: Isn’t that taken care of by What they fail to mention, however, written down in a statute or a Con- the Supreme Court? Yes, it is in those is his lack of any meaningful experi- stitution, that meaning does not individual decisions. But in these cir- ence as a practicing attorney. He has change by the mere passage of time or cuit courts of appeals there are thou- never tried a case before a jury and has the mere shifting of political winds or sands of court cases and legal opinions argued only once before a Federal the judge’s personal views about what written that will never be considered court of appeals—only once. This is a may be the concerns, conditions, and by the Supreme Court because the Su- very serious shortcoming for a number evolving norms of our society. preme Court only considers between 80 of reasons, the most important of Judges are not empowered to do that. and 100 cases a year. But thousands of which is the plain fact that significant They are not empowered to impose cases are decided by these circuit legal experience litigating in court pro- their views about the concerns, condi- courts of appeal, so they are impor- vides insight to someone who would be tions, and evolving norms of our soci- tant. Who we put on them is impor- a judge and an understanding that ety. Judges are given the power to de- tant, too. We don’t need any more judi- words have meaning and consequences. cide cases and to say what the plain

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00010 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7473 meaning of the law is. For a judge to Professor Liu’s writings also show he That means by judges. Judges do ad- believe otherwise is a serious threat to does not share our Founding Fathers’ judication. In that same article, Pro- the rule of law and to the principles vision in many different areas. He does fessor Liu argued that, once a legisla- that make this Nation great. not see the Constitution as a charter of tive body creates a welfare program, it Professor Liu’s writings express ex- freedom from government interference. is the role of the courts—he said the treme views about more than Constitu- Instead, he argues that portions of the courts—to determine the community tional interpretation. His writings Constitution create positive rights to meaning and purpose of that welfare have often expressed an unorthodox welfare benefits. He attempts to derive benefit, in light of the needs of ‘‘equal- view of the role of a judge. Alexander all these rights from the citizenship ity’’ and ‘‘national citizenship.’’ Hamilton famously wrote in the Fed- clause of the fourteenth amendment. Professor Liu explicitly stated that eralist Paper 78 that: That clause reads simply this: ‘‘All when necessary, courts should recog- The judiciary . . . has no influence over ei- persons born or naturalized in the nize or expand these welfare rights by ther the sword, the purse; no direction either United States and subject to the juris- ‘‘invalidating statutory eligibility re- of the strength or of the wealth of the soci- diction thereof, are citizens of the quirements’’—this is his language he ety; and can take no active resolution what- United States and of the State wherein wrote—‘‘by invalidating statutory eli- ever. It may truly be said to have neither they reside.’’ force nor will, but merely judgment. gibility requirements’’—that means It may be difficult to determine ex- welfare eligibility requirements—‘‘or Frankly, having read his writings actly what some of the words mean in strengthening procedural protections and listened to his testimony, for all the Constitution. However, our lan- against the withdrawal of benefits.’’ his great capabilities and fine char- guage has not changed so much that acter, I have concluded that he indeed In other words, Professor Liu be- these words could possibly be read to lieves judges have the right and, in- lacks the most essential quality of a mean that all Americans have a right deed, the duty, to rewrite laws written judge; that is, good judgment, proven to various benefits, such as—this is by Congress when they think those in the practice of law or as a previously what Mr. Liu has written: appointed judge. laws are inadequate or when the judge, . . . expanded health insurance, child care, without the traditional limits of legal I agree with the role of a judge as en- transportation subsidies— standards, decides the case on what the visioned by Chief Justice Marshall I kid you not— when he wrote: ‘‘It is emphatically the judge thinks is fair. job training and a robust earned income tax This truly is a dangerous, nonlegal province and duty of the Judicial De- credit. philosophy. His writings also show he partment to say what the law is.’’ That is what he has written in sev- I think Chief Justice Roberts per- holds a number of views on some of the eral important law journals; not re- most controversial topics of our day fectly summed up the role of a judge as marks in a casual conversation. He has the Founders saw it, as we have been that are extreme. written in law journals. He writes that He believes the longstanding defini- raised to understand it, when he said word ‘‘citizenship’’ does not mean citi- that a judge should be a neutral umpire tion of marriage as between a man and zenship in that clause but rather ‘‘the a woman is unconstitutional. He filed a who calls the balls and strikes without ability to be a fully able participating preference for either side. brief, with other law professors in the member of society.’’ California case, on that subject. We But Professor Liu does not agree The Constitution did not say that. asked him about that at the hearing. with that analogy. He attacked Chief The citizenship clause simply made a Frankly, his answer was not satisfac- Justice Roberts. He does not argue that person a citizen. His article asserts tory, in the sense that he said he was the task of judges is to read the words that education, health insurance, only referring to California law, when, of the Constitution according to their childcare, transportation subsidies, job in fact, his brief cited the U.S. Con- original meaning. Instead he has writ- training, and presumably other welfare stitution, which has similar language. ten that: benefits we might need are constitu- He also made statements that raise The historical development and binding tional rights because the citizenship character of our constitutional under- questions as to his temperament. He clause ultimately requires equality of standing demand more complex explanations was very nice at our hearing. We have than a conventional account of the courts as results in those contexts. He asserts that the judge’s role is to heard nice things said about him. I just independent, socially detached decision mak- ask if you consider these nice com- ers that say what the law is. The enduring ensure such a result is achieved, even if task of the judiciary . . . is to find a way to the legislature may not so find. That is ments he made about Chief Justice articulate constitutional law that the nation like no definition of citizenship I have Roberts, for example. He said that can accept as its own. ever heard. Professor Liu’s interpreta- Chief Justice Roberts has ‘‘a vision for This is utterly wrong. That view can- tion of the citizenship clause is so far American law—a right-wing vision an- not be accepted because it calls for a disconnected from the actual text of tagonistic to important rights and pro- judge to ponder, to seek, to render a the document and what the people tections we currently enjoy.’’ He criti- decision that is popular or fits the meant when they ratified it that it cized him for being a member of the judge’s own values. Most certainly would be unrecognizable to those who ‘‘Republican National Lawyers Asso- such a decisionmaking method is not drafted it. ciation and the National Legal Center law. It is not objective. It is subjective. Some of Professor Liu’s supporters for the Public Interest, whose mission It allows a judge to base rulings on fac- have said—as he did before the com- is to promote (among other things) tors that are incapable of being a mittee—that his argument about the ‘free enterprise,’ ‘private ownership of standard. It introduces politics, ide- citizenship clause was directed only at property,’ and ‘limited government.’ ’’ ology, religion, and whatever else may Congress, the legislative branch, execu- These are all Mr. Liu’s words. He be in a judge’s mind in a decision- tive branch, and it was never meant for considers those improper goals and making process. That is contrary to judges. That simply does not square says, ‘‘These are code words for an ide- the entire history of the American rule with what he wrote, and we have re- ological agenda hostile to environ- of law that served us so well. searched this and tried to be fair to mental, workplace, and consumer pro- Mr. Liu has also written that ‘‘the him. tections.’’ problem for courts is to determine, at In 2008, Professor Liu published an Give me a break. With respect to Jus- the moment of decision, whether our article entitled ‘‘Rethinking Constitu- tice Alito—a fabulous member of the collective values on a given issue have tional Welfare Rights.’’ Constitutional Supreme Court, who is so experienced, converged to a degree that they can be welfare rights. In that article, he set so much more seasoned as a nominee persuasively crystallized and credibly out to make—as he said—‘‘a small step than this nominee comes close to absorbed into legal doctrine.’’ These toward reformation of thought on how being—he went even further, appearing words describe a policymaker not a welfare rights may be recognized in person before the Judiciary Com- judge. through constitutional adjudication.’’ mittee to testify that Justice Alito

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00011 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7474 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 ‘‘envisions an America where police nated three separate times by this of carefully scripted and prepared tes- may shoot and kill an unarmed boy to President, and I think it tells us some- timony provided to the Senate Judici- stop him from running away with a thing about the President’s determina- ary Committee during the Alito hear- stolen purse; where Federal agents may tion to nominate and see confirmed ings. point guns at ordinary citizens during someone who is unsuited for service as Despite Professor Liu’s comments, a raid, even after no sign of resistance; a Federal judge. Justice Alito was confirmed with bi- where a black man may be sentenced In saying that, it doesn’t mean they partisan support. During his failed con- to death by an all-white jury for kill- don’t have rights to speak freely about firmation process last year, I asked ing a white man; and where police may their strongly held views. They do. Professor Liu that, if given the oppor- search what a warrant permits, and That is what we do here in the legisla- tunity, would he change anything then some.’’ tive branch. That is not what we ex- about his remarks about Justice Alito. When asked about that in committee, pect out of a life-tenured judge. We ex- In response, Mr. Liu claimed that he he acknowledged that was unneces- pect judges to be impartial, to render regrets having written that passage, sarily colorful language. Nobody justice, and to decide cases, not to be calling it ‘‘unduly harsh and provoca- should say that kind of thing. It was an roving policymakers making the coun- tive.’’ intemperate remark and was unfair to try into their image of what it should Well, Professor Liu waited 4 years to Justice Alito. be. We cannot vote for these judges. provide that semi-apology to Justice Thus, I have concluded that the nom- Judges are appointed and they serve Alito for these shameful remarks. Like ination presents an extraordinary cir- for a lifetime. In return for that life- so many nominees who come before the cumstance that requires me to oppose time appointment and that protection Senate Judiciary committee, they cloture on the nomination, which I am from the sort of accountability that seem to undergo a nomination conver- reluctant to do. I have voted against other elected officials are required to sion that changes the tone and nature some nominees, but I have voted for have, we understand and our Constitu- of their remarks and attitudes. Frank- probably 90 percent of President tion provides, that they have a limited ly, we cannot depend on this conver- Obama’s and President Clinton’s nomi- but important role, and that is to sion sticking. We need greater assur- nees while I have been in the Senate. apply the law as written, apply the ance that the nominees who come be- But this nominee, I believe, represents words of the Constitution as written, fore the Senate are going to exercise a an extraordinary circumstance. His and not to sort of make it up as you go sort of dispassionate judgment that we record reveals that he believes the Con- along or to dream up new rights along expect of judges. stitution is a fluid, evolving document, the way that are not subject to a vote Frankly, Professor Liu has shown with no fixed meaning; that he believes of the American people, or subject to himself capable of incredibly poor judg- the role of a judge is to participate in an election. ment—and not just one time. After a ‘‘dialogue’’ with the legislature about Based upon nearly everything that Chief Justice Roberts was nominated what welfare benefits are required by Mr. Liu, Professor Liu, has written or to the Supreme Court, Mr. Liu again the Constitution, and that the tradi- said, I have some very serious concerns went out of his way to criticize then- tional definition of marriage is uncon- about his impartiality and suitability Judge Roberts. He argued that Justice stitutional. His record also reveals he to serve as a life-tenured judge. My Roberts’ record ‘‘suggests that he has a is willing to use the courts in order to concerns start with his lack of judicial vision for American law—a right-wing achieve what he thinks is the proper temperament. vision—antagonistic to important level of social welfare benefits, and During the confirmation hearings of rights and protections that we cur- that he is willing to attack the integ- Justice Sam Alito, who is now on the rently enjoy, and that he is not afraid rity and distort the records of honor- U.S. Supreme Court, Mr. Liu went out to flex judicial muscle to achieve it.’’ able judges in order to promote his of his way to testify under oath before In that same article, he attacked views of what he thinks the Constitu- the Senate Judiciary Committee in a Justice Roberts’ membership in the tion should require. National Legal Center for Public Inter- I do believe our Senate would have way I can only describe as vicious and est, calling its mission to promote free done better not to have had filibusters. disgraceful. This is what he said: enterprise, private property, and lim- That was my view. But we had a debate Judge Alito’s record envisions an America on that, and it changed. If Senator where police may shoot and kill an unarmed ited government—he called those code boy to stop him from running away with a words for an ideological agenda hostile BOXER and other Democrats now have stolen purse; where Federal agents may to the environment, workplace, and rethought that matter and wish to talk point guns at ordinary citizens during a raid, to me, I would certainly be willing to consumer protections. even after no sign of resistance; where the So Professor Liu considers free enter- consider restoring the traditional view FBI may install a camera where you sleep on prise, private property, and limited of the Senate regarding filibusters of the promise that they won’t turn it on unless judges. I don’t think that is likely to an informant is in the room; where a black government code words for an ideolog- happen, because it was done systemati- man may be sentenced to death by an all- ical agenda hostile to the environment, cally and deliberately, with great de- white jury for killing a white man, absent a workplace, and consumer protections. liberation and determination by the multiple regression analysis showing dis- That is what he said. Is that the kind crimination; and where police may search of person we want, the Senate should Democrats in 2001, I believe, and they where a warrant permits, and then some. imposed that change on the Senate. want, or that America should want to That is what we are operating under I humbly submit this is not the sit in judgment, enforce our Constitu- today. America we know, nor is it the Amer- tion and laws passed by the Congress? Based on that, I do believe Professor ica we aspire to be. These were the Well, I think not. Liu should not be confirmed. words of a person who President Obama Yet, in another dramatic nomination I thank the Chair and yield the floor. has, three times, nominated to serve on conversion during his failed nomina- The PRESIDING OFFICER (Mrs. the Ninth Circuit Court of Appeals, one tion process last year, Professor Liu re- HAGAN). The Senator from Texas is rec- of the highest courts in the land, which sponded to my written questions by ognized. is expected to dispassionately decide calling this statement a ‘‘poor choice Mr. CORNYN. Madam President, I cases without fear, favor, or any pre- of words.’’ join my colleague from Alabama, who conceived notion about the outcome. I There are several more examples of has served for a long time on the Sen- think these words, perhaps more than Professor Liu’s lack of judicial tem- ate Judiciary Committee, as have I, in anything else, demonstrate Professor perament. His record is already crystal voicing my strong opposition to this Liu’s nonsuitability to serve as a Fed- clear. It is one thing for Professor Liu nominee. eral judge. These were not an off-the- to disagree with a person—we do that It is odd, it seems to me, to have cuff set of remarks or a temporary every day on the floor of the Senate, in someone who has actually been nomi- lapse in judgment; they were a product committee, and around the country,

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00012 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7475 across kitchen tables in our homes— how those principles should be applied today guments are addressed to policy- but it is quite another to repeatedly in order to preserve their power and meaning makers, not the courts, he is denying engage in these types of inaccurate in light of the concerns, conditions, and that a court that might agree with him and, frankly, disgusting attacks evolving norms of our society. might enforce those rights as a matter against a public official trying to do What does that mean? Does that of constitutional law. This is not just their job the way they think it should mean the words on the page do not nec- addressed to policymakers. That is not be done. For Professor Liu to only re- essarily mean what they say; that a being honest. I do not blame him if he flect upon his statements once he is of- judge is going to somehow subjectively has an honestly held view about these fered a life-tenured judgeship on the read into those words what the evolv- matters. I would welcome candor in ex- court of appeals is unacceptable. ing norms of our society are and to pressing those strongly held views. But Given his lack of experience as a change an outcome to decide a case, to they are views more appropriately ex- practicing lawyer, obviously his lack of decide what our Constitution means pressed in the court of public opinion experience as a judge, never having based on their subjective impression of where we debate the values and mean- served as a judge, it is impossible for those words and what evolving norms ing of our laws and what kind of coun- me to trust his assurances that now all in society means? try we want this to be, not in people of a sudden he will calmly and impar- That is sometimes called a doctrine who want to be judges and impose tially apply the law as written by Con- of believing in a living Constitution; those views as a matter of judgment in gress or as written in the Constitution that the words on the page are mutable an individual case, transforming the of the United States. or changeable and can morph over time written Constitution into something I would cite just one other example and mean different things based on a completely different than what each of of my experience on the Judiciary judge’s interpretation of what those us can read on a printed page or what Committee, this one involving now evolving norms are. To me, that is a li- we learned in school our Constitution Justice Sonia Sotomayor. Justice cense to lawlessness. It is a license for actually means. Sotomayor is a charming woman. She a judge—an unelected, lifetime-tenured In other words, Professor Liu be- came into the Senate Judiciary Com- individual who takes an oath to uphold lieves the Constitution contains an mittee hearings and won over many the Constitution and laws of the unenumerated list of goods and serv- people who were, frankly, a little skep- United States—that is untethered to ices, such as free health insurance, tical of her nomination based on some any concept of what the law means, daycare, and bus passes that Federal of her previous writings and speeches. something that can be applied with legislators must provide to every cit- But I remember one particular ques- equal application to every man, izen. tion, she was asked whether she ac- woman, and child in America and gives It is not difficult to see how an activ- cepted as an individual right the guar- a judge a chance to impose their polit- ist judge might one day use Professor antee in the second amendment of the ical or ideological views on what the Liu’s theory to force Congress to pro- Constitution the right to keep and bear Constitution means. That is dangerous, vide for these lavish welfare benefits, arms, and she said she did. She accept- it is lawless, and it is not upholding even though our country faces a his- ed a decision in a case called the Heller the Constitution that we, even as Mem- toric debt crisis, as we do now. What is case that said that was an individual bers, swear to uphold in our different more, Professor Liu has suggested that right of a citizen. jobs as policymakers. under his view of the Constitution, it A few months later, in a case called Particularly troubling for Professor may be unconstitutional to repeal cer- McDonald v. Chicago, she wrote a dis- Liu is his controversial and, I would tain welfare programs once they are senting opinion from a Supreme Court say, ridiculous view that our Constitu- enacted. decision where she said the right to tion somehow guarantees a European- For example, in ‘‘Rethinking Con- keep and bear arms is not a funda- style welfare state. We are engaged in stitutional Welfare Rights,’’ Professor mental right. a very important debate on the floor of Liu wrote that legislation may give You can parse the words, ‘‘an indi- the Senate, and during the course of rise to a cognizable constitutional wel- vidual right,’’ ‘‘a fundamental right,’’ this vote on the debt ceiling—which I fare right if it has ‘‘sufficient ambition but to me it is clear that Justice suppose we will have sometime in July, and durability, reflecting the outcome Sotomayor, during her confirmation or not—with whether we are going to of vigorous public contestation and the hearings, tried to parse the words in a continue to be an opportunity society considered judgment of a highly en- way so as not to raise alarms about her or whether we have become an entitle- gaged citizenry.’’ commitment to the Bill of Rights and ment society, a welfare state. That is a mouthful. What he is say- the second amendment to the Constitu- Professor Liu, in his article, ‘‘Re- ing is, once the legislature passes a tion. But then once she was confirmed thinking Constitutional Welfare law, the legislature has no power to re- as a judge on the Highest Court in the Rights,’’ has argued that the Constitu- peal that law because it somehow then land—of course, she serves for life with tion includes an ‘‘affirmative right to is transformed into a constitutional no accountability either to Congress or health insurance, childcare, transpor- right and beyond the power of Congress to the voters, and she, indeed, serves tation subsidies, job training, and a ro- to change. That is radical. with impunity, even though her testi- bust earned-income tax credit.’’ Professor Liu’s writings also have mony before the committee and her de- I must have missed that in my copy suggested his unconventional belief cisions, once on the Court are incon- of the Constitution. I do not remember that the death penalty is unconstitu- sistent. the Founding Fathers writing in the tional, that same-sex marriage is a We just cannot take a chance that Constitution, nor the States ratifying constitutional right, and that it is ap- Professor Liu has somehow had a true language in the Constitution, that propriate for judges to consider foreign conversion in his views and his atti- guarantees a right to a robust earned- law when reaching their legal conclu- tudes during the nomination process. income tax credit. When Senator SES- sions about what American law means. Aside from his questionable tempera- SIONS gave Professor Liu the oppor- Taken as a whole, Professor Liu’s ment, Professor Liu’s activist views of tunity to clarify his views in April 2010, record demonstrates that he would use the law are equally troubling. In his he replied: his position as a Federal judge to advo- book called ‘‘Keeping Faith with the I do believe that, Senator. But those argu- cate his ideological theories and under- Constitution,’’ Professor Liu summa- ments are addressed to policymakers, not mine the well-settled principles of the rizes activist philosophy in this way. the courts. U.S. Constitution. That is simply unac- He said: I think Professor Liu is being dis- ceptable to me. I think it should be un- Fidelity to the Constitution requires ingenuous, and I am trying to be chari- acceptable to the Senate. judges to ask not how its general principles table. When he says the Constitution Given his lack of temperament, his would have applied in 1789 or 1868, but rather includes these rights but says those ar- poor judgment, and his activist view of

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00013 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7476 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 the role of judges and the law, I am left Let me next turn briefly to claims Members of this body—several Sen- with no choice but to fight Professor about candor before the committee ators—including some who spoke im- Liu’s confirmation with every tool at which I believe are equally unfounded. mediately before me have made those my disposal. He has, in fact, testified before the Ju- exact references to the value of the Madam President, I yield the floor. diciary Committee for a total of 5 ABA rating process. Reasonable minds The PRESIDING OFFICER. The Sen- hours and answered hundreds of ques- may be able to differ on the margins, ator from Delaware. tions and requests for additional infor- but it is not credible, in my view, to Mr. COONS. Madam President, I rise mation. He has been sharply criticized claim a candidate with Professor Liu’s today to continue to express my views for missing some documents from his remarkable legal education, long in support of the nomination of Pro- initial response to what is a searching record of public service and experience, fessor Goodwin Liu, a nominee, as you committee questionnaire. and the ABA’s highest rating is not know, to the Ninth Circuit Court of I will comment for those following qualified to serve on a circuit court. Appeals. Much has been said on the this debate that Professor Liu has been The charges or suggestions that Pro- Senate floor in recent hours, and I rise a prolific scholar and speaker. He is fessor Liu is unqualified because he is to offer my comments on some of the someone who has published exten- young or because he lacks significant concerns that are being debated. sively. He is someone who has spoken courtroom experience are also hollow For once, it is great to actually hear extensively. He is the first controver- and one-sided when we look at the real debate on the floor of this Chamber. I sial circuit court nominee to have his record. Since 1980, 14 nominees younger have been here, as you know, Madam nomination take place not just in the than Professor Liu—advanced by Re- President, just 6 months. As someone computer age but in the YouTube age publican Presidents—have all been con- who is new to the Judiciary Com- when a combination of cell phones and firmed. For example, Judge Neil mittee, new to the debates and dialog video recorders have literally made a Gorsuch, on the Tenth Circuit, was 38 of this Chamber, I am struck at the record of every bag lunch, every 5- when nominated; Judge Brett things I am hearing about Professor minute speech, every off-the-cuff re- Kavanaugh, an acquaintance and, I Goodwin Liu and the significant diver- mark made by this nominee before us. would say, friend of mine from law gence between what I have found in The argument that his need to sup- school—now on the DC Circuit—was 38 questioning him, looking at his record, plement the record with some docu- when nominated; and now-Justice and speaking with my colleagues and ments not initially produced and that Samuel Alito was 39 when nominated what I have heard on the floor just somehow that reflects some lack of to the Third Circuit. today. Republican nominees with similar or I will do my best to try and lay out candor, and somehow that suggests a what I see as the real record of the real lack of truthfulness that should dis- lesser practical courtroom experience Professor Goodwin Liu, a nominee to qualify him not for a vote but not even than Professor Liu have also been nom- the Ninth Circuit Court of Appeals. for a consideration of a vote is wholly inated and confirmed. Circuit Court Some have come to the floor today without merit. Judge Frank Easterbrook and J. and argued that Professor Liu lacks As the White House Chief Ethics Harvie Wilkinson were both under 40 the candor or the temperament to Counsel under President Bush, Richard when nominated without any prac- serve on a circuit court. As someone Painter, has written: Professor Liu’s ticing legal experience at all. Yet this who clerked for the Third Circuit Court ‘‘original answers to the questions’’— lack of practical experience didn’t pre- of Appeals for a distinguished judge, I asked by the Judiciary Committee— vent either of these judges from becom- will suggest something that I think is ‘‘was a careful and good-faith effort to ing the most well respected and widely commonplace, which is that candor and supply the Senate with the information regarded in their circuits. an appropriate temperament are crit- it needed to assess his nomination.’’ I would ask my colleagues to seri- ical to service on a circuit court of ap- It means a great deal to me that ously consider looking instead at the peals. someone such as Mr. Painter concluded standard that was applied when a simi- A lot of these charges raised against that Professor Liu provided a lot more larly controversial professor came be- Professor Liu seem to center on a few information than most nominees do in fore this body. I was not here at the comments that Professor Liu made similar circumstances. Frankly, it time, but I understand from the record during the nomination hearing for seems to me overreaching to try to that Democratic Senators approached now-Justice Alito or some purported suggest that simply because in the the nomination of Michael McConnell, deficiencies in his disclosures to the YouTube age this professor, who pro- President George W. Bush’s nominee to Judiciary Committee. Let me speak vided us with hours of testimony, pages the Tenth Circuit, in a way that was briefly to both of those, if I may. of responses, failed to notice the com- generous and that accepted at face Professor Liu has apologized at mittee about some brown bag lunches value some of his assertions. length and in detail for the intem- and off-the-cuff comments rises to the Like Professor Liu, Professor McCon- perate tone of one brief passage that he standard of justifying a filibuster. nell was a widely regarded law pro- wrote as part of his testimony before Let me next turn to the suggestion fessor who was nominated to a Federal the Judiciary Committee during the that he is insufficiently qualified to appeals court without having first Alito nomination hearings now some 6 hold the position of circuit judge—an served as a judge. Many Democratic years ago. I take this apology at face important concern, because we want Senators at the time had concerns value. I take his expression of regret at judges of judicial temperament, of about Professor McConnell’s conserv- the tone at face value. But anyone who openness and candor and good char- ative writings, which included strong has taken the time to meet him, to acter, and also those who are suffi- opposition to Roe v. Wade, congres- interview him, to question him, I think ciently experienced. As I said a mo- sional testimony that the Violence has to conclude that despite this one ment ago, the American Bar Associa- Against Women Act was unconstitu- brief episode of the use of intemperate tion, after conducting a confidential tional, and harsh criticism of the Su- language, he is not an intemperate per- and comprehensive review of his quali- preme Court’s 8-to-1 decision in the son. fications, concluded he was ‘‘unani- Bob Jones case. Despite these posi- In fact, the American Bar Associa- mously well-qualified’’—its highest tions—which one could argue are at the tion, as my colleague, Senator BOXER, possible rating. outer edge, even the extreme of the pointed out previously today, specifi- In previous nomination debates, Sen- legal canon at the time—Professor cally considered Professor Liu’s tem- ators of this body, Senators of the McConnell was confirmed, not after a perament when it gave him its highest other party, have touted the ABA rat- filibuster, not after a long series of rating of ‘‘unanimously well qualified’’ ing as a comprehensive and exhaustive grinding nomination hearings and pub- in the recommendation for his consid- evaluation that provides valuable in- lic discourse, but Professor McConnell eration by this body. sight that ought to be trusted. Several was confirmed by voice vote of this

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00014 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7477 Chamber 1 day after his nomination taged students. In analyzing problems and Frederick M. Hess, Director of Education was confirmed by the Judiciary Com- proposing solutions, Professor Liu’s writings Policy Studies American Enterprise Insti- mittee. are thorough, pragmatic, and scrupulously tute. In supporting Professor McConnell’s attentive to facts and evidence. His work is Paul Hill, John and Marguerite Corbally Professor and Director of the Center on Re- nomination, Democratic Senators at nuanced and balanced, not dogmatic or ideo- logical. For example: inventing Public Education, University of the time credited his assurances that He has argued for more resources for low- Washington. he understood the difference between performing schools while also advocating Richard D. Kahlenberg, Senior Fellow, The the role of law professor and judge and greater opportunities, including school Century Foundation.* that he respected and would follow vouchers, to enable disadvantaged students Joel I. Klein, Chancellor, New York City precedent. In my view, the Senators of to choose better schools. Department of Education; Assistant Attor- ney General, Antitrust Division, U.S. De- this body should credit similar assur- He has argued for greater equity in school finance while also urging reforms that would partment of Justice, 1997–2001. ances that Professor Liu has provided Ted Mitchell, President and Chief Execu- during his confirmation hearings and loosen regulations and increase local control over spending decisions. tive Officer, NewSchools Venture Fund. Gary Orfield, Professor of Education, Law, that Professor Liu has provided to me He has praised the No Child Left Behind Political Science, and Urban Planning and in an individual interview in answer to Act for focusing education policy on achieve- Co-Director of The Civil Rights Project/ hundreds of written questions from ment outcomes and inequities while also Proyecto Derechos Civiles, UCLA. members of the committee as well as urging reforms to ameliorate the Act’s unin- Michael J. Petrilli, Vice President for Na- in answer to challenges presented here. tended negative consequences. tional Programs and Policy, Thomas B. Let me next turn to some challenges He has argued that the Fourteenth Amend- Fordham Institute; Research Fellow, Hoover or concerns that have been raised ment guarantee of national citizenship en- Institution, Stanford University; Associate about Professor Liu’s view on edu- compasses a duty to provide adequate edu- Assistant Deputy Secretary, Office of Inno- cation while emphasizing that the responsi- vation and Improvement, U.S. Department of cation. A bipartisan group of 22 leaders bility for enforcement belongs to Congress, in education law, policy, and research Education, 2001–05. not the judiciary. Richard W. Riley, Partner, Nelson Mullins have written to support Professor Liu’s He has written in support of affirmative Riley & Scarborough LLP; U.S. Secretary of nomination and to highlight his schol- action while also emphasizing that affirma- Education, 1993–2001; Governor of South arship and reputation in the field of tive action primarily benefits middle- and Carolina, 1979–87. education law and policy. They wrote: high-income minorities and does not do Andrew J. Rotherham, Co-Founder and Based on his record, we believe Professor enough to promote socioeconomic diversity. Publisher, Education Sector. Liu is a careful, balanced, and intellectually We do not necessarily agree with all of James E. Ryan, William L. Matheson & honest scholar with outstanding academic Professor Liu’s views. But we do agree that Robert M. Morgenthau Distinguished Pro- qualifications and the proper temperament his record demonstrates the habits of rig- fessor of Law, University of Virginia School to be a fair and disciplined judge. orous inquiry, open-mindedness, independ- of Law. ence, and intellectual honesty that we want William L. Taylor, Chairman, Citizens’ Later, they wrote in this letter: and expect our judges to have. His writings Commission on Civil Rights. His work is nuanced and balanced, not dog- are meticulously researched and carefully Martin R. West, Assistant Professor of matic or ideological. argued, and they reflect a willingness to con- Education, Harvard University. Madam President, I ask unanimous sider ideas on their substantive merits no Judith A. Winston, Principal, Winston Withers & Associates, 2002–2009; General consent to have printed in the RECORD matter where they lie on the political spec- Counsel, U.S. Department of Education, 1999– the letter to which I just referred. trum. Moreover, we are confident in Pro- fessor Liu’s ability to decide cases based on 2001, 1993–97. There being no objection, the mate- Bob Wise, President, Alliance for Excellent rial was ordered to be printed in the the facts and the law, regardless of his policy views. His scholarship amply demonstrates Education; Governor of West Virginia, 2001– RECORD, as follows: that kind of intellectual discipline, and our 2005; Member, U.S. House of Representatives, MARCH 23, 2010. high regard for his work is widely shared. In- 1983–2001. Re Federal Judicial Nomination of Goodwin deed, the Education Law Association se- (* affiliation listed for identification pur- H. Liu, U.S. Court of Appeals for the lected Professor Liu in 2007 to be the first- poses only) Ninth Circuit. ever recipient of the Steven S. Goldberg Mr. COONS. Madam President, dur- Hon. PATRICK J. LEAHY, Award for Distinguished Scholarship in Edu- ing his confirmation hearings, Pro- Chairman, Committee on the Judiciary, U.S. cation Law. fessor Liu said this, in testifying before Senate, Washington, DC. In short, Professor Liu is exceptionally the Judiciary Committee: Hon. JEFF SESSIONS, qualified to serve on the federal bench. He I absolutely do not support racial quotas, Ranking Member, Committee on the Judiciary, would make an outstanding judge, and we and my writings, I think, have made very U.S. Senate, Washington, DC. urge his speedy confirmation. clear that I believe they are unconstitu- DEAR CHAIRMAN LEAHY AND RANKING MEM- Sincerely, tional. BER SESSIONS: We are a bipartisan group of 22 Cynthia G. Brown, Vice President for Edu- leaders in education law, policy, and re- cation Policy, Center for American Progress Professor Liu also stated to the com- search who support the nomination of Pro- Action Fund. mittee: fessor Goodwin Liu to be a judge on the U.S. Michael Cohen, President, Achieve, Inc.; I think affirmative action, as it was origi- Court of Appeals for the Ninth Circuit. Your Assistant Secretary for Elementary and Sec- nally conceived, was a time-limited remedy committee will undoubtedly receive much ondary Education, U.S. Department of Edu- for past wrongs, and I think that is the ap- commentary about Professor Liu’s scholarly cation, 1999–2001. propriate way to understand what affirma- work in constitutional law. We write to Christopher T. Cross, Chairman, Cross & tive action is. highlight his scholarship and reputation in Joftus LLC; Assistant Secretary for Edu- These two statements, which reflect the field of education law and policy. Collec- cational Research and Improvement, U.S. Professor Liu’s testimony to the com- tively, we have read his work in this area; we Department of Education, 1989–91. mittee, are well within the main- have seen him speak at many panels and Linda Darling-Hammond, Charles E. Ducommun Professor of Education, Stanford stream. conferences; and some of us have worked Professor Liu has written and spoken closely with him on research projects or on University. policy issues when he served in the U.S. De- James Forman Jr., Professor of Law, about his support for diversity in pub- partment of Education. Based on his record, Georgetown University Law Center; Co- lic schools and, in my view, there is we believe Professor Liu is a careful, bal- Founder and Board Chair, Maya Angelou nothing extreme in this view. Ever anced, and intellectually honest scholar with Public Charter School.* since Brown v. Board of Education was outstanding academic qualifications and the Patricia Ga´ ndara, Professor of Education decided by a unanimous Supreme Court proper temperament to be a fair and dis- and Co-Director of The Civil Rights Project/ in 1954, the Supreme Court of the ciplined judge. Proyecto Derechos Civiles, UCLA. United States has recognized the legit- Professor Liu is one of the nation’s leading James W. Guthrie, Senior Fellow and Di- experts on educational equity. His scholarly rector of Education Policy Studies, George imacy of State action to desegregate work on topics such as school choice, school W. Bush Institute. schools. finance, desegregation, and affirmative ac- Eric A. Hanushek, Paul and Jean Hanna In fact, the Supreme Court upheld tion is unified by a deep and abiding concern Senior Fellow, Hoover Institution, Stanford the use of race as one factor in admis- for the needs of America’s most disadvan- University. sions decisions in the 2003 case of

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00015 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7478 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 Grutter v. Bollinger. Although some on deserves exactly the same weight and Madam President, I yield the floor. the far right of the Supreme Court deference and confidence as similar as- The PRESIDING OFFICER. The Sen- have argued that both Brown and sertions by then-Professor McConnell, ator from Oklahoma. Grutter should be disregarded to the now Circuit Court Judge McConnell, Mr. COBURN. Madam President, I extent they recognize the permissi- when he was confirmed by voice vote in would tell my colleague from Delaware bility of efforts to achieve diversity in this Chamber. To speak otherwise is to that he makes some very excellent public institutions, it is, I would argue, do violence to the tradition of def- points and they were very well stated. those Justices who are out of step with erence to those who give sworn testi- I have spent a number of years—now the mainstream of Federal jurispru- mony, to hearings, and to the delibera- almost 7—on the Judiciary Committee, dence and of the constitutional tradi- tions of this body. and my observations make me pain- tion of this country. Last, let me turn to some points that fully aware of our process. Goodwin Even in its most recent case on were raised recently about whether Liu is a stellar individual. There is no point, the 2007 decision in Parents In- Professor Liu believes Americans have question about it. He is a stellar schol- volved v. Seattle School District, a constitutional right to welfare bene- ar. There is no question about it. But which struck down a specific desegre- fits, such as education, shelter, or my observations have taught me, as we gation program, five of the nine Jus- health care; and, if confirmed, would have voted and put judges on the appel- tices who made up the majority agreed somehow declare those constitutional late court and on the highest Court, with Liu that achieving diversity re- rights from the bench. that what is said in testimony before mains a compelling governmental in- Professor Liu has authored, as I have the committee doesn’t bear out or have terest. said, many different Law Review arti- any impact on what happens once The notion that somehow Professor cles, and in one, the 2008 Stanford Re- somebody becomes a judge. My obser- Liu is an idealog on these issues is view Article, entitled, ‘‘Rethinking vation is that people are who they are. belied by his actual record. As a schol- Constitutional Welfare Rights,’’ he, in I actually spent a significant time ar, Professor Liu has supported mar- fact, criticized another scholar’s asser- with Goodwin Liu. I think he is a gen- ket-based reforms to promote school- tion from a 1969 article that courts uine great American. The question, house diversity—reforms that are often should recognize constitutional welfare however, is not whether he is a stellar rights on the basis of a so-called ‘‘com- labeled conservative. Professor Liu be- scholar, of stellar intellect, or whether prehensive moral theory.’’ Professor lieves, and has written in support of, he is a great American. The question Liu rejected that. school choice and school vouchers, is: Do his beliefs match what the Con- In 2006, he penned a Yale Law Review stitution requires of appellate judges stating they have a role to play in im- article that argued the 14th amend- proving educational opportunities for and higher judges. And I have come to ment authorizes and obligates Congress the conclusion that being stellar and disadvantaged children. He has pub- to ensure a meaningful floor of edu- licly advocated for these programs on a being a great teacher and professor, cational opportunity. being a wonderful judge, is not enough. nationwide scale, earning praise from His record is replete with sources I take the words to heart, that my col- conservatives in the process. that make it clear Professor Liu re- league said, because we all make mis- Clint Bolick, director of the conserv- spects and recognizes the role of this takes. His comments on Judge Alito ative Goldwater Institute—referred to body—of Congress—and the role of the and Judge Roberts, he said, were poor previously by my colleague, Senator Supreme Court in establishing, inter- BOXER—has written: preting, and applying both precedent judgment; he should not have done it. I have known Professor Liu . . . since read- and constitutional theory, and that he There is not anybody in this body who ing an influential law review article he coau- accepts, acknowledges, and will respect has not done the same thing, so we thored . . . supporting school choice as a so- the very real limits on a circuit court cannot hold that against him, and I do lution to the crisis of inner-city public edu- judge in innovating in any way. not. cation. It took a great deal of courage for Madam President, in closing, allow But what I do think matters is [him] to take such a strong public position whether the oath to the Constitution . . . I find Professor Liu to exhibit fresh, me to simply share with you and the Members of this body that—new to this and our laws and our treaties and the independent thinking and intellectual hon- foundational documents of our Con- esty. body, new to the fights that have di- stitution do matter. I believe that He closes his letter by saying: vided this Chamber and have deflected real deliberation on nominees to cir- where we find ourselves today as a He clearly possesses the scholarly creden- cuit courts and the Supreme Court—I country—not having the debates on the tials and experience to serve with distinction Senate floor as we should be having the on this important court. have taken the time to review his writings, to interview him individ- debates on the Senate floor—is par- Professor Liu has, in my view, made ually, to attend the nomination hear- tially to blame because of where the very clear that he understands the dif- ing, and have come to the conclusion judges have put us. They have not been ference between being a law professor, that candidate, nominee Professor loyal to the document. They expanded a scholar and advocate, and a judge. He Goodwin Liu is a qualified, capable, the commerce clause well beyond its has assured us during his nomination competent, in fact, exceptional legal ever-anywhere-close intent. The gen- hearings before the committee and scholar, who understands and will re- eral welfare clause, that now finds us again in personal conversations with spect the differences between advocacy at a time when we are nearing bank- me he would follow the court’s prece- and scholarship and serving as a mem- ruptcy, and we cannot get out of our dent if confirmed. During his confirma- ber of the circuit court in the Judici- problems without retracting tremen- tion hearings Professor Liu testified to ary of the United States. dously the size and scope of the Federal our committee: I urge the Members of this body, I Government. We cannot grow our econ- [I]f I were fortunate enough to be con- urge my colleagues to take a fresh look omy with the tax revenue increases firmed in this process, it would not be my at the record and to allow this body to that are going to be required to get out role to bring any particular theory of con- vote. Why on Earth this record of this of this problem. It comes back down to stitutional interpretation to the job of an in- termediate appellate judge. The duty of a exceptionally qualified man would jus- what do they believe about the Con- circuit judge is to faithfully follow the Su- tify a filibuster is utterly beyond me stitution. preme Court’s instructions on matters of and suggests that, unfortunately, we The best way to find that out is, be- constitutional interpretation, not any par- have become mired in partisanship fore they ever thought about being ticular theory. And so that is exactly what I rather than allowing debate and votes nominated and before they are trying would do, I would apply the applicable prece- on this floor, which, in my view, if we to be controversial in a teaching envi- dents to the facts of each case. followed the best traditions of this ronment, what are their great thoughts As I said before, and I will say again, body, would lead to the confirmation of and what are their beliefs. I do not be- I believe this quote from Professor Liu Goodwin Liu to the Ninth Circuit. lieve professors write articles to be

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00016 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7479 controversial. I believe they write arti- The final point I would make is, al- I see the assistant majority leader on cles based on what their learned re- though he has written a lot, and a lot the Senate floor, and I will yield to search tells them. I just have a frank of it has been controversial, one of the him. disagreement with Professor Liu on the things that really bothers me is his The PRESIDING OFFICER. The Sen- role of a Federal judge. profound belief that he has the right to ator from Illinois. I actually believe what the Constitu- use foreign law to interpret the U.S. Mr. DURBIN. Madam President, at 2 tion says. It says: Constitution. That is really code word o’clock we will have a vote on the Sen- The judicial Power should extend to all for saying: If I do not like what is writ- ate floor. A man is seeking a judgeship. Cases, in Law and Equity, arising under ten in this document, I will go find There is no question in anybody’s mind this— some jurisprudence somewhere else and that this is a judgeship that should be And the word is ‘‘this’’— apply it to this document that gets me filled. Professor Goodwin Liu wants to Constitution, the Laws of the United the result I want, rather than being serve in the U.S. Circuit Court of Ap- States, and the Treaties made, or which truthfully and honestly obedient to peals for the Ninth Circuit. He was shall be made. . . . what this document says. nominated in February of 2010. Here we The problems I have with Professor I know that sounds overly simple, are in May of 2011. The significance of Liu are that I believe he advocates for but it is not. The fact that we are not that delay is the fact that this is a va- an unconstitutional role for judges. He applying our Constitution and its cancy that causes a problem. The Ad- believes the Constitution is a living meaning and what our Founders said ministrative Office of the U.S. Courts— document, that it is indeterminate. about what it meant and we are ignor- no political office but the court’s of- I recognize I am just a doctor from ing it is one of the things that has put fice—declared a judicial emergency in Oklahoma and I don’t have a law de- us in the perilous state we are in this circuit and said they need this va- gree, but I can read these words as today. cancy filled. So nobody questions that plain as anybody else. I don’t think We are going to have a great test there is at least a sense of urgency in they are indeterminate. I think some sometime in the next year on the mas- filling the seat. of the things our Founders did were sive expansion of the commerce clause So you ask yourself, if the President wrong, and we have corrected them that was put in the law through the Af- nominated someone back in February through the years, through wise Su- fordable Care Act. I will predict in this of 2010, why in May of 2011 are we just preme Court decisions, but also body today, if that is upheld, there will getting around to it? I think that ques- through amendments to the Constitu- be no need for State and local govern- tion needs to be directed to the other tion. ments anymore because there will be side of the aisle. They have found rea- He also believes the Constitution no limitation on what we as a Federal sons to delay this and to raise ques- should be subject to ‘‘socially situated Government can do to limit the free- tions which have brought us to this modes of reasoning that appeal cul- dom and free exercise of the tenth moment. turally and historically to contingent amendment to the States. So how about this professor? Is he meanings.’’ What that says to me is The idea that one can take what this qualified to serve at the second highest what this says is wide open. Constitution very clearly says: ‘‘all level of courts in America on the Ninth I really like the guy. I got along cases in law or equity arising under Circuit? The American Bar Association fabulously with him. He is a wonderful this Constitution’’—not foreign law, did not waste any time evaluating Pro- individual. But I don’t think he is who not foreign constitution, not foreign fessor Goodwin Liu. They awarded him we want on the appellate court. I think thought, but our law—it does not mean their highest possible rating—‘‘unani- what potential judges say and write, we cannot learn from other things, but mously well-qualified.’’ If we look at when we take the totality of what they we cannot use foreign law to interpret his background, it is no surprise. say and write—not what they say at a our Constitution. It is a violation of a The son of immigrants, he attended hearing because it all changes once judicial oath every time one of our Su- Stanford University, where he grad- they are nominated—what they say preme Court Justices references their uated Phi Beta Kappa. He won a and write is very important about what opinion based on foreign law. It is a Rhodes Scholarship, attended Yale Law kind of judge they are going to become. violation of their oath because their School, where he was editor of the Yale You heard Senator CORNYN relate oath is to this Constitution, not some Law Review. He served as a law clerk about Justice Sotomayor, based on other constitution. So we see that oc- to Judge Tatel of the DC Circuit and to ‘‘here is her testimony,’’ and in the casionally, especially in minority opin- Supreme Court Justice Ruth Bader first case what she does is exactly op- ions, and oftentimes in previous major- Ginsburg. posite of what her testimony does but ity opinions, that have gotten our After finishing his second clerkship, is totally consistent with what her be- country into the problem we are in. the one at the Supreme Court, he liefs were and her writings in previous I believe Goodwin Liu a generally worked for years at the law firm of cases. It used to be the Judiciary Com- wonderful man. He is a stellar intellec- O’Melveny & Myers in Washington. mittee didn’t bring the judges before tual thinker. By reports he is an out- Then he joined the faculty at the Uni- them. We looked at the history. standing professor and is a great versity of California-Berkeley Law Let me address something else. What human being. That does not qualify School. He has won numerous awards the ABA says doesn’t matter to me him to be on the Ninth Circuit Court of for his teaching and academic scholar- anymore because there was a con- Appeals. What will qualify him is abso- ship, including the highest teaching troversial nominee from Oklahoma the lute fidelity to our Constitution and award given at the Cal-Berkeley Law ABA rated ‘‘qualified,’’ when four dis- our future and not the creative ways School. tinct people interviewed by the ABA that we can change that through our What is the point of this debate? We said the individual wasn’t qualified, own wills or whims of judges to get a know he is well qualified. We know and that was totally discounted by the result that is different than what our there is a judicial emergency that re- ABA. The people who were actually Constitution would say that we should quires us to fill this seat—and we interviewed said the person was not have. should have done it a long time ago. qualified. The ABA gave them a ‘‘quali- So I, regretfully—and it is truly with When we look at his resume, it would fied’’ rating anyway. These are their regret—will be voting against cloture put every lawyer, including myself, to peers. That basis for saying we have for his nomination because I do not shame, when we consider all that he qualifications is no longer trustworthy like this process. I think it hurts us. I has done leading up to this moment in in my mind and hasn’t been for some think it divides our body. My hope is his career. time. I think the due diligence is lack- we can handle these in the future much It turns out those who oppose him do ing in the ABA and their method for better than we have handled them in not oppose his qualifications. They scoring who is qualified or who is not. the past. think he has the wrong philosophy, the

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00017 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7480 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 wrong values. They criticize him for a Some of my friends on the right We will have a cloture vote in about handful of statements he made while might have disagreed strongly with an hour. I think we know what is going he served as a professor. Isn’t it inter- Judge Posner when he wrote an article on here. For many on the other side of esting, the double standard that is about the 2008 Supreme Court decision the aisle, they are guided by advisers being applied? in DC v. Heller, a case where the court who tell them: Keep as many critical I was here in 2002 when a Tenth Cir- stated the Second Amendment right to judicial posts open for as long as pos- cuit Court of Appeals nominee by the bear arms confers an individual right. sible. Help is on the way in the next name of Michael McConnell was up to Judge Posner wrote that the Court’s election. We don’t want to allow this be considered. He had been a law pro- decision in Heller ‘‘is questionable in President to fill these vacancies, and fessor at the University of Utah and both method and result, and it is evi- particularly when it comes to the cir- the University of Chicago. At his nomi- dence that the Supreme Court, in de- cuit courts because of the tremendous nation hearings, Senator ORRIN HATCH, ciding constitutional cases, exercises a responsibility and opportunity there is who strongly supported his nomina- freewheeling discretion strongly fla- for important and historic decisions. tion, said: vored with ideology.’’ So Professor Liu has been caught in I think we should praise and encourage the I suspect there are a lot of Senators this maelstrom. He is now going to be prolific exchange of honest and principled on the other side of the aisle who dis- scholarly writing, assuming such scholars subjected to this filibuster vote. I sin- agree with that quote. cerely hope my colleagues will be fair know the proper role of a judge to interpret So let’s get down to the bottom line. the law as written and to follow precedent. and honest in their vote. I hope they We recognize the value of academic will look at the obvious record of this What was Senator HATCH defending freedom and discourse. We understand in Professor McConnell’s background? man to fill an important vacancy, a a professor has a different role in man found unanimously ‘‘well quali- It was the fact that he had called Roe America than someone sitting on a v. Wade, a landmark Supreme Court fied’’ by the American Bar Association, bench judging a case. We trust them. a person with a legal resume that is decision, ‘‘illegitimate.’’ Professor We give them basic credit for integrity McConnell had defended Bob Jones peerless, someone who has stated pure- when they say they can separate the ly and unequivocally that he will fol- University’s racist policies on the two lives. They understand the two re- grounds that they were ‘‘church teach- low the law. To dwell on statements he sponsibilities. has made as a professor is to do a great ings,’’ even though the Supreme Court Professor Liu is a man widely recog- disservice to academic freedom and to rejected his argument in an 8-to-1 deci- nized for his integrity and independ- ignore the obvious. When Republican sion, and he claimed the Violence ence. That is why he has the support of Against Women Act was unconstitu- prominent conservative lawyers. Ken- nominees came before us, we have used tional. neth Starr—no hero on the Democratic our discretion to separate out their That was fodder for a lot of questions side of the aisle—has said he would be academic lives with their promise that that should have been asked and were a great judge. Bob Barr, former Repub- as judges they will look at the world in asked. He had made some very extreme lican Congressman, and Goldwater In- a very sober, honest way. statements as a professor. But Pro- I intend to vote in support of cloture fessor McConnell assured the Senate stitute Director Clint Bolick express support for Liu’s nomination. In fact, and in support of this nomination. I that when he left the classroom and en- urge my colleagues to do the same. tered the courtroom he would put his Ken Starr and Yale law Professor Akhil Amar wrote: Madam President, I yield the floor. views aside and follow the law. The The PRESIDING OFFICER. The Sen- [I]n our view, the traits that should weigh Senate did not stop him with a fili- ator from Utah. buster. The Senate took Professor most heavily in the evaluation of an extraor- dinarily qualified nominee such as Goodwin Mr. LEE. Madam President, several McConnell at his word and gave him an are professional integrity and the ability to of my colleagues have expressed con- up-or-down vote on the Senate floor, discharge faithfully an abiding duty to fol- cerns about the nomination of Goodwin and he was confirmed. That is all we low the law. Because Goodwin possesses Liu. I share many of those concerns are asking for when it comes to Pro- these qualities to the highest degree, we are and do not wish to belabor points they fessor Liu. I point out that other well- confident he will serve on the Court of Ap- have already made. I will limit my respected Federal judges have also peals not only fairly and competently, but comments today to two fundamental served in academic roles before coming with great distinction. We support and urge his speedy confirmation. reasons why I find myself unable to to the bench. support the nomination of Professor Well, we are not going to grant their Richard Posner of the Seventh Cir- Liu to serve as a judge on the U.S. wishes with a speedy confirmation; the cuit in Chicago is a friend of mine. Court of Appeals for the Ninth Circuit. question is whether 60 Senators will de- Every once in a while we get together First, I am truly dismayed by the cide that Professor Goodwin Liu is en- for an amazing lunch. He is such a bril- lack of judgment displayed in Pro- titled to a vote—a vote—an up-or-down liant guy. We disagree on so many fessor Liu’s 2006 testimony regarding things, but I can’t help but sit there in vote—in the Senate. Professor Liu said at his confirma- the confirmation of Samuel Alito as an awe of this man’s knowledge of the law Associate Justice for the U.S. Supreme and of the world and his prolific au- tion hearing: Court. Throughout extensive written thorship of books on so many subjects. [T]he role of a judge is to be an impartial, testimony and during an appearance I think most would agree he has objective, and neutral arbiter of specific taken some pretty controversial views cases and controversies that come before before the Senate Judiciary Com- himself. In a 2005 debate on civil lib- him or her, and the way that process works mittee, Professor Liu unfairly criti- erties with Geoffrey Stone, Judge is through absolute fidelity to the applicable cized then-Judge Alito and his long ju- precedents and the language of the laws, Posner said: dicial record as, among other things, statutes, or regulations that are at issue in having ‘‘shown a uniform pattern of ex- Life without the self-incrimination clause, this case. cusing errors and eroding norms of without the Miranda warnings, without the Professor Liu is committed to re- Fourth Amendment’s exclusionary rule, with basic fairness.’’ In particular, the final an unamended USA PATRIOT Act, with a de- spect and follow the judicial role. I am paragraph of Professor Liu’s written piction of the Ten Commandments on the confident he will fulfill that role with testimony which served as a summary ceiling of the Supreme Court, even life with- distinction. of his entire analysis of Judge Alito out Roe v. Wade would still, in my opinion This is a good man, a great lawyer, was nothing short of an inflammatory anyway, be eminently worth living. an extremely well-qualified nominee. attack. He wrote: His nomination has been languishing Is there any fodder there for political Judge Alito’s record envisions an America commentators? He was a sitting judge before this Senate since February of where police may shoot and kill an unarmed when he said that. Some of my friends last year. He has had to put his life on boy to stop him from running away with a on the left would have had a field day hold in many respects waiting for the stolen purse; where federal agents may point with that quote. Senate to act. guns at ordinary citizens during a raid, even

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00018 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7481 after no sign of resistance; where the FBI constitutional Republic. His approach who was confirmed by this body to may install a camera where you sleep on the advocates that judges go far beyond serve on the U.S. Court of Appeals for promise that they won’t turn it on unless an the written Constitution, statutes, and the Tenth Circuit, notwithstanding the informant is in the room; where a black man may be sentenced to death by an all-white decisional law to ascertain and incor- fact that many in this body disagreed jury for killing a white man. . . . porate into constitutional law—in Pro- with particular legal conclusions that Professor Liu’s unseemly attack on fessor Liu’s own words—‘‘shared under- had been reached by then-Professor Justice Alito generated considerable standings,’’ ‘‘evolving understandings,’’ McConnell. This is different than that. attention at the time, as well as under- ‘‘social movements,’’ and ‘‘collective This is not about a disagreement with standable concern about Professor values.’’ a particular legal conclusion. It is in- In a 2008 Stanford Law Review article Liu’s temperament, his judgment, and stead about a concern arising out of a his basic ability to be fair. describing the judicial role, Professor systemic, broad-based interpretive ap- So far as I know, it was only after he Liu wrote: proach, one I believe doesn’t give due was nominated to be a judge on the [T]he problem for courts is to determine, regard to the rule of law, to the notion U.S. Court of Appeals for the Ninth at the moment of whether our collective val- that we are a nation that lives under ues on a given issue have converged to a de- Circuit that Professor Liu offered any the law, that our laws consist of words, gree that they can be persuasively crys- that words have defined, finite mean- apology for his testimony about Jus- tallized and credibly absorbed into legal doc- tice Alito. A few weeks ago, Professor trine. ing, and that in order for our laws to work properly, that meaning needs to Liu told members of the Judiciary In so framing the process of judicial be respected and it needs to be inter- Committee that he had learned from decisionmaking, he advocated a con- preted in and of itself and held as an the outrage his remarks caused ‘‘that ception of a judiciary as a ‘‘culturally independent good by the judiciary on a strong language like that is really not situated interpreter of social mean- helpful in the process.’’ Professor Liu’s consistent basis. ing.’’ Professor Liu’s appalling treatment observation is certainly true, but it In a 2009 book entitled ‘‘Keeping of Justice Alito leaves grave doubt in misses the central point. His comments Faith with the Constitution,’’ he wrote my mind as to whether he possesses about Justice Alito were offensive not that constitutional interpretation the requisite judgment to serve as a simply because they were unhelpful in rightly ‘‘incorporates the evolving un- life-tenured judge. I have come to the his confirmation process, but because derstandings of the Constitution forged conclusion that Professor Liu’s ex- they were misleading and they were an through social movements, legislation, treme judicial philosophy is simply in- unwarranted personal attack on a dedi- and historical practice.’’ cated judge and public servant. In an interview later that year, Pro- compatible with the proper role of a Professor Liu’s treatment of Justice fessor Liu suggested that the judicial judge in our constitutional Republic. For these reasons, as well as those Alito and his last-minute and incom- role is an individual process that in- articulated by many of my colleagues, plete handling of the concerns raised cludes ‘‘lessons learned from experi- I am compelled to oppose this nomina- by his remarks lead me to believe that ence, and an awareness of the evolving tion. he lacks the basic judgment and discre- norms and social understandings of our tion necessary to be confirmed to a I yield the floor. country.’’ The PRESIDING OFFICER. The Sen- life-tenured position in the judiciary. These are just a few examples of a ator from Connecticut. The second reason I feel compelled to clear, consistent, and extreme ap- Mr. LIEBERMAN. Madam President, oppose this nomination has to do with proach to judging that Professor Liu I thank the Chair. the integrity of our Nation’s system of has championed in many settings over I rise to support the nomination of constitutional government and the rule the course of many years. His approach Goodwin Liu to be a member of the of law. In my careful and considered necessarily requires a judge to violate U.S. Court of Appeals for the Ninth judgment, the judicial philosophy es- separation of powers principles, mak- Circuit. I believe Mr. Liu’s academic poused by Professor Liu is fundamen- ing law based on the judge’s subjective qualifications, strong intellect, his tally inconsistent with the judicial understanding of public opinion, com- character, and his temperament make mandate to be a neutral arbiter of the munal values, historical trends, or per- him a person who would be a valuable Constitution and to uphold the rule of sonal preferences, rather than faith- addition to the Federal bench. There- law. fully interpreting and applying the I do not base this conclusion on the fore, I urge my colleagues to vote for laws made by the legislative and execu- fact that his approach to the law is in cloture and then in favor of his con- tive branches. firmation. many respects different from my own. A noted judge who has faithfully Mr. Liu brings an outstanding aca- That is not a prerequisite and that is served in the role to which Professor demic and professional background to not the basis of my opposition to this Liu has been nominated, and who as a this nomination and a personal life nominee. Most of the judges nominated result was intimately familiar with the story that is quintessentially Amer- by President Obama do not share my very real dangers of legislating from ican. It is not a reason in itself, cer- personal textualist and originalist the bench, shared this vital insight: commitments. Yet in my short time as tainly, to vote to confirm him as a It is absolutely important to freedom to judge of this high court, but it speaks a Member of the Senate, I have voted confine the judiciary’s power to its proper to confirm many nominees with whom scope as it is to confine that of the Presi- to the endless opportunities for upward I fundamentally disagree. dent, Congress, or state and local govern- mobility in this country for people who Professor Liu, by contrast, is not ments. Indeed, it is probably more impor- work hard. Where you end up is not de- simply a progressive nominee with a tant, for only courts may not be called to ac- termined by where you start out in this somewhat more expansive view of con- count by the public. country. stitutional interpretation than is com- I rise today in defense of our Nation’s Goodwin Liu is the second son of Tai- mon among many sitting judges, nor is constitutional separation of powers wanese immigrants. As a young boy, he a nominee whose controversial re- and, ultimately, in defense of the es- his family settled in Sacramento. He marks are few and can be overlooked sential liberty that it protects. began to work hard from the begin- given a long history of mainstream I also feel the need to respond to the ning, ultimately graduating from Stan- legal practice and observations. point made by my distinguished col- ford University. He received a Rhodes Throughout the course of his numer- league, the Senator from Illinois, mo- Scholarship to Oxford University and ous speeches, articles, and books, Pro- ments ago. This is not an opposition eventually graduated from Yale Law fessor Liu has championed a philos- that is based on a disagreement with a School. ophy that in my judgment is incompat- particular set of legal analyses. My Should he be confirmed to the Ninth ible with faithfully discharging the du- colleague from Illinois noted there was Circuit, Professor Liu would become ties of a Federal appellate judge in our some opposition to Judge McConnell the second Asian American currently

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00019 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7482 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 serving on a Federal appeals court. He Nominations.’’ This is one of them: the court than that of a White male, is now an associate dean and professor Goodwin Liu. and people got up in arms about that. of law at the University of California, Signatories will exercise their responsibil- It bothered me. She explained herself. I Berkeley School of law. He is widely ities under the Advice and Consent Clause of look at the way she lived her life, and recognized and respected broadly the United States Constitution in good faith. I understood, based on the way she throughout academic and legal com- Nominees should only be filibustered under lived her life, that she was a fair person munities in the United States. extraordinary circumstances, and each sig- who did not represent bigotry on her I note that prior to entering aca- natory must use his or her own discretion part toward White males. and judgment in determining whether such We all make statements and write ar- demia, he was an appellate litigator circumstances exist. with O’Melveny & Myers—a first-rate ticles and get in debates and I am not End of quote from the agreement of going to use that as a reason to dis- firm here in Washington—and clerked the Gang of 14. for both Circuit Court Judge David qualify somebody from sitting on the I do not think these are extraor- judiciary. I would not want that done Tatel and Supreme Court Justice Ruth dinary circumstances, when you con- Bader Ginsburg, representing different to our nominees, and I do not intend to sider Goodwin Liu’s intellect, his var- do it to the other side. points on the ideological legal spec- ied background, the character he has, trum, and served them both, I know, But here is what Mr. Liu did that, to and this broad range of endorsements me, is a bridge too far. When a conserv- with great distinction. from people. To me, a disagreement Although I do not agree with every- ative wins the White House, you expect about a statement made in the heat of people such as Chief Justice Roberts thing Goodwin Liu has ever written or an argument or even the substance of said, his views, it seems to me, have and Justices Alito and Scalia. When a an article published is not strong liberal wins, you expect people such as been well expressed and well reasoned enough to prevent this nominee from and quite intelligent. I think he has a Justices Ginsburg and Elena Kagan and having what I think is his right and the Sotomayor. That is the way it works. thoughtful approach to complex legal President’s right to get a vote up or All of them are well qualified; they just questions, and I am impressed he has down—not to block him by requiring 60 have a different approach to the law. earned the respect and support of votes. But there are a lot of 9-to-0 decisions. thinkers and lawyers from all sides of So I urge my colleagues to vote for The one thing that drives my think- the legal ideological spectrum, which I cloture. I am going to do so with a full ing is, Mr. Liu chose—not in an article think speaks, ultimately, to his per- measure of comfort and confidence he wrote as a young man, not in some sonal evenhandedness, to the power of about the kind of judge Goodwin Liu debate that got carried away but to ap- his intellect, and what we can expect of would be but with a full measure of pear before the Judiciary Committee him as a judge of the circuit court. comfort that I am exercising my re- and basically say Judge Alito’s philos- I was particularly impressed—and I sponsibility under the advice and con- ophy would create: know it has been quoted before, but it sent clause, as I have always seen it, . . . an America where police may shoot and speaks volumes—by the comments of including as it has been informed by kill an unarmed boy to stop him from run- former Judge Ken Starr, a former dean my proud participation in the memo- ning away with a stolen purse— also, who said Goodwin Liu is ‘‘a per- randum of understanding of the Gang That line probably comes from some son of great intellect, accomplishment, of 14 in 2005. case Judge Alito was involved in— and integrity, and he is exceptionally I thank you very much and yield the where federal agents may point guns at ordi- well-qualified to serve on the court of floor. nary citizens during a raid, even after no appeals.’’ The PRESIDING OFFICER. The Sen- sign of resistance; where the FBI may install I know many of my colleagues have ator from South Carolina. a camera where you sleep on the promise concerns about this nomination, about Mr. GRAHAM. Madam President, I that they won’t turn it on unless an inform- things Professor Liu has either written rise in regretful opposition, quite ant is in the room; where a black man may or said, and I understand those. I have be sentenced to death by an all-white jury frankly, to having to vote to deny clo- for killing a white man, absent a multiple re- some of those concerns. I read the ture for a judicial nominee. I also was gression analysis showing discrimination. statement he made about Judge Alito. in the Gang of 14, and the whole effort ... It has the ring of a passionate litigator was to make sure the Senate follows These statements about Judge Alito making an argument with probably constitutional and historical norms; and the decisions he has rendered and more zeal than he himself appreciates that is, giving great deference to Presi- his philosophy are designed to basi- as he looked at it in the aftermath. dential elections when it comes to the cally say that people who have the phi- But for those who have concerns, I judiciary. losophy of Judge Alito are uncaring, urge my colleagues to vote accordingly So to my conservative colleagues, hateful, and should be despised. That is on an up-or-down vote, not to sustain the best way to make sure you have a bridge too far. Because I share Judge this filibuster and, therefore, prevent conservative judges is to win elections. Alito’s philosophy, we may come out at an up-or-down vote on this nomination. Because if we start blocking all the a different result on a particular case, I have always felt that in our advice judges whom we do not like, who have but I do not think I fall in the category and consent role—this is my own per- a different view of the law than we, our of being hateful, uncaring, and some- sonal reading of it—the President, by friends on the other side will return one you should despise. his election, earns the right to make the favor and you wind up having a These statements given to the Judi- these nominations. We do not have to chaotic situation. ciary Committee were designed to in- decide, in confirming a nominee, that There is a reason Justice Ginsburg flame passion against Judge Alito we would have made this nomination, got 90-something votes and Justice based on his analysis of cases before only that the nominee is acceptable, is Scalia got 90-something votes. It used him during his judicial tenure. within the range of those acceptable to be the way you did business around If that is not enough, Chief Justice and capable of doing the job for which here. When a President won an elec- Roberts’ record, according to Mr. Liu, he is nominated. tion, they were able to pick qualified suggests he has a vision for American Not so long ago, in 2005, there was a nominees for the court. Unless you had law—a ‘‘right-wing vision antagonistic move to reduce the right to filibuster a darn good reason, they went forward. to important rights and protections we and require 60 votes, particularly with I think that should be the standard. currently enjoy.’’ regard to Supreme Court nominees but To me, I do give a lot of deference. It It is one thing to debate your oppo- others as well. That led to the forma- is not one speech. It is not an article. nent. It is another thing to have strong tion of the so-called Gang of 14. I was Justice Sotomayor, whom I voted for, opinions. But this is not an accidental proud to be a member of that group, had made a famous speech that she statement. This was calculated, deliv- and we reached an agreement, one of thought the experiences of a Latino ered at a time where it would do max- whose I wish to read now on ‘‘Future woman maybe were more valuable to imum damage.

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00020 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7483 All I am saying to future nominees: I I yield the floor. his judicial philosophy was one of re- expect President Obama to nominate Mr. MCCAIN. Madam President, as a straint. He was explicit in his writings people of a liberal judicial philosophy. member of the Gang of 14 in 2005, I and responses to the Senate Judiciary I do not deny you access to the court agreed that ‘‘Nominees should be fili- Committee that he would not seek to because you may have said something bustered only under extraordinary cir- legislate from the bench. in an article I do not like, you may cumstances.’’ The nomination of Mr. Judicial activism demonstrates a have represented a client with whom I Liu rises to a level of ‘‘extraordinary lack of respect for the popular will that disagree. But the one thing I will not circumstances’’ due to his clear belief is at fundamental odds with our repub- tolerate is for a conservative or a lib- that judges have vast powers to shape lican system of government. And, as I eral person seeking a judgeship to basi- and even rewrite the law—a contention stated earlier, regardless of one’s suc- cally impugn the character of the other I deeply oppose as an elected represent- cess in academics and in government way of thinking. ative of the people who believes it is service, an individual who does not ap- These words are not that of a pas- the duty of the Congress to shape and preciate the commonsense limitations sionate advocate who may have went write the laws and not that of the judi- on judicial power in our democratic too far, according to Senator LIEBER- ciary. system of government ultimately lacks MAN, in my view. These words were de- With no litigation or judicial experi- a key qualification for a lifetime ap- signed to destroy, and they ring of an ence to examine, the Senate can only pointment to the Federal bench. For ideologue. He should be running for of- consider Mr. Liu’s academic writings this reason, and no other, I am unable fice, not sitting on the court. There is and public comments. These writings to support Mr. Liu’s nomination. a place for people who think this way and his testimony before the Senate Shaping the judiciary through the about conservative judicial philosophy: Judiciary Committee show Mr. Liu be- appointment power is one of the most Run for President. Run for the Senate. lieves that the Constitution is a living, important and solemn responsibilities Do not sit on the court. Because the breathing document that must change a President has and certainly one that court has to be a place where you ac- to accommodate new progressive ideas. has a profound and lasting impact. The cept differences, you hash it out, you Specifically, Mr. Liu has said, ‘‘The President is entitled to nominate those render verdicts. Based on the way he Framers deliberately chose broad whom he sees fit to serve on the Fed- views Justice Alito and Chief Justice words so they would be adaptable over eral bench, and unless the nominee Roberts and his disdain for their phi- time.’’ rises to ‘‘extraordinary cir- losophy, I do not believe he could give Additionally, in a November 2008 ar- cumstances,’’ I have provided my con- someone such as me a fair shake. ticle published in the Stanford Law Re- stitutional duty of ‘‘consent’’ for most So at the end of the day, I ask one view, Mr. Liu wrote, nominees. thing of my Democratic colleagues. I The problem for courts is to determine, at I regret I am unable to do so for Mr. will try my best to make sure the Sen- the moment of decision, whether our collec- Liu, but I believe his inability to re- ate stays on track and that we do not tive values on a given issue have converged spect the limited nature of the judicial get on the road of filibustering judges to a degree that they can be persuasively power under our Constitution should crystallized and credibly absorbed into legal haphazardly based on the fact they are preclude him from a lifetime appoint- somebody we do not agree with. I have doctrine. This difficult task requires keen attention to the trajectory of social norms ment to the Ninth Circuit Court of Ap- tried my best not to go down that road peals. because I think it will destroy the judi- reflected in public policies, institutions, and practices, as well as predictive judgment as Mr. WHITEHOUSE. Madam Presi- ciary and disrupt the Senate. to how a judicial decision may help forge or dent, I rise today to urge my col- If you are a conservative in the fu- frustrate a social consensus. leagues to support Professor Goodwin ture wanting to be a judge and you Mr. Liu’s remarks show that he does Liu’s nomination to the U.S. Court of come before our committee, when a lib- not subscribe to the philosophy that Appeals for the Ninth Circuit. eral nominee is before the committee, Federal judges should respect the lim- Professor Liu is abundantly qualified and you question their patriotism and to serve on the bench. He has a sharp you suggest they are hateful people ited nature of judicial power under our legal mind, is a careful and rigorous who should be despised for their philos- Constitution. Judges who stray beyond thinker, and understands the proper ophy, then I will render the same ver- their constitutional role believe that limited role of a judge. He has shown a dict against you. judges somehow have a greater insight We want people on the court who are into the meaning of the broad prin- commitment to public service through- well rounded, who are qualified, who ciples of our Constitution than rep- out his career and his remarkable suc- understand America is a big place, not resentatives who are elected by the cess reflects well on the great opportu- a small place. In Mr. Liu’s world I people. These activist judges assume nities our country offers and the quali- think he has a very small view of the that the judiciary is a superlegislature ties of Mr. Liu and his family. If con- law. Those on the other side who think of moral philosophers. firmed, he would be a credit to the differently should be engaged intellec- Despite this difference in judicial Ninth Circuit and to his home State of tually or challenged through academic philosophy, I believe Mr. Liu has had a California. debate. He has tried to basically rip remarkable career in academics and People who know Professor Liu, Re- their character apart, and he will not has an inspiring life story as the child publican and Democrat alike, think get my vote. A conservative who feels of immigrants from Taiwan. However, very highly of him and have com- the same way about liberal philosophy an excellent resume and an inspiring mended him for his intellect, integrity, would not get my vote either. life story are not enough to qualify one and temperament. I am looking for the model of Miguel for a lifetime of service on the Federal Among many other Republicans and Estrada, who was poorly treated, who bench. Those who suggest otherwise conservatives, Professor Liu can count wrote a letter on behalf of Elena need only to be reminded of Miguel as supporters former Whitewater pros- Kagan, saying: She was my law school Estrada who was filibustered by the ecutor Ken Starr, former Republican classmate. We don’t agree on much Democrats seven times because many Congressman Bob Barr, and Clint when it comes to the law, but she is a Democrats disagreed with Mr. Bolick, the litigation director of the wonderful person, well qualified, and Estrada’s judicial philosophy. This was Goldwater Institute. Former Repub- deserves to be on the bench. the first filibuster ever to be success- lican Congressman Tom Campbell has That is the way conservatives and fully used against a court of appeals said that Liu ‘‘will bring scholarly dis- liberals should engage each other, in nominee. tinction and a strong reputation for in- my view, when it comes to the judicial I supported Mr. Estrada’s nomination tegrity, fair-mindedness, and col- nomination process. to the DC Circuit Court of Appeals, not legiality to the Ninth Circuit.’’ Susan This was a bridge too far for LINDSEY because of his inspiring life story or A. McCaw, who was an ambassador in GRAHAM. impeccable qualifications, but because George W. Bush’s administration wrote

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00021 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7484 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 that ‘‘Goodwin’s strengths are exactly In short, it is time to confirm this In addition to his controversial views what [she] expect[s] in a judge: objec- highly qualified nominee and I urge all on judging and the Constitution, I have tivity, independence, collegiality, re- my colleagues to support his nomina- an additional set of concerns, as well. spect for differing views, [and] sound tion. Those concerns relate to Professor judgment,’’ and noted that he ‘‘pos- Mr. KYL. Madam President, it is Liu’s charges against Supreme Court sesses these qualities on top of the bril- with great reluctance that I vote Justices Roberts and Alito. Before his liant legal acumen that is well-estab- against cloture on any nominee, in- own nomination to the bench, Pro- lished by his record and the judgment cluding Professor Goodwin Liu. It is fessor Liu led the opposition to their of those most familiar with his schol- my general view that every nominee nominations to the High Court. His de- arly work.’’ deserves an up or down vote. scriptions of their qualifications show Furthermore, Professor Liu has the Ever since the tradition was estab- very poor judgment. support of leading law enforcement lished that filibusters would be avoid- For instance, Professor Liu spoke groups and prosecutors, as well as busi- ed, except in ‘‘extraordinary’’ cir- very disparagingly of Justice Roberts ness groups, and the endorsements of cumstances, I have tried to apply that stating: the New York Times, the Washington standard in an objective way. [b]efore becoming a judge, he belonged to Post, the Los Angeles Times, the San This is one such occasion when I can- the Republican National Lawyers Associa- Francisco Chronicle, and the Sac- not vote for cloture on the nominee. I tion and the National Legal Center for the ramento Bee. He has also been deemed believe extraordinary circumstances Public Interest, whose mission is to promote unanimously well qualified by the exist. I have serious concerns as to (among other things) ‘free enterprise,’ ‘pri- American Bar Association. vate ownership of property,’ and ‘limited whether Professor Liu could lay aside government.’ These are code words for an These recommendations are part of his ideas and ideologies and approach an ample record on which the Senate ideological agenda hostile to environmental, cases from a purely objective, unbiased workplace, and consumer protections. can base its decision. Professor Liu’s point of view. It is very clear he would voluminous writings and unprece- Professor Liu also wrote that regard- violate one of the first principles of ju- less of Chief Justice Roberts’s quali- dented thoroughness in responding to dicial character, which is to approach questions from the Judiciary Com- fications, ‘‘a Supreme Court nominee each case without prejudice. must be evaluated on more than legal mittee give us great insight into his I will highlight some specific exam- temperament and approach to the dif- intellect.’’ ples to illustrate my concerns. So, in other words, Professor Liu be- ficult questions of constitutional law. First, is Professor’s Liu’s views on This record reveals a genuine lieves that a good judge must possess the use of foreign law in U.S. courts. more than intellect and allegiance to thoughtfulness and intellectual rigor. He stated: This has made Professor Liu one of the the law. [T]he use of foreign authority in American Professor Liu also made some inap- leading legal academics of his genera- constitutional law is a judicial practice that tion. As Professor Liu himself has said, propriate comments when testifying has been very controversial in recent years. against Justice Alito’s nomination, the scholar’s role is ‘‘to question the . . . The resistance to this practice is dif- boundaries of the law [and] to raise ficult for me to grasp, since the United stating: new theories.’’ Professor Liu also clear- States can hardly claim to have a monopoly Judge Alito’s record envisions an America ly understands that the scholar’s role on wise solutions to common legal problems where police may shoot and kill an unarmed boy to stop him from running away with a is different from the role of a judge, ex- faced by constitutional democracies around the world. stolen purse; where federal agents may point plaining that it is the function of a guns at ordinary citizens during a raid, even scholar ‘‘to be provocative in ways that Of course, judges should never task after no sign of resistance . . . where a black it’s simply not the role of a judge to themselves with finding ‘‘wise solu- man may be sentenced to death by an all- be.’’ He further elaborated that he tions’’ from ‘‘foreign authorities,’’ in- white jury for killing a white man . . . and would leave his personal views behind stead of interpreting U.S. law. And where police may search what a warrant per- if taking the bench: ‘‘What is not Americans shouldn’t have to walk into mits, and then some. transferable [from the position of a courtroom not knowing under which He also criticized Justice Alito be- scholar to the position of judge] . . . are nation’s law they will be judged! cause ‘‘[h]e approaches law in a for- the substantive views that one might Second, is Professor Liu’s troubling malistic, mechanical way abstracted take as a matter of legal theory. Those view of constitutional ‘‘welfare from human experience.’’ are left at the door. When one becomes rights.’’ Professor Liu wrote that Again, these comments are inappro- a judge, one applies the law as it is to courts should interpret ‘‘welfare priate and demonstrate that Professor the facts of every case.’’ rights,’’ such as education, shelter, Liu does not possess the requisite I would remind my Republican col- subsistence, and health care (and the standards for impartial judging. leagues that they have been ready in funding for each) as constitutional In conclusion, I do not vote against the past to credit academics with the rights. Professor Liu lightly. But the Presi- ability to put aside their scholarly Of course, no such welfare rights dent has nominated someone who does views when they take the bench. True, exist in our Constitution, and it is in- not possess the requisite impartiality this was for nominations made by a Re- appropriate for the courts to attempt for judging. I am firmly convinced publican President, but there is no rea- to invent new rights or revise the Con- that, rather than apply the law, Pro- son why the rules should be different stitution to advance an ideological or fessor Liu would apply his own pre- for President Obama. Consider the political position. conceived notions and standards to ad- nomination of Judge Michael McCon- Third, Professor Liu wrote that he vance his liberal views. Therefore I op- nell, for example. He was confirmed to believes the Constitution is a ‘‘living pose his nomination. the Tenth Circuit in 2002 by a unani- document,’’ ‘‘indeterminate,’’ and sub- Mr. AKAKA. Madam President, today mous vote on the Senate floor, despite ject to ‘‘socially situated modes of rea- I rise to speak in support of Goodwin having, as a scholar, vigorously criti- soning.’’ Moreover, Professor Liu be- Liu to be a Federal judge on the U.S. cized Roe v. Wade as ‘‘illegitimate’’ lieves that judges should look to ‘‘our Court of Appeals for the Ninth Circuit. and wrongly decided, and having made collective values,’’ ‘‘evolving norms,’’ I am confident that Professor Liu, as sundry other criticisms of Supreme and ‘‘social understandings’’ in inter- a nationally recognized expert on con- Court precedent. The Senate took him preting the Constitution. stitutional law, is highly qualified for at his word that he would follow the Again, the Constitution is not sub- this prestigious position. His under- law rather than his personal beliefs. A ject to new definitions and interpreta- standing of the role of a circuit judge— proper recognition of Professor Liu’s tions. These views may be appropriate to follow the instructions and prece- strong character, integrity, and com- in the confines of liberal academia, but dents set by the Supreme Court—will mitment to the rule of law should lead they have no place in a U.S. court- allow him to remain a neutral medi- us to the same conclusion today. room. ator. This judicial philosophy will be

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00022 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7485 the basis for his restrained actions, and Asian-American and Pacific Islander The point is, intellect is only one will be balanced by his experiences as a population. Goodwin Liu was given the component. Using Mr. Liu’s standards, professor and in the public and private American Bar Association’s highest a nominee ‘‘must be evaluated on more sectors. Professor Liu’s background rating of ‘‘Unanimously Well Quali- than legal intellect.’’ Mr. Liu does have speaks volumes about his qualifica- fied’’ based on his integrity, profes- a fine intellect, but he has used his tal- tions and his strong work ethic. sional competence, and judicial tem- ent to consistently promote views that Goodwin Liu, the son of immigrant perament. He is highly qualified, intel- are far out of the mainstream. Shortly parents from Taiwan, is a graduate of ligent, and he will help the court better after President Obama was elected, he Stanford University. He was elected co- reflect the broad population it serves. said, ‘‘Now we have the opportunity to president of the student body and grad- He has strong support in the Senate actually get our ideas and the progres- uated Phi Beta Kappa. He was also and he deserves an up-or-down vote. sive vision of the Constitution and of awarded the Lloyd W. Dinkelspiel The PRESIDING OFFICER (Mr. law and policy into practice.’’ I do not Award, the university’s highest honor MANCHIN). The Senator from Iowa. intend to give Mr. Liu that oppor- for outstanding service to under- Mr. GRASSLEY. Mr. President, I tunity. graduate education. would like to inquire how much time The second problem I have with the After, Stanford, Goodwin Liu at- we have on our side. statement is the assertion that ‘‘The tended Oxford University on a Rhodes The PRESIDING OFFICER. Three court of appeals is where law is made.’’ Scholarship and earned a master’s de- minutes forty-five seconds. We have heard this view before. While Mr. GRASSLEY. Mr. President, I gree in philosophy and physiology. He serving as a circuit judge, Sonia have a few closing remarks regarding continued his education at Yale Law Sotomayor stated that the court of ap- the nomination of Goodwin Liu. Yes- School, where he was an editor of the peals ‘‘is where policy is made.’’ terday, I outlined my objections to this Yale Law Journal and won the prize for Now I understand there are elements nominee in some detail. As I stated, best team argument in the law school of our society who wish this were the my objections to this nominee can be moot court competition. His academic case. Those who can not get their pol- summarized with five areas of concern: accomplishments earned him clerk- icy views enacted through the legisla- his controversial writings and speech- ships with Judge David S. Tatel on the tive process, as our Constitution re- es; an activist judicial philosophy; his quires, often turn to the courts. But I U.S. Court of Appeals for the DC Cir- lack of judicial temperament; his trou- cuit and Justice Ruth Bader Ginsburg flatly reject this notion. blesome testimony and lack of candor The Constitution vests the legisla- on the U.S. Supreme Court. before the committee, and his limited Between these prestigious clerkships, tive power in the Congress, not the experience. Goodwin Liu served as a special assist- courts. Judges are simply not policy- I hope the President will withdraw makers. The court of appeals is not ant to the Deputy Secretary at the this nomination and send to the Senate U.S. Department of Education. In that where law is made. The courts are vest- a consensus nominee to fill this va- ed with the judicial power. That means capacity, he advised the Secretary and cancy. We have demonstrated over and Deputy Secretary on a range of legal they are to decide cases and controver- over again our cooperation in moving sies. They are to apply the law, not and policy issues, including the devel- forward on consensus nominations. The opment of guidelines to help turn make the law. President needs to nominate main- Unfortunately, this philosophical dis- around low-performing schools. He also stream individuals, who understand the agreement occasionally finds its way spent 2 years as a senior program offi- proper role of a judge. into the debates on nominations. But cer for higher education at the Cor- Nominees who would bring a personal let me remind the Senate where this poration for National Service, agenda or political ideology to the started. Going back to the nomination AmeriCorps, leading the agency’s effort courtroom will have great difficulty in of William Rehnquist in 1971, Demo- to build community service programs being confirmed. crats have used or attempted to use the at colleges and universities nation- Yesterday, a few Senators met with filibuster to delay or defeat judicial wide. Mr. Liu. After that meeting, one of my nominees. Fortunately, it is a rare oc- Goodwin Liu also worked in the pri- colleagues from the other side of the casion. There have been a total of 46 vate sector for a prominent Wash- aisle made the following statement, cloture votes, including this one, on 32 ington law firm and maintained an ac- ‘‘The court of appeals is where law is different judicial nominations in Amer- tive pro bono practice. In 2003, he re- made, and we need the finest minds in ican history. Of the 32 judicial nomi- turned to California to join the faculty the world for that.’’ I am troubled by nees subject to cloture votes, 22 were of Boalt Hall, one of the Nation’s top that statement on more than one level. against Republican nominated judges. law schools, where he established him- First, intellect is an important ele- Between 1971 and 2000, there were 11 self as an outstanding scholar and ment I consider in the confirmation cloture votes on judicial nominees. teacher. A few years later, Goodwin’s process. Mr. Liu does have an out- Most of those filibusters, attempted by work on ‘‘Education, Equality, and Na- standing academic record. His intellect Democrats, were unsuccessful and clo- tional Citizenship’’ won him the Edu- is not the issue. The nominee himself ture was invoked. cational Law Association’s Steven S. noted there was more to being a judge However, beginning in 2002, Senate Goldberg Award for Distinguished than intellect. He stated, with regards Democrats changed the rules. There Scholarship. He quickly earned tenure to the nomination of Chief Justice were 30 cloture votes on 17 of President and was elected to the American Law Roberts, ‘‘[t]here’s no doubt Roberts Bush’s judicial nominees. Eight of Institute. In 2009, after being promoted has a brilliant legal mind. . . . But a President Bush’s nominees are not on to associate dean, he received Berke- Supreme Court nominee must be evalu- the bench because of the filibuster or ley’s most prestigious teaching award, ated on more than legal intellect.’’ threatened filibuster by Senate Demo- the UC Berkeley Distinguished Teach- He then voiced concerns that ‘‘with crats. ing Award for excellence in teaching. remarkable consistency throughout his This does not include a number of Goodwin Liu is an exceptionally career, Roberts ha[d] applied his legal Bush’s nominees that were subjected to qualified nominee and a shining exam- talent to further the cause of the far the so-called ‘‘pocket filibuster’’ in ple of the American dream. I have long right.’’ Mr. Liu went on, demonstrating Committee by the Democratic major- been impressed by his academic and ca- a lack of judicial temperament, to dis- ity in the 110th Congress, including reer achievements, and after meeting parage Justice Robert’s views on free Peter Keisler to the DC Circuit and with him yesterday I am thoroughly enterprise, private property and lim- Robert Conrad to the 4th Circuit, convinced that he will be an out- ited government. In my statement yes- among others. standing judge for the Ninth Circuit, terday I made my views very clear on We hear about the notion of ‘‘ex- which encompasses Hawaii and in- how I feel about Mr. Liu’s remarks, so traordinary circumstances’’ as a jus- cludes over 40 percent of our Nation’s there is no reason to repeat that. tification or requirement for extended

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00023 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7486 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 debate. That was an outcome of an The opening part of Painter’s essay consists regated neighborhoods, our segregated agreement in the 109th Congress. How- of regurgitating ill-informed or utterly con- schools? is it gonna require us to give up our ever, even after that time, Senate clusory endorsements of Liu from various money? Democrats have used a broad and in- folks, including some conservative who Its gonna require giving up something, and ought to know better. See, for example, my so until we can have that further conversa- consistent application of that term. critique of the letter that Ken Starr sub- tion of what it is we’re willing to give up, I Even after that agreement, Senate mitted (jointly with Akhil Amar). agree that the reconciliation can’t fully Democrats attempted to filibuster ju- Given that Liu’s hearing starts soon, I’m occur. dicial nominees. However, they do not going to race through Painter’s supposed seem to find it applicable to the nomi- myths in this post and the next (in the same [From nationalreview.com, Mar. 2, 2011] nee before us today. I disagree. The order as he lists them): RICHARD PAINTER’S DECEPTIVE PORTRAYAL OF nomination of Goodwin Liu does raise 1. According to Painter, I have propagated GOODWIN LIU—PART 2 extraordinary circumstances, as I out- the ‘‘myth’’ that ‘‘Liu believes judges ‘may (By Ed Whelan) legitimately invent constitutional rights to lined in depth yesterday. a broad range of social ‘‘welfare’’ goods, in- I’ll continue with Painter’s last three sup- I have no personal animosity towards cluding education, shelter, subsistence, and posed ‘‘myths’’ and then offer some broader Mr. Liu. I recognize he has a fas- health care.’ ’’ My actual quote states that comments on Painter’s defense of Liu: 6. Painter says it’s a ‘‘myth’’ that Liu sup- cinating personal story and has accom- Liu argues in a law-review article that ports ‘‘direct judicial imposition of interdis- plished much. This debate is not about ‘‘judges (usually in an ‘interstitial’ role) may trict racial-balancing orders’’ in public legitimately invent constitutional rights to his ethnic background or personal his- schools. Painter tries to give his readers the a broad range of social ‘welfare’ goods, in- tory. impression that Liu accepts Milliken v. cluding education, shelter, subsistence, and I wish Mr. Liu well in his academic Bradley as settled law. But he somehow health care.’’ It’s telling that Painter has to career. But a lifetime position on the doesn’t disclose that Liu (in remarks that he excise the italicized parenthetical in order to failed to disclose to the Senate Judiciary Federal bench is not where he belongs. falsely accuse me of misstating Liu’s views. Committee) called for Milliken to ‘‘be swept Therefore, I will vote no on the cloture Nor does he address (much less take issue into the dustbin of history.’’ motion and urge my colleagues to do with) my detailed posts on the matter. 7. Painter says it’s a ‘‘myth’’ that Liu sup- the same. 2. According to Painter, it is a ‘‘myth’’ ports ‘‘using foreign law to redefine the Con- that Liu ‘‘believes in a ‘freewheeling con- I ask unanimous consent to have stitution.’’ Painter relies entirely on Liu’s stitutional approach’ that allows people ‘to printed in the RECORD documents in self-serving confirmation testimony and redefine the Constitution to mean whatever opposition to the nomination. clips a passage to omit the fact that Liu they want it to mean.’ ’’ Painter cherry- There being no objection, the mate- wrote in 2006 that it ‘‘is difficult for [him] to picks the most innocent-sounding of Liu’s grasp’’ how anyone could resist the ‘‘use of rial was ordered to be printed in the statements and ignores the controversial foreign authority in American constitutional RECORD, as follows: ones. (See, for example, the material in this law.’’ [From nationalreview.com, Mar. 3, 2011] post of mine.). 8. Painter says it’s a ‘‘myth’’ that Liu sup- 3. According to Painter, it is a ‘‘myth’’ MIGUEL ESTRADA ON GOODWIN LIU’S ports ‘‘the invention of a federal constitu- that Liu ‘‘is a supporter of racial quotas in CONTEMPTIBLE MUD-FLINGING tional right to same-sex marriage.’’ I ad- the schools, and he supports school choice (By Ed Whelan) dressed this matter in detail just yesterday only insofar as it furthers that goal.’’ That is More on Richard Painter’s insipid argu- and fully stand by my account. (Painter no myth, as I have documented. Painter ment (see point 2 here) that Goodwin Liu’s falsely attributes to me the claim that Liu’s doesn’t even address my arguments. attacks on the nominations of Chief Justice amicus brief in the California supreme court 4. According to Painter, it is a myth that Roberts and Justice Alito shouldn’t be held was ‘‘truly an argument under the U.S. Con- Liu ‘‘supports racial quotas forever.’’ Paint- against him: stitution.’’) Former D.C. Circuit nominee Miguel er doesn’t address my argument, and he I’ll briefly add some closing comments: Estrada, whose unsuccessful nomination hides behind a ridiculously narrow definition If Painter were really interested in a real Richard Painter despicably tried to invoke of quotas. debate on Liu, he wouldn’t have waited until in support of his shoddy Huffington Post de- 5. According to Painter, it is a ‘‘myth’’ the day of the hearing to launch his shoddy fense of Liu, strongly disagrees with Painter. that Liu supports ‘‘reparations for slavery’’ attack on me. He could have done so at any In an e-mail to me, Estrada writes (emphasis and a ‘‘grandiose reparations project.’’ time over the last eight months. Instead, added): Painter pretends to provide a full account of he’s tried to gain some tactical advantage by No one doubts that Senators from both Liu’s discussion of ‘‘solutions for racial depriving me of a fair opportunity to re- parties have behaved shamefully toward equality’’ but somehow completely omits the spond. (I’ve had to write these responsive nominees of the other party. The treatment remarks of Liu’s that I’ve highlighted, in- posts within the space of two hours or so of of then-Judge Alito by Democratic members cluding: discovering Painter’s essay, and I’m sure of the Judiciary Committee is not yet all Then there’s a further issue, which is that that there’s much that I would say better, or that far in the rear-view mirror, and some of maybe there are white families who were not more fully, if I had time.) President Obama’s nominees have waited far involved as directly or even indirectly with Painter claims to have ‘‘reached the con- too long. There is much to be said, therefore, the slave trade, but who still benefited from clusion that Liu deserves an up-or-down vote for the proposition that the degradation of it. And then there is the whole question, in the Senate and ought to be confirmed’’ the judicial confirmation process is a prob- which you put on the table, about people only after ‘‘reading Liu’s writings [and] lem that cries out for a long-term solution. who came to America after, and, you know, watching his testimony?’’ But the fact of the The one thing that ought to be reasonably like my family. And why is it that this matter is that Painter, evidently suffering a clear, however, is that someone who person- movie speaks to me so deeply yet? severe case of battered-conservative-aca- ally contributed to the sorry state of the And so, what I would do, I think I would demic syndrome, raced onto the Liu band- confirmation process, by jumping in the mud draw a distinction between a concept of wagon without having any understanding of pit with both feet and flinging the mud with guilt, which locates accountability in a sort what was at issue, and (both now and in a both hands, is not well positioned to demand of limited set of wrong-doers, and, on the previous op-ed) he has resolutely ignored or that standards be elevated solely for his ben- other hand, a concept of responsibility, distorted the many highly problematic as- efit. Surely Mr. Painter can find a better which is, I think, a more broad suggestion pects of Liu’s record. case than this to dramatize the need for re- that all of us, whateverour lineage, whatever form. our ancestry, whatever our complicity, still [From nationalreview.com, Mar. 3, 2011] have a moral duty to . . . make things right. RICHARD PAINTER’S DECEPTIVE PORTRAYAL OF [From nationalreview.com, Mar. 2, 2011] And that’s a moral duty that’s incumbent upon everybody who inherits this nation, re- GOODWIN LIU—PART 3 RICHARD PAINTER’S DECEPTIVE PORTRAYAL OF gardless of whatever the history is. (By Ed Whelan) GOODWIN LIU—PART 1 And I think, to add one more point on top I’ll limit myself to a couple of additional (By Ed Whelan) of that, the exercise of that responsibility observations (beyond my Part I and Part 2 On Huffington Post, law professor (and . . . necessarily requires the answer to the posts) on Richard. Painter’s deeply defective former Bush White House ethics adviser) question, ‘‘What are we willing to give up to Huffington Post defense of Goodwin Liu: Richard Painter offers an extensive, but make things right?’’ Because it’s gonna re- 1. In addition to failing to confront my ac- badly flawed, defense of Goodwin Liu that quire us to give up something, whether it is tual arguments, Painter relies heavily on the falsely accuses me of ‘‘invent[ing] a series of the seat at Harvard, the seat at Princeton. argument-by-authority fallacy. As he puts myths about Liu with no basis in reality.’’ Or is it gonna require us to give up our seg- it:

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00024 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7487 ‘‘Now, you can believe the top experts in ously, opinions vary regarding the merits of ment. Further, anyone familiar with Liu’s the areas of Liu’s scholarship and prominent the nomination, but Painter is off-base on gauzy constitutional theorizing would recog- conservatives such as Ken Starr and Clint several crucial assertions. nize that the whole concept of following the Bolick—or you can believe National Review Given our bottom-line differences on the law doesn’t have much substance in his Online’s Ed Whelan. I know where I would Liu nomination, I am particularly grateful framework. Take, for example: put my marbles.’’ to Clint Bolick, as I also am to John Yoo, for The problem for courts is to determine, at Set aside that Painter, having evidently standing up against Painter’s smears. It’s the moment of decision, whether our collec- lost his marbles, would have to find them striking that two of the very small number tive values on a given issue have converged first before he could put them anywhere. of conservatives that Painter relies on for to a degree that they can be persuasively Painter leaves the false impression that their support of Liu have repudiated Painter crystallized and credibly absorbed into legal folks like Starr and Bolick have actually re- (versus zero, so far as I’m aware, who have doctrine. This difficult task requires keen sponded to my critiques of Liu and of their endorsed his smears). Further, another con- attention to the trajectory of social norms misunderstandings of his record. So far as servative, Miguel Estrada, whose own nomi- reflected in public policies, institutions, and I’m aware, they haven’t. nation battle Painter tried to use in support practices, as well as predictive judgment as (It’s also amusing that Painter can’t even of Liu, has emphatically condemned Liu’s to how a judicial decision may help forge or be evenhanded in his mistaken argument by mudslinging against the Roberts and Alito frustrate a social consensus. authority. While he invokes various creden- nominations. It is, of course, theoretically possible that tials of Liu supporters, he identifies me only At this point, it should be clear that it someone who advocates a freewheeling judi- as ‘‘National Review Online’s Ed Whelan.’’) would be reckless at best for anyone to ac- cial role could himself be quite scrupulous in 2. Towards the end of his piece, Painter cept Painter’s propositions at face value. I following a whole body of precedent that he tries to dismiss the relevance of Liu’s dema- am not arguing that the reader must accept detests. But Amar and Starr provide zero gogic and irresponsible arguments against my word on Painter (or Bolick’s or Yoo’s) or reason for anyone to believe that Liu would the confirmations of Chief Justice Roberts on Liu. Rather, the interested reader should carry out the judicial role in that manner, and Justice Alito. According to Painter, ‘‘[i]t carefully examine the competing accounts and there is nothing in his record to support is critically important . . . that people feel (both on the matters that Bolick identifies speculation that he would. free to speak their minds about Supreme above and on those he doesn’t address) and The PRESIDING OFFICER. The Sen- Court and other judicial nominations with- determine who has argued responsibly and ator from Vermont. out fear of retribution.’’ But as I explained effectively and who hasn’t. I am confident of Mr. LEAHY. Mr. President, I have ten months ago when Painter made the same the judgment that the intelligent and fair- listened to a lot of the debate about bad argument, Painter completely misses minded reader will reach. Professor Liu, and having sat in on the the point: The shoddy quality of Liu’s oppo- hearings with him, having met with sition to Roberts and Alito reflects very CONFUSED AMAR/STARR LETTER IN SUPPORT poorly on him. There is no reason to encour- OF GOODWIN LIU him, having gone through the whole age cheap attacks like Liu’s by not holding (By Ed Whelan) record, I sometimes wonder who this is him accountable. Law professors Akhil Reed Amar and Ken- everybody is talking about. It is not neth W. Starr have sent the Senate Judici- the man I heard from, the man who [From nationalreview.com, Mar. 3, 2011] ary Committee a badly confused letter in testified under oath and had to speak PAINTER SHOULDN’T DISTORT WHELAN’S support of Goodwin Liu’s nomination to the very candidly, very honestly about his ARGUMENTS Ninth Circuit. The core of their letter is positions. He is a man who is admired (By John Yoo) dedicated to the proposition that Liu has by legal thinkers and academic schol- I’ve seen Richard Painter’s post criticizing ‘‘independence and openness to diverse view- ars from across the political spectrum. Ed Whelan for his posts on the nomination of points as well as [the] ability to follow the He has spent his career in public Goodwin Liu. Painter accurately reports facts and the law to their logical conclusion, service, private practice, and as a that I’ve said that Liu (a colleague of mine whatever its political valence may be’’ (or, as they later put it, the ‘‘ability to discharge teacher since receiving degrees from at Berkeley Law) is a good nominee to the Stanford University and Yale Law Ninth Circuit for a Democratic president. faithfully an abiding duty to follow the However, I don’t want that to be thought of law’’). School. He is a Rhodes scholar. After as endorsing, in any way, what Painter says Amar and Starr offer two examples in pur- law school, Professor Liu clerked for about Ed’s writings on Liu. ported support of their proposition, but nei- DC Circuit Judge David Tatel, and Su- What bothers me about Painter’s post is ther helps. First, they cite Liu’s limited sup- preme Court Justice Ruth Bader Gins- that he accuses Ed of distorting Liu’s record, port of school-choice programs. As I’ve ex- burg. No one can question his intellect plained, Liu supports school-choice programs but I believe that that’s what he has done to or his qualifications. He should be Ed. He should provide in full or link to Ed’s only insofar as they advance racial quotas. Once one understands that (and there’s no treated with respect and admired, not criticisms of Liu and let the reader decide, maligned and caricatured. His honest rather than describing (or misdescribing) and indication that Amar and Starr do), it’s dif- dismissing Ed’s posts in a short sentence or ficult to see how Liu’s position on school testimony during two hearings before two. I don’t think the Painter post is fair on choice evidences his ‘‘independence and the Judiciary Committee should be this point. To me, such posts actually may openness to diverse viewpoints,’’ and his po- credited, rather than ignored. hurt Liu if it appears that his supporters are sition certainly has no relation to his sup- Professor Liu’s parents, wife, chil- not fully engaging his critics and their best posed ‘‘ability to follow the facts and the law dren, friends and community are jus- arguments. to their logical conclusion.’’ Second, Amar and Starr cite Liu’s correct tifiably proud of him and have looked forward to his confirmation to the [From nationalreview.com, Mar. 10, 2011] prediction that the California supreme court would uphold Proposition 8 ‘‘under applica- court of appeals since he was first nom- CLINT BOLICK: RICHARD PAINTER IS ‘‘OFF- ble precedents’’ (their phrase). They assert inated in February 2010. We saw his BASE’’ that his correct prediction shows that Liu beautiful children at each of his two (By Ed Whelan) ‘‘knows the difference between what the law confirmation hearings—indeed, the A follow-up to my refutation (Part 1, Part is and what he might wish it to be.’’ But this first was born only weeks before his 2, and Part 3) of Richard Painter’s smears is a glaring non sequitur. Liu wasn’t stating first hearing and was nearly a year old how he would rule; he was predicting how the against me in his deeply defective Huff- at his second. The son of Taiwanese im- ington Post defense of Ninth Circuit nominee California supreme court would. Moreover, Goodwin Liu: in an op-ed, Liu stated that the challenge to migrants, Professor Liu would bring Clint Bolick, whose support for Liu Paint- Proposition 8 was a ‘‘good argument, but one much-needed diversity to the Federal er cites repeatedly, has invited me to publish that faces difficult precedents,’’ and he ar- Bench. There is no Asian Pacific Amer- this statement of his: gued that ‘‘there are good reasons for the ican judge on the Ninth Circuit Court Although Ed Whelan and I have taken dif- California Supreme Court to rethink its ju- of Appeals, which, of course, includes ferent positions on the judicial nomination risprudence in this area.’’ So much for his California and Hawaii and a number of of Prof. Goodwin Liu, I believe that Richard ‘‘know[ing] the difference between what the Western States. Painter has mischaracterized a number of Ed law is and what he might wish it to be.’’ If we look at the record, Professor Whelan’s arguments as ‘‘myths.’’ In par- Amar’s and Starr’s assertion of Liu’s ‘‘abil- ticular, Painter’s assertions are off the mark ity to follow the facts and the law to their Liu is a nominee with significant sup- regarding Whelan’s criticisms of Liu on the logical conclusion’’ is also curious, as it’s port from across the political and ideo- creation of welfare rights, reparations, racial not really his ‘‘ability’’ that anyone has logical spectrum. Among the letters I balancing, and the use of foreign law. Obvi- questioned. It’s his willingness and commit- will have printed in the RECORD is one

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00025 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7488 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 from Kenneth Starr, the former Solic- vision and principle. That is why the Security was unconstitutional, saying itor General during President George filibuster against Judge Hamilton that ‘‘[t]oday’s senior citizens blithely H. W. Bush’s administration. For those failed and that against Judge McCon- cannibalize their grandchildren.’’ I who have may have forgotten, he was nell was ended. This filibuster should think most of us disagreed with her on the independent counsel who inves- also be ended. that, but she got an up-or-down vote. tigated President Clinton during the Now the Senators, many of whom are They agreed to invoke cloture on the Clinton administration. still serving on the other side of the nomination of Priscilla Owen to the DC He and distinguished Professor Akhil aisle, claim to subscribe to a standard Circuit. Owen, a nominee whose rulings Amar wrote: that prohibits filibusters of judicial on the Texas Supreme Court were so [I]t is our privilege to speak to his quali- nominees, except in ‘‘extraordinary cir- extreme, they drew a condemnation of fications and character, and to urge favor- cumstances.’’ None of them have shown other conservative judges on that able action on his nomination in the dis- there are any extraordinary cir- court. In fact, President Bush’s White charge of your constitutional duties of ad- cumstances here. The President has House counsel and later Attorney Gen- vice and consent. In short, Goodwin is a per- nominated an outstanding lawyer, sup- eral, called one of her opinions an un- son of great intellect, accomplishment, and ported by his home State Senators and integrity, and he is exceptionally well-quali- conscionable act of judicial activism. fied to serve on the court of appeals. The na- favorably reported by a majority of the But she was a Republican and she got a tion is fortunate that he is willing to leave Senate Judiciary Committee. This vote. academia to engage in this important form nomination is to fill a vacancy, a judi- By the standard utilized in 2005 to of public service. cial emergency, on the Ninth Circuit. end filibusters and vote on President We also heard from Clint Bolick, who The 14 Senators who signed the Bush’s controversial nominees, this fil- is the director of the conservative Memorandum of Understanding in 2005, ibuster should be ended and the Senate Goldwater Institute, named after a the then-Gang of 14, wrote about their should vote on the nomination. former colleague of mine, Barry Gold- ‘‘responsibilities under the Advice and There were no ‘‘extraordinary cir- water. He said: Consent Clause of the United States cumstances’’ to justify the Republican Having reviewed several of his academic Constitution’’ and that fulfilling their filibuster of Judge David Hamilton, writings, I find Professor Liu to exhibit constitutional responsibilities in good President Obama’s very first judicial fresh, independent thinking and intellectual faith meant that ‘‘[n]ominees should nomination. David Hamilton of Indiana honesty. He clearly possesses the scholarly only be filibustered under extraor- was a 15-year veteran of the Federal credentials and experiences to serve with dinary circumstance.’’ Well, let’s be re- bench. President Obama nominated distinction on this important court. sponsible. Let’s bring it to a vote. Judge Hamilton in March 2009, after A bipartisan group of eight chief cor- I had hoped 2 weeks ago, when 11 Re- consultation with the most senior and porate executives who know Professor publican Senators joined in voting to longest-serving Republican in the Sen- Liu from his service on the Stanford end the filibuster against Judge Jack ate, Senator DICK LUGAR of Indiana, University Board of Trustees recently McConnell of Rhode Island that the who then strongly supported the nomi- wrote to the Senate in support of Pro- Senate was moving away from the nar- nation. Rather than welcome the nomi- fessor Liu’s nomination: row partisan attacks of judicial nomi- nation as an attempt by President In short, Goodwin’s strengths are exactly nations that have slowed us almost Obama to step away from the ideolog- what we expect in a judge: objectivity, inde- from the day President Obama took of- ical battles of the past, Senate Repub- pendence, collegiality, respect for differing fice. Instead, for the sixth time since licans ignored Senator LUGAR’s sup- views, sound judgment. Goodwin possesses President Obama took office just over port, caricatured Judge Hamilton’s these qualities on top of the brilliant legal a couple of years ago, we have had to record and filibustered his nomination. acumen that is well-established by his pro- fessional record and the judgment of those seek cloture to overcome a Republican After rejecting that filibuster, Judge most familiar with his scholarly work. filibuster of one of President Obama’s Hamilton was confirmed. The majority I ask unanimous consent that these well-qualified judicial nominations. leader has had to file cloture on four The 14 Senators who signed the other highly qualified judicial nomina- letters be printed in the RECORD at the Memorandum of Understanding in 2005 conclusion of my statement. tions, and now Professor Liu’s nomina- wrote about the need for the President The PRESIDING OFFICER. Without tion is the sixth. to consult with Senators. Well, this objection, it is so ordered. No Senator could claim the cir- (See exhibit 1.) President, unlike his predecessor, has cumstances surrounding the filibusters Mr. LEAHY. I could put in the been a model in that regard. Unlike of President Obama’s other circuit President Bush, President Obama actu- RECORD many more from the broad set court nominations to be extraordinary. of preeminent lawyers, organizations, ally has consulted with both Repub- Republicans filibustered the nomina- and leaders in the academic world who lican and Democratic Senators in the tion of Judge Barbara Keenan, a nomi- support this nomination. Professor home States. And unlike my prede- nee with nearly 30 years of judicial ex- Liu’s nomination merits our support, cessor, the Republican Chairman of the perience, and who had been the first not this filibuster. Judiciary Committee, I have not pro- woman to hold a number of important The Senate should vote on this nomi- ceeded with any nominee against the judicial roles in Virginia. Once the fili- nation. In 2005, when the Republican wishes of a home State Senator. So ap- buster was ended, she was ultimately majority threatened to blow up the parently we have one rule if it is a Re- confirmed 99–0 as the first woman from Senate to ensure up-or-down votes for publican President and a Republican Virginia to serve on the Fourth Cir- each of President Bush’s judicial nomi- chairman of the committee, but every- cuit. nations, Senator MCCONNELL, then the thing changes if we have the nominees Senate Republicans filibustered the Republican whip, said: of a Democratic President. I protected nomination of Judge Thomas Republican home State Senators. In re- Vanaskie, despite his 16 years of expe- Any President’s judicial nominees should receive careful consideration. But after that turn, I would expect Republican Sen- rience as a Federal district court judge debate, they deserve a simple up-or-down ators to respect the views of other Sen- in Pennsylvania. That filibuster ended vote. . . . It’s time to move away from advise ators, and to work with the President. when the Senate agreed to vitiate the and obstruct and get back to advise and con- In 2005 they called for a return to our cloture, end the filibuster, and proceed sent. The stakes are high . . . . The Constitu- earlier practices and the reduction of to a vote. There were no extraordinary tion of the United States is at stake. rancor in the confirmation process and circumstances. Other Republican Senators made a return to the traditions of the Sen- Last year, Senate Republicans fili- similar statements back then. Many ate. I have worked very hard to do just bustered the nomination of Judge declared that they would never support that. I think of the vote on Janice Rog- Denny Chin, an outstanding judge with the filibuster of a judicial nomination. ers Brown to the DC Circuit. She was a 16 years experience. They delayed his Some have tried to stay true to that nominee who had argued that Social Senate consideration for months.

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This sion to simply ignore his record, his the Supreme Court’s decision in the nominee is likewise deserving of a vote testimony before the committee, and Bob Jones case. But I put faith in Pro- and not a partisan filibuster. his assurances under oath that he un- fessor McConnell’s assurance that he Following the recent filibuster of the derstands the role of a judge and would understood the difference between his nomination of Judge Jack McConnell follow precedent if confirmed is mis- role as a teacher and an advocate and to the district court in Rhode Island, guided. his future role as a judge. He assured this filibuster is the sixth time the ma- The many letters of strong support us that he respected the doctrine of we have received from conservatives jority leader has had to seek cloture to stare decisis, and that as a Federal ap- and Republicans who have reviewed bring a judicial nomination to a vote. peals court judge he would be bound to I will say how it is unusual to have a Professor Liu’s record and know the nominee show the hollowness of the follow Supreme Court precedent. I val- second hearing on a nomination, at the ued the fact that his home State Sen- request of Republican members of the partisan attacks on Professor Liu’s character. In their letter, Ken Starr ator, Senator HATCH, supported him. committee. I said at the time that I The similarity there—except for the hoped they would evaluate him fairly and Professor Amar describe Professor Liu as, ‘‘a person of great intellect, ac- philosophy—is exactly the same with with open minds. Any Senator who lis- McConnell and Liu. McConnell was re- tened to Professor Liu’s answers during complishment and integrity.’’ A bipar- tisan group of eight CEO’s based their ported favorably by the Judiciary Com- hours of questions at two confirmation mittee with my support, and he was hearings and considered his responses support for Professor Liu’s nomination on their observation of ‘‘his character confirmed to the Tenth Circuit by the to hundreds of written followup ques- Senate just one day after his nomina- tions—hundreds—should come away and intellect.’’ A bipartisan group of 22 leaders in education law, policy and re- tion was reported. We voted for McCon- understanding this is an exceptional nell. They want to stop Liu. lawyer and scholar who will make an search cited Professor Liu’s ‘‘independ- outstanding judge, a judge who re- ence and intellectual honesty’’ as Numerous conservative legal scholars among the many of his exemplary spects the rule of law and reveres the have praised Professor Liu’s under- traits leading them to support his nom- Constitution. standing of constitutional law, stating Professor Liu’s answers under oath ination. Senators can in good faith op- that it falls well within the main- and his reputation as a well-respected pose this nomination, though I dis- stream of American legal thought. constitutional law professor paint a agree with them, but the attacks on a Nothing I have read or heard from Pro- very different picture than the carica- fine man’s character have no place in fessor Liu gives me any reason to this debate. ture created by the attacks from the doubt his conviction about the critical Nonetheless, each time the Judiciary special interest groups. Republican importance of the rule of law as the Committee considered Professor Liu’s guiding principle of judicial decision- Senators did not wait for his hearing nomination a total of three times—Re- making. As a professor he has done before declaring their opposition. publican Senators voted against. When Senator FEINSTEIN noted at Professor what great professors do—challenge Senators are not willing to give serious Liu’s first hearing over a year ago that our view of the law. But he has left no and open-minded consideration to he has an extraordinary legal mind and nominations it reduces the hearings doubt that as a judge he would do what is a person of integrity. I agree. No and committee process to a game of great judges do in applying the law fairminded person can or should ques- delay and partisan points-scoring. fairly to each case. tion his qualifications, talent, or char- That, too, is wrong. I thank Professor Liu’s home State acter. Nobody can doubt his tempera- I urge Senators to reject the special Senators, Senator FEINSTEIN and Sen- ment. Through hours and hours and interest pressure groups and to ap- ator BOXER, for their staunch advocacy hours of questioning, we saw his judi- proach this nomination the way I ap- for his nomination. I also thank the cial temperament. Unlike some of the proached a similar nomination of a law many Senators who have come to the nominees supported by the other side, professor by President Bush, the nomi- floor to speak in support of Professor he actually answered the questions. He nation of Professor Michael McConnell Liu’s nomination, including the major- assured the committee time and time to the Tenth Circuit. He was a widely ity leader, Senator REID, the assistant again that he understands the role of a regarded law professor. Like Professor majority leader, Senator DURBIN, and judge and the need for a judge to follow Liu, Professor McConnell was nomi- Senators BLUMENTHAL, COONS, CARDIN, the law and adhere to the rule of law. nated to a Federal appeals court with- FRANKEN, and LIEBERMAN. He met every test presented to him by out having first served as a judge. He Senators on the Judiciary Committee was one of two dozen such nominations I hope Senators from both sides of from either side of the aisle. He ex- confirmed after being nominated by the aisle will join me in ending the fili- ceeds every standard we have used to President Bush. buster of Professor Liu’s nomination. measure judicial nominees. Professor McConnell’s own provoca- He has demonstrated a command of the Yet in the course of the debate on tive writings included staunch advo- law and devotion to it. He has shown this nomination we have heard trou- cacy for reexamining the first amend- that he understands the role of the bling and baseless attacks on Professor ment free exercise clause and the es- judge and how it differs from his career Liu’s character and integrity. Incred- tablishment clause jurisprudence. He as an advocate and an academic. ibly, despite this nominee’s testimony had expressed strong opposition to Roe I hope every Senator will treat Pro- at two confirmation hearings and his v. Wade and to the clinic access law, fessor Liu with the same fairness that answers to hundreds of written ques- and he had testified before Congress we gave Professor McConnell, and give tions, he has been accused of lack of that he believed the Violence Against the same weight to Professor Liu’s as- candor. Professor Liu has not been a Women Act was unconstitutional. Pro- surances that we gave to McConnell’s stealth nominee. In fact, his record as fessor McConnell’s writings on the ac- identical assurances. Then the Senate a professor, public servant and advo- tions of Federal District Court Judge will finally be able to consider and con- cate has been a remarkably open and John Sprizzo in acquitting abortion firm this extraordinary nominee. public one. Senators have been able to protesters could not be read as any- review an unprecedented volume of in- thing other than praise for the extra- How much time remains? formation provided by this nominee legal behavior of both the defendants The PRESIDING OFFICER. There is and ask him hundreds of questions and the judge. 13 minutes 30 seconds remaining.

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EXHIBIT 1 Again, Goodwin’s position, which he also Prof. Liu and Mr. Taylor to take such a MARCH 19, 2010. stated in a Los Angeles Times editorial, strong and public position. Subsequently, Senator PATRICK J. LEAHY, could not have pleased his friends who Prof. Liu participated in a program hosted Chairman, sought to invalidate Proposition 8. But, as by the Alliance for School Choice bringing Senator JEFF SESSIONS, the example shows, Goodwin knows the dif- together diverse supporters of expanded edu- Ranking Member, Committee on the Judiciary, ference between what the law is and what he cational opportunities. U.S. Senate, Dirksen Senate Office Build- might wish it to be, and he is fully capable Having reviewed several of his academic ing, Washington, DC. and unafraid of discharging the duty to say writings, I find Prof. Liu to exhibit fresh, DEAR CHAIRMAN LEAHY AND RANKING MEM- what the law is. independent thinking and intellectual hon- BER SESSIONS: As your Committee considers As his academic colleagues, we would add a esty. He clearly possesses the scholarly cre- the nomination of Goodwin Liu to serve on further point. Given what we know of Good- dentials and experience to serve with dis- the U.S. Court of Appeals for the Ninth Cir- win, it seems no accident that he was asked tinction on this important court. cuit, it is our privilege to speak to his quali- by his dean (literally before the ink was dry Thank you for considering my comments, fications and character, and to urge favor- on his tenure review) to assume the role of and I hope our paths cross soon. With all best able action on his nomination in the dis- associate dean. If Berkeley is like other law wishes. charge of your constitutional duties of ad- schools, the duties of that position include Very sincerely, vice and consent. In short, Goodwin is a per- planning the curriculum and, importantly, CLINT BOLICK, son of great intellect, accomplishment, and serving as something of a catch-all for fac- Director. integrity, and he is exceptionally well-quali- ulty requests and complaints. His appoint- fied to serve on the court of appeals. The na- ment to that role is additional evidence of MAY 17, 2011. tion is fortunate that he is willing to leave his reputation for collegiality, fairness, and Hon. HARRY REID, academia to engage in this important form good judgment. U.S. Senator, Hart Senate Office Building, of public service. In sum, you have before you a judicial Washington, DC. The Committee is no doubt familiar with nominee with strong intellect, demonstrated Hon. MITCH MCCONNELL, Goodwin’s personal story as the son of immi- independence, and outstanding character. We U.S. Senator, Russell Senate Office Building, grants from Taiwan and his sterling record recognize that commentators on all sides Washington, DC. of achievements and accolades. We know will be drawn to debate the views Goodwin DEAR SENATOR REID AND SENATOR MCCON- Goodwin as a fellow teacher and scholar of has expressed in his writings and speeches. NELL: We are a bipartisan group of eight the law; we have read some of his writings, In the end, however, a judge takes an oath to business leaders who write in our personal and we have seen him speak in academic and uphold and defend the Constitution, and in capacities in support of University of Cali- public settings. What we wish to highlight, the case of a circuit judge, fidelity to the law fornia law professor Goodwin Liu’s nomina- beyond his obvious intellect and legal tal- entails adherence to Supreme Court prece- tion to the Ninth Circuit Court of Appeals. ents, is his independence and openness to di- dent and (apart from the en banc process) ad- We know Goodwin from his service on the verse viewpoints as well as his ability to fol- herence to circuit precedent as well. Thus, in Stanford University Board of Trustees, and low the facts and the law to their logical our view, the traits that should weigh most having observed his character and intellect conclusion, whatever its political valence heavily in the evaluation of an extraor- in the intimate setting of a high-level fidu- may be. These are the qualities we expect in dinarily qualified nominee such as Goodwin ciary board, we have no doubt that he would a judge, and Goodwin clearly possesses them. are professional integrity and the ability to make a superb federal judge. Two examples help make the point. First, discharge faithfully an abiding duty to fol- The Stanford Board of Trustees is the uni- Goodwin (and his co-author Bill Taylor) low the law. Because Goodwin possesses versity’s governing body. It is the custodian wrote an article in Fordham Law Review in those qualities to the highest degree, we are of the university’s endowment and prop- 2005 defending the use of school vouchers to confident that he will serve on the court of erties, and it sets the annual budget, ap- provide better educational opportunities for appeals not only fairly and competently, but points the president, and determines policies children trapped in failing schools. The arti- with great distinction. We support and urge for operation and control of the university. cle provides a careful and candid review of his speedy confirmation. Election to the board involves a rigorous the evidence on how vouchers have worked Respectfully submitted, screening process that considers an individ- in practice, and it responds to the critics of AKHIL REED AMAR, ual’s temperament, collegiality, professional vouchers in a direct and forceful way. We are Sterling Professor of accomplishments, leadership abilities, and fairly sure that this piece did not win Good- Law and Political judgment, among other qualities. The 32 cur- win any friends in the liberal establishment, Science, Yale Law rent trustees include leading venture cap- but it reflected his sincerely reasoned view School. italists, foundation and university presi- about one way to improve the life chances of KENNETH W. STARR, dents, and more than a dozen chairmen or some of our most disadvantaged children. Duane and Kelly Rob- CEOs of major corporations and private eq- Goodwin’s commitment to this issue brought erts Dean and Pro- uity firms. The board meets five times a year him to Pepperdine in 2006 for a meeting orga- fessor of Law, for two days at a time, so board members get nized by Clint Bolick, then president of the Pepperdine Univer- to know each other quite well. Alliance for School Choice. Given how far sity School of Law. Goodwin’s election as a trustee is indic- apart he and Clint are on other issues, Good- ative of his professional stature and integ- win’s enthusiastic participation in that GOLDWATER INSTITUTE, rity, as well as his record of public service. meeting demonstrates his willingness to find Phoenix, AZ, January 20, 2010. Through the careful and confidential scru- common ground even with people who have Re Nomination of Goodwin Liu to Ninth Cir- tiny involved in the board’s screening proc- quite different beliefs from his own. cuit. ess, Goodwin emerged as a person widely ad- A second example hits closer to home for Hon. ORRIN HATCH, mired for his intellect, fairness, and ability one of us. In 2008, Goodwin joined an amicus U.S. Senate, Hart Senate Office Building, to work well with people of differing views. brief by constitutional law professors in sup- Washington, DC. On the board, Goodwin has lived up to his port of the plaintiffs who challenged Califor- DEAR SEN. HATCH: I hope the new year is reputation. Across a wide range of complex nia’s marriage laws in the state supreme off to a good start for you. issues, Goodwin routinely asks thoughtful court. The court ruled for the plaintiffs, but I understand that the President will send and incisive questions. He is good at think- in November 2008 the voters of California ef- to the Senate the nomination of Goodwin ing independently and zeroing in on impor- fectively reversed that ruling by enacting Liu to serve on the U.S. Court of Appeals for tant issues that need attention. Even in a Proposition 8, a state constitutional amend- the Ninth Circuit. He is associate dean and room full of highly accomplished leaders, ment that limits marriage to opposite-sex professor of law at Boalt Hall at the Univer- Goodwin is impressive. He is insightful, con- couples. In October 2008, before Proposition 8 sity of California, and a former Rhodes structive, and a good listener. Moreover, he passed, Goodwin was called to testify at a Scholar and clerk to Justice Ruth Bader possesses a remarkably even temperament; joint hearing of the California Assembly and Ginsburg. Although Prof. Liu and I differ on his demeanor is unfailingly respectful and Senate Judiciary Committees on the legal some issues, I strongly support his nomina- open-minded, never dogmatic or inflexible. issues raised by Proposition 8. He was asked tion. Given these qualities, it was no surprise that to testify as a neutral legal expert (indeed, I have known Prof. Liu for several years, he was asked to chair the board’s Special he was the sole witness tapped for that role), since reading an influential law review arti- Committee on Investment Responsibility and on the core issue that later became the cle he co-authored with William Taylor of after serving just one year of his five-year subject of a state constitutional challenge, the Citizens’ Commission on Civil Rights term. Goodwin correctly forecasted that Propo- supporting school choice as a solution to the In short, Goodwin’s strengths are exactly sition 8 would be upheld by the California crisis of inner-city public education. It took what we expect in a judge: objectivity, inde- Supreme Court under applicable precedents. a great deal of courage and integrity for pendence, collegiality, respect for differing

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00028 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7491 views, sound judgment. Goodwin possesses now about whether businesses need to ally get [their] ideas and the progres- these qualities on top of the brilliant legal ask the White House’s permission to sive vision of the Constitution and of acumen that is well-established by his pro- move to another State, and whether law . . . into practice.’’ fessional record and the judgment of those private businesses should be forced to Here is an open acknowledgement by most familiar with his scholarly work. The confirmation of exceptionally quali- disclose political contributions in Mr. Liu that a judge should use his po- fied nominees like Goodwin should not be a order to get a Federal contract. sition to advance his own views. This is partisan issue. We believe Goodwin deserves And still another part of the Presi- repugnant. Anyone who holds such a the support of Senators from both parties; at dent’s vision involves the people he view as a judge would undermine the the least, he deserves a timely up-or-down wants to put on our Nation’s courts. integrity of the courts. vote. We are pleased to join the diverse range Do we want people who have rev- And what are Mr. Liu’s views? of individuals who endorse Goodwin’s nomi- erence for the U.S. Constitution and In an article he published 3 years nation and urge his swift confirmation. who believe it means what it says or do ago, Mr. Liu wrote that courts should Sincerely, interpret the U.S. Constitution as con- MARIANN BYERWALTER, we want people on our courts who care more about advancing an ideology that taining a right to education, shelter, Chairman, JDN Cor- subsistence, and health care—a con- porate Advisory is antithetical to the Constitution than LLC. they do about upholding it. stitutional right. By this he meant STEVEN A. DENNING, This is the question Presidents need that the courts should determine how Chairman, General At- to ask themselves when it comes to ju- ‘‘particular welfare goods’’ should be lantic LLC. dicial nominees. And I think this Presi- distributed rather than the people JOHN A. GUNN, dent’s preference in this area is clear. themselves, through the democratic Chairman, Dodge & Based on some of the nominations we process. Cox. The point is that Mr. Liu appears to FRANK D. LEE, have seen, President Obama wants men and women on the courts who will ad- view the judge not as someone whose CEO, Dragonfly primary job is to interpret the Con- Sciences, Inc. vance his vision, who would expand the stitution but as someone whose life- HAMID R. MOGHADAM, scope of government beyond anything time tenure liberates him to advance Chairman and CEO, the founders could have ever imagined. AMB Property Cor- Yet not until now has the Senate his views of what the Constitution means and empowers him to impose it poration. been asked to confirm someone who RUTH PORAT, on others. In his view, it is the job of a has so openly and vigorously repudi- Executive Vice Presi- judge to create new rights, regardless ated the widely accepted meaning and dent and Chief Fi- of what the Constitution says or what purpose of the Constitution. And here I nancial Officer, the American people, acting through am referring, of course, to the nomina- Morgan Stanley. the democratic process, want. RAM SHRIRAM, tion of Goodwin Liu to the Ninth Cir- And while this philosophy may be Founding Board Mem- cuit Court of Appeals. popular on left-wing college campuses, ber, Google, Inc. So this afternoon I would like to JERRY YANG, it has no place whatsoever in a U.S. take a moment to explain why I believe courtroom. Everyone who enters our Co-Founder and Chief it is so critically important that the Yahoo, Yahoo!, Inc. courtrooms should have the assurance Senate reject this nomination now by Mr. LEAHY. Mr. President, I suggest that judges will uphold their rights opposing cloture on it. equally and that they won’t overstep the absence of a quorum. The first thing I would say about Mr. The PRESIDING OFFICER. The their bounds. Mr. Liu’s writings pro- Liu is that I have nothing against him clerk will call the roll. vide no such assurance. On the con- personally. No one disputes that he has The assistant legislative clerk pro- trary, they suggest a deeply held com- a compelling personal story or that he ceeded to call the roll. mitment to the view that the Constitu- is possessed of a fine intellect. But Mr. MCCONNELL. Mr. President, I tion can mean pretty much whatever a ask unanimous consent that the order earning a lifetime appointment isn’t a judge wants it to, that judges can just for the quorum call be rescinded. right, nor is it a popularity contest. make it up as they go along. The PRESIDING OFFICER. Without Rather, it is incumbent upon those of In Mr. Liu’s court, the defendant objection, it is so ordered. us who are required to vote on judicial couldn’t expect to be protected by the The minority leader is recognized. nominees like him to evaluate each Constitution and the laws, because the Mr. MCCONNELL. Mr. President, one of them closely—to examine their law is subject to the whim of the judge. over the past two years, our Nation has judicial philosophies, to look at their This is precisely the opposite of what been engaged in a great debate about records, and to consider their Americans expect in a judge. It also the kind of country we want America temperaments. And that’s just what we happens to be the opposite of what the to be—a place of maximum liberty and have done here. What have we found? Founders envisioned for the courts. As limited government, or a place where When it comes to Mr. Liu’s record as it says in Federalist 78, the Judiciary no problem is too big or too small for a practicing lawyer, the first thing to ‘‘has neither force nor will, but merely the government to get involved. say is that it is almost nonexistent. He judgment.’’ This debate arose because of a Presi- has no prior experience as a judge and Compare this with Mr. Liu, whose dent who made no apologies about minimal experience actually practicing writings suggest again and again that a wanting to move America to the left, the law. judge shouldn’t look so much at the and it continues today, despite wide- This means that in evaluating what words of the Constitution when setting spread opposition to the President’s kind of judge Mr. Liu would be, and in out to interpret it, as they should ‘‘our policies, because of the President’s trying to determine his judicial philos- collective values’’ or our ‘‘evolving clear determination to forge ahead. ophy, we are necessarily limited to norms’’. But just as Rome wasn’t built in a what he has written. Let’s be clear. It is the judge, in Mr. day, neither is President Obama’s vi- And what do Mr. Liu’s writings re- Liu’s view, who will determine what sion assured. Rather, it is a work in veal? Put simply, they reveal a left- ‘‘norms’’ are ‘‘evolving,’’ not the Amer- progress. wing ideologue who views the role of a ican people. A big part of the President’s plan was judge not as that of an impartial arbi- Clearly, the Constitution itself would to put government in charge of our Na- ter but as someone who views the take a backseat in his court. tion’s health care system. bench as a position of power. Indeed, even a brief review of his Another part was making sure gov- As recently as 2 years ago, Mr. Liu writings suggests that, as a judge, Mr. ernment calls the shots over private in- said he believed that the last presi- Liu might very well accord greater re- dustry and elections—so much so that dential election gave liberals, as he put spect to foreign law than he would to we are actually having a debate right it, ‘‘a tremendous opportunity to actu- our own Constitution.

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00029 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD 7492 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 May 19, 2011 As he once wrote: Rhodes Scholar and clerked on the U.S. The junior Senator from Georgia will The U.S. can hardly claim to have a mo- Supreme Court. He served as associate be voting this afternoon. Now, as he nopoly on wise solutions to common legal dean at the California Berkeley School predicted, he is in the minority and the problems faced by constitutional democ- of Law and is a professor there right issue is reversed. We will see if, as he racies around the world. now. He has done a lot of pro bono promised, he will take the same posi- Again, this might fly in a left-wing work and even helped launch tion or if he will equivocate. classroom—but it is cold comfort to AmeriCorps. On top of all that, he has Here is a fourth. Four years ago, an- those who look to the courts for equal lived the American dream. He is the other Republican Senator, the senior justice under the law. Americans highly successful son of immigrants. Senator from Utah, former chairman of shouldn’t have to wonder when they His integrity has been praised by the Judiciary Committee, said this on walk into an American courtroom Democrats and Republicans, not just this floor: which Nation’s laws they will be judged one or two but many. Former Repub- We may not use our role of advise and con- under. lican Congressman—and a very con- sent to undermine the President’s authority So, as I see it, there is no question, servative Congressman—Bob Barr com- to appoint judges . . . It is wrong to use the based on his writings, that Mr. Liu’s mended Liu’s commitment to the Con- filibuster to defeat judicial nominees who judicial philosophy is completely anti- stitution. One of President Bush’s have majority support, who would be con- thetical to the judicial oath that he former lawyers said Liu falls within firmed if only we could vote up or down. the mainstream. Even Ken Starr, the That is why I have never voted against clo- would be sworn to uphold. ture on judicial nominations. Upon his own nomination to the Whitewater special prosecutor, en- bench, Professor Liu has sought to dis- dorsed this man who served in the Clin- Yet another pledge never to vote tance himself from his legal writings. ton administration. against cloture on a judicial nomina- He has also told the judiciary com- The record is clear. Any claims that tion. That is four. There are more. mittee that he stands by them. Well, Goodwin Liu is anything but deserving That is precisely the vote before us he can’t have it both ways. And as oth- of our confirmation is simply inac- now. We will be watching to see if the ers have pointed out, if we can’t go by curate. But I recognize every Senator senior Senator from Utah follows his what Professor Liu has written, there has the right to vote how he or she own counsel or if he, in his own judg- is nothing left upon which to evaluate feels they should vote. It is worth not- ment, undermines the authority of the him. ing, however, that the vote before us President of the United States. On the question of qualifications, Mr. now is not a vote to confirm him; it is These pledges were made publicly Liu just doesn’t have much legal expe- a vote on whether he deserves an up-or- and plainly. In a court of law, they rience outside of the classroom. And down vote. There is no question he does would be considered pretty clear evi- while no one is saying teachers can’t be deserve an up-or-down vote. dence. It does not take the great legal A simple up-or-down vote is hardly a good judges, this particular teacher’s mind of a Goodwin Liu to recognize controversial request. This is not only judicial philosophy, as evidenced by his that simple principle. my view and the view of my fellow writings, is so far outside the main- We have heard the promises. Now we Democrats, it is a view of my Repub- stream that anyone who believes in the will hear the votes. lican friends as well. In a 2004 Law Re- primacy of the U.S. Constitution CLOTURE MOTION view article, one of our Republican col- should be deeply troubled by the pros- The PRESIDING OFFICER. By unan- leagues, the junior Senator from Texas imous consent, pursuant to rule XXII, pect of his appointment to the court. and longtime member of the Texas Su- I believe this nominee is precisely the Chair lays before the Senate the preme Court, wrote the following: the kind of judge we want to prevent pending cloture motion, which the Wasteful and unnecessary delay in the from getting on the bench. He should clerk will report. process of selecting judges hurts our justice The assistant legislative clerk read not be confirmed. I will vote against system and harms all Americans. It is intol- cloture. I urge my colleagues to do the erable no matter who occupies the White as follows: same. House and no matter which party is in the CLOTURE MOTION I yield the floor and suggest the ab- majority party in the Senate . . . Filibusters We, the undersigned Senators, in accord- sence of a quorum. are by far the most virulent form of delay ance with the provisions of rule XXII of the The PRESIDING OFFICER. The imaginable. Standing Rules of the Senate, hereby move clerk will call the roll. The junior Senator from Texas is in to bring to a close debate on the nomination The assistant legislative clerk pro- the Chamber today. We will see if he of Goodwin Liu, of California, to be United ceeded to call the roll. still feels that way or if he will, in his States Circuit Judge for the Ninth Circuit. Harry Reid, Patrick J. Leahy, Charles E. Mr. REID. Mr. President, I ask unan- own words, hurt our justice system and harm all Americans with intolerable Schumer, Richard Blumenthal, Daniel imous consent that the order for the K. Akaka, Al Franken, Richard J. Dur- quorum call be rescinded. virulent delays. We will carefully be bin, Sheldon Whitehouse, Dianne Fein- The PRESIDING OFFICER (Mr. watching how he votes. stein, Jeff Merkley, Christopher A. SANDERS). Without objection, it is so We will also be carefully watching Coons, Mark Begich, Amy Klobuchar, ordered. another Republican Senator, the senior Barbara Boxer, Jack Reed, Debbie Sta- Mr. REID. Mr. President, I will use Senator from Tennessee, who said this benow, Sherrod Brown. leader time to give my remarks. I ask in 2005: The PRESIDING OFFICER. By unan- unanimous consent that as soon as I I pledged, then and there, I would never fil- imous consent, the mandatory quorum have finished my remarks, the vote go ibuster any President’s judicial nominee, pe- call has been waived. forward. riod. I might vote against them, but I will al- The question is, Is it the sense of the ways see them come to a vote. The PRESIDING OFFICER. Without Senate that the debate on the nomina- objection, it is so ordered. The senior Senator from Tennessee is tion of Goodwin Liu, of California, to Mr. REID. Mr. President, 2 days ago here today. ‘‘Never’’ is about as unam- be United States Circuit Judge for the I came to the floor to talk about the biguous as it gets. We will be watching Ninth Circuit shall be brought to a nomination of Goodwin Liu, an ex- to see if he upholds his public pledge. close? A third Republican Senator, the jun- tremely well-qualified, fairminded, and The yeas and nays are mandatory ior Senator from Georgia, said this in widely respected legal scholar. The under the rule. 2005: President has nominated him to serve The clerk will call the roll. his country on the U.S. Court of Ap- I will vote to support a vote, up or down, The assistant legislative clerk called on every nominee, understanding that, were peals for the Ninth Circuit. I in the minority party or the issues re- the roll. All week, this body has heard speech- versed, I would take exactly the same posi- Mr. DURBIN. I announce that the es about Mr. Liu’s merits, so I will re- tion because this document, our Constitu- Senator from Montana (Mr. BAUCUS) is peat them only briefly. He was a tion, does not equivocate. necessarily absent.

VerDate Mar 15 2010 11:46 Jul 11, 2014 Jkt 099102 PO 00000 Frm 00030 Fmt 0685 Sfmt 0634 E:\BR11\S19MY1.000 S19MY1 wreier-aviles on DSK5TPTVN1PROD with BOUND RECORD May 19, 2011 CONGRESSIONAL RECORD—SENATE, Vol. 157, Pt. 6 7493 Mr. KYL. The following Senators are morning business until 6 p.m., with tration has negotiated, not the left- necessarily absent: the Senator from Senators permitted to speak for up to overs from the previous administra- Texas (Mrs. HUTCHISON), the Senator 10 minutes each. tion. from Kansas (Mr. MORAN), and the Sen- The PRESIDING OFFICER. Without We will need an even greater focus on ator from Louisiana (Mr. VITTER). objection, it is so ordered. leveling the playing field through trade The PRESIDING OFFICER. Are there The Senator from Nebraska. agreements if we are going to double any other Senators in the Chamber de- f our exports in the next 5 years, which siring to vote? is the goal the President has set. Yet PENDING TRADE AGREEMENTS The yeas and nays resulted—yeas 52, the administration, claiming that re- nays 43, as follows: Mr. JOHANNS. Mr. President, I come opening negotiations with Korea, Co- [Rollcall Vote No. 74 Ex.] to the floor this afternoon during lombia, and Panama was necessary, YEAS—52 World Trade Week to urge President continues to talk through these agree- Akaka Harkin Nelson (FL) Obama to submit pending free-trade ments. I am not saying every single Begich Inouye Pryor agreements: Korea, Panama, and Co- agreement before us, or hopefully be- Bennet Johnson (SD) Reed lombia. I hope this is the last time I fore us, is perfect. No agreement ever Bingaman Kerry Reid come to the floor on this issue until we Blumenthal Klobuchar is. However, let’s not forget that these Rockefeller are actually debating these job-cre- Boxer Kohl Sanders agreements were originally negotiated Brown (OH) Landrieu Schumer ating agreements, but I must admit I in good faith between allies. What does Cantwell Lautenberg Shaheen feel as though I am holding my breath. Cardin Leahy this delay do to our reputation as a re- Stabenow Carper Levin Mr. President, 1,420 days have passed liable negotiating partner? Tester Casey Lieberman since the U.S.-Korea Free Trade Agree- Udall (CO) Back where I come from in Nebraska, Conrad Manchin Udall (NM) ment was signed; 1,422 days have passed a lot of business is still done with a Coons McCaskill since we signed an agreement with Durbin Menendez Warner handshake. We trust our neighbors be- Feinstein Merkley Webb Panama, and it has been 1,640 days cause they are good people with good Franken Mikulski Whitehouse since we completed negotiations with values. But if one makes a deal with Gillibrand Murkowski Wyden our close ally, Colombia. Hagan Murray someone and shakes on the deal and We have heard the administration they keep changing the terms or delay- NAYS—43 tout the job-creating benefits of the ing the followthrough, one tends to Alexander DeMint McConnell agreements, so why more roadblocks? stop dealing with those people. I sure Ayotte Enzi Nelson (NE) Our unemployment rate is nearly 10 Barrasso Graham hope that does not happen to us. Paul percent. Our workers deserve a con- Blunt Grassley Portman The fastest growing opportunities for Boozman Heller Risch sistent message on job creation from American businesses, farms, and Brown (MA) Hoeven Roberts this administration. It has been over a ranches are outside of our borders. Our Burr Inhofe Rubio month since President Obama and the greatest opportunities are overseas in Chambliss Isakson Sessions Coats Johanns President of Colombia made an an- Shelby rapidly developing countries. I fear Coburn Johnson (WI) Snowe nouncement. The announcement was that these long delays have hurt our Cochran Kirk Thune that negotiations had been completed, Collins Kyl ability, the ability of our government Corker Lee Toomey I might add, yet again. I was relieved to negotiate high-quality trade agree- Cornyn Lugar Wicker that President Obama finally an- ments. But, most importantly, it has Crapo McCain nounced there was an agreement and hurt the ability of Americans to com- ANSWERED ‘‘PRESENT’’—1 that there was a need to complete the pete in these growing marketplaces. Hatch long overdue agreement. Let’s not pretend this delay has not I am confident the agreement NOT VOTING—4 cost American workers. Since the Co- brought to the Senate and the House lombia agreement was initially signed Baucus Moran Hutchison Vitter would finally win bipartisan support, all those days ago, our businesses and and I still am today. In fact, over a our agricultural producers have paid The PRESIDING OFFICER. On this month ago, in the Wall Street Journal, nearly $3.5 billion in tariffs for goods vote, the yeas are 52, the nays are 43, my colleagues, Senators BAUCUS and exported. That is enormous, especially and 1 Senator responded ‘‘Present.’’ KERRY, called for Congress to ‘‘restore when we consider that the U.S. Inter- Three-fifths of the Senators duly cho- a broadly-shared bipartisan consensus national Trade Commission estimates sen and sworn not having voted in the on trade.’’ Now the administration that an American job is supported for affirmative, the motion is rejected. seems to be moving the goalposts, sug- ∑ Mr. MORAN. Mr. President, today, I every $166,000 in exports. gesting continued delay. They are try- was unavoidably absent for vote No. 74 Instead of wasting money on tariff ing to hold up these agreements to on cloture for the nomination of Good- payments, the U.S. manufacturing and force us to make spending increases win Liu, of California, to be a U.S. cir- agricultural sectors could have spent that were contained in the ill-fated cuit judge for the Ninth Circuit. I was billions of dollars creating jobs at economic stimulus bill. in my home State of Kansas at the home. During the challenging economic I hope we can soon get past the con- time of the vote. Had I been present, I times that our Nation has endured, we tinued delays and the administration would have voted to oppose the invok- should all be doing all we can to exert can signal to us that they are serious ing of cloture on the nomination.∑ every single ounce of energy to get our The PRESIDING OFFICER. The Sen- about doubling exports in 5 years. economy moving again and create jobs. On July 1, less than 2 months away ator from Illinois. This is not done by heavyhanded gov- from now, the trade agreement be- f ernment, massive new spending, and tween the European Union and South LEGISLATIVE SESSION new entitlements when our current Korea goes into effect. It is also the Mr. DURBIN. Mr. President, I ask programs are unsustainable. It is ac- date that the FTA between Canada and unanimous consent the Senate resume complished by lowering and removing Colombia goes into effect. The nego- legislative session. barriers to our job creators so they can tiators for other countries are watch- The PRESIDING OFFICER. Without flourish. Korea, Panama, and Colombia ing the United States, and they have objection, it is so ordered. all have much higher barriers to our seen a lack of trade policy. They have f exports than we have to their imports. seen a change here, and they are doing These three bipartisan votes should everything they can to fill that vacu- MORNING BUSINESS have been near the top of the agenda 2 um with negotiated and approved Mr. DURBIN. I ask unanimous con- years ago. By now we should be voting agreements. Now our exporters will sent the Senate proceed to a period of on new agreements that this adminis- face even greater competition when our

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