[Senate Hearing 111-927]
[From the U.S. Government Publishing Office]
S. Hrg. 111-927
NOMINATIONS HEARING OF U.S. CIRCUIT AND U.S. DISTRICT JUDGES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
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APRIL 16, 2010
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Serial No. J-111-117
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Printed for the use of the Committee on the Judiciary
NOMINATIONS HEARING OF U.S. CIRCUIT AND U.S. DISTRICT JUDGES
S. Hrg. 111-927
NOMINATIONS HEARING OF U.S. CIRCUIT AND U.S. DISTRICT JUDGES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 16, 2010
__________
Serial No. J-111-117
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
65-346 WASHINGTON : 2011
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PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania JON KYL, Arizona
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matthew S. Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 496
PRESENTERS
Clyburn Hon. James E., a U.S. Respresentative from the State of
South Carolina, presenting J. Michelle Childs, Nominee to be
U.S. District Judge for the District of South Carolina, and
Richard Mark Gergel, Nominee to be U.S. District Judge for the
District of South Carolina..................................... 9
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina, presenting J. Michelle Childs, Nominee to be U.S.
District Judge for the District of South Carolina, and Richard
Mark Gergel, Nominee to be U.S. District Judge for the District
of South Carolina.............................................. 8
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
presenting Goodwin Liu, Nominee to be U.S. Circuit Judge for
the Ninth Circuit.............................................. 5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
presenting Goodwin Liu, Nominee to be U.S. Circuit Judge for
the Ninth Circuit.............................................. 4
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, presenting Goodwin Liu, Nominee to be U.S.
Circuit Judge for the Ninth Circuit............................ 7
STATEMENT OF THE NOMINEES
Childs, J. Michelle, Nominee to be U.S. District Judge for the
U.S. South Carolina............................................ 192
Questionnaire................................................ 193
Eagles, Catherine C., Nominee to be U.S. District Judge for the
Middle District of North Carolina.............................. 250
Questionnaire................................................ 251
Gergel, Richard Mark, Nominee to be U.S. District Judge for the
U.S. South Carolina............................................ 152
Questionnaire................................................ 153
Liu, Goodwin, Nominee to be U.S. Circuit Judge for the Ninth
Circuit........................................................ 11
Questionnaire................................................ 13
Mueller, Kimberly J., Nominee to be U.S. District Judge for the
Eastern District of California................................. 101
Questionnaire................................................ 103
QUESTIONS AND ANSWERS
Responses of J. Michelle Childs to questions submitted by
Senators Coburn and Sessions................................... 302
Responses of Catherine C. Eagles to questions submitted by
Senators Coburn and Sessions................................... 308
Responses of Richard Mark Gergel to questions submitted by
Senators Coburn and Sessions................................... 313
Responses of Goodwin Liu to questions submitted by Senators
Coburn, Cornyn, Grassley, Hatch, Kyl and Sessions.............. 318
Responses of Kimberly J. Mueller to questions submitted by
Senators Coburn and Sessions................................... 426
SUBMISSIONS FOR THE RECORD
Amar, Akhil Reed, Sterling Professor of Law and Political
Science, Yale Law School, and Kenneth W. Starr, Duane and Kelly
Roberts Dean and Professor of Law, Pepperdine University School
of Law, March 19, 2010, joint letter........................... 432
American Center for Law & Justice, Jay A. Sekulow, Chief Counsel,
and Colby M. May, Senior Counsel, Director of Washington
Office, Washington, DC, April 1, 2010, joint letter............ 434
Arizona Asian American Bar Association, Melissa Ho, President,
Phoenix, Arizona, April 14, 2010, letter....................... 439
Asian Pacific American Labor Alliance, AFL-CIO, John Delloro,
National President, Washington, DC, March 18, 2010, letter..... 442
Bolick, Clint, Director, Goldwater Institute, Phoenix, Arizona:
For Senator Hatch, January 20, 2010, letter.................. 444
For Senator Kyl, January 20, 2010, letter.................... 445
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
prepared statement............................................. 446
Brown, Cynthia G., Vice President for Education Policy, Center
for American Progress Action Fund; Michael Cohen, President,
Achieve, Inc., Assistant Secretary for Elementary and Secondary
Education, U.S. Department of Education; Christopher T. Cross,
Chairman Cross & Joftus LLC, Assistant Secretary for
Educational Research and Improvement, U.S. Department of
Education; Linda Darling-Hammond, Charles E. Ducommun Professor
of Education, Stanford University; James Forman, Jr., Professor
of Law, Georgetown University Law Center; Co-Founder and Board
Chair, Maya Angelou Public Charter School; Patricia Gandara,
Professor of Education and Co-Director of the Civil Rights
Project/Proyecto Derechos Civiles, UCLA; James W. Guthrie,
Senior Fellow and Director of Education Policy Studies, George
W. Bush Institute; Eric A. Hanushek, Paul and Jean Hanna Senior
Fellow, Hoover Institution, Stanford University; Frederick M.
Hess, Director of Education Policy Studies, American Enterprise
Institute; Paul Hill, John and Marguerite Corbally, Professor
and Director of the Center of Reinventing Public Education,
University of Washington; Richard K. Kahlenberg, Senior Fellow,
The Century Foundation; Joel I. Klein, Chancellor, New York
City Department of Education, Assistant Attorney General,
Antitrust Division, U.S. Department of Justice; Ted Mitchell,
President and Chief Executive Officer, New Schools Venture
Fund; Gary Orfield, Professor of Education, Law, Political
Science, and Urban Planning and Co-Director of the Civil Rights
Project/Proyecto Derechos Civiles, UCLA; Michael J. Petrilli,
Vice President for National Programs and Policy, Thomas B.
Fordham Institute; Research Fellow, Hoover Institution,
Stanford University; Associate Assistant Deputy Secretary,
Office of Innovation and Improvement, U.S. Department of
Education; Richard W. Riley, Partner, Nelson Mullins Riley &
Scarborough LLP; U.S. Secretary of Education, Governor of South
Carolina; Andre J. Rotherham, Co-Founder and Publisher,
Education Sector; James E. Ryan, William L. Matheson & Robert
M. Morgenthau Distinguished Professor of Law, University of
Virginia School of Law; William L. Taylor, Chairman, Citizens'
Commission on Civil Rights; Martin R. West, Assistant Professor
of Education, Harvard University; Judith A. Winston, Principal,
Winston Withers & Associates, General Counsel, U.S. Department
of Education; Bob Wise, President, Alliance for Excellent
Education; Governor of West Virginia, Member, U.S. House of
Representatives, March 23, 2010, joint letter.................. 450
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina, prepared statement................................... 455
California Correctional Peace Officers' Association, Mike
Jimenez, President, West Sacramento, California, March 17,
2010, letter................................................... 456
California District Attorneys, Will Richmond, District Attorney,
Alpine County; Todd D. Riebe, District Attorney, Amador County;
John R. Poyner, District Attorney, Colusa County; Michael D.
Riese, District Attorney, Del Norte County; Vernon Pierson,
District Attorney, El Dorado County; Elizabeth Egan, District
Attorney, Fresno County; Robert Holzapfel, District Attorney,
Glenn County, Arthur Maillet, District Attorney, Inyo County;
Edward R. Jagels, District Attorney, Kern County; Ronald L.
Calhoun, District Attorney, Kings County; Jon Hopkins, District
Attorney, Lake County; Robert M. Burns, District Attorney,
Lassen County; Steve Cooley, District Attorney, Los Angeles
County; Michael Keitz, District Attorney, Madera County; Ed
Berberian, District Attorney, Marin County; Robert H. Brown,
District Attorney, Mariposa County; Gary Woolverton, District
Attorney, Modoc County; George Booth, District Attorney, Mono
County; Dean Flippo, District Attorney, Monterey County;
Clifford Newell, District Attorney, Nevada County; Tony
Rackaucks, District Attorney, Orange County; Bradford R.
Fenocchio, District Attorney, Placer County; Rod Pacheco,
District Attorney, Riverside County; Jan Scully, District
Attorney, Sacramento County; Candice Hooper, District Attorney,
San Bernardino County; Bonnie Dumanis, District Attorney, San
Diego County; James Willett, District Attorney, San Joaquin
County; Gerald T. Shea, District Attorney, San Luis Obispo
County; Ann Bramsen, Acting District Attorney, Santa Barbara
County; Lawrence R. Allen, District Attorney, Sierra County; J.
Kirk Andrus, District Attorney, Siskiyou County; Gerald Benito,
District Attorney, Shasta County; David W. Paulson District
Attorney, Solano County; Birgit Fladager, District Attorney,
Stanislaus County; Carl V. Adams, District Attorney, Sutter
County; Gregg Cohen, District Attorney, Tehama County; Michael
B. Harper, District Attorney, Trinity County; Phillip J. Cline,
District Attorney, Tulare County; Gregory D. Totten, District
Attorney, Ventura County; Jeffery W. Reisig, District Attorney,
Yolo County; Patrick J. McGrath, District Attorney, Yuba
County, March 26, 2010, joint letter........................... 458
Circuit Court Nominees that were Confirmed under President Bush
without prior judicial experience, list of nomination.......... 460
Congressional Asian Pacific American Caucus, Michael M. Honda,
Washington, DC, March 23, 2010, letter......................... 466
Clyburn, Hon. James E., a U.S. Representative from the State of
South Carolina, prepared statement............................. 468
Concerned Women for America Legislative Action Committee, Penny
Nance, Chief Executive Officer, Washington, DC, March 24, 2010,
letter......................................................... 471
80-20 Initiative, S.B. Woo, Founding President, Osprey, Florida,
April 23, 2010, letter......................................... 473
Former Judges and Prosecutors, Rebecca A. Betts, U.S. Attorney,
Southern District of West Virginia; Robert C. Bundy, U.S.
Attorney, District of Alaska; J. Joseph Curran Attorney
General, State of Maryland; Michael H. Dettmer, U.S. Attorney,
Western District of Michigan; Robert DelTufo, Attorney General,
State of New Jersey, U.S. Attorney, for New Jersey; W. Thomas
Dillard, U.S. Attorney, Northern District of Florida, U.S.
Attorney, Eastern District of Tennessee; Bruce J. Einhorn, U.S.
Immigration Judge, Special Prosecutor and Chief of Litigation,
U.S. Department of Justice Office of Special Investigations;
Bennett L. Gershman, Prosecutor, Manhattan District Attorney's
Office; John J. Gibbons, U.S. Circuit Judge, U.S. Court of
Appeals for the Third Circuit, Chief Judge; Daniel F.
Goldstein, Assistant U.S. Attorney, District of Maryland;
Isabel Gomez, Judge, Fourth Judicial District of Minnesota;
Joseph Grodin, Associate Justice California Supreme Court,
Chief Justice California Court of Appeals, Associate Justice
California Court of Appeals; Shirley M. Hufstedler, U.S.
Circuit Judge, U.S. Court of Appeals for the Ninth Circuit,
U.S. Secretary of Education, Associate Justice California Court
of Appeals, Judge Los Angeles County Superior Court; Bruce R.
Jacob, Former Assistant Attorney General, State of Florida;
Nathaniel R. Jones, U.S. Circuit Judge, U.S. Court of Appeals
for the Sixth Circuit, Assistant U.S. Attorney, Northern
District of Ohio; Miriam Krinsky, Assistant U.S. Attorney,
Central District of California, Chief, Criminal Appellate
Section, Chief, General Crimes Section, Chair, Solicitor
General's Appellate Working Group; Kenneth J. Mighell, U.S.
Attorney, Northern District of Texas; Sam D. Millsap, District
Attorney, Bexar County, San Antonio, Texas; Thomas Campbell
Morrow, Assistant State's Attorney, Dade County, Florida,
Assistant Attorney General, Maryland Criminal Investigations
Division, Assistant State's Attorney, Baltimore County; William
A. Norris, U.S. Circuit Judge, Ninth Circuit Court of Appeals;
Stephen M. Orlofsky, U.S. District Judge, District of New
Jersey, U.S. Magistrate Judge, District of New Jersey; A. John
Pappalardo, U.S. Attorney, District of Massachusetts; James H.
Reynolds, U.S. Attorney, Northern District of Iowa, U.S.
Attorney, District of South Dakota by Special Appointment of
Attorney General; Jame K. Robinson, U.S. Attorney, Eastern
District of Michigan, Assistant Attorney general, Criminal
Division, U.S. Department of Justice; Thomas P. Sullivan, U.S.
Attorney, Northern District of Illinois, Co-Chair, Illinois
Governor's Commission on Capital Punishment; Joseph D. Tydings,
U.S. Senator, U.S. Attorney, District of Maryland; James J.
West, U.S. Attorney, Middle District of Pennsylvania, First
Assistant U.S. Attorney, Middle District of Pennsylvania,
Assistant U.S. Attorney, Western District of Pennsylvania,
April 13, 2010, joint letter................................... 475
Friedman, Donald M., University of California, Berkeley,
California, March 5, 2010, letter.............................. 482
Hagan, Hon. Kay R. a U.S. Senator from the State of North
Carolina, prepared statement................................... 483
Hart, Larry, Director of Government Relations, on behalf of The
American Conservative Union, Alexandria, Virginia, letter...... 484
Hennessy, John L., President, Stanford University, Gerhard
Casper, President, Emeritus, and Donald Kennedy, President
Emeritus, Stanford, California, March 18, 2010, joint letter... 485
Jauregui, Phillip L., Judicial Action Group (JAG), Washington,
DC, March 22, 2010, letter..................................... 487
Judicial Watch, Thomas Fitton, President, Washington, DC, March
24, 2010, letter............................................... 492
Leadership Conference on Civil and Human Rights, Wade Henderson,
President & CEO and Nancy Zirkin, Executive Vice President,
Washington, DC, May 13, 2010, joint letter..................... 494
Liberty Counsel, Mathew D. Staver, Washington, DC, March 16,
2010, letter................................................... 500
National Asian Pacific American Bar Association, Joseph J.
Centeno, President, Washington, DC, April 15, 2010, letter..... 502
North Carolina Bar Association, Allan B. Head, Executive
Director, Gary, North Carolina, June 23, 2010, letter.......... 506
Pulaski, Art, Executive Secretary-Treasurer, California Labor
Federation, Los Angeles, California, March 19, 2010, letter.... 507
Republican National Lawyers Association, David Norcross,
Chairman, Cleta Mitchell, Co-Chair and Charles H. Bell, Jr.,
President, Washington, DC, April 13, 2010, joint letter........ 509
Salarno, Harriet, Chair, Crime Victims United of California,
Auburn, California, March 25, 2010, letter..................... 511
Scheidegger, Kent S., Legal Director & General Counsel, Criminal
Justice Legal Foundation, Sacramento, California, March 23,
2010, letter................................................... 512
Spratt, Hon. John M., Jr., a U.S. House Representative from the
State of South Carolina:
J. Michelle Childs, April 14, 2010, letter................... 519
Richard Mark Gergel, April 14, 2010, letter.................. 521
Wu, Frank H., Chancellor and Dean Designate, University of
California Hastings College of the Law, on behalf of the Board
of Directors of the Conference of Asian Pacific American Law
Faculty, March 4, 2010, letter................................. 523
NOMINATIONS OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE
NINTH CIRCUIT; KIMBERLY J. MUELLER, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF CALIFORNIA; RICHARD MARK GERGEL, NOMINEE TO
BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA; J. MICHELLE
CHILDS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH
CAROLINA; AND CATHERINE C. EAGLES, NOMINEE TO BE U.S. DISTRICT JUDGE
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
----------
FRIDAY, APRIL 16, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., Room
SD-226, Dirksen Senate Office Building, Hon. Dianne Feinstein
presiding.
Present: Senators Leahy, Klobuchar, Kaufman, Specter,
Sessions, Hatch, Kyl, Cornyn, and Coburn.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. Welcome, everyone, to this morning's
hearing of the Senate Judiciary Committee.
This morning we will hear from five nominees for the
Federal courts, two of whom hail from the State of California.
We've just been joined by the Chairman. Mr. Chairman, do
you want to----
Chairman Leahy. No, no. Please go ahead and chair the
hearing.
Senator Feinstein. Okay.
We will hear from five nominees for the Federal courts, two
of whom hail from the State of California.
On the first panel, we will hear from Professor Goodwin
Liu, who has been nominated for a seat on the U.S. Court of
Appeals for the Ninth Circuit. Professor Liu is a nationally
recognized expert on constitutional law and education policy
and he is the Associate Dean of the University of California,
Berkeley, Bolt Hall School of Law.
Before I give some brief remarks as also the Senator from
California about Professor Liu, I would like to just quickly go
over the order of this hearing. There will be 5-minute rounds.
We will use the early bird rule and we will go from side to
side.
Following my statement, the Ranking Member will give his
opening statement. Of course, the Chairman of the Committee is
here and if he wishes to make a statement he will do so. I will
recognize Senator Graham, Senator Clyburn to introduce the
nominees from the District Court.
Chairman Leahy. Representative Clyburn.
Senator Feinstein. I promoted him.
[Laughter.]
Senator Sessions. He doesn't think so.
[Laughter.]
Chairman Leahy. I think Leader Clyburn maybe thought it was
a--Mr. Leader, we're glad to have you here.
Senator Feinstein. You don't regard that as a promotion?
[Laughter.]
Senator Feinstein. Then I will introduce a series of
letters into the record, and then we will call up Professor
Liu.
The four other candidates are: Magistrate Judge Kimberly
Mueller, nominated from the Eastern District of California;
Richard Gergel, nominated from the District of South Carolina;
J. Michelle Childs, nominated for the District of South
Carolina; and Catherine Eagles, nominated for the Middle
District of North Carolina. So we welcome all of you and your
families. I was privileged to have an opportunity to meet some
of you briefly.
So let me say a few words about Professor Liu now. He was
born in Augusta, Georgia, raised by his parents, who were here,
who were Taiwanese doctors that had been recruited to the
United States to provide medical care in under-served areas.
Professor Liu's parents left Taiwan when the country was still
under martial law, and they imbued in him a deep respect and
appreciation for the opportunities afforded in the United
States.
Professor Liu did not learn to speak English until
kindergarten because his parents did not want him to speak with
an accent, and from that early age on he has excelled again and
again: he was co-valedictorian of his high school; he graduated
Phi Beta Kappa from Stanford University, where he was co-
president of the student body and received the university's
highest award for service as an undergraduate.
I have never before received a letter about a judge which
was signed by three different presidents of a university. I
want to read some of it to you because I think it's important.
Goodwin Liu attended Stanford while Donald Kennedy was
president. He graduated Phi Beta Kappa in 1991. He was the
recipient of numerous awards for his academic excellence,
leadership, and contributions to the university, including the
Lloyd W. Dinkelspiel Award for Outstanding Service to
Undergraduate Education, the James W. Lyons Dean's Award for
Service, the Booth prize for Excellence in Writing, the Walter
Vincenti prize, a David Starr Jordan Scholar, and the
university's President's Award for Academic Excellence.
Dr. Kennedy worked with Goodwin Liu when he was one of the
early student volunteers and leaders for the Haas Center for
Public Service at Stanford while he was co-president of the
student body his senior year. In 1990, Donald Kennedy wrote a
personal letter, recommending Mr. Liu for the Rhodes
scholarship, which he won and used to obtain a master's degree
at Oxford University.
Gerhart Casper, president emeritus of Stanford and former
dean of the Law School and provost at the University of
Chicago, is now a constitutional law scholar at Stanford. Dr.
Casper has come to know Mr. Liu as a Stanford alumnus, and then
as a colleague in constitutional law. He considers Mr. Liu as a
measured interpreter of the Constitution.
``In expounding the Constitution, Mr. Liu fully appreciates
the commitments of the framers, who were decisive in fidelity
to the Constitution and its interpretation by the Supreme
Court. Mr. Liu will be a distinguished and faithful addition to
the appellate branch.''
Goodwin Liu is currently a member of the board of trustees
of Stanford University, the governing body for the university.
John Hennessy has worked closely with him since his appointment
as a trustee in 2008. ``Mr. Liu is an invaluable member of the
board, serving on the Committees on Audit and Compliance,
Academic Policy, Planning and Management, and Alumni and
External Affairs. In a group of highly accomplished trustees,
he is widely regarded as insightful, hardworking, collegial,
and of the highest ethical standards.
In summary, Goodwin Liu, as a student, scholar and trustee,
has epitomized the goal of Stanford's founders, which was to
promote the public welfare by exercising an influence on behalf
of humanity and civilization, teaching the blessings of
liberty, regulated by law, and inculcating love and reverence
for the great principles of government as derived from the
inalienable rights of man to life, liberty, and the pursuit of
happiness. We highly recommend Goodwin Liu for the honor and
responsibility of serving on the U.S. Court of Appeals for the
Ninth Circuit.''
The letter is signed, ``John L. Hennessy, President,
Gearhart Casper, President Emeritus, and Donald Kennedy,
President Emeritus.
Additionally, Professor Liu began his legal career as a law
clerk to two highly accomplished jurists. One jurist on the
U.S. Court of Appeals for the D.C. Circuit, and Justice Ruth
Bader Ginsburg, on the U.S. Supreme Court. He has also worked
as a special assistant in the Department of Education. He has
represented business clients in antitrust and insurance cases
as a private litigator at the law firm of O'Melveny & Myers.
In 2003, he became professor at Boalt Hall School of Law.
His scholarly work has been published in the Nation's top
journals. In 2009, he received the university's Distinguished
Teaching Award, the highest honor given for teaching at the
University of California at Berkeley.
Throughout his career, he has devoted particular care and
attention to improving educational opportunities for students
in the United States. He is a supporter of voucher programs and
charter schools. He serves as a consultant to the San Francisco
unified school district, and he has been awarded the Education
Law Association's award for Distinguished Scholarship. He has
an exceptional legal mind and a deep devotion to excellence in
public service.
So now, before I mention the other individuals, I would
like to turn to the Ranking Member for his remarks and any
remarks he'd care to make about this nominee, and then we will
proceed.
PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. JEFF SESSIONS, A U.S. SENATOR
FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Madam Chairwoman. We
appreciate being with you. I'm glad Senator Leahy can join us.
I look forward to the nominees today. I see my Congressional
colleagues. I know they're ready to say something. They've got
things they need to do today.
But I do want to say a few things. I love this
Constitution, the great republic that we've been given. It is
something that we should cherish and pass on to our children.
In the nomination of Professor Liu, we have someone that I know
you have recently spent a number of hours with and have a high
opinion of. Others who know him speak highly of him.
Professor Liu has written broadly on many of the important
issues concerning law today. Many people respect his writings,
and many people disagree with his writings. They represent, I
think, the very vanguard of what I would call intellectual
judicial activism, a theory of interpretation of our
Constitution and laws that empowers a judge to expand
government and to find rights there that often have never been
found before.
So I think this is going to provide an interesting
discussion for us today. The President, out of all the fine
lawyers and professors in the country and in the Ninth Circuit,
has chosen Professor Liu. I think that says something about his
approach to the law, his philosophy of the law, and we'll be
looking into that today. I'll be asking questions about a
number of things.
There are many, many things that the Professor has written,
but one in his Stanford Law Review article of November, 2008,
``Rethinking Constitutional Welfare Rights'' states this: ``My
thesis is that the legitimacy of judicial recognition of
welfare rights depends on socially situated modes of reasoning
that appeal not to transcendent moral principles of an ideal
society, but to the culturally and historically contingent
meanings of social goods in our own society.''
He goes on to say, ``I argue that the judicial recognition
of welfare rights is best conceived as an act of interpreting
the shared understanding of particular welfare goods as they
are manifested in our institution, laws, and evolving
practices'', and goes on to state, ``so conceived, justiciable
welfare rights reflect the contingent character of our
society's collective judgments rather than the tidy logic of
comprehensive moral theory.''
Well, I think that's a matter that we should talk about and
to deal with honestly and fairly today, and I hope that we will
be able to do that. I believe Professor Van Alsteen, then at
Duke--I think he's at the Eleventh Circuit Conference, made
remarks one time that ``if you truly respect the Constitution
you will enforce it as written, whether you like it or not.'' I
think that's the calling of a judge. They're not empowered to
identify somehow in the atmosphere what they consider to be
socially altered opinions of the day and then redefine the
meaning of the Constitution.
If you feel, and if a judge feels they have that power, and
this is a theory that is afoot in America today, judges who
feel they have that power, I think, abuse the Constitution,
disrespect the Constitution, and if it's too deeply held, can
actually disqualify them for sitting on the bench.
I would note that Professor Liu understands, I think, the
importance of judicial philosophy in the confirmation process
when he opposed Justice Roberts' confirmation. He issued a
statement that said, ``It's fair and essential to ask how a
nominee''--Judge Roberts--``would interpret the Constitution
and its basic values. Americans deserve real answers to this
question and it should be a central focus of the confirmation
process.''
He concluded that I guess his disagreements with Justice
Roberts on that issue was so severe, that he advocated him not
being confirmed in the Senate, as well as he testified in this
Committee to very aggressively--too aggressively, I think--
oppose the confirmation of Justice Alito.
So, Madam Chairman, we've got a number of issues we want to
talk about. I want to give the nominee a chance to respond
fairly to the concerns of his failure to produce certain
documents and records and so forth. He's entitled to that. I do
believe that he did not spend nearly enough time in evaluating
the questionnaire and properly responding to it to a degree
that I've not seen, I think, since I've been in the Senate.
And I'll also note that the nominee has not been in court
and tried cases. He's never tried a case, never argued a case
on appeal, and therefore lacks the normal experience we look
for. He has an academic record, and that's all we have to judge
his judicial philosophy on. We intend to pursue that, and I
hope we'll have a good hearing and a nice discussion about the
future of law in America.
Senator Feinstein. Thank you very much, Senator. We will
have a good hearing, and appreciate all members having an open
mind.
I'd like to ask the Chairman of the Committee if he has any
comment to make before we proceed further.
Senator.
PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. PATRICK J. LEAHY, A U.S. SENATOR
FROM THE STATE OF VERMONT
Chairman Leahy. I'll put my full statement in the record. I
thank you for doing this hearing. I know this is the third time
we've had it scheduled, and I'm glad this time the
parliamentary--there wasn't a parliamentary road block up to
prevent hearing from him. Professor Liu is a widely respected
constitutional law professor. I noticed one of the Fox News
commentators said his qualifications for the appellate bench
are unassailable.
When I listened to some of the concerns expressed by them,
I hate to suggest a double standard here, but I will. I think
of when another widely regarded law professor appeared before
this Committee as a nominee, the University of Utah professor,
Michael McConnell, who was also supported by a senior member of
this Committee, Senator Hatch.
Professor McConnell was nominated by President Bush. He had
had provocative writings. They included staunch advocacy for
reexamining the First Amendment free exercise clause and the
establishment clause jurisprudence. He expressed strong
opposition to Roe v. Wade. He had testified before Congress
that he believed the Violence Against Women Act was
unconstitutional, an act that both you, Madam Chair, and I had
worked on and helped write, and had been passed by a bipartisan
majority.
He had a number of other areas where he was strongly
critical of the Supreme Court. But he said that he felt that he
believed in the doctrine of stare decisis, he'd be bound to
follow Supreme Court precedent. I supported, even though I
disagreed with just about everything that he had written about.
I believed it when he said that he would follow Supreme Court
precedent.
I supported his nomination, and unlike now when even people
come out of here unanimously and are held up month after month,
week after week, he was reported favorably by this Committee
and was confirmed to the Tenth Circuit by a voice vote. I'd
just note this for Senator Sessions, if I might: he was
reported by voice vote in the Senate within a day of his
nomination being reported. Within a day. We now have people,
even for the lower courts, who get unanimous and we have to
file cloture to even get them through.
So I'll put my full statement in the record, Madam Chair,
and I thank you.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Sessions. If I could just respond, since my name
was mentioned. I would note that this nominee, Professor Liu,
was set for a hearing in 28 days, when the average Court of
Appeals nominee for the Obama administration so far was 48
days, and during the time when President Bush was in office the
average time wait between nomination and a hearing when Senator
Leahy was Chairman was 247 days.
So, I think we're moving rapidly, a little more rapidly
than all the members on our side felt we should. Since as late
as Tuesday night at 10:30, we're still receiving documents that
should have been produced earlier that are just now being
produced. So I think that this nomination is moving very fast,
and we'll do our best to be prepared, although it's difficult,
with a short timeframe, to evaluate the large numbers of
documents, 117, that have been produced since the first hearing
was set.
Senator Feinstein. Thank you. Thank you.
Chairman Leahy. I would note on that, having been
mentioned--we don't have to go back and forth on this--but
within about 3 weeks of the time I became Chairman of this
Committee I scheduled and held hearings on one of President
Bush's Court of Appeals nominees. I think it was within two or
3 weeks of becoming Chairman. That's not quite 280 days. Thank
you.
Senator Feinstein. Yes. I hope we don't get into a
discussion of this.
[Laughter.]
Senator Feinstein. But I feel I should point out that this
hearing has already been delayed twice. Chairman Leahy
originally intended to hold the hearing on March 10. That was
37 days ago. At the Ranking Member's request, he delayed it to
March 24, but the minority then used a procedural tactic on the
floor to block the hearing.
In the meantime, Professor Liu has been attacked and really
never given a chance to speak. That's simply not fair and it's
certainly not the American way. I won't go into a lot of
judicial confirmation statistics, but I will say that in the
first 15 months of the Obama administration, only 18 judicial
nominees have been confirmed. By the same time in the Bush
administration, 42 nominees had been confirmed.
So now I'd like to recognize Senator Graham and
Representative Clyburn to introduce the nominees for the
District Court of South Carolina.
Senator Specter. Madam Chair.
Senator Feinstein. Senator.
Senator Specter. I wonder if I might be recognized for just
a minute. I have to catch a train, but I wanted to make a very
brief comment.
Senator Feinstein. You certainly may. And I assume--I know
Representative Clyburn had said he had a problem with time. Is
that agreeable with everybody? Fine. Please go ahead.
PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. ARLEN SPECTER, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Specter. I will be very brief. I wanted to stop by
today to urge my colleagues to move with dispatch on the
nomination of Goodwin Liu. It is my hope that we will find one
day soon an opportunity to break the gridlock which has
engulfed the Senate for some time now on the judicial issues.
We had the filibuster on the other side in 2005, and we finally
worked through it with the so-called Gang of 14, where we
solved the problem: no filibusters except under unusual
circumstances.
I have reviewed Mr. Liu's record and I see that he's a Yale
Law School graduate, was on the Yale Law Journal. With some
personal experience on those credentials, that's an
extraordinary background, plus all the rest of----
Senator Feinstein. You leave out Stanford.
[Laughter.]
Senator Feinstein. Never mind.
Senator Specter. Plus all the rest. Well, he's got a good
supplemental record to draw distinction.
But we really need the best and the brightest in these
positions. The business about the filibusters is being carried
to just ridiculous extremes.
Senator Casey and I have Judge Vanaskie, a District Court
judge, who is extraordinary. We had to file a petition for
cloture, it takes 30 hours of the Senate's time. So many
cloture petitions have been filed and they have then been
confirmed unanimously, or virtually unanimously.
So I think there really has to be some break point where we
stop the retaliation. If it takes another Gang of 14, or
perhaps more happily a Gang of 100, to get it done, I would
urge my colleagues to move ahead here.
But I wanted to come by for a few moments. I appreciate you
taking me out of order, Madam Chair, and I appreciate the
indulgence of my colleagues.
Senator Feinstein. Thank you very much, Senator.
Now if we might proceed for Senator Graham and
Representative Clyburn to introduce the South Carolina
nominees.
Senator Graham, would you like to proceed?
PRESENTATION OF J. MICHELLE CHILDS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, AND RICHARD MARK
GERGEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
SOUTH CAROLINA BY HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Madam Chairman. I don't think,
Jim, if he had any desire of running for the Senate, it's
probably lost.
[Laughter.]
Senator Graham. But thank you all. This is something I hope
we all can agree upon. I am honored to be here to make my
recommendations to the Committee about these two fine
individuals.
We have two Republican Senators with a Democratic
President, and I think some of you have been in that situation,
maybe in the reverse role. When it comes to judges, Congressman
Clyburn, Spratt, and myself, and Senator DeMint, along with the
administration, have been able to put together a package of
four District Court judges and one Fourth Circuit judge.
I'm very proud of our work and I want to recognize what
Congressman Clyburn has done. He's been a great partner in
dealing with this issue and the administration has been very
flexible. We appreciate their assistance. I want to
congratulate the administration for nominating these two fine
individuals. I think when I get through talking you'll
understand why we're proud of them.
First, Judge Michelle Childs has served as a Circuit Court
judge in Columbia, South Carolina since 2006. She's the Chief
Administrative Judge for our General Sessions and Business
Courts. The ABA unanimously rated her as ``Well Qualified.''
She was the first African-American woman partner for Nexsen &
Pruet, one of the biggest firms in South Carolina. As the
Deputy Director of the South Carolina Department of Labor, she
was also a Worker's Compensation Commissioner.
She's a graduate of the University of South Carolina School
of Business, School of Law, and she's married to Dr. Floyd
Angus, with one daughter, Julianne.
I would just like to say this, because time is short: every
lawyer that I know of who's appeared before her, regardless of
their political persuasion or philosophy, has nothing but great
things to say about Judge Childs as being fair, smart,
courteous to lawyers, and those who appear before her feel like
they're getting not only a fair experience, but it's been a
rewarding experience. She will do a great job for the people of
South Carolina as a District Court judge and we're just very
proud of her.
Richard Gergel is an outstanding member of our Bar. He was
Joe Lieberman's campaign manager. That didn't work out too well
when Joe ran for President. Joe's my favorite Democrat and he's
my favorite Republican.
[Laughter.]
Senator Graham. So I have a warm spot in my heart for him.
But Richard was rated unanimously ``Well Qualified'' by the
ABA. He's represented the State of South Carolina, the city of
Columbia, as their attorney. He's a Duke University Law School
graduate and he's been married to Belinda Gergel, and they have
two sons, Robert and Joseph. From a lawyer's perspective, he is
one of the best lawyers we have in South Carolina and he will
bring to the bench a very deep practice and background
experience which I think will make him a very capable judge.
To the administration, thank you for approving this
package. To Congressman Clyburn, thank you for being a good
partner on this and other matters. To the Committee, I'd
appreciate any support you could give these two fine
individuals.
Thank you.
Senator Feinstein. Thank you, Senator Graham.
Representative Clyburn, welcome to the other side.
PRESENTATION OF J. MICHELLE CHILDS, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, AND RICHARD MARK
GERGEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
SOUTH CAROLINA BY HON. JAMES E. CLYBURN, A U.S. REPRESENTATIVE
FROM THE STATE OF SOUTH CAROLINA
Representative Clyburn. Thank you, Madam Chair, Chairman
Leahy, Ranking Member Sessions, and members of the Committee.
Thank you so much for allowing me to appear here today on
behalf of Michelle Childs and Richard Gergel.
I want to begin by thanking my colleague from South
Carolina, Senator Graham, and really wish to associate myself
with the remarks he just made. Senator Graham and I are from
different sides of the aisle, but we agree on the fitness and
judicial temperament of these two distinguished nominees. I
have known these two outstanding nominees for years and could
go on for hours vouching for their character and reputations.
However, in the interest of time, I will ask that my full
statement be included in the record, along with their resumes.
[The prepared statement of Representative Clyburn appears
as a submission for the record.]
Representative Clyburn. President Obama has chosen two very
well-qualified individuals whose nominations are very historic.
I use the word ``historic'' because each of them brings a new
level of diversity to the South Carolina Federal courts. Once
confirmed, Richard Gergel will be the first Jewish justice, and
Michelle Childs will be the second African-American female
justice to sit on the Federal bench in South Carolina. In fact,
Judge Childs will also be the third woman and the third
African-American justice.
In addition to their diverse backgrounds and experiences as
public servants throughout their careers, Michelle Childs and
Richard Gergel have displayed exceptional integrity and an
unwavering commitment to justice.
Madam Chair, as Senator Graham has indicated, Judge Childs
currently sits on the South Carolina Circuit Court, the State's
trial court of general jurisdictions. She serves as the Chief
Administrative Judge for General Sessions, the State's criminal
court, and as Chief Administrative Judge for the State's
Business Court.
According to the Chief Justice of South Carolina's Supreme
Court, Jean Toal, Judge Childs has demonstrated a dedication to
the job and a work ethic unmatched by other judges. Chief
Justice Toal tells a story that I think demonstrates the kind
of judge Michelle Childs is, and shows the value system and
commitment that she has to the law.
Late one Friday afternoon before Christmas, the chief
justice had a difficult emergency that needed to be resolved
rather quickly, so she called the Richland County Courthouse
and found that Michelle Childs was still on the bench and able
to solve the issue with intelligence and compassion. A few days
later, Judge Childs delivered her first child. In the words of
Chief Justice Toal, ``commitment is Judge Childs' watchword,
and I hate to lose her.''
Judge Childs has served as an acting justice for the South
Carolina Supreme Court. Prior to taking the bench in 2006, she
was a commissioner with the South Carolina Worker's
Compensation Commission from 2002 to 2006. She is a former
president of South Carolina Bar's Young Lawyers Division, and
currently serves on the South Carolina Bar's House of
Delegates.
Madam Chairwoman, I also have the pleasure of introducing
Richard Gergel. I have known Richard Gergel since he was the
first student body president at the newly integrated Keenan
High School in Columbia, South Carolina, the high school from
which my three daughters graduated.
Richard Gergel has the ability and experience to serve well
on the trial bench. He has extensive experience as a trial
lawyer and as a principal and senior partner with Gergel,
Nichols & Solomon in Columbia, South Carolina, where he has
specialized in personal injury litigation, employment
discrimination matters, and complex government litigation since
1983.
I have known him in my capacity as State Human Affairs
Commissioner for almost 18 years. I found him to be a very good
guy to work with on issues, and even a good guy when we are on
opposites side of the issue.
I want to conclude by urging the Committee, and the Senate
as a whole, to move expeditiously to confirm these two
candidates. Currently, 30 percent of the seats on the Federal
bench in South Carolina are vacant and expeditious confirmation
of these two outstanding nominees will do the legal profession
proud and be a good thing for the State of South Carolina and
the United States of America.
I thank the Committee so much for allowing me to be here
today.
Senator Feinstein. And we thank you. Representative
Clyburn, Senator Graham, I know you have other things to do, so
if you wish to be excused or remain, it is really your option.
Thank you very much.
We have received letters from both Senators Burr and Hagen.
They regret that they cannot be here today, but they have asked
that I submit the records in support of Judge Catherine Eagles
for the record. So ordered.
[The information appears as a submission for the record.]
Senator Sessions. Madam Chairwoman, I would just note that
Senator Burr also gave me that statement and did express his
regret that he couldn't be here, but expressed his strong
support for the nominee as a person that is scrupulously fair
and has the intellect and integrity to be a fine judge.
Senator Feinstein. I appreciate that. Thank you very much,
Senator.
I would also add that Judge Eagles has presided over at
least 500 trials, has heard hundreds of civil and criminal
motions, and has been unanimously rated ``Well Qualified'' by
the American Bar Association. So, we look forward to her
testimony.
I would also submit at this time Senator Boxer's statement.
She regrets she is unable to be here and has asked me to submit
her statement for the record in support of California nominees,
Professor Goodwin Liu and Magistrate Judge Kimberly Mueller.
I'd also like to recognize members of the House of
Representatives here today, Representative Mike Honda,
Representative Doris Matsui, and Representative David Wu, who
are here today. Also, Representative Gregorio Sablan, we very
much welcome you. So, thank you very much.
Now, Mr. Liu, would you please come forward? If you would
introduce your parents and your family at this time, then I'll
administer the oath.
STATEMENT OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR
THE NINTH CIRCUIT
Professor Liu. Thank you so much, Madam Chair.
I'm delighted to be able to introduce my family today. With
me from California, sitting in green behind me, is my wife, Ann
O'Leary. She's a native of Orono, Maine. Her parents, Pam and
Charlie, couldn't be here with us, but I'd like to introduce
them as well.
In Ann's arms is my 4-week-old son Emmett, who I hope,
Madam Chair, you will give special dispensation to sleep
through this hearing.
[Laughter.]
Senator Feinstein. Better asleep than the other end of the
spectrum.
Professor Liu. I think we'll all be better off for it.
Senator Feinstein. Yes.
Professor Liu. And then sitting next to my wife is the
apple of our eye, that's my daughter Violet. She's 3 years old.
It turns out that she and Emmett share the same birthday. My
wife and I have been trying to explain to her that I've been
nominated to be a judge, and about 3 days after my nomination
she said to me, ``Daddy, are you a judge yet? ''
[Laughter.]
Professor Liu. I said, ``Well, that's not the way this
works.'' But she became so interested in the constitutional
process of advice and consent that she decided to join us here
today.
Senator Feinstein. Right.
[Laughter.]
Professor Liu. Sitting in the row right behind are my
parents, Wen-Pen and Yang-Ching Liu. They go by their initials,
WP and YC. They came here all the way from Sacramento,
California, where they live, to support me.
I have a brother as well, Kingsway Liu, who also lives in
the Bay area. He's a doctor and couldn't get a day off today to
be here, but I also wanted to introduce him for the record.
And behind me is a large number of my former students and
friends, and I would just like to recognize them and the
special efforts that they made to be here to support me.
I don't have any further statement, Senator. I'm happy to
answer the Committee's questions.
Senator Feinstein. Well, thank you very much.
If you would stand and raise your right hand, please.
[Whereupon, the witness was duly sworn.]
Senator Feinstein. Thank you very much.
[The biographical information follows.]
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Chairman Leahy. Madam Chair, if I could just interject.
Senator Feinstein. Mr. Chairman.
Chairman Leahy. Seeing the children there, Professor Liu,
you should know, the folks on this Committee are constantly
inundated and having to see pictures of my grandchildren, so
I'm delighted to see your children, one of whom is roughly the
age of one of our grandchildren. They're beautiful children.
Professor Liu. Thank you very much, Senator.
Senator Feinstein. Professor Liu, if you would please
proceed and make a brief statement to the Committee, and then
we will open the dias for questions.
Professor Liu. Madam Chair, I have no opening statement. I
would be happy to proceed with answering the Committee's
questions.
Senator Feinstein. My goodness. That's very unusual. All
right.
Well, let me begin then. In a letter yesterday, Ranking
Member Sessions wrote the following about your supplemental
responses to your questionnaire: ``There is now a serious
question as to whether Professor Liu has approached this
process with the degree of candor and respect required of
nominees who come before the Committee. We can no longer extend
him the benefit of the doubt that these substantial omissions,
in which several of his more extreme statements appear, were a
mere oversight.''
I would like you to tell the Committee, if you will, what
process did you use to provide materials to the Committee, and
how were these supplemental materials overlooked, and were they
provided?
Professor Liu. Thank you, Madam Chair, for the question.
I'm happy to have an opportunity to address that issue.
First, let me acknowledge the frustration of members of the
Committee with the way that I've handled the questionnaire. I
want to make absolutely clear my assurance to this Committee
today, in the most sincere and unambiguous way possible, that I
take very seriously my obligations to the Committee and I want
to try to be as forthcoming and complete in the information
that I provide to you. I think it's fair to say at this point,
Madam Chair, that if I had had an opportunity to do things
differently, I would certainly have done things differently.
When I prepared my original submission to the Committee, I
made a good-faith effort to find responsive materials to the
questions. It became evident to me quickly that the submission
was incomplete, so I redoubled my efforts to search for
anything that could possibly be responsive to the
questionnaire. The result was the supplemental submission that
the Committee has, I believe dated April 5th.
Some of the items in the supplement are things I should
have found the first time. Other items in the supplement were
things that I did disclose in the original submission, and
where I was able to find a web page or a web link that
described or announced that event, I included that as well.
Still other items were things like brown bag lunches and
faculty seminars and alumni events that I hadn't thought to
look for the first time because they were of the sort of thing
that I do day-to-day as a professor and not things that I
prepare remarks for, or even keep careful track of.
I submitted all of these items to the Committee in the
interest of providing the fullest possible information for your
consideration and I'm sorry that the list is long, and I'm
sorry that I missed things the first time.
For better or for worse, Madam Chair, I have lived most of
my professional life in public. My record is an open book. I
absolutely have no intention--and frankly, Madam Chair, I have
no ability--to conceal things that I have said, written, or
done. So I want to express to you today and to all the members
of the Committee my fullest commitment to providing all the
information that you need and want in considering my
nomination, and I would like to do anything I can to earn the
trust of the members of the Committee in my obligation to be
forthcoming, both in my testimony today and with respect to the
written materials.
Senator Feinstein. Well, thank you very much. I mean,
you're not the only nominee that hasn't been able to provide
all documents at a given time.
In testimony before this Committee, you criticized some of
the judicial opinions of then-Judge Alito, and particularly
four of his opinions on the death penalty. Now, I'm one that
has supported the death penalty, so I have two questions. The
first is this: what was your objection to then-Judge Alito's
decisions in this area? The second is: will you have any
problem upholding the death penalty as a Circuit Court judge?
Professor Liu. I'm happy to address this, Senator. If I
may, I'll just take them in reverse order. The answer to the
second question is absolutely not. I would have no difficulty
or objection of any sort, personal or legal, to enforcing the
law as written with respect to the death penalty. My writings
have never questioned the morality or constitutionality of the
death penalty, and I would enforce the law as written.
With respect to then-Judge Alito, I believe I submitted for
this Committee's consideration my analysis in a few of the
death penalty cases on which he sat as a Third Circuit judge,
and those were cases in which there were divided panels, and
thus the most contentious cases.
I think in all four of those cases there were dissenting
views offered by Judge Alito's Third Circuit colleagues,
including in each case Republican-appointed colleagues on the
bench. And I believe my testimony, as well as written
materials, highlighted what I thought were some concerns that
were legitimately expressed in those cases. I believe in three
of the four of those cases, his view did not prevail and in one
of those cases his view did prevail.
Senator Feinstein. Thank you.
Senator Sessions.
Senator Sessions. Thank you.
Professor Liu, I appreciate your statement about the
omissions. I think you are correct that some of the items may
not have been easy to discover or remember. Some of them, as
you noted, should have been disclosed. The questionnaire calls
for all interviews you've given to newspapers, magazines,
radio, television stations, provide the dates of those, and so
forth, and you failed to do that. It sort of comes on the heels
of the Attorney General having forgotten that he filed a brief
with Janet Reno and two other former government leaders in the
Padilla case prior to his confirmation.
So it just raises a point to me that this is a serious
question. I'm going to continue to look at this, but I feel
like you did not spend enough time on this. Perhaps some of it
was because the hearing was moved so rapidly. But those
supplementals that you filed were as a result of complaints and
questions from the staff, things that bloggers had found and
others had found that was produced after the date of the first
setting of your hearing, was it not?
Professor Liu. Yes, it was, Senator.
Senator Sessions. We want to be sure that we have a
complete and fair hearing. I think it's fair to ask what
standards we should use in evaluation of a nominee. You, in
2005, were highly critical of Chief Justice Roberts'
nomination. I consider him to be one of the finest nominees
ever received by the court. You wrote, ``There is no doubt
Roberts had a brilliant legal mind, but a Supreme Court nominee
must be evaluated on more than legal intellect.'' I think
that's correct and I agree with you on that.
Then you criticized Chief Justice Roberts' work for a group
called The National Legal Center for the Public Interest,
stating that ``its mission is to promote, among other things,
free enterprise, private ownership of property, and limited
government. These are code words for an ideological agenda
hostile to the environmental, workplace, and consumer
protections.''
By the time Chief Justice Roberts was nominated to the
District Court in 2001, in addition to his clerkships, he had
served as a top lawyer at the Department of Justice. For the
same office you have, he was nominated.
In the White House Counsel's Office, he was Principal
Deputy Solicitor General. He led the appellate practice at a
prominent law firm, had argued 39 cases before the Supreme
Court, more than I think anybody in the country at that time,
and certainly of his generation, as well as cases before every
Federal Court of Appeals in the country.
I understand that you were criticizing his nomination to
the Supreme Court, but how do you compare your experience to
move to the court that is one step below the U.S. Supreme
Court? How do you compare your experience to that of now-Chief
Justice John Roberts?
Professor Liu. Well, Senator, I'd be the first to
acknowledge that the Chief Justice has an extraordinarily
distinguished record, both as a lawyer and as a judge. I
believe most any nominee would be fearful of comparing their
records to that of the Chief Justice.
I suppose, Senator, that I would leave the comparison to
others. I haven't had some of the experiences that Chief
Justice John Roberts had when he was nominated to the bench,
but I'd like to think that, Senator, I've had other experiences
that might be valuable as contributions to the bench.
Senator Sessions. Well, likewise, you were highly critical
of Justice Alito's nomination and testified against his
confirmation. You testified that, ``Intellect is a necessary,
but not sufficient credential. Equally important are the subtle
qualities of judging that give the law its legitimacy,
humanity, and semblance of justice. We care about nominees'
judicial philosophy.'' So do I. I agree with you on that.
Likewise, I think you would acknowledge that Justice Alito
had an extraordinary record. He served for 3 years as Assistant
U.S. Attorney in the Appellate Division, Assistant Solicitor
General at Department of Justice, the Office of Legal Counsel
in Department of Justice, U.S. Attorney for New Jersey, had
argued 12 cases before the Supreme Court, at least two dozen
cases before the Federal Courts of Appeals. So have you argued
any cases before the Supreme Court or any cases before the
Federal Courts of Appeals?
Professor Liu. Senator, I have not argued any cases before
the U.S. Supreme Court. I have argued one case before the U.S.
Court of Appeals for the DC Circuit.
Senator Sessions. Now, I want to be fair about this. I know
Senator Feinstein believes, and I do, that we shouldn't
personally attack nominees. But in your testimony, in the Alito
nomination, I had not recalled the intensity of your remarks.
You said at that time, ``Judge Alito's record envisions an
America where police may shoot and kill an unarmed boy to stop
him from running away with a stolen purse; where Federal agents
may point guns at ordinary citizens during a raid, even after
no sign of resistance; where the FBI may install a camera where
you sleep on the promise that they won't turn it on unless an
informant is in the room; where a black man may be sentenced to
death by an all-white jury for killing a white man, absent,
say, multiple regression analysis showing discrimination; and
where police may search what a warrant permits, and then some.
Mr. Chairman, I humbly submit, this is not the America we know,
nor is it the America we aspire to be.''
Do you think that's a fair analysis of his record? Do you
think it meets the standards of civility that we would normally
seek to achieve in this Senate confirmation process?
Professor Liu. Well, Senator, if I may explain, I think
that the passage you read is perhaps unnecessarily colorful
language that I used to describe a set of holdings or opinions
that then-Judge Alito had expressed that are analyzed in the
testimony that I gave to the Committee.
Let me, if I may, back up and simply say that, as with
Chief Justice Roberts, I have the highest regard for Justice
Alito's intellect and his career as a lawyer, and I think in
many ways my regard for Justice Alito goes even further because
he and I share an immigrant family background.
He, too, I think, came from humble origins and attended
public school and made the most of all of his opportunities to
accomplish all that he has accomplished today, so I have the
highest regard for those accomplishments and his trajectory. My
criticisms and the concerns that I expressed were limited to
one area, and that was the area in which individual rights come
up against assertions of government power.
In that area, I had some specific concerns about then-Judge
Alito's opinions on the Third Circuit and it did not--my
testimony about him did not extend further into other areas of
his jurisprudence on which he has written as a justice and as a
judge.
Senator Sessions. Well, thank you. Time is up. I would just
say, I do think that's unfair to him. I think he's a mainstream
justice and it raises questions to me about where your
philosophy of judging is.
Senator Feinstein. Thank you, Senator Sessions.
Senator Leahy.
Chairman Leahy. Thank you.
Professor Liu, I am extremely impressed with your
background. I note where Richard Painter, who was the Chief
White House ethics lawyer under President George Bush and
worked during the Roberts and Alito nominations, he had worked
with a number of President Bush's nominees on their
questionnaires. He has no problem with your responses to the
questionnaire. He said that a lot of the items left off the
original disclosure were relatively unimportant or redundant of
what had already been disclosed. He went on to say that he
doubted if we'd learn anything new from it. I agree with the
former official in the Bush administration.
I also recall, on these questions of what might be said
when President Bush nominated University of Utah Professor
Michael McConnell. I noted earlier his provocative writings. He
wanted us to reexamine the First Amendment free exercise
clause, the establishment clause, opposition to Roe v. Wade,
opposition to the Violence Against Women Act which had passed
here nearly unanimously.
But--but--when we asked him, he said, ``I agree with the
doctrine of stare decisis.'' Now, I supported his nomination.
He went out of here and was confirmed the next day. I'd love to
see that same standard applied to you. The standards of
Republican and Democrats applied. Professor, I'd like to see
the same standard applied to you.
So let me ask you these questions: would you recuse
yourself from litigation on issues that you've been involved
with?
Professor Liu. Mr. Chairman, I would, in all models that
would come before me, if I were lucky enough to be confirmed as
a judge, apply the principles of recusal that are contained in
the U.S. Code, as well as the Canon of Judicial Conduct. I
think those standards require judges to avoid the appearance or
reality of any conflict of interest or any appearance of bias,
and I would apply those with great fidelity and in consultation
with my colleagues on the bench who have had experience with
those standards.
Chairman Leahy. I know anytime that I argued cases before
the Circuit Court of Appeals I was mindful of the fact that the
Circuit--the judges would normally follow their own precedent,
but absolutely would follow Supreme Court precedent. If you go
on the Ninth Circuit, as I hope you do, will you follow the
precedents of the Ninth Circuit, but especially the precedents
of the Supreme Court?
Professor Liu. Absolutely, I would.
Chairman Leahy. Would you feel bound by the precedents of
the Supreme Court as a member of a Court of Appeals?
Professor Liu. Absolutely, I would.
Chairman Leahy. And would you keep an open mind in cases
coming before you?
Professor Liu. I would approach every case with an open
mind, Mr. Chairman.
Chairman Leahy. Now, many of your academic writings have
set forth your view of how to remain faithful to the values
enshrined in the Constitution. There have been questions raised
here that you have criticized some in the past in the Supreme
Court. I am reminded what Chief Justice Roberts said recently.
He thinks people should feel free to criticize what we do. I
think all of us feel that way, the same as they are free to
criticize those of us here.
Michael McConnell. Outspoken, but a brilliant law professor
that President Bush nominated to the Tenth Circuit. He harshly
criticized the Supreme Court's decision in Bob Jones. That was
an 8:1 decision, an 8:1 decision, saying the IRS could revoke
the university's tax exemption because it violated anti-
discrimination laws. Now, he was enormously critical of that.
He was confirmed by a voice vote.
Now, do you believe, just because, like Michael McConnell,
who was supported by every single Republican, who had been
extraordinarily critical of the Supreme Court--do you believe
that any criticism you might have made would make it more
difficult for you to follow precedent?
Professor Liu. No, Mr. Chairman. I think that there's a
clear difference between what things people write as scholars
and how one would approach the role of a judge, and those two
are very different things. As scholars, we are paid, in a
sense, to question the boundaries of the law, to raise new
theories, to be provocative in ways that is simply not the role
of a judge to be. The role of the judge is to faithfully follow
the law as it is written and as it is given by the Supreme
Court. There is no room for invention or creation of new
theories. That's simply not the role of a judge.
Chairman Leahy. Thank you.
I would note a letter written to us by Kenneth Starr and
Akhil Amar from Yale Law School, written to Senator Sessions
and myself. I'll give the last paragraph of it: ``In sum, you
have before you a judicial nominee with strong intellect,
demonstrating an independent and outstanding character,''
referring to you. Of course, as you know, the nonpartisan ABA
gave you the highest possible rating they could give a nominee.
He said, ``We recognize that commentators on all sides will
be drawn to debate the views that Goodwin has expressed in his
writings and speeches. In the end, however, a judge takes an
oath to uphold and defend the Constitution. Thus, in our views,
the traits that should weigh most heavily in the evaluation of
an extraordinarily qualified nominee such as Goodwin Liu are
professional integrity, the ability to discharge faithfully any
abiding duty to uphold the law. Because he possesses those
qualities to the highest degree, we are confident that he will
serve in the Court of Appeals fairly and confidently and with
great distinction.'' Then Kenneth Starr and Professor Amar go
on to say, ``We support and urge a speedy confirmation.'' I'll
put that in the record.
[The letter appears as a submission for the record.]
Chairman Leahy. And we have letters from 27 former
prosecutors and judges, commending your commitment to the
Constitution. These are judges and prosecutors who have
supported the death penalty, for example. Madam Chair, I'll put
those in the record.
[The letters appear as a submission for the record.]
Chairman Leahy. I strongly support this nominee.
Senator Feinstein. Thank you very much, Mr. Chairman.
Senator Hatch, you are next.
Senator Hatch. Professor Liu, welcome to the Committee.
We're happy to have you here. I think your wife and family are
beautiful. There's no question that I believe you're a very
good intellect with a lot of ability.
As I evaluate judicial nominees, I try to get a concrete
picture of the kind of judge they would be. I look for clues
about how much power they think judges should have over the law
that judges use to decide cases. The law that Federal judges
use is written law, such as written statutes and a written
Constitution. We could all read what the law says. The real
issue for judges is determining what the law means. The more
leeway judges have, the more places they can look for the
meaning of the law, the more powerful judges become, and are.
The more power judges have over what the law means, the
less power the people and their elected representatives have.
Now, this issue is very important to me as I look at a judicial
nominee's record, including yours. So I want to note some of
the things you have written that appear to relate to this
question. In your book, Keeping Faith With the Constitution,
you wrote that the Supreme Court looks to ``social practices,
evolving norms, and practical consequences'' to give meaning to
the Constitution.
In an interview about that book you said that ``the
Constitution should be interpreted in ways that adapt its
principles and its text to the challenges and conditions of our
society in every single generation.''
In a Stanford Law Review article you wrote that courts must
determine ``whether our collective values on a given issue have
converged to a degree that they can be persuasively
crystallized and credibly absorbed into legal doctrine.''
Now, it seems to me that this type of an approach gives all
the power to the judges. It lets judges decide what they want
the Constitution to mean, not necessarily what it says. After
all, judges pick which social practices to consider. Judges
decide whether and how this or that norm is evolving. Judges
pick which social challenges or conditions are relevant, which
values are collective, how they have converged, crystallized,
or been absorbed, if your philosophy is correct.
Well, you wrote in your book that this approach is what you
mean by fidelity to the Constitution. To me, it sounds more
like fidelity to judging and to judges rather than the
Constitution. Now, this approach just gets covered in whatever
judges want to do with the law.
Let me ask you this: do you stand by these approaches that
you have written and spoken about, and do you really think that
judges should have this much power over the law? What is left
that can be identified as the Constitution after judges have
finished adapting it generation after generation to changing
conditions and challenges? What will be left of the
Constitution if that is the approach?
These are things that bother me and these are things that
say to me that--well, put question marks in my mind as to
whether or not you would properly act as a judge. It's one
thing to be a law professor and to make a lot of hypotheticals
and other things. I make a lot of allowances for law
professors, and we're very grateful to good law professors like
you. But what about that? Do you still stand by these
approaches as though you can just about make of the law
anything you want to? I know you can't mean that, but tell me
what you think.
Professor Liu. Senator, first of all, thank you for
extending the welcome to me and to my family. It means a lot to
them and it's an honor for them to be here. Thank you.
Senator Hatch. You're welcome.
Professor Liu. Second, Senator, I think that whatever I may
have written in the books and in the articles would have no
bearing on my role as a judge. My role as a judge is, I think,
clearly to follow the path laid for----
Senator Hatch. But how can you say that? Isn't that your
core philosophy, what you've written?
Professor Liu. That is my core understanding of the duties
of an appellate judge. And if I may, Senator, go further----
Senator Hatch. Sure.
Professor Liu [continuing]. Then to address specifically
the concerns you raised about the book. And let me say at the
outset that I can certainly understand how it is that the
phrases you've read lead to the concerns that you have. I
appreciate the opportunity to explain a little bit more.
In the book, I think one of the things we tried to
articulate is that our Constitution is very special because it
is a written Constitution, it's a text. And as a text, it is a
permanent embodiment of the core principles and the structure
of government that we have chosen as a Nation. So that text is
very special and the principles that are embodied in that text
endure over the ages. Those things do not change. The text of
the Constitution does not change, except through the prescribed
procedures under Article 5 of the Constitution.
What we argue in the book is that in order to preserve the
meaning of that text, in order to preserve the power of that
text, it's necessary for judges, in some areas of the law, to
give those phrases and those words meaning in the light of the
current conditions of the society. Not all phrases, mind you. I
mean, there are many parts of the Constitution that are clear-
cut. You need two witnesses to convict someone of treason, not
one. I think that's a clear rule, so there's no room for
interpretation there.
But where the Constitution says, for example,
``unreasonable searches and seizures,'' which are prohibited
under the Fourth Amendment. Well, the Supreme Court has
instructed that in applying that phrase, what we are to look to
are the legitimate expectations of privacy that people have in
the society.
I'll just recount, to close my answer, one example that we
offer in the book. In 1961, the court decided a case called
Katz v. United States, which considered the issue of whether
the requirement of physical trespass was necessary to make out
an unreasonable search or seizure under the Fourth Amendment.
That was a case about telephone wire taps.
The court said, you know, in this day and age the answer to
that is no, a physical trespass is not necessary to make it out
because people have come to have a legitimate expectation of
privacy in their telephone calls. That's not simply a situation
of new technology and old principles. Rather, I think it
requires the court to have discerned, what is the societal
expectation we have around phone calls as opposed to other
challenges we have today, for example, like e-mail, Internet,
and those are all issues that are still being litigated today
where perhaps the privacy principles are not as clear-cut. But
with respect to phones in 1961, the court said the Fourth
Amendment applies to telephone wire taps. That's the kind of
approach, Senator, that those passages you read are meant to
illustrate.
Senator Hatch. Thank you.
Madam Chairman, my time is up. I think I'll probably have
to wait till the second round.
Senator Feinstein. Thank you very much, Senator Hatch.
Appreciate it.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Madam Chairman.
Welcome, Professor Liu. I was going to follow up on Senator
Hatch's questions. You explained what this Constitution
fidelity means to you. My question is, do you believe there's
only one legitimate way for a judge or a scholar to interpret
the Constitution?
Professor Liu. Senator Klobuchar, no, I don't think there's
any one specific way. In fact, the court, in a variety of
cases, has said that there's not any formula, there's not a
mechanical process. The art of judging involves more than just
a formula.
Senator Klobuchar. So are defenders of, say, originalism,
like Justice Scalia, do you believe they are less legitimate
judges than another judge that might have a different
philosophy?
Professor Liu. I would never say that Justice Scalia is a
less legitimate judge than any other judge. Senator, I think
the term is one of these terms that is used by lots of people
to mean lots of different things, so I'd like to be careful in
my answer to that question.
If originalism is taken to mean that the original
understanding of the constitutional provision is the sole
touchstone and decisive sole touchstone for interpreting the
Constitution, I would simply observe that the Supreme Court,
throughout its history, has never adhered to that methodology.
If originalism is taken to mean instead that the original
meaning, and of course the text of the Constitution, are very
important considerations that any judge, in interpreting a
provision of the Constitution, must look to, absolutely. I
believe that is absolutely true. In many cases, that could be
determinative. But it is not, in some sense, the sole or
ultimate touchstone against which all other considerations must
yield.
Senator Klobuchar. So you would agree that judges could
come at this with different constitutional interpretations when
they look at a specific case? What I'm getting at here, is I
was listening to your answers to Senator Leahy about the
difference between a scholar and a judge and I was thinking
back to my law school days at University of Chicago, where
Professor Easterbrook was my professor, who's now on the
Seventh Circuit, and also now-Judge Posner was at the
University of Chicago when I was there.
They clearly had a philosophy on economics and the law, a
view of the law that not everyone would agree with. But do you
believe that you can separate those out? And by the way, I
think Judge Easterbrook was 36 years old, even younger than
you, when he came before this Committee and he was confirmed
through the process, despite having a view that might not be
reflected in all of the past court decisions and
interpretations. So my question of you is, do you believe that
judges can separate out not only their goal as a scholar, but
also as an advocate from what they become as a judge?
Professor Liu. Indeed, Senator, I believe they can, and I
believe they must.
Senator Klobuchar. Very good.
I wanted to get at something else. We've been focusing a
lot on some of your past advocacy or scholarship, as we would
with any nominee, but just your life story, as I see your
parents sitting back there, having emigrated from Taiwan. My
understanding is, you didn't even learn English until you were
in kindergarten. Is that right?
Professor Liu. That is true, Senator.
Senator Klobuchar. And that your parents believed in the
value of education. The little boy who didn't learn English
till he was 5 years old went on to be valedictorian of his
public high school class, and then went on to attend Stanford,
Oxford, and Yale.
Could you talk about how your parents' story and your life
growing up, which is half your life, while we focus so much on
individual things at the end, how that will influence you as a
judge?
Professor Liu. Certainly, Senator. I guess the way I would
put it, is that I feel in many ways, Senator, I've lived a very
ordinary life, but I've had very extraordinary opportunities
along the way. The first of those extraordinary opportunities
was to have parents who really cared about education. They came
from a society that did not at the time know many of the
freedoms that we take for granted in America, and that has
always sat with me as a very important consideration in my
coming to the law.
I've also had tremendous educational opportunities at the
fine institutions that you mentioned, and I've also had
tremendous mentors along the way. I'm very glad that
Congresswoman Matsui is here today because her husband Bob, who
died an untimely death, was one of my early mentors in politics
and the law.
So the combination of all of these, I think, has made me
the person who I am, and I believe in all the intangible ways,
that would influence my perspective, hopefully for the better,
as a judge.
Senator Klobuchar. Thank you very much.
Senator Feinstein. Thank you, Senator Klobuchar.
Senator Kyl is actually next on the list, but he has very
generously permitted Senator Coburn to go ahead. So, thank you,
Senator Kyl.
Senator Coburn, I'll call on you.
Senator Coburn. Thank you, Senator Feinstein. And thanks,
Senator Kyl. We have a hearing going on the financial breakdown
in the Permanent Subcommittee on Investigations, and so I
appreciate the opportunity.
Professor Liu, welcome. I'm sorry I was not here for your
opening statement, but I've read it.
I want to go through a series of questions for you. I must
tell you, based on what I've read, I'm highly concerned. I
think you and I have a completely different philosophy when we
look at the U.S. Constitution, and I want to try to understand
where you are to give you a fair opportunity to convince me of
how wrong I am.
You co-wrote an article on ``Congress, the Courts and the
Constitution: Separation Anxiety.'' You criticized the Supreme
Court for overturning the Gun-Free Schools Act, legislation
that restricted gun rights, stating, ``Even more astounding
than the court's willingness to override common-sense
legislation with such broad support--the House passed it with
only one dissenting vote and the Senate passed it by unanimous
consent--is its eagerness to do so in terms which are
deliberately designed to exclude Congress, and by extension the
American people, from playing a part in defining what the
Constitution requires and what it permits.''
You continued in that article, ``The recent cases do not
pretend to be opening arguments in the longer debate. Instead,
they are self-conscious pronouncements asserting the court's
authority to be the sole and final arbiter of constitutional
meaning. More and more, it seems Congress, and the American
people by extension, are regarded by the court as mere targets
of judicial discipline, unable to live and govern themselves
within judicially enforceable limits. The court may have the
final say on constitutional interpretation, but I do not see
any reason why it should have the only say.''
Then in a press interview concerning a legal challenge to
California's Proposition 8 which overturned California's
Supreme Court ruling in favor of gay marriage, you said the
question before the court was: ``Should the democratic process
be allowed to enact this discrimination by a simple show of
hands or is a more deliberative legislative process required?
''
Given the brief that you filed in that case, I assume your
answer to the question is no. You further stated in an L.A.
Times article, ``Proposition 8 targets a historically
vulnerable group and eliminates a very important right.
Changing the constitution, the State's paramount law, in such a
momentous way arguably calls for deliberative, rather than
direct, democracy. Indeed, as early as the Nation's founders,
our constitutional tradition has favored representative
democracy over simple majority rule when it comes to deciding
minority rights.''
Now, I'm a physician. I'm not a lawyer, along with Senator
Feinstein right now on this Committee. We're the only two that
aren't. I understand that in one instance you're discussing the
Commerce Clause, and in another you're commenting on the
Fourteenth Amendment. But it seems to me that you think in one
case the American people should have a say in the
interpretation of the Constitution through the democratic
process, and in another you say they should not.
This distinction, to me, based on these two episodes, would
appear that it's purely based on what you personally--what you
personally--think of which right is important or is at issue.
Can you please explain why a court should consider the will of
the majority as expressed through the legislative process when
restricting gun rights, but not when upholding the law
protecting traditional marriage?
Professor Liu. Senator, thank you for the question. I'm
pleased to address it.
Actually, Senator, if I could clarify the passages you read
about Proposition 8. I actually testified before the California
Assembly and Senate Judiciary Committees in October of 2008
about the legal implications of Proposition 8, in particular,
the anticipated State constitutional challenge to the process
by which that amendment to the State constitution was adopted.
The testimony I gave was very clear Senator, that I believe
that Proposition 8 should be upheld by the California Supreme
Court--not struck down, but upheld by the California Supreme
Court--under existing precedents. I was asked to testify in my
role as a neutral legal expert. And despite whatever other
views I might have had about Proposition 8 on the merits, my
personal views, whatever, and even my legal views of the past,
I testified before that Committee that the California Supreme
Court should uphold that Proposition in deference to the
democratic process.
Senator Coburn. If I could correct your testimony, what you
said in that is that you thought that they would, not that they
should. I believe that was your testimony, according to the
copies of your testimony that I have here. You said that they
would.
So my question remains the same. The question is, how on
one hand can you say the court should--in other words, how are
you going to pick that? If you're an appellate judge, how are
you going to pick which time you say you get the choice or we
get the choice?
The fact is, that is a whole new intervention in judicial
philosophy for me, for an old guy from the sticks in Oklahoma,
when I see this book--and I kind of like it and I kind of like
what it says, even though sometimes it goes against me--and
we're going to be picking which way we're going to do it. To
me, I think it's a marked inconsistency.
Let me go on, if I may. In a recent Supreme Court decision,
Roper v. Simmons, Justice Scalia stated in his dissent that the
``basic premise of the court's argument that American law
should conform to the laws of the rest of the world ought to be
rejected out of hand.'' Scalia continues that, in the case
before the court, what these foreign sources affirm, rather
than repudiate, is the Justice's own notion of how the world
ought to be and their dictates, that it should be so henceforth
in America.
I happen to have pretty strong agreement with that
philosophy, and I'm sure you knew that before coming in here.
For that reason, some of your statements about the use of
foreign law deeply concern me.
In an article you published, I guess it's Daito University
Law School in Japan, you said, ``The use of foreign authority
in American constitutional law is a judicial practice that has
been very controversial in recent years. The resistance to this
practice is difficult for me to grasp, since the United States
can hardly claim to have a monopoly on wise solutions to common
legal problems faced by constitutional democracies around the
world.''
The only problem with that is, when you're sworn in you
will swear an absolute oath and allegiance to this document.
It's not about having a monopoly on being accurate, it's a
monopoly on the rulebook that we have.
So would you give me your philosophy on how you will
utilize foreign law to interpret our constitutional laws and
treaties?
Professor Liu. Certainly, Senator. I do not believe foreign
law should control in any way the interpretation of United
States law, whether it's the U.S. Constitution or a statute. I
believe that the use of foreign law contains within it many
potential pitfalls. In other words, I think that what I've
observed the Justices doing in some of these cases, is they
choose the law that is favorable to the argument. It is not a
canvassing of the world's practices or in any way a full
account of the various practices throughout the world with
respect to their laws.
And one of the things I think that makes this country
unique and worth cherishing is that we are in many ways--in
many, many ways--a much freer nation than many of the other
countries around the world. So I think there are many hazards
involved in looking at foreign law as guidance for how we
interpret our own principles.
I think the statement in the Law Review, if I could
clarify, because I think there was only just a brief paragraph,
alludes only to the idea that I think foreign precedent can be
cited in the same way that a Law Review article might be cited,
which is simply to say, judges can collect ideas from anyplace
that they find it persuasive. But there's a very important
difference, Senator, and one that I take very seriously,
between looking for guidance or ideas versus looking for
authority. Authority is the basis on which cases are decided,
not ideas or other forms of guidance.
Senator Coburn. All right. Thank you very much. I went way
over. I apologize.
Senator Feinstein. Thank you, Senator.
Senator Kyl, you are next.
Senator Kyl. Thank you very much.
Welcome, Professor Liu. Just on that last point, you
distinguished between authority and ideas. The role of a judge
is to decide the case, applying the authorities to the facts of
that case. What's the role of ideas that would warrant a
citation to foreign authorities?
Professor Liu. Well, Senator, I think that judges----
Senator Kyl. Excuse me. If I can just add your exact
quotation here: ``The resistance to the practice,'' you say,
``is difficult for me to grasp, since the United States can
hardly claim to have a monopoly on wise solutions to common
legal problems.''
Professor Liu. I think, Senator, the allusion is simply to
the idea that judges, in their ordinary practice, do cite a
variety of sources to bolster their reasoning on a particular
point. But I go back to the point I was trying to make to
Senator Coburn, which is simply that the role of a judge, to me
at least, is only to decide--to make determinative--to make
determinative the applicable precedents and the written law--
namely our law--on a particular case or controversy.
Senator Kyl. So then why do you write that the resistance
to this practice--and you say ``the use of foreign authority.''
That's what you're talking about, not just citing Law Review
articles. You say, ``The resistance to this practice is
difficult for me to grasp, since the United States can hardly
claim to have a monopoly on wise solutions to common legal
problems faced by constitutional democracies around the
world.'' It seems to me, there are two problems with this. The
first, is finding ``wise solutions'' as opposed to interpreting
the law; second, the reference to ``foreign authorities'' as
ever being appropriate to interpret a U.S. law, except of
course in treaty situations and the like.
Professor Liu. Well, Senator, to the first point about the
term ``solutions'', I didn't mean it in any way to implicate
the notion of policy solutions. I meant the way in which judges
have to, when they decide cases, articulate a legal rule.
That's the only meaning that I intended there.
With respect to the use of foreign precedents, I would
simply say that the use of those precedents can in no way be
determinative. I think a review of Supreme Court cases that
have actually implemented this practice shows, I think quite
clearly, that the mention of foreign citations in those cases,
to my reading at least, is not doing any legal work in the
analysis and----
Senator Kyl. Well, if I could just respectfully disagree
with you, it is used, at least in one decision that I can
recall, to bolster the argument that was made by the Justice
writing the opinion. So we'll talk more about this, this idea
of authorities versus ideas, but I'm a bit confused.
I also would like unanimous consent, Madam Chairman, to put
into the record a bench memo, National Review Online,
Wednesday, March 24th piece, that responds to the Amar-Starr
letter that I think Senator Leahy put in the record, but in any
event, someone did.
Senator Feinstein. So ordered. That will go in the record.
[The memo appears as a submission for the record.]
Senator Kyl. Thank you. Thank you.
And Professor Liu, let me also follow up on something one
of my colleagues talked to you about. Senator Sessions, I
believe, quoted the comments that you made relative to Justice
Alito's vision of America. Now, to me, this was reminiscent of
Senator Kennedy's quite unfair characterization of Judge Bork's
vision of America in the very famous speech that he made.
Do you really believe that the words you spoke, what you
said, is Justice Alito's vision of America?
Professor Liu. Senator, I think that that phrase is perhaps
unnecessarily flowery language to make the simple point, that I
was trying to give a series of examples of opinions that he
rendered.
Senator Kyl. So you don't really believe that it represents
his vision of America?
Professor Liu. Well, I don't think that it represents his
vision of America that he would implement as policy the
practices described in that--in that paragraph. It was only
meant to say that as a judge, he believed that those practices
were permissible in America----
Senator Kyl. Well, why did you say it that way then? I
mean, this calls into question your judicial temperament.
That's a key consideration for members of this Committee. That
is not tempered language. I mean, you would acknowledge that, I
gather. I hope.
Professor Liu. Well, Senator, that--that statement----
Senator Kyl. Would you acknowledge that that is not
temperate language?
Professor Liu. Perhaps not, considered in isolation,
Senator. But that paragraph comes after 14 pages of quite
detailed legal analysis of Judge Alito's opinions, and that was
the concluding--I believe, penultimate paragraph in that 14-
page analysis.
Senator Kyl. Well, I see it as very vicious and emotionally
and racially charged, very intemperate, and to me it calls into
question your ability to approach and characterize people's
positions in a fair and judicious way.
Senator Feinstein. Thank you very much, Senator Kyl.
Senator Cornyn, you are next.
Senator Cornyn. Thank you.
Senator Feinstein. Before you go, Senator Cornyn, I'd like
to acknowledge the presence of Representative Bobby Scott,
again from the other House. He also serves on the Judiciary
Committee. Welcome, Representative Scott.
Please proceed.
Senator Cornyn. Good morning, Professor Liu. Welcome. I
don't think there's any doubt in my mind, certainly, that you
are an American success story, as a son of immigrants and
someone who's taken advantage of the opportunities that
fortunately we all have here in America, to get to the very top
of the legal profession, in your case.
I guess the question I have is, is this the right job for
you? It's not just a question of brilliance, it's not just a
matter of your academic skill. It really is, is this the right
job for you?
I know that you and Senator Hatch talked about the role of
a law professor relative to that of a judge, but let me tell
you specifically what some of my concerns go to. They may seem
relatively mundane, but I think they really are very important.
I note that you say in your questionnaire you've not tried
any cases in courts of record to verdict, judgment, or final
decision. Is that correct?
Professor Liu. That is correct, Senator.
Senator Cornyn. Having been a State court judge myself for
13 years, I am really very troubled by the fact that, as
Senator Sessions documented in his questions, that the lack of
attention and diligence, and frankly, sloppiness, in your
response to this Committee's questionnaire. There were four
occasions when you supplemented your responses, not because you
discovered they were incomplete, but because Committee members
and staff went on Google and found speeches, documents, press
releases, and things that you hadn't previously disclosed.
From my experience as a former trial judge, I will tell you
that if a lawyer came into my courtroom and failed to respond
completely and accurately to a request from the other side for
information and had to be called to task four different times
before they finally got the honest, complete, and truthful
answer, that that lawyer would find themselves held in contempt
of court, or worse.
So I don't know whether it's because of your lack of
experience in a courtroom or what it is, but can you offer me
any comfort at all that this is not really just an act of
contempt, but is just some other explanation?
Professor Liu. Certainly, Senator. I have the--I want to
express again the fullest commitment that I possibly can to
providing this Committee with any information that it wants or
needs in evaluating my candidacy for the bench.
Senator Cornyn. Have you actually apologized?
Professor Liu. I have, Senator.
Senator Cornyn. You have?
Professor Liu. In my transmittal letter of the April 5th
submission, I did express an apology, and I'm happy to
reiterate it here, which is that I'm very sorry for the
omissions that existed in the initial questionnaire. I would
simply say, though, that the lion's share of items that I
submitted in the supplements were not items that were brought
to my attention by others, they were items that, upon more
diligent searching, I was able to provide to the Committee,
including all the various instances in which I moderated a
panel, or accepted an award, or emceed an event, or introduced
a speaker, or spoke at a brown bag. I tried my best to comb
through all the Internet sites and all the other places that
one could look for such things. I understand the Committee's
frustration with my handling of the questionnaire, and I would
have done things differently if I had had the opportunity.
Senator Cornyn. Can you assure us that you've made a
complete and accurate response to the Committee's questionnaire
at this point, or are there other items that we are going to
discover or find out about that have not been revealed?
Professor Liu. Well, Senator, in the--in the revised
submission of April 5th, I detail in the beginning of the
answer all the searches that I conducted. And if the Committee
or any member would desire that I do any more searching, I
would be happy to do that with dispatch and turn over any other
material that I'm able to find.
Senator Cornyn. Let me turn to part of your response
earlier. I think it was in response to Senator Kyl's questions.
You characterized some of your criticism of Justice Alito as
``not striking the proper balance between individual rights and
governmental power.''
I'd just like to ask you, in a straightforward way, what do
you think the Tenth Amendment of the Constitution means, and
how should it be applied? It reads: ``The powers not delegated
to the United States by the Constitution nor prohibited by it
to the States are reserved to the States respectively, or to
the people.''
Do you recognize any limit on Federal power to do whatever
Congress decides it wants to do or do you think that that's--in
other words, do you think the Tenth Amendment is a dead letter?
Professor Liu. Absolutely not, Senator. The Supreme Court
has made amply clear that the Tenth Amendment stands for the
fundamental principle of federalism that imbues our structure
of government, and I respect those precedents and would apply
them faithfully.
Senator Cornyn. Yet, you criticized Chief Justice
Rehnquist's decision or opinion in the Lopez case, which was
the application of that very same doctrine of federalism. Is
that correct?
Professor Liu. I--I expressed concerns about that decision,
yes.
Senator Cornyn. And I would tell you that the American
people--I hear it from my constituents in Texas, and I hear it
from people all across the country, are very concerned about
the aggressive growth of the Federal Government and the
intrusion of the Federal Government in their lives, which is
one reason why at least 16 Attorney Generals--maybe there are
more by now--have filed suit, challenging, for example, the
individual mandate in the health care reform bill as an
unprecedented expansion of Federal power into their lives.
I'm not going to ask you for a legal opinion about that,
since that may come before you, if you are confirmed. But do
you recognize that our government is not a national government,
but a Federal Government, and that individuals and States
reserve significant power to make decisions affecting their
lives that the Federal Government cannot, and should not,
touch?
Professor Liu. Absolutely, Senator. I think that from the
founding of our country, we have always had a Constitution that
defines the powers of the Federal Government as a set of
enumerated powers only. In other words, the Congress of the
United States, together with the President, the political
branches are not--it's not a legislature of general powers, as
the States are. The States are legislatures of general powers,
but the Federal Government is not. So, the whole notion of
enumeration presupposes the idea that it is a government of
limited powers.
Senator Cornyn. Madam Chairman, I know my time is up. I
would just like to note that I know Professor Liu has been
rated unanimously ``Well Qualified'' by the American Bar
Association's Standing Committee on the Federal Judiciary, even
though, as he's acknowledged, he hasn't tried any cases in
courts of record to verdict, judgment, or final decision.
I would note, just a few years ago when Judge Frank
Easterbrook was nominated to the Seventh Circuit, that it
appears that a different standard was applied by the American
Bar Association when they gave him a majority ``Qualified'',
minority ``Not Qualified'' because they said he lacked
experience as a practitioner. Maybe the ABA, when they come--
and I assume they will at some point--to testify can explain
that. But it appears to be a double standard.
Senator Feinstein. Thank you very much, Senator Cornyn.
Senator Kaufman.
Senator Kaufman. Yes. Welcome to the Judiciary Committee
and the Supreme Court nomination process.
[Laughter.]
Senator Kaufman. As you can see, there are some basic
differences about the Constitution on this Committee. Senator
Cornyn, who I hold in very high regard, I think may have--and
Senator Sessions, and Senator Kyl--a different opinion about
the role of the Federal Government, which we battle on every
single Judiciary Committee meeting, but in a very collegial
way, in a very good way. I think we've all kind of agreed to
disagree on some of these issues.
Anyway, can you talk a little bit about, you clerked both
in the District of Columbia Court of Appeals and the Supreme
Court. Can you tell me what you kind of learned about the role
and function of appellate judges during your experience?
Professor Liu. Certainly. Thank you, Senator Kaufman.
I had the enormous privilege to clerk for two outstanding
judges. And one of the things I learned as a law clerk on the
U.S. Court of Appeals for the DC Circuit, I think, is
applicable to the point that Senator Cornyn raised. It is true,
I have not tried cases to verdict and I wouldn't claim
expertise in that--in that way.
But one of the things that the judge for whom I clerked
routinely did, was he instilled in his law clerks an
appreciation for the role of the District judge, and the role
of the District judge in understanding how litigants bring
cases and how cases get framed. Thus, in virtually all the
cases I can remember, he always sent us down to the first floor
of the courthouse to go read the record, read the record of
what happened in the court below, and those determinations and
that record was due an amount of deference because a judge had
already passed over this issue once.
And I think that that perspective has always stayed with
me, that although we have a system of hierarchy in our courts,
all of the members of the courts serve as Article 3 appointees,
in some sense as co-equals in the judicial system, and they
serve different functions at different points.
And so I would pay, I think, as an appellate judge, very
careful attention to the standards of review that apply to the
case at hand, because many of those standards of review caution
against appellate judges making, in essence, new determinations
or as if they were writing on a blank slate when in fact the
issue has always been passed through once.
Senator Kaufman. And so many of the questions you're asked
here, your personal beliefs really don't matter that much, do
they, as long as you're a Circuit Court of Appeals judge?
Professor Liu. Not at all, Senator. In fact, the other
thing I learned on the DC Circuit was how many issues--
virtually everything that comes through the door--has around it
a set of applicable precedents, and so there really is no room,
in the cases that come up, for judges to invent new theories or
to create new doctrine. They are applying the law as it has
been interpreted by the Supreme Court and as it has been
written by Congress in the cases of statutes.
Senator Kaufman. So you don't have real flexibility in
terms of your personal beliefs on issues?
Professor Liu. Personal beliefs, I believe, Senator
Kaufman, never have a role in the act of judging.
Senator Kaufman. Your experience at Department of
Education. What do you think came out of that that would help
you serve on the Circuit Court?
Professor Liu. Well, I had the great distinction of being
able to work for some extremely talented leaders in that
department. I think what it gave me was some perspective on how
agencies make decisions, and to the extent that the Courts of
Appeals do hear cases that concern administrative law, it does
help, I think, to have some appreciation for the ways in which
regulatory decisionmaking, as well as other forms of guidance,
get made through the Federal agencies.
Senator Kaufman. And how about your experience in private
practice? How would that, do you feel, help you if you get on
the Circuit Court?
Professor Liu. I feel enormously grateful that I had the
time that I had at the O'Melveny & Myers law firm, a collection
of outstanding and extremely talented and smart lawyers who
showed me in many ways how businesses approach problems, that
the role of the lawyer is absolute loyalty to his or her
client, and the vigorous and zealous advocacy for the client's
interests. I learned, I think, a respect for the process of
litigation and the virtues of our adversarial system of
litigation.
I also learned what it was like to bill a lot of hours from
time to time, but I think that that is part of the zealous
advocacy that is expected of any lawyer who takes on a client.
Senator Kaufman. I want to thank you for your public
service. This is difficult, but the fact that you're willing to
do it and the fact that others are willing to do it really
makes this country function. I think everyone here applauds the
fact that you are willing to make the sacrifices you have, and
even more important, your wife is willing to make the sacrifice
she's going to have to make for you to go through this, and
then to serve on the Circuit Court. So, I want to thank you for
your service to your country.
Professor Liu. Thank you, Senator Kaufman.
Senator Kaufman. Thank you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator Kaufman.
Because of the importance of this nominee, we will
certainly have a second round. I'd like to just indicate, my
intent would be to go to 12:30, take a half-hour break, and
reconvene at 1. We have four additional nominees to hear, and
so I know that this is a long wait for you, but I hope you
understand. I think it's very important that members have an
opportunity to ask Professor Liu all the questions that they
want to ask and take the time that's required to do it. So I
must apologize to you, but it is the way of the Senate. So if
there's no objection, we'll proceed with a half-hour break in
about 45 minutes, and then begin again.
Senator Sessions. Thank you for that. I think the nominee
raises a lot of important philosophical questions about law and
the Constitution and we do have a number of questions, so I
thank you for the courtesy of allowing sufficient time.
Senator Feinstein. Thank you very much.
To begin the second round, I'd like to say a couple of
things. I really think that there is a double standard being
applied here, so I'd like to take a look at just a few of
President Bush's nominees.
Let me begin with the Chief Justice. Chief Justice Roberts
failed to provide documentation for over 75 percent of the
speeches and remarks listed in his questionnaire. Not a single
Republican objected when the Committee received 15,000
supplemental documents just 4 days before his confirmation
hearings were scheduled to begin. In fact, both Chief Justice
Roberts and Justice Alito supplemented their questionnaires
several times after returning them, including, 75,000 and
36,000 pages of documents, respectively.
Judge Michael McConnell has been covered: appointed to the
Tenth Circuit, a prolific constitutional law professor from
1985 to 2001. He did not list a single speech or talk on
constitutional law or legal policy. He was confirmed.
Judge Jeffrey Sutton, appointed by the President to the
Sixth Circuit, submitted a questionnaire that simply stated ``I
have given numerous speeches to local Bar Associations, Ohio
judges through the Ohio Judicial College, the Federalist
Society, and continuing legal education seminars regarding the
United States Supreme Court and the Ohio Supreme Court. I
either spoke from informal notes or extemporaneously.'' He was
confirmed.
Judge Brett Kavanaugh, as has been stated, appointed by
President Bush to the DC Circuit, submitted a questionnaire
that listed 22 speaking events, prefaced by this statement:
``I've given remarks on occasions, etc.'' He was confirmed.
Judge Catharina Haynes, appointed by President Bush to the
Fifth Circuit, submitted a questionnaire that said, ``As a
local judicial candidate I've been to dozens, maybe hundreds,
of events where each candidate is asked to introduce himself or
herself. I have no recordings or notes of these matters, no way
to track accurately the dates and locations.'' She was
confirmed.
Judge Diana Skyes, appointed by President Bush to the
Seventh Circuit, submitted a questionnaire along the same
lines. The same thing for Judge Kent Jordan to the Third
Circuit.
So I think this, and I must say, is remarkably unfair. We
have heard the nominee clearly state that he overlooked some
things, clearly state that he's prepared to do anything he can
to see that the Committee is fully informed of his writings. I
don't know what more a nominee can do, you know. To rise this
to the level that he should be denied confirmation, and this
being one of the major reasons, seems very unfair to me.
I would like to ask one question on the commerce clause,
however. In recent years--the commerce clause, as we all know,
is a very important clause of the Constitution which
essentially allows the Congress to legislate in a number of
different areas as long as they relate to interstate commerce.
In recent years, the Supreme Court has used a much more
constraining view of the commerce clause to strike laws such as
the Gun-Free Schools Act of 1995, and the Violence Against
Women Act of 1994. So what is your understanding of the scope
of Congressional power under Article 1 of the Constitution,
particularly the commerce clause?
Professor Liu. Well, Senator, in those two cases, as well
as other cases that have followed on--in particular, I'm
thinking of the medicinal marijuana case, the Gonzales v. Raich
case, the court has articulated a doctrine in which there are
essentially three categories of ways in which Congress can
exercise commerce power, the most substantial of which is a
third category in which the court says that the Congress can
legislate on matters having a substantial effect upon commerce.
A lot of the constitutional doctrine has turned on, what is a
substantial effect?
In the Gun-Free School Zones case, as well as the Violence
Against Women case, which I know both of them are very
important to you, Senator, the court articulated a doctrine
that said that the activity being regulated has to be economic
in nature, but it stops short of saying that that is an
absolute requirement before the substantial effects analysis
can get going because in the medicinal marijuana case just a
few years afterwards the court said, but we have to look at the
activity as a class of activities, not just the individual
instance of an individual possessing a gun, or in the case of
the marijuana case, the individual who is desiring the
medicinal marijuana, but rather we have to look at it as a
class.
And I think that's where the state of the law is right now,
is that the court has said that--has put a focus on the
economic nature of the activity, but has instructed the lower
courts to look at that issue, not simply as the individual
instance but as a class. That is the doctrine, as I understand
it, and I would faithfully apply that doctrine in any case that
came before me as a judge.
Senator Feinstein. Thank you very much. My time is up.
Senator Sessions.
Senator Sessions. Professor Liu, your article I quoted
earlier, ``Rethinking Constitutional Welfare Rights'', is a
troubling document to me. You say there that your thesis is
that the legitimacy of judicial recognition of welfare rights
depends on ``socially situated modes of reasoning that appeal
not to transcendent moral principles of an ideal society, but
to the culturally and historically contingent meanings of
social goods in our own society.''
Well, I presume that's a standard you think judges should
apply. Do you think a standard, once you reject ``transcendent
moral principles for an ideal society and move to culturally
and historically contingent meanings of particular social goods
in our own society'', what kind of legal standard is that?
Doesn't that allow a judge to do anything they want to do?
Professor Liu. Senator Sessions, the Supreme Court has, I
think, pretty clearly said that judges cannot create welfare
rights in the Constitution.
Senator Sessions. No, no, no. What you wrote.
Professor Liu. And I----
Senator Sessions. Let me just say----
Chairman Leahy. Let him answer the question.
Senator Sessions. I'm going to allow him to answer, but I
just want to say, we do have a time problem. I'm asking a
specific question, so if you can do the best you can to be
succinct, I'd appreciate it.
Professor Liu. Certainly, Senator. I simply mentioned what
the Supreme Court said because in that article I express
agreement with what the Supreme Court had said on this score,
which is that--elsewhere in the article I say very clearly that
judges have no role in inventing welfare rights out of whole
cloth and doing it on their own.
Instead, I think the passages that you're reading there are
perhaps overly academic language for a simple point, which is
that if there are going to be welfare rights in society they
must come from the legislature, they must come from Congress,
and I used the term ``legislative supremacy'' to capture that
idea. And so----
Senator Sessions. Well, could I say, you say ``so conceived
justiciable welfare rights reflect the contingent character of
our society's judgments.'' So you're talking about a judge's
welfare rights.
Professor Liu. Senator, yes. The role for judges that the
article lays out is only that role that the Supreme Court's own
precedents have supported in the past, which is when the
legislature has created a program of benefits or some sort,
there are various challenges that are occasionally brought to
eligibility requirements or termination processes, and the
court has seen those as justiciable issues.
Senator Sessions. Does it raise a question of whether a
State or a Federal Government could reduce welfare rights once
they've been established? Is that a justiciable----
Professor Liu. Senator, elsewhere in the article I make
very clear that the courts have--I believe I used the term ``no
role for courts at all'' in disturbing legislative judgments of
that sort, and I use the example of Congress' 1996 welfare
reform law which ended cash assistance to poor families as an
entitlement, and I said that the courts have no role at all in
questioning that judgment by Congress.
Senator Sessions. Well, you do say that you deal with that
danger. You note there's a danger of court take-over of the
legislative process, but you say that can be avoided ``when
courts employ constitutional doctrine in a dialogic process
with the legislature to ensure that the scope of welfare
provision democratically reflects our social understanding.''
That seems to mean that you're saying a judge has a right
to use the power of the court--lifetime appointment--``to
ensure that welfare provisions democratically reflects our
social understandings.'' So to me, that's an unintelligible
standard and you're giving a virtually unlimited power of
courts to review welfare or health care type legislation.
Professor Liu. Senator, I think that, once again, if I
could, you know, try to in some sense cut through the academic
jargon there, the only----
Senator Sessions. I'll agree.
Professor Liu. Thank you. On that point we can agree. I
guess I'd simply say that the point was trying to capture the
way in which the Supreme Court has in past cases approached
questions, constitutional questions, that have arisen about
legislated programs of benefits. One thing to note about that,
Senator, is just that that area of doctrine has not in some
sense spiraled out of control. It's not that judges are, even
in an everyday kind of way, making decisions about what kind of
welfare rights people should get. In fact, it's a very limited
role, and that's the only role that I envisioned in the paper.
Senator Sessions. Well, in your statements that were not
originally produced, but later produced, commenting on your
book, Keeping Faith With the Constitution, you defined what
fidelity to the Constitution is. I expressed what I think I
believe, and what Professor Van Alsteen believes, which is,
faithfulness is following it as written even if you don't like
it.
But you say, ``what we mean by fidelity is that the
Constitution should be interpreted in ways that adapt its
principles and its text to the challenges and conditions of our
society in every single generation.'' So it seems to me you're
saying that a judge can ignore the proper way to amend the
Constitution and adapt not only its principles, but its text,
to meet whatever challenge they divine at a given time. Correct
me if I'm wrong.
Professor Liu. Well, Senator, that is not what I believe.
If I may, I think that the interpretation of the Constitution
always has to be on the basis of legal principle and not on the
basis of what a majority of the society thinks or what the
judge in question thinks. Across any--in any generation, the
interpretation of the Constitution has to be guided by not what
makes people happy, rather, it has to be guided by the faithful
application of the text, the underlying principles, and the
precedents that have accrued up to that time.
Senator Sessions. Well, I'm going to try to fairly evaluate
that answer, but I don't think your writings reflect it. So,
it's up to my judgment. I mean, I have to make a decision: is
what you're saying today consistent with what you said then? I
would note that--thank you.
Senator Feinstein. Thank you, Senator Sessions.
Senator Leahy.
Chairman Leahy. Thank you. I would note that it's one thing
to write academic papers and another thing to testify under
oath. I think that Professor Liu has testified very well here
today. I would note that the article we've been talking about
explicitly rejects the idea that the courts have the power to
create benefits and respects the role of the legislature in the
creation of those. I mean, the article speaks for itself. I
would hope we would keep on the facts on his legal abilities.
I've heard comments made suggesting your views are racist, and
I just find that outrageous.
Let's talk about your legal reasoning. We throw around
these ancillary charges so easily these days. I don't know why,
what has happened in this country. I remember when I said, as
many others did, that I opposed Justice Alito's nomination and
I was attacked as being--in a full-page ad as being anti-
Italian.
Now, when my grandparents emigrated to the United States to
Vermont from Italy, when my Italian-American mother and her
siblings were growing up, knowing how much I respect my uncles
and aunts and cousins in Italy and visit them often, I remember
sitting on my Italian grandparents' knees and speaking Italian
with them, I think it's kind of a stretch.
It's sort of the same stretch that you heard when I opposed
Judge Pryor's nomination and Senator Kennedy and Senator Biden
and Senator Durbin and I were called anti-Catholic. I remember
talking to my pastor leaving mass the next day. He said,
``Where does this sort of thing come from? '' And so I would
hope we can talk about the law and not things that have
belonged to another--maybe another time, an unhappy time in our
country.
We've heard you criticized that you hadn't had a lot of
courtroom experience. You know, I don't recall a single
Republican saying anything when Judge Kimberly Ann Moore was
nominated by George W. Bush, President Bush, for the Federal
Circuit. She had had 2 years as a clerk, 1 year of private
practice, and 7 years in academia. Nobody felt this
disqualified her.
Or when Judge J. Harvey Wilkinson was nominated at the age
of 39 by President Reagan to the Fourth Circuit, he had had 1
year as a clerk, 5 years as a newspaper editor, 2 years in the
government, 5 years in academia. He was confirmed.
Or Judge Frank Easterbrook, nominated by President Reagan
at the age of 36. He spent 1 year as a clerk, 5 years in the
government, 7 years in academia. Let's talk about realities.
Let's leave these straw men kind of complaints out of it.
We have so many people sitting on our Courts of Appeals
nominated by Republican Presidents, supported by both
Republican and Democrats who do not begin to have the kind of
background that you do, or begin to have the kind of support,
bipartisan support, that you have. I think we shouldn't forget
that.
The American Bar Association's Standing Committee on the
Federal Judiciary found you unanimously ``Well Qualified.''
That's the highest possible rating. They did it in a
nonpartisan hearing. Strong support of both your home State
Senators. Even a conservative Fox News commentator recently
conceded your qualifications for the appellate bench are
unassailable.
Now, tell us again the difference between the role of the
legal advocates or academic commentators, as you have been
playing, as opposed to the role you'd have to play as a judge.
Tell us the difference, and tell us whether you think you'd
have any difficulty adjusting to a new role as a judge.
Professor Liu. Certainly, Mr. Chairman. I think the role of
a judge is to be an impartial, objective, and neutral arbiter
of specific cases and controversies that come before him or
her, and the way that that process works is through absolute
fidelity to the applicable precedents and the language of the
laws, statutes, regulations that are at issue in the case.
Academics, when they write, are not bound in the same way.
The job of law scholars, when they write, largely, I think, is
to probe, criticize, invent, be creative--in other words, many
of the qualities that are not the qualities that one expects
the judicial process to possess.
One thing that I would like to highlight, though, between
these two types of roles, which I hope comes through upon a
review of my record, is that there are some similarities
between, hopefully, the legal scholarship and the process of
judging, which is that I would hope that my record shows an
open mindedness, an ability to consider all points of view, a
rigor, a respect for the law as an enterprise that has to have
integrity, and all of those forms of discipline that make for
habits of mind of good listening that I think in other ways
makes--could make a person a good judge.
Chairman Leahy. Thank you. As my sainted mother would have
said, molto grazie, but as I'll say, thank you very much.
Thank you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator Leahy.
Senator Kyl.
Senator Kyl. Thank you, Madam Chairman.
Professor Liu, just expanding on this point that we've been
discussing earlier, you're distinguishing between the situation
in which Congress has legislated in an area, and then the court
can in effect breathe life into extensions or deal with issues
of eligibility for those rights. That was the way you described
the substance of what you wrote in this one article.
Let me ask if you personally believe--personally believe--
that ``the duty of government cannot be reduced to simply
providing the basic necessities of life. The main pillars of
the agenda would include expanded health insurance, child care,
transportation subsidies, job training, and a robust Earned
Income Tax Credit.'' In fairness, that is exactly what you
wrote. That's a direct quotation. Also, ``that we should be
thoughtful, but not bashful, in forging political solidarity
necessary for redistributive mutual aid.'' Do you personally
believe those statements?
Professor Liu. Senator, I'm not familiar with which--is
that from my article? Or which text is that that you're reading
from?
Senator Kyl. Yes. I'm sorry. We were quoting from that
article. It is the ``Education, Equality and National
Citizenship'', in 116, Yale Law Journal, 2006.
Professor Liu. OK. As in--as in all things, Senator, I
think I--I stand by my writings. I--I--whatever views I've
expressed about those matters, however, I would set aside
absolutely in my role as a judge, because quite frankly I don't
see the role of a judge as being involved in those kinds of
issues.
Senator Kyl. And I appreciate the fact that you've said
that. The problem is, colleagues here on the Committee have
talked about the need to get judicial nominees--now, I grant,
this was in the context of a Supreme Court nominee--who would
have certain agenda that they would bring to the office,
agendas that conform with my Democratic colleagues' agendas,
which I don't necessarily share. One of the concerns that I
have expressed about an activist judge is whether or not you
approach deciding cases with those agendas in mind or you lay
them aside.
Now, you've expressed--and I did quote accurately, I think,
from that article what you wrote. I perceive these to be your
personal opinions. Then I also perceive your view of the law to
be that we should find ways to accommodate those opinions,
albeit you do say once the legislature has acted. I'll just
quote directly how you state that. This is on ``How Welfare
Rights May be Recognized Through Constitutional Adjudication in
a Democratic Society.''
``Once a legislative body creates a welfare program it's
the proper role of the courts to grasp the community meaning
and purpose for that welfare benefit. When necessary, courts
should expand the wealth redistributing effects of the program
to satisfy needs of equality and national citizenship.'' Then
you note that you can do that, for example, by ``invalidating
statutory eligibility requirements or strengthening procedural
protections against withdrawal of benefits'', and that is what
you said earlier.
Professor Liu. That's true.
Senator Kyl. That seems to me to be an agenda. You bring an
agenda to the court, and you've written about how that agenda
can be accomplished through the judicial process, not the
legislative process. You say in another place in this article,
``the constitutional guarantee of national citizenship has
never realized its potential to be a generative source of
substantive rights.'' You talk about how it was ``neutered by
previous court decisions, the affirmative as opposed to
negative interpretation of the Constitution.''
So I view this as, you have these views. They are very
liberal views. You believe that once the legislature has opened
the door, that courts can be used to expand those rights in
what you would consider to be an appropriate way.
Professor Liu. Well, Senator, I guess I would say that
the--those are my views and they're accurately reflected in the
passages you--you wrote--you--you spoke. I guess I would
characterize them though not as an agenda, but rather as my
endorsement of precedents of the court that have done precisely
those things. And as a lower court judge, I would follow
certainly those precedents, but any precedents that----
Senator Kyl. I recognize what you're saying is that when
the legislature has acted, courts--there's some precedential
ability of courts then to--either through restricting
qualifications, for example, of expanding those rights. But it
is very clear from what you've said not that these are just
examples that you picked out of thin air as, gee, this is what
the court might do, but rather, this is your personal view of
something the court should try to do. Am I wrong?
Professor Liu. Senator, I'm not sure that I would say that
they are things that the court should try to do. I think that a
court--certainly if I were confirmed as a judge--would have to
simply follow what the Supreme Court has instructed the courts
to do on particular issues. But if I could put the passages you
read in further context, I would say that most of my writing in
this area and the area that Senator Sessions has asked me
about--and I understand this is an interest of great importance
to you, Senator--most of my writings on education, on welfare,
and on, you can call it, broadly, social policy, if you wish,
have been directed actually at policymakers and at legislators,
not at judges.
So if you look across the broad range of my scholarship on
a sort of, I guess, page-for-page basis, most of what I've
written is directed at legislators because I come at this from
a perspective of judicial restraint in this area. I think that
those articles, I hope, convey my understanding of how
difficult it is for courts to get involved in this area. We
have some historical lessons learned about those--about these
kinds of areas. And so that's why I think most of my work, my
scholarly work, has actually been directed at policymakers, not
really at urging courts to do more.
Senator Kyl. If I could just--one final question. Can you
see why the passages from this particular article raise the
doubt that I have expressed to you?
Professor Liu. I certainly do.
Senator Kyl. Thank you.
Professor Liu. I understand.
Senator Feinstein. That completes our second round. Now,
Senator Kyl--excuse me. Senator Cornyn has indicated that he is
on his way back and will arrive within 5 minutes and does wish
a second round. I'll tell you what we will do, if that's all
right. We'll begin a third round, and then I'll give Senator
Cornyn some additional time when he comes in. We're just going
to go for another 15 minutes and then recess.
Are you bearing up all right?
Professor Liu. I'm doing just fine. Thank you, Madam Chair.
Senator Feinstein. You've got amazing cool.
Congratulations. I wish I had.
In describing your approach to constitutional fidelity, you
have said that the practical consequences of legal rules
matter. I happen to agree with this. For example, in the Lilly
Ledbetter case, the court interpreted Title 7 to require a
woman to pay a pay discrimination case--excuse me, to file a
pay discrimination case within 180 days of when her employer
first paid her less than her male counterparts, even if she had
no way of knowing at that time that she was being paid less.
Congress has had to pass a new law to overrule that decision
and communicate to the court that Title 7 was not intended to
have this result. Senator Mikulski led this battle, and I think
it was the first bill signed by President Obama.
So here's the question: when do you believe it's
appropriate for a judge to consider the practical consequences
of legal rules?
Professor Liu. Well, Senator, I think that that's one of
the aspects of decisionmaking that I think properly inform the
consideration of most cases that come before the courts. Law
affects people's lives and it's not a bunch of words on paper,
it's not a bunch of cases in the books. These are real things
that affect people's lives. Decisions made by a judge should
not be based on favoritism toward affecting a person's life one
way or the other, it should be based, though, on an
appreciation of what's at stake in a particular case. I don't
think that one can really grasp the magnitude of the particular
case or controversy without understanding how that plays out in
people's lives.
Senator Feinstein. Well, thank you.
Just so people know, there is no way that Lilly Ledbetter
could have known. She didn't find out until years later what
had happened. So the question was, did she have redress? The
court ruled no, and we changed that to change the law.
The Supreme Court stated conclusively in the case of
Grutter v. Bollinger that State universities have a compelling
interest in obtaining the educational benefits that flow from a
diverse student body. That case and others also made clear that
efforts to attain diversity must be carefully tailored to the
true educational benefits and not a racial quota.
Now, in log entries, you have been accused of favoring
racial quotas, so I want to ask you plainly: do you favor
racial quotas, and do you believe they are constitutionally
permissible?
Professor Liu. Senator Feinstein, I absolutely do not
support racial quotas. In my writings, I think I've made very
clear that I believe they are unconstitutional.
Senator Feinstein. So will you follow Supreme Court law, as
articulated in Grutter v. Bollinger and Gratz v. Bollinger,
that laid out the court's guidelines for when and how it is
permissible for a university to seek to attain a diverse
student body?
Professor Liu. Absolutely, I would, Senator. I think my
writings have written approvingly of the standards set forth in
those cases.
Senator Feinstein. The question that Senator Kyl asked you
on social welfare rights--let me ask this question in another
way. In a highly theoretical article in the 2008 Stanford Law
Review, you critiqued two other scholars' notion of
constitutional welfare rights and put forth a theory of your
own in which courts engage in ``a dialectical process of
engagement with the political branches and the public they
represent.''
Now, I'd really like to hear you explain this in plain
English. I mean, you're obviously very smart. You've been
gifted with a great mind. How much is genetic and how much is
learned, I don't know, but you have an unusual mind. You're
also very young. Sometimes one can get so fancy in their
writing that the plainspoken person attributes a lot of things
to it that may well not be there. So could you take a crack at
what the ``dialectical process of engagement with the political
branches and the public they represent'' actually means?
Professor Liu. Certainly, Senator Feinstein. Let me preface
my answer by promising that if I were ever confirmed as a
judge, I would not write opinions that sound like that.
[Laughter.]
Professor Liu. All I mean to say, I think, in that article,
is it is a characterization of the process through which the
precedents of the court have in a sense gone back and forth
with the exercise of the legislative power to define the scope
of welfare rights. In that back-and-forth process, courts
occasionally--occasionally--weigh in with principles under the
due process clause or the equal protection clause.
But the legislature, I argue in that--in that piece,
retains the final word with respect to the creation of those
rights and the elaboration of when those rights are going to
kick in and not kick in. The final word belongs to the
legislature.
And so I hope that what comes through in the article is a
posture really of judicial deference, because what I'm arguing
against in the first half of the article is a strain of
thinking that was popular in the 1960s and 1970s, that judges
should just wholesale invent these things and come up with
their own moral theories of what the Constitution requires. I
wholesale reject that point of view. That is what the first
half of the article is devoted to, is a rejection of that point
of view.
Senator Feinstein. Thank you very much.
Senator Sessions. Excuse me. Could I defer to Senator
Cornyn, and then come to you, for his second round?
Senator Kyl. Madam Chairman, if we're going to do that, and
we're going to break at 12:30 but we're going to come back at
1, if I could just excuse myself right now then and be back.
Senator Feinstein. Yes, certainly.
Senator Kyl. Thank you very much.
Senator Feinstein. So why don't you, in an effort to extend
all of the exigencies of membership which aren't usually
extended, let me give you your second round now so you wouldn't
have missed it.
Senator Cornyn. Thank you, Madam Chairman.
Professor, I assume you're familiar with the work of Judge
Stephen Reinhardt on the Ninth Circuit?
Professor Liu. I wouldn't say I'm familiar with his work,
but I know a little bit about him and his reputation, yes.
Senator Cornyn. Do you recall having disagreed with a
decision by Judge Reinhart?
Professor Liu. Senator, actually, I can't even think of an
opinion by him off the top of my head.
Senator Cornyn. Okay. Fair enough. Fair enough.
Let me then ask you, is your theory of constitutional
fidelity substantively different from the living Constitution
view endorsed by other liberal scholars?
Professor Liu. Well, Senator, I think the term ``living
Constitution'' has been used by lots of people to mean lots of
things. I don't like the term and I--in the book, we reject the
term because it suggests that the Constitution is a malleable
document that can be read to have words in it that really are
not in it.
And I think we take the position that the Constitution is a
written text for a special reason, and that is because the text
was meant to be the enduring thing that judges would have to
apply in the course of deciding cases and not, you know,
something that's extra--you know, outside of the text and not
something that they would invent on the fly.
Senator Cornyn. On the issue of foreign law, Professor
Koh--I guess now he is, of course, at the State Department--has
described the debate between transnationalists and nationalists
when it comes to the application of foreign law, or what its
use might be by judges interpreting, for example, the United
States Constitution, United States law.
I believe he thinks that transnationalists believe that
domestic courts have a critical role to play in incorporating
international law into domestic law, while nationalists claim
only that the political branches are authorized to domesticate
international legal norms.
Do you agree, first of all, with this distinction by
Professor Koh, and if you do, which are you, a transnationalist
or a nationalist?
Professor Liu. Well, Senator, frankly, I'm actually not
familiar with this debate in the law. I would say perhaps
something similar to what I said to Senator Coburn on this
issue, which is just that I think that in the decision about
what the meaning of American statutes are and what the meaning
of the American Constitution is, American precedents and
American law are the things that control.
Senator Cornyn. Changing subjects again, in your article,
``Rethinking Constitutional Welfare Rights''--I think this has
come up in a different context since I had to leave--you write
that legislation may give rise to a cognizable constitutional
welfare right if it has ``sufficient ambition and durability,
reflecting the outcome of vigorous public contestation and the
considered judgment of a highly engaged citizenry.''
I don't know if that would pass Senator Feinstein's
standard for plain speaking. But I would just ask your
reflecting on the recent debate on health care reform, which
passed after vigorous public contestation. I think we could all
vouch for that. Does that give rise to--does passing a law like
that give rise to new constitutional rights?
Professor Liu. Well, I think it's an excellent question,
Senator Cornyn. I want to say, I have not--I don't have a view
on that because, like many Americans, I actually haven't read
the health care legislation. And beyond that, I think it's--
within just the confines of the quote that you read, the
durability of it is something I guess that's remained to be
seen, because I understand that it's being challenged in the
courts and that even Members of Congress may wish to revisit
elements of it in the future. So I think my initial take on
your question, although I haven't thought about it very much,
is just that it's too early to tell.
Senator Cornyn. Well, so you would at least hold out the
possibility that an act of Congress could confer welfare rights
or benefits that would somehow become constitutional in nature,
which then could not be repealed by a subsequent Congress. Is
that right?
Professor Liu. It could always be repealed, Senator. My
theory doesn't suggest that it could never be repealed. It
could always be repealed. And the only way--I mean, the term
``constitutional'', as I've used it, is perhaps misleading. It
only means to say that, according to the court's precedents,
the court has recognized, in the application of, say, equal
protection principles or due process principles, a recognition
of the rights that are created by Congress, and in making
decisions under those other clauses of the Constitution, have
given them due weight in the consideration of, say, eligibility
restrictions or termination processes. Those are the cases in
which I--those are the cases I've endorsed in that article as
conferring a judicially cognizable right. So, that's--that's
the only sense in which I mean those terms.
Senator Cornyn. My last question is, in that same article
you cite the Supreme Court's decision in USDA v. Murray of 1973
as an example of how the court may invalidate an act of
Congress and recognize a welfare right. You note that Murray
directly engaged the court in substantive policy judgment, an
approach that you call ``plausibly appropriate in exceptional
cases.''
Can you list some examples of exceptional cases in which it
would be appropriate for the court to engage in substantive
policy judgments, and as a judge, if confirmed, would you feel
authorized to engage in such substantive policy judgments?
Professor Liu. Senator, I don't think I would feel
authorized to engage in substantive policy judgments because I
think that's a prerogative that belongs to the democratic
process. I think, actually, in the article, Senator, if I
recall correctly, I was critical of the Murray decision because
it went further in that regard than my theory would--would--
would permit.
Senator Cornyn. Well, thank you very much, Professor.
Professor Liu. Thank you.
Senator Cornyn. Thank you, Senator Feinstein.
Senator Feinstein. Thank you, Senator.
The hour of 12:30 has arrived. I would like to place some
letters in support in the record. So ordered.
[The letters appear as a submission for the record.]
Senator Feinstein. We will take a one-half hour break. When
we come back, Senator Sessions will lead off. So, please, get
some food and some drink and come well prepared.
Professor Liu. Thank you. Thank you.
Senator Feinstein. Thank you.
The Committee will be in recess until 1 p.m.
[Whereupon, at 12:30 p.m., the Committee was recessed.]
AFTER RECESS [1:08 p.m.]
Senator Feinstein. The hearing will resume.
As I indicated, we will begin with the Ranking Member,
Senator Sessions.
Senator? Oh. If I might say something while you're getting
ready. The procedure is really to do just two rounds for an
appellate judge. I want everybody to have an opportunity to ask
questions, and so I suggested to the nominee that we will do
just whatever it takes to have the questions asked and
answered. I would really beg the forbearance of the other four
nominees, although I suspect you don't mind not being on the
hot-seat.
[Laughter.]
Senator Feinstein. Senator Sessions.
Senator Sessions. Thank you so much.
Well, words have meaning. We are in a serious location,
dealing with serious issues involving the appellate courts of
the United States and a lifetime appointment. I remain uneasy
about some of the--not so much the answers you give, but how
they square with what you've written before and what impact
that has on my understanding of the clarity of your thought and
how you approach judging. There's quite a bit of difference
between a theoretical law professor and the practicality, the
day-after-day duty of enforcing contracts and disputes and
ruling on rules of evidence, so I have to say that.
With regard to the death penalty, you've written some about
that. Let me just ask you, first, do you personally favor it? I
would say absolutely that this would not impact my view of how
you would conduct your office. I think good judges can differ
on whether they believe in a death penalty or not, and the
critical thing is, I guess, will you follow the law.
So I guess my first question is, do you favor the death
penalty or not?
Professor Liu. Senator Sessions, I have no opposition to
the death penalty. I've never written anything questioning its
morality or constitutionality. I would have no problem
enforcing the law as written in this area.
Senator Sessions. Well, in talking about--in a report of a
panel you moderated called ``Civil Rights Litigation in the
Roberts Court Era'' as part of the Reclaiming and Reframing the
Dialogue on Race and Racism, you made some comments about it.
You talked about changes in State courts and said, ``and part
of that movement are changes in some of the State legislation
and Supreme Courts is the result of State court decisions that
have gotten rid of some bad practices--some State legislation
that's gotten rid of some bad practices--and then the
absorption of that cultural shift into Federal law through the
Eighth Amendment.''
It seems to me what you're saying there is that legislation
in various States somehow can change how we should interpret
the Eighth Amendment. Do you mean that, and whether or not it
applies to the death penalty?
Professor Liu. Senator, I think I was perhaps reporting the
way in which the Supreme Court has instructed that the Eighth
Amendment be interpreted, and the Supreme Court, in its
opinions, looks to the practices of the States in informing the
meaning of the Eighth Amendment.
Senator Sessions. Well, I'm not sure about that. It seems
to me that--well, I could see that that would be a theory. Is
that the theory that Marshall and Brennan used when they
consistently dissented in every death penalty case, asserting
that the death penalty violates the Eighth Amendment
prohibition on cruel and unusual punishment?
Professor Liu. Senator, I'm actually not sure what theory
they used to arrive at that conclusion. I think the comment
that you read tracks more closely to the view that the justices
have used since the time, actually, of Brennan and Marshall to
articulate the standard by which they determine whether
something is or is not constitutional under the Eighth
Amendment.
Well, is it relevant to you too that there are six--I think
maybe eight--references in the Constitution to the death
penalty and it would be a stretch, would it not, to say that
the Constitution prohibits the death penalty, and that any
phrase in it, general phrase like ``cruel and unusual
punishment'' should be construed to eliminate what is
positively referred to at six or eight different places?
Professor Liu. Senator, I think that is very strong and
important textual evidence that the Constitution contemplates
the death penalty. The Fifth and Fourteenth Amendments to the
Constitution specifically refer to deprivation of life, but
it's followed, of course, with the guarantee of due process of
law. But I think that is pretty strong textual evidence that
the Constitution contemplates----
Senator Sessions. But do you think that the actions by
States can change that? That's what you said, it ``could shift
the absorption of that cultural shift.'' That's your words.
``Some cultural shift can transfer into Federal law through the
Eighth Amendment.'' The implication of your remarks is that it
could somehow have the cruel and unusual clause constrict the
death penalty.
Professor Liu. Well, Senator, I think my understanding of
that is that the court has always said consistently throughout
its cases that the imposition of the death penalty is a
constitutional punishment within the confines of the other
guarantees of the Constitution. I haven't understood those
decisions to attempt to outlaw the death penalty. Rather, they
have dealt with specific--much more specific issues related to
how the death penalty is administered and to whom.
Senator Sessions. Well, Professor Liu, two justices on the
Supreme Court dissented in every single death case, Justice
Brennan and Justice Marshall, on the clear view that it was
cruel and unusual punishment.
Professor Liu. I'm not endorsing their view, Senator.
Senator Sessions. Well, you seem to in this quote. You can
say that today. Your quote here seems to suggest you think that
if the States change some of their rules of death penalty, that
somehow will allow the Eighth Amendment now and Federal judges
to alter what I think is plainly a constitutional punishment.
On the--gosh, time flies.
Senator Feinstein. Yes. Questions are long.
[Laughter.]
Senator Sessions. You've written, arguing that the
citizenship clause of the Fourteenth Amendment creates a
positive right, I would summarize, to whatever benefits are at
least necessary to fulfill full participation as a citizen. You
go on to note in your ``Interstate, Inequality, and Educational
Opportunity'' piece that the Fourteenth Amendment ``guarantee
of national citizenship was a generative source of substantial
rights.''
I'm uneasy a bit to suggest that the plain words of the
Fourteenth Amendment are generating rights. But besides that--
and you wrote that citizens have ``positive rights to
government assistance'', as I understand it.
That is rights derived from the Constitution, as I
understand it, and that ``these rights can be a guarantee not
only against State abridgment'', you wrote, ``but also as a
matter of positive right.'' You concluded that such an agenda,
a constitutional agenda, would ``include expanded access to
health insurance, child care, transportation subsidies, job
training, and a robust Earned Income Tax Credit.'' So do you
believe that, yes or no?
Professor Liu. I do believe that, Senator. But those
arguments are addressed to policymakers, not to the courts.
Senator Sessions. Well, that's important--a very important
distinction, and I'll review that. It does seem to be
consistent with your view of expansive governmental powers.
Senator Feinstein. Thank you, Senator Sessions.
Senator Sessions. One thing, and I'll conclude this remark.
That is that as you noted, both with Alito and Roberts,
judicial philosophy is important. Your writings are the only
thing we have to evidence that. I don't think it's sufficient
just to say that I'll follow authority somewhere in the system,
because many, many times a case of first impression will be
before you and your philosophy will indeed impact how the law
is shaped.
Senator Feinstein. Thank you very much. You cannot say you
have not had adequate time.
Senator Sessions. Thank you.
Senator Feinstein. Senator Kyl.
Senator Sessions. I believe it was on fast.
Senator Feinstein. Oh, do you?
[Laughter.]
Senator Kyl. Thank you, Madam Chairman, and for your
patience.
I want to get back to this question of agenda that I was
talking about before we had our little break. You, in a
broadcast earlier this year, January 3rd, on NPR, were
discussing how the Obama administration represented a new
opportunity for the American Constitution Society. You said
that Obama administration, ``that ACS had the opportunity to
actually get our ideas and the progressive vision of the
Constitution and of law and policy into practice.'' What did
you mean by ``our ideas'' and your ``progressive vision'' of
the Constitution and law and policy?
Professor Liu. Senator, I think that was a reference to the
ideas that underpin the American Constitution Society. I think,
as the mission statement of that organization reads, it's a
dedication to certain basic principles of our Constitution:
genuine equality, liberty, access to the courts, and a broad
commitment to the rule of law.
Senator Kyl. Is it fairly described as a progressive vision
or progressive mission?
Professor Liu. I think many people have described it that
way. I think that's fair, yes.
Senator Kyl. Now, the----
Professor Liu. The--the organization, I mean.
Senator Kyl. Yes.
Professor Liu. Not necessarily--I think the values are
those of the Constitution. I don't think they're--I wouldn't
say they're progressive or conservative, or whatever. I think
those are the values in the Constitution.
Senator Kyl. Well, the way you described it was ``the
opportunity to actually get our ideas and the progressive
vision of the Constitution and of law and of policy into
practice'', so I assume you subscribe to these views when you
talked about ``our ideas.''
Professor Liu. I have--I think, as I think the record
shows, Senator, I have been deeply involved in the American
Constitution Society.
Senator Kyl. Yes.
Professor Liu. I have served on the board, I have chaired
the board.
Senator Kyl. There's nothing wrong with having views that
are wrong.
[Laughter.]
Senator Kyl. No. OK. But I mean, so that's what you meant
by ``the opportunity to actually get our ideas and progressive
vision of the Constitution and law and policy into practice.''
But I guess the follow-up question is, obviously I guess you
would say you were speaking in a policy way, not through the
judicial process. Is that the way----
Professor Liu. I think--well, Senator, the short answer is
yes. In addition, I think that--look, I mean, I think every
President has his or her own views of what vision they would
like to enforce as a President. I think--I don't think I was
meaning anything more than just that basic prerogative of the
President.
Senator Kyl. Policy through the appropriate ways of
implementing policy.
Professor Liu. Absolutely. Yes.
Senator Kyl. And what you're suggesting is that it isn't
appropriate for a judge to have a policy agenda which he brings
to the court and to try to get that agenda adopted into law.
Professor Liu. Absolutely. I think it would not be
appropriate for any President to appoint a nominee for a
judgeship because of that nominee's agenda.
Senator Kyl. OK. I mentioned to you before, two of my
colleagues, one of whom is the Chairman of the Committee--and
I'll just quote from an April 13th article in Politico. He was
talking about things like the Ledbetter case and the Citizens
United case: ``I think what people are going to do is say, do
you share our concern about the fact that the court always
seems to side with the big corporate interests against the
average American.'' That's the end of Chairman Leahy's quote.
Do you think, first of all, that that's an accurate
characterization of what the Supreme Court does?
Professor Liu. I think the Supreme Court tries as best as
it can to apply the law fairly and equally to all interests of
the society, whether they are ordinary people or corporate
interests.
Senator Kyl. Do you think that if you were on the Ninth
Circuit Court of Appeals that you would have a biased or a
preconceived notion or an agenda to try to right a balance and
rule more against big corporate interests?
Professor Liu. Absolutely not, Senator.
Senator Kyl. How about in cases where the question of
executive power versus legislative power or judicial power is
concerned? Do you think that executive power has gotten too big
and that the courts should try to reign it in and rebalance so
that the executive power is more limited vis-a-vis the other
branches?
Professor Liu. Senator, I couldn't say that I have any sort
of theory of that sort. I think courts can only decide the
cases that are presented to them based on the applicable law.
The----
Senator Kyl. So would----
Professor Liu. Sorry.
Senator Kyl. No. Excuse me for interrupting. So your view
would be that if this Committee tried to promote a nominee
because of our belief that that nominee would rule against big
corporate interests or would rule against executive powers,
that that would be an inappropriate basis for us to base
support for a nominee on? That's bad grammar, but forgive me.
Professor Liu. I think--I think that--obviously, Senator, I
won't pretend to suggest what standards this Committee should
use in evaluating a judicial nominee. That's clearly your
prerogative and not mine. I would simply say that for all
judicial nominees, I think the--I--I would hope that the
important test is whether the nominee would be faithful to the
law that has been given, and especially for a lower court
nominee like myself. In virtually all of these areas, the
Supreme Court has said things and handed down precedents, and
those would have to be faithfully followed regardless of
whatever theory the nominee had about the issue and whatever
the nominee may have written previously.
Senator Kyl. Thank you.
Senator Feinstein. Thank you very much, Senator.
The hour is now 1:30. I would really like to recess or
adjourn this part of the hearing and move on to the four other
judges. I know, Senator Kyl, you're going to meet with
Professor Liu separately.
Senator Kyl. Well, I would like to do that. I'm just
wondering, and of course, whatever you would like to do,
obviously we can do. I can probably, in about--in no more than
10 minutes, and maybe less than that, conclude the questions
that I had, if that would better fit into the schedule. I mean,
I'm just going to try to truncate all of this and forget some
stuff.
Senator Feinstein. Well, in hopes that you might then vote
for him, 10 minutes.
[Laughter.]
Senator Kyl. Now, how about that for a test?
[Laughter.]
Senator Kyl. Obviously we don't want to approach cases with
a preconceived notion, do we? I mean, whatever you want to do.
But I think I could fairly quickly get through this.
Senator Feinstein. All right. Fairly quickly.
Senator Kyl. OK.
Senator Feinstein. No more than 10 minutes, and then we
move on.
Senator Kyl. That's acceptable.
Let me ask a question that I asked a previous nominee. The
President had talked about--he used two different analogies
about judging, talking about the kind of nominee he would
nominate. One, was the first 25 miles of a 26-mile marathon,
and the other was, he said, ``In 95 percent of the cases the
law will give you the answer, the last 5 percent, legal process
will not lead you to the rule of decision. The critical
ingredient in those cases is supplied by what is in the judge's
heart'', he said.
Do you agree with him that the law only takes you the first
25 miles of the marathon and that the last mile has to be
decided by what's in the judge's heart?
Professor Liu. Senator, I guess that's a colorful analogy,
but I'm not sure that's necessarily the one that I would
subscribe to. I think that judges should apply the law all the
way through, and I'm not a person who believes that what's in
the judge's heart should have a bearing on what the outcome of
a case would be.
Senator Kyl. OK. Relative to the Ledbetter case, because
Senator Feinstein asked you if in some cases it's important to
determine--let's see. I'll try to get the exact quotation: ``to
consider the effects of a decision on persons' lives'', and
that was a case where, at least presenting it from the Supreme
Court's point of view, they interpreted the law as they saw it.
Many people believed that the result was a--led to an
unfortunate--that that interpretation led to an unfortunate
result on Mrs. Ledbetter's life. So I guess the question is,
should that court have considered the effect on her life in
making the decision that it did?
Professor Liu. Senator, not to my knowledge. I mean, it
would depend on what the applicable law told you to take into
consideration. But I don't believe----
Senator Kyl. You remember the statute of limitations issue.
Professor Liu. Yes, I'm aware. Yeah. And I don't believe
that the effect on Ms. Ledbetter's life is the relevant
determinant there.
Senator Kyl. So presumably you would have just tried to
read the statute, and if she lost, then that was something to
be corrected by the legislature, if the legislature decided to
correct it?
Professor Liu. I would look to the way the statute of
limitations had been applied in the precedents. I would look to
the statutory--the relevant statute that governed that issue,
and I would try to apply it faithfully, yes.
Senator Feinstein. Senator Kyl.
Senator Kyl. Sure.
Senator Feinstein. Just for a moment.
Senator Kyl. Sure.
Senator Feinstein. My question was a little different. It
wasn't how it affected her life, it was the practical
consequences of legal law. In other words, the consequence of
the law was so convoluted because she could not possibly have
known that she should have been paid on a different pay scale.
Senator Kyl. Of course, I stand corrected since I was
citing Senator Feinstein.
Would that change your answer?
Professor Liu. I think, you know, just to perhaps bring the
two things closer together, I think it is important to consider
the kinds of practical consequences Senator Feinstein speaks of
in the sense of saying, if the statute of limitations doctrine
has within it--and I'm not saying it does. Actually, I don't
know what--you know, I don't know off the top of my head what
the doctrine says. But if it has within it some notion of a
notice, that a person has to know when their rights are being
violated in order for the statute to start running, then one
would have to inquire, how does the law play out in someone's
life.
Senator Kyl. Yes. That's the question.
Professor Liu. Right.
Senator Kyl. I mean, as you know, statute of limitations
law is ``knew or should have known.''
Professor Liu. Exactly.
Senator Kyl. And that's as part of the ``should have
known.'' If the person should have known and still loses out on
benefits, then the court says that's just the way it is. Is
that correct?
Professor Liu. That is correct.
Senator Kyl. Now, one of the things that you said in this
``Keeping Faith With The Constitution'' was that the
Constitution requires adaptation of its broad principles to
conditions we face today, and so on. You said the question is
not how the Constitution would have been applied at the
founding, but rather how it should be applied today. I want to
focus on that word ``should.'' Then you went on--there's an
ellipsis here--``in light of changing needs, conditions, and
understandings of our society.'' I mean, ``should'' is not--I
mean, that's a normative term. The question--I mean, it really
begs the question, what is the legal test for how you decide
``should'', right?
Professor Liu. Yeah. Well, Senator, if I could address
that. The ellipsis, the missing words, I believe say how it
should be applied to preserve the power and meaning of the text
and the principles. The ``should'' is not--I'm sorry.
Senator Kyl. No. If--if--I didn't have those words in here,
and that does make it somewhat different.
Professor Liu. Yes. I only mean to say that the ``should''
is not should as in however a judge feels it should apply,
it's, rather, how it should apply in order to preserve what the
text says and what the principles behind the text mean.
Senator Kyl. One of the areas that we've gotten into in
this context is the question of the role of religion or faith
in our society. I just note today there's a story out of
Madison, Wisconsin. A Federal judge has ruled that the National
Day of Prayer is unconstitutional. Obviously, neither you nor I
have read this decision, but can you think of any determinative
constitutional argument that would support that ruling?
Professor Liu. Senator, I'm going to confess that I have
spent hardly any time in my career studying the religion
clauses of the Constitution, so I am not familiar with the
relevant precedents in that area.
Senator Kyl. All right. Let me just conclude with this.
You've been pretty outspoken in your criticism of the current
Supreme Court. In fact, you've suggested that it lacks both
principle and legitimacy. In one article you--and I'm
specifically referring to the Bush v. Gore decision. You said
it was ``utterly lacking in any legal principle.'' That's a
pretty tough criticism for a Supreme Court decision.
And in another you claimed that, again, ``if you look
across the entire run of cases, you see a fairly consistent
pattern where respect for precedent goes by the wayside when it
gets in the way of result.'' Now, you obviously have a problem
with the Supreme Court decisions here, the precedents that you
would be asked to apply. You haven't been bashful about
expressing that serious opposition to it, but you're telling us
that, notwithstanding that, it's ``utterly lacking in legal
principle.'' You would apply the legal principle that you
discern that they--or that was the basis of a decision, right?
Professor Liu. Well, Senator, the reason that I perhaps
said those words was that the opinion itself stated that it was
only to apply in that case. So I'm not sure I would apply that
case because the court instructed, in its terms----
Senator Kyl. Well, but--yeah. But that's a distinction
there with a difference. ``Utterly lacking in legal principle''
is different than ``wouldn't apply to a future case.'' I mean,
are you saying the court had no legal principle basis for the
decision that it made in Bush v. Gore?
Professor Liu. Well, Senator, I guess the only import of
the phrase that I chose there was that it was my thinking that
a legal principle should be something that applies in more than
one case because it's a principle.
Senator Kyl. So you don't think they used a principle, but
simply used some kind of pragmatic decisionmaking in the case?
Professor Liu. Well, Senator, I won't--I guess I won't try
to characterize it further here, but I've written what I've
written and said what I've said.
Senator Kyl. You said that Justice Alito ``approaches law
in a formalistic, mechanical way, abstracted from human
experience.'' You're very critical of that. Now, would you like
to invent a fourth element of a tort besides duty, breach of
duty, and damage, or elements of a contract, or whatever? I
mean, that's a purely mechanical, formalistic way of deciding
how a particular case gets decided, isn't it?
Professor Liu. I think this perhaps goes back to your
earlier question, Senator Kyl. It's just that I think that in
the application of, say, the elements of tort or the elements
of contract there is a human aspect to judging. That's why we
don't put legal problems through a machine, or through a
formula, or through a computer.
Senator Kyl. Well, what is the human aspect? I mean, I can
understand that in sentencing, for example, but I'm not sure I
can understand it in the question of who should win the case, A
versus B, defendant versus plaintiff.
Professor Liu. I think a judge must fairly apply the law as
it's given and follow the written law to its logical
consequence, no matter what the--what the result is. I think in
the application of legal principles, judges are called on to
exercise judgment with respect to how they apply in a
particular case. I think judges are human beings, and there is
often reasonable disagreement about the application of law to
facts. But the task, I think, for all judges remains the same,
which is applying the law faithfully to the facts of a specific
case.
Senator Kyl. Yes. And that's a fair statement of the way it
should be. We all come to our positions with our preconceived
notions, our political ideologies, our notions, and personal
experiences can certainly shape how we view certain issues. The
job of the judge is to try to remove as much of that from his
decisionmaking or her decisionmaking process as possible, would
you not agree?
Professor Liu. I would absolutely agree with that, Senator
Kyl.
Senator Kyl. And finally, would you also agree that when
someone has written as extensively as you have in very, as you
put it in one sense, colorful language--I mean, you've not been
bashful about expressing very specific and strong--obviously
strongly held views about certain things, that it can give way
to some questioning as to whether or not, the views having been
held that strongly, with as much writing about them as you've
done and as much very explicit criticism of people who have
held a contrary point of view, whether it's possible for you to
lay aside those ideas or ideologies and approach cases from a
purely objective, unbiased point of view.
Professor Liu. Well, Senator, if I could just offer one
thought on that, I hope that my writings demonstrate that I'm
someone who's--obviously I have my views, but I hope that I'm
someone who's also able to take into account the opposing views
of others.
Frankly, I appreciated this opportunity to have this dialog
with you, and Senator Sessions, and others about very important
and--important and controversial issues of law, about which
there is, I think, very reasonable disagreement in America. In
fact, one of the great things, I think, about this country and
the legal tradition we have is that there is room for that
disagreement.
As much as I like my own views, I confess to you that I
would actually be a little afraid if I was the only voice
speaking and that everything went my way. That's not--that is
not the kind of certainty that I have about my own views, and I
hope my writings reflect--at least the more thoughtful parts of
my writing reflect--that type of discipline and restraint.
Senator Kyl. Madam Chairman, thank you. If there is an
opportunity for us to visit personally, I would welcome that.
Professor Liu. I would also.
Senator Feinstein. I appreciate that.
Senator Kyl. I suspect there may be questions for the
record, following up on some of these things, and so on.
Senator Feinstein. Thank you.
Senator Kyl. Of course, it goes without saying, you can add
to your--or further elucidate on your answers if you want to do
that.
Senator Feinstein. Thank you. Thank you.
I'd like to close this off with a few words.
Senator Sessions. Madam Chairman.
Senator Feinstein. Yes, go ahead.
Senator Sessions. I had a question.
Senator Feinstein. Questions?
Senator Sessions. Yes. He got----
Senator Feinstein. If they're softballs, yes. Hardballs,
no. [Laughter.]
Senator Sessions. I would note that Jeffrey Sutton's
hearing--and he was a mainstream, I think, skilled attorney,
had a restrained review of the role of a judge--went on for 12
hours. Senator Schumer had at least one 20-minute round in that
time. So we've had some long hearings. This certainly does not
exceed the norm.
With regard to your comments about the theory of
constitutional fidelity, that it may be valid when the object,
fidelity, ``may be valid when the object of the interpretation
is one of the Constitution's concrete and specific commands.''
You said you should show fidelity to that.
For example, I think you've noted that revenue bills must
arise in the House. That's unequivocal. What about the Second
Amendment, which states that ``the right to keep and bear arms
shall not be infringed'' ? Is that a precise command that
cannot be abridged by unelected judges?
Professor Liu. Senator, the Supreme Court, I think, has
clearly said that that is a clear command that protects an
individual's right to bear arms.
Senator Sessions. Well, there's some uncertainty about it
all, whether or not it will apply to States, cities. So what's
your view of the Second Amendment?
Senator Feinstein. Oh, here we go.
Senator Sessions. Is it clear on that subject? You don't
hesitate to say a revenue bill must rise in the House. Do you
hesitate to say that the right to keep and bear arms shall not
be infringed? Is that ambiguous?
Professor Liu. Senator, I confess, I have not thought
about, written about the Second Amendment in any great detail.
The book, I think, discusses the Second Amendment as an example
of where judges have applied a basic approach to constitutional
interpretation that takes into account a variety of factors,
including the original meaning, including the text, but also
including the practical consequences of a decision and
precedent. I think that's the extent of any view that I have
about the Second Amendment and I couldn't really go further.
Senator Sessions. You've been clear that you felt that
quotas are unconstitutional.
Professor Liu. Yes.
Senator Sessions. Is that your personal analysis of that or
just based on Supreme Court?
Professor Liu. That is my view, Senator.
Senator Sessions. But I'm troubled. That's an easy word to
say, but I'm troubled that you have written that Adarand should
be consigned to the dustbin of history. Adarand dealt with
racial set-asides, giving preference to one person or another
as a result of the color of their skin or their ancestry. So I
ask you, is that inconsistent? How do you dismiss so firmly the
Adarand decision when it seems to be based on similar theories
as quotas?
Professor Liu. Well, Adarand is a precedent of the court,
and of course I would follow it as a judge. I think my
disagreement with Adarand doesn't have anything to do with, I
think, it's central holding, which was that all racial
classifications by government are subject to the highest level
of constitutional suspicion by the courts. I have agreed with
that principle in my writings and I have not urged the court to
revisit that in any way.
I think the only disagreement I had with Adarand was its
extension of the principles of the Crowson case, which dealt
with the obligations of States rather than the Federal
Government, with respect to the latitude given to implement
Affirmative Action programs. I took a perhaps broader view than
the court took of that particular issue, and that's the only
point of disagreement that I have with the Adarand case.
Senator Sessions. One final thing. I'm curious about the
American Constitution Society. So many members of the Obama
administration talk about a progressive agenda and
progressivism. As I understand it, the progressive movement
started in the early 1900s, and one of their doctrines was that
elite people knew best and that the Constitution was an
impediment to them being able to do what was best for those
uneducated folk out there in the country.
Is that in any way the American Constitutional Society's
view? Why do you use that phrase if it's not?
Professor Liu. Well, Senator, I--this--I think your
question rightly, I think, exposes the hazards of using labels
of that sort. I guess I'll just put it in plain terms, which is
that I think that the American people have always, I think,
demonstrated great reverence for our Constitution because they
think of it as a set of principles and a document that they can
embrace as their own.
I don't think it's a question at all of whether
policymakers or judges are in some sense wiser than the people.
There is no greater wisdom than that that resides in the
American people itself, and that's what has sustained this
country, I think, throughout its many, many years as a nation
dedicated to the rule of law under our own Constitution.
Senator Sessions. Thank you.
Senator Feinstein. Thank you very much, Senator.
I'd like to conclude this now, but I'd like to say, you
know, I've been very, very impressed with you personally. You
came to my home in San Franciso, we spent a couple of hours.
You joined with my family and me for dinner, and my daughter
happens to be a judge, so we had a good conversation. I cannot,
in my time on this Committee, remember anybody quite so young
that has done so much and I have great respect for that.
I think the thing that all of us have to remember is that
this is a very diverse country and the law is equal for
everybody, but within that law there are certain tensions and
there's dialog, and there's discussion, and there are cases on
point and not on point. It really takes a mature mind and
someone I think that is willing to weigh the sales equally on
both sides and make that transition from an advocate to a
judge.
Judge Chen, for example, who was an advocate, he's pending
for a District Court, has been 8 years as a magistrate judge
and has been able to demonstrate that for 8 years. Here, you
are being appointed to the Circuit Court. You haven't had an
opportunity to demonstrate that for a period of time. I've
asked you about this before. You did not make an opening
statement. I would ask you to make a very brief concluding
statement just on that point.
Professor Liu. Certainly, Senator. And I think it's a very
fair point. Many nominees come before this Committee with
backgrounds different from mine. I guess I would say, as you
look across my entire record, there are many things I think
relevant to the kind of judge that I would be. In my
scholarship, I hope that the record shows that I am a rigorous
and disciplined person who makes arguments carefully, in a
nuanced way, taking into account all the other possible ways of
looking at an issue, and where I've decided to lay down my
view, I have respectfully treated the views of others.
I think if you look at my teaching, and many of my former
students are here today, I hope that what you would find is
that I'm a good listener, that I don't seek to impose my views
on other people. Rather, what I try to do is elicit all the
different points of view that could illuminate an issue.
And I hope that it counts for something that I've won, at
least among some, the respect of colleagues who see in me the
temperament, the integrity, and the qualifies of collegiality
and balanced judgment that have enabled me to perform certain
leadership positions and to be involved in various
organizations that require that skill set. So although, Senator
Feinstein, I can't hold up for you a judicial resume that
demonstrates in the most direct way the qualities of a judge, I
hope at least you'll find analogous evidence in some of the
other things that I've done.
Senator Feinstein. Well, thank you very much. I'm going to
excuse you now.
I'd like to correct the record of something Senator Coburn
said. There are four of us that are non-lawyers on this
Committee, and we believe we see the forest rather than just
the trees. So, thank you very much for being here today.
Professor Liu. Thank you very much.
Senator Sessions. While you're changing, could I offer for
the record some letters, Madam Chairman.
Senator Feinstein. Yes, you certainly may.
Senator Sessions. I have 10 letters here from the Judicial
Action Group, Criminal Justice Legal Foundation, Judicial
Watch, Liberty Council, 42 California District Attorneys who
say, ``For many years our ability to enforce the law and
protect the citizens of our jurisdiction has been hampered by
erroneous decisions of U.S. Court of Appeals for the Ninth
Circuit. This court has been far out of the judicial
mainstream.'' They say, ``Under no circumstances should any
nominee be confirmed to the Ninth Circuit who would take that
court further in the wrong direction. Regrettably, the
President has sent to the Senate just such a nominee.''
Also, the Concerned Women of America, the Crime Victims
United of California, the American Conservative Union,
Republican National Lawyers Association.
Senator Feinstein. Well, thank you very much. Those letters
will go on the record.
[The letters appear as a submission for the record.]
Senator Feinstein. And I would like to submit to the record
a list of 24 court nominees confirmed under the Bush
administration who had no prior experience as a judge. So,
those documents will go into the record.
[The information appears as a submission for the record.]
Senator Feinstein. Thank you very much, Professor Liu.
Professor Liu. Thank you.
Senator Feinstein. To your family and those wonderfully
well-behaved children, thank you for being here. Bye, Violet.
[Laughter.]
Thank you so much.
And if our four other nominees would please come forward
and take your place, we will begin that.
Since I'm giving you the oath, I'll give you one, too. If
you would affirm the oath when I complete its reading.
[Whereupon, the witnesses were duly sworn.]
Senator Feinstein. Thank you.
We now have Hon. Kimberly J. Mueller, Richard Mark Gergel,
Michelle Childs, and Catherine Eagles before us, all
distinguished people. And I would like to open the floor to
Judge Mueller. Is it Muller or Mueller?
Judge Mueller. It's Mueller, Senator.
Senator Feinstein. Mueller.
Judge Mueller. Thank you for asking.
Senator Feinstein. All right. And she, as I understand it,
is from the Eastern District of California. This is a district
with a very high caseload. She is nominated for Judge Damrell's
seat, who has taken senior status. She has presided over more
than 50 trials and seen approximately 230 cases to verdict or
judgment, so she is an experienced jurist.
And I think what we will do is go right down the line and
ask each of you to make a few opening comments and introduce
your family, if you will.
So why don't we begin with you, Judge?
Senator Kyl. May I please interrupt? Excuse me for that,
Madam Chairman.
Senator Feinstein. Sure.
Senator Kyl. I've just gotten notice now that I do have to
run, but could I just welcome each of you and apologize for
what seems to be a very unfair process here, where you probably
will not get the same attention that the nominee just before
you did. [Laughter.]
And I want to assure all of the people who have so
patiently waited and have come here to see you perform on this
stage, that the fact that you may not get quite the same
attention is a testament to the fact that, having looked at all
of this stuff in advance--I shouldn't say stuff. All of the
material that you provided in advance--you don't seem to have
created anything of sufficient controversy, shall we say, to
cause us to have to spend that much time with you. So with your
leave, I would like to express my congratulations to all of
you. I look forward to reading anything that you might say
that's controversial. That might be a hint.
And thank you, Senator Feinstein, for your courtesies at
the hearing this morning.
Senator Feinstein. Oh, you're very welcome.
Senator Kyl. Thank you.
Senator Feinstein. Thank you.
That means you have Senator Kyl's----[Laughter.]
In any event, thank you for being here. I know I speak for
the Ranking Member--he can speak for himself--but we both very
much regret this, but it is the way of trying to move a number
of judges at one time.
So let me begin with you, Judge.
STATEMENT OF HON. KIMBERLY J. MUELLER, TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA
Judge Mueller. Madam Chairman, thank you very much for the
opportunity to be here today, Senator Sessions. I would like to
first, of course, thank President Obama for the great honor of
placing my name in nomination. I would like to thank each of
you, and the Committee as a whole, for taking me under
consideration, considering whether or not to confirm.
I would also like to acknowledge family members and friends
who are here with me today, if I may. May I ask them to stand
briefly as I introduce them?
Senator Feinstein. Yes. Please do.
Judge Mueller. All right. My parents have joined me here
from North Newton, Kansas, Ted and Burneal Mueller; my husband,
Robert Johnston Slobe.
Senator Feinstein. Please stand so that we might be able to
see you. Thank you.
Judge Mueller. Ted and Burneal Mueller; Robert Johnston
Slobe, my husband, from Sacramento. I'm also joined by my
sister, LuGene Meuller Isleman from West Des Moines, Iowa.
Additionally, I'm joined by friends, very good friends,
from Boston, Massachusetts: Brad and Mary Power, and their
daughters, my special friends, Mary and Hana. Additionally,
Dave Jones--Dave Smith, a friend from New York City; Andy
Stroud, a former colleague at Orrick, Herrington & Sutcliffe
from Sacramento; Ann Blackwood, a friend from Sacramento who is
working in Washington, DC today.
Senator Feinstein. You're filling up the room.
Judge Mueller. All right. [Laughter.]
Senator Feinstein. Yes.
Judge Mueller. And I risk having left someone out. There
are some people watching, and with your patience I would just
acknowledge them as well.
Senator Feinstein. Please.
Judge Mueller. And my family and friends could now be
seated if they are still standing.
My sister, Mailan and her husband Simon Foster are not able
to be here. They are in London, England. My mother-in-law,
Carolyn Slobe of Sacramento, is not able to be here; my
brother-in-law, Gary Slobe of San Diego; my sister-in-law,
Wendy Blackmoor of Boulder, Colorado, and her children, Katie,
a teacher in Denver, her son Patrick, a first-year student at
Cornell Law School; and finally, our cousin, Stephen James in
Sacramento.
Thank you for the opportunity to acknowledge them here
today.
Senator Feinstein. Thank you very much. Appreciate it.
Judge Gergel.
[The biographical information follows.]
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STATEMENT OF RICHARD MARK GERGEL, TO BE U.S. DISTRICT JUDGE FOR
THE DISTRICT OF SOUTH CAROLINA
Mr. Gergel. Thank you, Senator and Ranking Member, for the
privilege of being here today. I, of course, would like to
thank President Obama for the high honor of the nomination. I
would like to thank Senator Graham and Senator DeMint for their
support for my nomination, and I was quite humbled by the warm
comments of Senator Graham and Majority Whip Clyburn today at
the beginning of the proceeding.
I would like, if they could stand, my dear wife of 30
years, Dr. Belinda Gergel; my son, Richie, who has come from
New York, where he works for NBC News; my son Joseph, a
graduate student in Paris, is watching by streaming video, as
is my 88-year-old mother, who was very humbled by her youngest
son being here today; and my dear friend, Doug Jennings, has
come from Bennettsville, South Carolina.
Thank you.
Senator Feinstein. Thank you very much.
Judge Childs.
[The biographical information follows.]
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STATEMENT OF HON. J. MICHELLE CHILDS, TO BE U.S. DISTRICT JUDGE
FOR THE DISTRICT OF SOUTH CAROLINA
Judge Childs. Yes. Madam Chair Feinstein and Ranking Member
Sessions, and also other members of the Judiciary Committee who
have not had the opportunity to be here before us, thank you.
I'm greatly humbled by this opportunity to appear before you.
I'd like to express sincere appreciation and gratitude to
President Obama for this high honor and privilege of being
nominated, and of course to our Senators who have been here in
support, particularly Senator Graham, who also made some very
warm comments for us today. Then also, Majority Whip Clyburn.
We also express appreciation to Senator DeMint, who's also in
support of our nomination.
I'd like to acknowledge my family as well. I'll begin,
first, with my husband, Dr. Floyd Angus. He's a
gastroenterologist in Sumter, South Carolina. He also has next
to him my mother, Shandra Childs. My mother is second of 12
children, and I wish to acknowledge my grandmother.
Senator Feinstein. She looks like your sister!
Judge Childs. Thank you.
[Laughter.]
Senator Feinstein. That's amazing.
Judge Childs. Bertha Mary Green, who is in Detroit,
Michigan, who is the matriarch of the family, not able to be
here. My mother's other sibling, my uncle Derek and Vivian
Green, they came here from Atlanta, Georgia. And when you have
a family of 12, there's always an older sibling who watches a
younger sibling, and that's the pair relationship between those
two.
My brother-in-law, Dr. Sherwin Angus, who is an
anesthesiologist here in Hampton, Virginia, and my sister,
who's watching by web, who's watching my 16-month-old daughter,
my heart, Juliana, and her family and her husband and children.
I'd like to acknowledge them. Then also here with us as well is
my cousin, Victoria Trice, who actually lived in Louisville,
Kentucky, and I'd like to say hello to all my Weathers family.
There's an original 13 on that side, so I do have a large
family contingency.
Senator Feinstein. You're lucky.
Judge Childs. Thank you.
And then also a dear family friend who's part of our
extended family, Ms. Deborah Lum. I believe I caught everyone.
Yes. Thank you all.
Senator Feinstein. Thank you. I should have said Madam
Chief Justice. In any event, welcome. Welcome to your family.
Judge Childs. Thank you.
Senator Feinstein. Judge Eagles.
[The biographical information follows.]
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STATEMENT OF HON. CATHERINE C. EAGLES, TO BE U.S. DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Judge Eagles. Yes. Thank you, Madam Chair and Senator
Sessions. I also would like to thank the President for the
honor.
I am privileged to introduce my family that I have here
with me. My husband--and I'd ask them to stand. My husband Bill
is here, my sons, John Ivey and Thad are here; my mother,
Dorothy Caldwell is here. I'm also joined by some friends who
live in the DC area, college friends who are here, Mary
Kingsley and Alice Smith and some friends from the time I spent
in DC when I was in law school, Susan Kaplan and Paul
Colarulli. They are all here with me. My brothers and sisters
are scattered around the country, and my nieces and nephews,
and they are here in spirit.
Thank you.
Senator Feinstein. Thank you very much.
Since three of you are already judges, I'd like to ask one
question and go right down the line and have you answer it.
How can you assure us that in any case that comes before
you you will, or that you have been, able to disregard your own
personal views and allegiances and decide the case only on the
law and the facts? Judge Mueller.
Judge Mueller. Madam Chairman, thank you for that question.
I believe that's the first principle of judging. In fact, I
think putting on the black robe symbolizes that exercise of
putting aside personal views and coming to the bench, coming to
the case with the intent of applying only the law as it is
given in the Constitution by the Supreme Court--by the Circuit
Court in my case--applying controlling precedent, and doing a
judge's best to reach the correct decision under the law.
Senator Feinstein. Thank you.
Judge--excuse me. Mr. Gergel.
Mr. Gergel. I don't mind that reference. [Laughter.]
Madam Chairman, the paramount issue in the adjudicative
process is the rule of law. There is nothing more fundamental.
I pledge to you, if I'm fortunate enough to be confirmed, that
that will always be my first and central concern, the paramount
nature of the rule of law.
Senator Feinstein. Thank you.
[The biographical information follows.]
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Madam Chief Justice.
Judge Childs. Well, actually, that is not my correct title.
I'm a Circuit Court judge. The reference earlier to Chief
Justice was to Chief Justice Toal, who has allowed me, in her
gratitude, to serve as an acting justice on our South Carolina
Supreme Court from time to time.
Senator Feinstein. I see.
Judge Childs. But thank you.
In reference to your question, I have a high regard and
sincere appreciation for our legal system, which is the form of
order in our court, in our democracy. I believe that my record
supports that I allow litigants to access the courts and have
their disputes adjudicated in a fair and impartial manner under
a fair and independent legal system. I approach all cases
allowing litigants to have equal justice under the law and to
act in accordance with the rule of law
Senator Feinstein. Thank you very much.
Judge Eagles.
Judge Eagles. Yes. I would join my colleagues here at the
table in expressing respect for the rule of law. Part of the
role of the judge is to ensure a predictable process to ensure
that the law, as it has been expressed by the higher courts--
I've been a State court judge for almost 17 years. In my case,
it would have been the North Carolina Court of Appeals and
North Carolina Supreme Court--is followed in my courtroom every
day as fairly and consistently as I am able to do so.
Senator Feinstein. One other question. What is your
understanding of the scope of Congressional power under Article
1 of the Constitution, in particular the commerce clause and
under Section 5 of the Fourteenth Amendment? Who would like to
go first? Judge Mueller.
Judge Mueller. Madam Chairman, I'll do my best to answer
your question. I have not had the opportunity to make such a
decision. I can tell you, if the question is asking about
whether or not I would ever rule a statute unconstitutional, I
can tell you that I would presume a statute to be
constitutional and only overturn after very serious
consideration and not readily.
But generally, my approach to any case would be to look at
the question presented, look at the record of the case before
me, marshal the applicable law, and apply that law to the
specific question presented. I have not made a decision, I
believe, that addresses that question to date.
Senator Feinstein. Mr. Gergel.
Mr. Gergel. Yes, ma'am. Obviously the commerce clause
provides broad powers to Congress; the precedents of the
Supreme Court demonstrate that. But that power is not
unlimited. The Tenth Amendment is an important feature in
balancing the respective powers of the Federal and State
government. Likewise, Section 5 of the Fourteenth Amendment
provides important remedial powers to Congress to remedy
violations of equal protection and due process, but again, that
power is not unlimited.
Senator Feinstein. Thank you.
Judge Childs.
Judge Childs. I, too, have not had the opportunity to
address this particular situation in State court. However, as a
limited role in Federal court, I would approach only cases and
controversies before me. With respect to any laws respecting
your Congressional powers, I would presume that anything that
you all are doing is constitutional and would approach it with
that mindset, knowing that you would only enact laws that you
have had due deliberance over and consider deliberation over,
so I wouldn't make that presumption in the first place.
There may be a course of action in which we might have to
consider something to be unconstitutional, but I would hope
that we'd be in a position where the record--you may not have
to reach that decision. But of course, only those particular
facts and circumstances that are before the court would I make
decisions about.
Senator Feinstein. Thank you.
Judge Eagles.
Judge Eagles. Yes. As a State court judge, I have not faced
many commerce clause issues. I do know there are some recent
cases in that area from the U.S. Supreme Court. It would be my
intention to read those cases carefully, to read Fourth Circuit
cases if there are any that are on point and helpful to the
factual situation that would be in front of me, and if there
are not, to perhaps look beyond the Fourth Circuit to other
circuits if I were fortunate enough to be confirmed, and to
apply the law as it is put forward by those appellate courts to
the facts specifically in front of me, to only reach
constitutional questions when necessary and to rule narrowly
when possible.
Senator Feinstein. Thank you.
Senator Sessions.
Senator Sessions. Well, thank you. It's good to have all of
you here. The process is more rigorous, as you know, than just
the hearing we have today. Each of you had to be interviewed by
the Department of Justice, and perhaps the President and the
White House. You've been asked to submit your materials. FBI
has done backgrounds, ABA has done evaluations.
You've submitted documents, according to our questionnaire,
to the Senate and our staffs have done their best to pore over
them to make sure that things are in order. I have to say at
this point, there is nothing happening that is bad, I guess you
would say. It looks good on your record. Each of you have had a
good deal of experience, it seems to me, to have the kind of
skills and gifts and graces and background that would put you
in a position to do a good job as a U.S. District Judge.
But it's not a little bitty matter that we go through. This
is a lifetime appointment. It's the only opportunity the public
has to have any kind of role in it. So I want to say, even
though we're not going to be grilling you this morning, or this
afternoon, that a lot of work has gone into assuring the public
that your nominations are worthy of going forward, that you
have the skills, the integrity to do a good job.
Mr. Gergel, you mentioned the rule of law. You've practiced
for some time. I just was reading an article in Fortune
Magazine by the CEO of a major company or investment group, and
they were investing all over the world. He was talking
positively about it. The interviewer said, well, what about the
United States? Do you still believe in investment in the United
States? On three different occasions in that protracted
interview he said yes, and the first reason he gave was the
rule of law, that you can invest in the United States, you can
feel like you'll have a fair day in court if something comes
up, and you're at much greater risk in other countries, many
other countries, because they don't have that great tradition.
In your experience, how do you evaluate the importance of
the rule of law?
Mr. Gergel. Well, Senator, I think that's an excellent
question. I have a friend who was telling me the story about a
colleague who had invested in Russia and had a dispute come up
that was an ordinary business dispute, and the disputant sent
over thugs to threaten the American businessman and he packed
up and left Moscow and he's never returned. It shows you you
cannot have a free enterprise system, you cannot have a free
market if you don't have the rule of law. It is essential to
the rule of law.
Senator Sessions. I'd just agree. That's one of the reasons
I feel so deeply, is the rule of law is--you interpret the
statutes and Constitution as written and we give--you get
awfully inconsistent verdicts if each judge allows their
empathy, or their feelings, or their philosophy to impact it.
Judge Mueller, you've had experience with the sentencing
guidelines. You have expressed some concern about the tough
sentences on occasion you've been called upon to impose, I
understand, in one commencement speech, I understand. You're
not the only judge that's expressed that.
And we just passed, in a bipartisan way, unanimously out of
the Senate a modification of the crack and powder sentencing
guidelines, which are, I think, the primary source, would you
not agree, of some of the heavier sentences in the system. So I
guess my question to you is, you're about to have this lifetime
appointment. How do you feel about the guidelines? What
deference do you feel they should be given, and to what extent
will you follow them?
Judge Mueller. Senator, thank you for that question and the
opportunity to clarify. I'm not certain I'm remembering the
comments you're referencing. It might have come from my very
first days as a judge. When I first became a magistrate judge I
had had no criminal experience.
Senator Sessions. I think the quote was, ``Why am I faced
with placing children in jail longer than they've been alive?
'' Sometimes that is true. Then you said, ``Of course there is
never a reasonable justification, but I'm still searching for
explanations.''
Judge Mueller. I may be completely forgetting. That doesn't
sound like anything I've ever said.
Senator Sessions. You look puzzled. I think you're correct.
Judge Mueller. Ah.
Senator Sessions. I don't think that was you.
Judge Mueller. OK.
[Laughter.]
Senator Sessions. Somebody else will have to answer for
that. Judge Childs.
Judge Mueller. I have forgotten many things I've said, but
I am glad to know I wasn't----
Judge Childs. I must say, when you were stating that the
words sounded quite familiar.
[Laughter.]
Senator Sessions. Well, it's a tough thing. How do you feel
about it, the duty that you have to impose sometimes very tough
sentences, and will you do it?
Judge Mueller. Absolutely, Senator. And let me just say,
even though I do not currently see felony cases, I see felony
defendants only on initial appearance's detention hearings. But
I regularly consult the guidelines in resolving the Class A
misdemeanor cases that are before me. Even though I understand,
following Booker and Fan-Fan, that the guidelines are advisory,
I regularly consult them in every case.
I consider them an essential tool, both to ensure that I
make a well-informed decision in imposing judgment and
sentence, but moreover, in ensuring that I am complying with
the statutory factors under 18 U.S. Code, Section 3553, and in
particular, the factor that focuses on uniformity, ensuring to
the best possible that courts are imposing uniform sentences
throughout the country. So, I consider the guidelines a very
valuable tool.
Senator Sessions. I appreciate that. I think that's a good
answer for you new Federal judges-to-be. I think that's good
advice. A lot of time and effort went into identifying what an
appropriate sentence is, what are the aggravating/mitigating
circumstances. It's a bit mechanical and some judges don't like
it for that reason, but when the dust settles, I think we've
definitely achieved more uniformity, more consistency, and
actually allow you to feel more comfortable that the sentence
you've imposed is one that is not out of the mainstream of
thinking.
Mr. Gergel, would you share your thoughts about how you
would approach the guidelines?
Mr. Gergel. You know, we in South Carolina have a special
relationship with the guidelines because the chair of the
original Sentencing Commission was Billy Wilkins, the Chief
Judge of the Fourth Circuit, and I've had the privilege of
having two lengthy discussions with Judge Wilkins, since the
President was kind enough to nominate me, about both the
underlying philosophy and the practical application of the
guidelines. And I've also had--spent a good bit of time
studying them. They show a lot of collected wisdom and
experience. They are a very valuable tool. They should be the
benchmark and the beginning point of every sentencing process.
I have found, looking at this, that's often where you end
up because it is so reasonable. There are obviously
circumstances where they don't fit. Often, all parties--the
U.S. Attorney's Office and the defendant counsel--will
recognize when they don't fit. They're usually--that's not a
matter of dispute. But generally speaking, they're a very
valuable tool and I pledge to seriously consider them in any
sentencing that I do.
Senator Sessions. I would say that Judge Wilkins'
leadership in establishing the sentencing guidelines was
probably the greatest change in the entire criminal justice
system since the founding of the Republic--maybe the
eliminating of parole, and you get you get definite sentences.
But both of those happened about the same time. It was a
bipartisan act by this Senate before I got here. I think it has
been helpful.
Judge Childs.
Judge Childs. Yes. In State court, we obviously are not
bound by any sentencing guidelines, as well as we don't really
have sentencing guidelines as advisory. So in that regard, I do
believe that the Federal court guidelines--and I appreciate the
collaborative and bipartisan efforts that have gone into those
guidelines--they assure more consistency, uniformity, and
reasonableness of the sentences.
As State court judges, we have a broad range and that will
differ from judge to judge as to what a particular sentence
might be to an individual defendant. So I'm certainly ready, if
lucky enough to be confirmed as well, to approach those
guidelines as advisory, but also have some well-reasoned
explanations for departing from such guidelines.
Senator Sessions. It might make you sleep a little better
if you're following the recommendations of people who
objectively figured out what they thought would be a reasonable
sentence.
Judge Childs. Absolutely.
Senator Sessions. Judge Eagles.
Judge Eagles. Yes. When I became a judge in 1993, we did
not have any sentencing guidelines or anything like that in
North Carolina. Very big disparities in sentencing across the
State from judge to judge. But we did have structured
sentencing enacted in North Carolina in 1994. It's not exactly
the same as the Federal system, I understand, but it does have
presumptive sentences with aggravating factors and mitigating
factors.
I have been working with those since, I think if I can
remember, October 1st of 1994, crimes committed after that
date. So I'm used to working with guidelines. It gives a
framework for sentencing that is extremely helpful and useful,
and I agree with my colleagues that I would definitely consult
those in the first instance.
Senator Feinstein. Thank you very much, Senator Sessions.
I'm not going to ask any more questions, but I am going to
say this: you are all going to the Federal trial court and it's
where the rubber hits the road, and it's where people come in
and petition. It's where you will be depended upon to settle
cases because some of you will have very large caseloads, and
so your ability to work a case to settlement rather than take
it to trial is also all-important.
We consider the Federal court the best, the smartest, the
premier court in the United States, and so there is a level of
trust that you take. The fact that this is a lifetime position,
that you can only be impeached, you don't have to run for
office, is an enormous, I think, responsibility. The faith and
trust and obligation toward the law and the Constitution of
your country, of our country, is all-important.
So I just want to say that I have no doubt but that you're
going to be confirmed, and I want to wish you well. I want you
to carry that standard high.
So with that, this hearing is adjourned.
[Whereupon, at 2:16 p.m., the Committee was adjourned.]
[Questions and answers and submissions follow.]
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