[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

                               ----------                              

                             APRIL 16, 2010

                               ----------                              

                          Serial No. J-111-117

                               ----------                              

         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



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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

                              ----------                              

                    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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