[Senate Hearing 112-158]
[From the U.S. Government Publishing Office]
S. Hrg. 112-158
NOMINATION HEARING ON U.S. CIRCUIT AND U.S. DISTRICT JUDGES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MARCH 2, 2011
__________
Serial No. J-112-8
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 2
prepared statement........................................... 577
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 601
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee
presenting Kevin Hunter Sharp, Nominee to be District Judge for
the Middle District of Tennessee............................... 3
Corker, Hon. Bob, a U.S. Senator from the State of Tennessee
presenting Kevin Hunter Sharp, Nominee to be District Judge for
the Middle District of Tennessee............................... 4
Lautenberg, Hon. Frank R., a U.S. Senator from the State of New
Jersey presenting Claire C. Cecchi, Nominee to be District
Judge for the District of New Jersey and Esther Salas, Nominee
to be District Judge for the District of New Jersey............ 5
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenting Claire C. Cecchi, Nominee to be District
Judge for the District of New Jersey and Esther Salas, Nominee
to be District Judge for the District of New Jersey............ 6
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Roy Bale Dalton, Jr., Nominee to be District Judge
for the Middle District of Florida............................. 7
Rubio, Hon. Marco, a U.S. Senator from the State of Florida
presenting Roy Bale Dalton, Jr., Nominee to be District Judge
for the Middle District of Florida............................. 9
STATEMENT OF THE NOMINEES
Cecchi, Claire C., Judge, Nominee to be District Judge for the
District of New Jersey......................................... 356
biographical................................................. 357
Dalton, Roy Bale, Jr., Nominee to be District Judge for the
Middle District of Florida..................................... 269
biographical................................................. 270
Liu, Goodwin, Nominee to be Circuit Judge for the Ninth Circuit.. 13
biographical................................................. 14
Salas, Ester, Judge, Nominee to be District Judge for the
District of New Jersey......................................... 405
biographical................................................. 406
Sharp, Kevin Hunter, Nominee to be District Judge for the Middle
District of Tennessee.......................................... 215
biographical................................................. 216
QUESTIONS AND ANSWERS
Responses of Claire C. Cecchi to questions submitted by Senator
Grassley....................................................... 467
Responses of Roy B. Dalton Jr. to questions submitted by Senator
Grassley....................................................... 469
Responses of Goodwin H. Liu to questions submitted by Senators
Coburn, Grassley, Lee and Sessions............................. 472
Responses of Esther Salas to questions submitted by Senators
Grassley and Sessions.......................................... 504
Responses of Kevin H. Sharp to questions submitted by Senator
Grassley....................................................... 509
SUBMISSIONS FOR THE RECORD
Amar, Akhil Reed, Sterling Professor of Law, Yale Law School, New
Haven, Connecticut, and Kenneth W. Starr, Duane and Kelly
Roberts Dea and Professor of Law, Pepperdine University School
of Law, March 19, 2010, joint letter........................... 512
American Bar Association, Benjamin H. Hill, III, Chair,
Washington, DC, January 20, 2011, letter....................... 515
American Federation of Labor and Congress of Industrial
Organizations, William Samuel, Director, Government Affairs
Department, Washington, DC, May 18, 2011, letter............... 517
Arizona Asian American Bar Association (AAABA), Melissa Ho,
President, Phoenix, Arizona, April 14, 2010, letter............ 518
Asian American Justice Center, Karen K. Naraskai, President and
Executive Director, Washington, DC, May 18, 2011, letter....... 521
Asian Pacific American Labor Alliance, AFL-CIO, (APALA), John
Delloro, President, Washington, DC, March 18, 2010, letter..... 523
Bolick, Clint, Goldwater Institute, Phoenix, Arizona, January 20,
2010, letter................................................... 525
Business Leaders, Mariann Byerwalter, Chairman JDN Corporate
Advisory LLC; Steven A. Denning, Chairman General Atlantic LLC;
John A. Gunn, Chairman, Dodge & Cox; Frank D. Less, CEO,
Dragonfly Sciences, Inc.; Hamid R. Moghadam, Chairman and CEO,
AMB Property Corporation; Ruther Porat, Executive Vice
President and Chief, Financial Officer, Morgan Stanley;
Shriram, Founding Board Member, Google, Inc.; and Jerry Yang,
co-Founder and Chief Yahoo, Yaholl!, Inc, May 17, 2011, joint
letter......................................................... 526
California Correctional Peace Officers Association (CCPOA), Mike
Jimenez, President, West Sacramento, California, March 17,
2011, letter................................................... 528
California District Attorneys, Will Richmond, Alpine County; Todd
D. Riebe, Amador County; John R. Poyner, Colusa County; and
Michael D. Diese, Del Norte County, March 26, 2010, joint
letter......................................................... 530
California Labor Federation, AFL-CIO, Art Pulaski, Executive
Secretary-Treasurer, Oakland, California, March 19, 2010,
letter......................................................... 532
Chinese American Citizens Alliance, (CACA), San Francisco,
California, statement.......................................... 534
Choper, Jesse H., Berkeley Law, University of California,
Berkeley, California, April 7, 2010, letter.................... 535
Coleman, William T., O'Meleveny & Myers LLP, Washington DC:
March 11, 2011, letter....................................... 541
Apri1 29, 2011, letter....................................... 543
Conference of Asian Pacific American Law Faculty (CAPALF), Wu,
Frank H., Chancellor and Dean, University of California,
Hastings College of the Law, March 4, 2010, letter............. 545
Congressional Asian Pacific American Caucus (CAPAC), Michael M.
Honda, Chair, Washington, DC, March 23, 2010, letter........... 548
Constitution Project, Gerald Kogan, former Chief Justice, Supreme
Court of the State of Florida; former Chief Prosecutor,
Homicide and Capital Crimes Division, Dade County, Florida, and
Mark White, former Governor of Texas; former Attorney General
of Texas; former Secretary of State of Texas; former Assistant
Attorney General of Texas, Washington, DC:
March 2, 2011, joint letter.................................. 550
April 9, 2011, joint letter.................................. 552
80-20 Initiative, S. B. Woo, Founding President, Cerritos,
California, April 23, 2010, letter............................. 554
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, U.S. Attorney,
State of Maryland; Michael H. Dettmer, U.S. Attorney, Western
District of Michigan; Robert DelTufo, Attorney General and U.S.
Attorney, State of New Jersey; W. Thomas Dillard, U.S. Attorney
Northern District of Florida; and U.S. Attorney, Eastern
District of Tennessee; Hon. Bruce J. Einhorn, U.S. Immigration
Judge, Special Prosecutor and Chief of Litigagtion, United
States Department of Justice Office of Special Investigations:
April 13, 2010, joint letter................................. 556
March 1, 2011, joint letter.................................. 563
Leaders in Education, Cynthia G. Brown, Vice President for
Education Policy, Center for American Progress Action Fund;
bipartisan group of 22 leaders in education law, March 23,
2010, joint letter 570
Friedman, Donald M., Professor (retired), March 5, 2010, letter.. 575
Family Research Council Action (FRCA), Thomas McClusky, Senior
Vice President, Washington, DC, May 19, 2011, letter........... 576
Hispanic National Bar Association (HNBA), Roman D. Hernandez,
National President, Washington, DC, September 3, 2010, letter.. 581
Huffington Post, Richard Painter, March 2, 2011, article......... 583
Humphries, Arthur L., Physician (retired), Georgia, May 18, 2011,
letter......................................................... 593
Jones, Brian W., Founder & President, Latimer Education, Inc.,
Former General Counsel, Department of Education, May 16, 2011,
letter......................................................... 595
Judicial Watch, Thomas Fitton, President, Washington, DC, March
24, 2010, letter............................................... 597
Leadership Conference on Civil and Human Rights, Wade Henderson,
President & CEO, and Nancy Zikin, Executive Vice President,
Washington, DC, May 13, 2010, letter........................... 599
Liberty Counsel Action, Manidi Campbell, Director of Public
Policy, Washington, DC, March 9, 2011, letter.................. 604
Liu's, 81 former Classmates, Yale Law School, May 12, 2010, joint
letter......................................................... 606
Mabuhay Alliance, Faith Bautista, President and CEO, Washington,
DC, April 14, 2010, letter..................................... 609
McCaw, Susan R., Santa Barbara, California, March 11, 2011,
letter......................................................... 612
National Asian Pacific American Bar Association (NAPABA), and
Asian American Justice Center (AAJC), joint statement.......... 614
National Asian Pacific American Bar Association, Joseph J.
Centeno, President, on behalf of Asian Pacific American
Organizations, Washington, DC, April 15, 2010, joint letter.... 619
National Association for the Advancement of Colored People
(NAACP), Hilary O. Shelton, Director, Senior Vice President for
Advocacy and Policy, Washington, DC, May 18, 2011, letter...... 623
National Review Online, Ed Whelan, March 3, 12011, article....... 625
National Senior Citizens Law Center (NSCLC), Paul Nathanson,
Washington, DC, May 18, 2011, letter........................... 631
National Women's Law Center, Nancy Duff Campbell, Co-President,
and Marcia D. Greenberger, Co-President, Washington, DC:
May 18, 2011, letter......................................... 632
May 5, 2010, letter.......................................... 634
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director and Counsel, Washington, DC, May 5, 2010,
letter......................................................... 636
Sklansky, David Alan, Yosef Osheawich Professor of Law, Berkeley
Law, University of California, Berkeley, California, letter and
attachment..................................................... 638
State Building and Construction Trades Council of California,
Robert L. Balgenorth, President, September 17, 2010, letter.... 644
Stanford University, John L. Hennessy, President; Gerhard Casper,
President Emeritus; and Donald Kennedy, President Emeritus,
Palo Alto, California, March 18, 2010, letter.................. 645
Sturdevant Law Firm, James C. Sturdevant, San Francisco,
California, April 15, 2010, letter............................. 647
University of California, Mark G. Yudof, President, Oakland,
California, May 18, 2011, letter............................... 649
Yin, C.C., Founder of APAPA, Sacramento, California, letter...... 651
NOMINATION HEARING OF GOODWIN LIU, NOMINEE TO BE CIRCUIT JUDGE FOR THE
NINTH CIRCUIT, KEVIN HUNTER SHARP, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF TENNESSEE, ROY BALE DALTON, JR., NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, HON. CLAIRE C.
CECCHI, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY,
AND HON. ESTHER SALAS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
NEW JERSEY
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WEDNESDAY, MARCH 2, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:47 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senators Feinstein, Klobuchar, Franken, Coons,
Blumenthal, Grassley, Sessions, Cornyn, Lee, and Coburn.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. This hearing will come to order, and I
want to welcome everyone and thank you for being here.
Today the Committee will hear from five nominees for our
Federal courts: Professor Goodwin Liu, who has been nominated
to sit on the United States Court of Appeals for the Ninth
Circuit; Mr. Kevin Sharp, nominated for the United States
District Court for the Middle District of Tennessee; Mr. Roy
Dalton, Jr., nominated for the United States District Court for
the Middle District of Florida; United States Magistrate Judge
Claire Cecchi, nominated for the U.S. District Court for the
District of New Jersey; and United States Magistrate Judge
Esther Salas, also nominated for the United States District
Court for the District of New Jersey.
So I want to welcome all of the nominees and also your
families. We are very happy to have you here today.
It is my understanding that the Chairman has asked that
there be no opening statements by nominees, that we go directly
to the questions, and that exists for all levels of the court,
except for the Supreme Court. So what I would like to do right
now is ask our distinguished Ranking Member if he has any
comments, and then I would like to introduce the candidate for
the Ninth Circuit.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. I will not repeat any of the biographical
information that is normal to give in an opening statement, but
I want to comment all the nominees for their public service.
This week, we confirmed two more nominees to vacancies in
the Federal judiciary, and both of these positions were what is
termed ``judicial emergencies.'' We have now confirmed seven
nominees during this new Congress, which has only been in
session for 19 days. We have taken positive action, in one way
or another, on more than half of the 52 judicial nominees
submitted during this Congress. So we are moving forward, as I
indicated I would do, on consensus nominees.
The primary purpose of this hearing is to review the
nomination of Goodwin Liu, nominated to be United States
Circuit Judge for the Ninth Circuit. I thank the Chairman for
favorably responding to my request for this hearing, and I made
the request in order to provide the nominee an opportunity to
address the many concerns which have been raised and, of
course, to allow new members of this Committee to question and
evaluate the nominee, which they have not had an opportunity to
do because obviously they were not Members of the Senate at the
time the nomination first came up.
While much of this hearing will focus on Mr. Liu, I do not
want the district judge nominees to feel slighted in any way.
Their nominations are important, and I will look forward to
their testimony as well.
With regard to Mr. Liu, the Committee twice reported his
nomination on a 12-7 vote. In addition, the nomination has been
returned to the President on more than one occasion. Concerns
raised during his prior hearing and in written questions
include his writings and speeches; his judicial philosophy;
public statements, including testimony before this committee;
his judicial temperament; and limited experience.
I am concerned about his understanding and appreciation of
the proper role of a judge in our system of checks and
balances, and I want to make certain, as with all nominees,
that personal agendas and political ideology will not be
brought into the courtroom.
It is ironic that in commenting on the Roberts nomination,
Mr. Liu said, ``the nomination is a seismic event that
threatens to deepen the Nation's red-blue divide. Instead of
choosing a consensus candidate [the President] has opted for a
conservative thoroughbred who, if confirmed, will likely swing
the Court sharply to the right on many critical issues.''
If confirmed, I am concerned that Mr. Liu will deeply
divide the Ninth Circuit and move that court even further to
the left. Opinions he could offer would mean his ideology and
judicial philosophy would seep beyond Berkeley, California. His
potential rulings will affect individuals throughout the nine-
State Circuit, including places like Bozeman, Montana; Boise,
Idaho; and Anchorage, Alaska.
The Senate has a right to determine the qualifications of
judicial nominees. The burden is on the nominee appearing
before this Committee to demonstrate he or she is suitable for
a lifetime appointment to the court. I would note that in his
previous appearances and in response to written questions, Mr.
Liu failed to provide responsive answers to our questions, and
I hope that performance is not repeated today.
I ask unanimous consent, Madam Chairman, that the balance
of my statement regarding the district court nominees be
entered into the record, and I look forward to reviewing their
testimony and responses.
Senator Feinstein. So ordered.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Feinstein. I would note that we have two
distinguished Senators here wishing to introduce some of the
district court judges, so if there is no objection, I am going
to proceed to them. I will go by seniority, and my Ranking
Member on Interior and now on the Energy Subcommittee of
Appropriations, the distinguished Senator Lamar Alexander, and
then Bob Corker.
PRESENTATION OF KEVIN HUNTER SHARP, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE, BY HON. LAMAR
ALEXANDER, A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Alexander. Thank you, Madam Chairman, for your
courtesy, and distinguished members of the Committee. Senator
Feinstein seems to be Chairman of everything.
Senator Feinstein. No, no.
[Laughter.]
Senator Alexander. And there could not be a better one
anywhere.
Senator Feinstein. Do not guffaw.
Senator Coons. It was a funny joke.
Senator Alexander. Madam Chairman, it is my privilege today
to introduce to the Committee Kevin Sharp, who has been
nominated by President Obama as the nominee to be United States
District Judge for the Middle District of Tennessee. Senator
Corker is here with me for the same purpose.
No one could be more pleased that the President has made a
nomination and that the Committee is moving quickly to consider
Kevin Sharp than the current judges of the Middle District of
Tennessee because this position has been vacant for 4 years,
and it is the fourth longest vacancy of any judicial emergency.
I will briefly mention Mr. Sharp's background. He is a
founding partner of a law firm in Nashville. He graduated summa
cum laude from Christian Brothers College. He is a graduate of
Vanderbilt University with honors. He has been voted by his
peers in a variety of ways as Best of the Bar in the Nashville
Journal, among the Mid-South Super Lawyers, Best Lawyers in
America. He is a Navy veteran. And he not only has the support
of two Republican Senators; he has strong Democratic support in
our State, as might be expected. Among those who have written
letters to either the White House or members of the
Congressional delegation recommending him include Vice
President Gore and former Governor Bredesen, former
Representative Harold Ford, former Governor Bill Richardson, as
well as a host of others.
I know him personally. His temperament is good. I had the
privilege as Governor of Tennessee of appointing about 50
judges, and it was always one of the most important
responsibilities. I rarely asked them what their positions were
on the issues. I looked at their intelligence, character,
evenhandedness, and whether I thought they would treat
litigants and others before the court with dignity and
courtesy. I believe Kevin Sharp will. I highly recommend him to
this Committee and urge his speedy confirmation.
Thank you very much for allowing me to go ahead.
Senator Feinstein. Thank you very much, Senator. And I know
that every Senator here is busy and has other commitments, so
everyone should feel free to leave following your remarks.
We will go right down the line. Senator Corker.
PRESENTATION OF KEVIN HUNTER SHARP, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE, BY HON. BOB CORKER,
A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Corker. Thank you, Madam Chairman, and thank you
for the many roles that you play here in the Senate.
I could not be more delighted to follow our senior Senator,
Lamar Alexander, in heavily advocating on behalf of Kevin
Sharp. I know that Lamar has gone through the various C.V.
activity of the nominee. I just want to talk a little bit about
the person.
Kevin is someone that anybody who is involved in the State
of Tennessee gets to know. He is a person who enlisted in the
Navy out of high school. He was not in any way born with a
silver spoon in his mouth. He worked his way through, starting
in junior colleges, making it through the fine university of
Vanderbilt. He has been with numbers of law firms. He is highly
involved civically. He is an outstanding family man.
And, Madam Chairman, I think what I like most about his
nomination is he is one of those judges that--or nominees that
comes before you with support from both sides of the aisle.
Everybody who has come in contact with him or dealt with him I
think thinks very highly of him. They know his courtroom manner
is going to be one that is most appropriate.
He is a young man. I think he has a tremendous future, if
confirmed, and I could not be more pleased to be here in
support of him--again, someone who both sides of the aisle have
said they think he will be an outstanding judge.
So without further ado, I could not be more positive about
this young man becoming a Federal judge, and I hope this
Committee sees fit to send him to the floor for confirmation.
And I thank you so much.
Senator Feinstein. And I thank you, Senator Corker.
The distinguished Senator from New Jersey, Senator
Lautenberg, welcome.
PRESENTATION OF CLAIRE C. CECCHI, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY, AND ESTHER SALAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY, BY HON. FRANK R.
LAUTENBERG, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you, Madam Chairman and members
of the Committee. I am honored and pleased to have an
opportunity to come before the Committee, and as you and other
colleagues know, while I am not formerly a lawyer, there are
times that I wish I was in moments like this to be able to
recommend two outstanding nominees for the Federal district
court.
In New Jersey, there is a courthouse that carries my name.
It was done according to protocol when I was out of the Senate,
and I was out long enough to get the building name, and I came
back to the Senate.
[Laughter.]
Senator Feinstein. Did you give up the building name?
Senator Lautenberg. It was a courthouse.
Senator Feinstein. Oh, you could not give up the name when
you came back. I am teasing you.
Senator Lautenberg. They are not allowed to.
[Laughter.]
Senator Lautenberg. By practice.
Before that building was dedicated, I requested that an
inscription be placed on the wall, and I was asked whether it
would be by Oliver Wendell Holmes or Learned Hand. And I said,
no, it is something that I really believe. And I developed an
inscription that did finally carry, and it reads: ``The true
measure of a democracy is its dispensation of justice.'' And
that is the way I feel about the system, and I take something
like this so seriously.
Today I am pleased to introduce to this Committee two
nominees for this court: Judge Claire Cecchi and Judge Esther
Salas. They both come from the magistrate court in New Jersey.
Judge Cecchi has presided over hundreds of civilian and
criminal cases, and before joining the bench, Judge Cecchi
spent 14 years in private practice focusing on complex civil
litigation.
One of Judge Cecchi's passions is to expose young people,
attract young people to careers in law. She has hosted a
``Bring Your Child to Work Day'' program in the district court,
as well as a mock trial for a sixth grade class to let young
people understand something about what we have in our judiciary
positions.
In addition, Judge Cecchi has volunteered for
organizations: Junior League, Orphans with AIDS, Human Needs
Food Pantry, Salvation Army. She is a graduate of Fordham
University Law School where she had a clerkship with Judge
Thomas Duffy of the Southern District of New York.
Judge Cecchi, like I, likes to ski, and she recently--this
does not help qualify her necessarily, but down a very serious
mountain in Wyoming famous for expert trails. So I know that
she can handle something that she might have to from the bench
with courage and direction.
Like Judge Cecchi, Judge Salas has served as a U.S.
magistrate judge since 2006. Judge Salas is the first Latina in
New Jersey to hold this position. In a newspaper profile a few
years ago, Judge Salas recalled that when she was 10, her
family lost everything in a fire in the apartment building in
which they lived. The judge's mother told her children,
``Things are going to be fine. We have gotten this far, and we
will make it.'' And I would say Judge Salas' mother was
correct. Judge Salas has made it.
Before Judge Salas became a magistrate judge, she served 9
years as an assistant Federal public defender in Newark
representing indigent clients in a variety of cases. She has
also worked in private practice handling appellate court for a
New Jersey law firm. She is a graduate of the Rutgers
University School of Law and clerked for New Jersey Superior
Court Judge Eugene Cody. Judge Salas has also served as
president of the Hispanic Bar Association of New Jersey.
I am honored to present both Judge Cecchi and Judge Salas
to this Committee, and I believe both nominees are exceptional
and well qualified to serve on the district court. We need them
desperately in a hurry because the court docket is so full, and
I am hopeful that this Committee will agree with my view of
their abilities.
Thank you.
Senator Feinstein. Thank you very much, Senator Lautenberg.
Also from the great State of New Jersey, Senator Menendez,
welcome, sir.
PRESENTATION OF CLAIRE C. CECCHI, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY, AND ESTHER SALAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY, BY HON. ROBERT
MENENDEZ, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Madam Chair, and also to
Ranking Member Grassley and all the distinguished members of
the Committee. I am pleased to join with my senior colleague in
introducing and supporting two outstanding judicial
professionals to fill the vacancies of the U.S. District Court
in New Jersey. Both of these very qualified women are United
States magistrates in our States. Judge Cecchi and Judge Salas
are among the most respected leaders in New Jersey's judicial
community. Both have demonstrated skill and professionalism on
the bench and an impressive ability to manage heavy and complex
dockets before them.
Judge Cecchi has a wide range of litigation experience,
having worked in the private sector for nearly a decade and a
half. After serving in the Office of Corporation Counsel for
the city of New York, she practiced with Robinson, St. John &
Wayne, later with Robinson, Lapidus & Livelli, both large and
well-respected New Jersey firms. She is no stranger to complex
litigation for both defendants and plaintiffs, and in the
course of her distinguished career has focused on a range of
challenging issues, from securities litigation and complex tort
matters to employment law, criminal cases, construction cases,
and contracts. In handling a prominent case involving a suit by
the Securities and Exchange Commission against two companies in
the Federal Court of the Southern District of New York, Judge
Cecchi demonstrated her legal skills and an impressive depth of
knowledge about the subject at hand.
She later went on to the firm of Carpenter, Bennett &
Morrissey, the second oldest law firm in New Jersey, where she
worked for nearly a decade developing a wide range of
litigation experience in environmental toxic tort cases, class
actions, patent cases, and employment law. So she is incredibly
qualified. As a magistrate judge, she has shown a unique set of
judicial skills that makes her an exceptional nominee for the
District Court of New Jersey.
Magistrate Judge Esther Salas has been an exceptional
public servant. As Senator Lautenberg said, in 2006 she became
the first Hispanic to serve as a United States magistrate in
the history of New Jersey, but more importantly, her handling
of a docket of well over 400 cases has earned the respect of
many in the legal community who have said she is among the
finest judges they have worked before in many years of
practice.
In a decade-old environmental dispute involving 350
attorneys, she skillfully managed the resulting avalanche of
motions and counter-motions on Federal and State claims for
more than $300 million for past and future cleanup costs and
damages. Her handling of the case prompted several lawyers not
only to credit her with being the principal moving force in
bringing the parties to agreement, but recommending her to the
Committee with their unqualified support.
Prior to serving as a magistrate judge, she spent 10 years
in the Federal public defender's office where she zealously
represented each of her clients, providing them with the best
legal skill and advice that they could have.
She clerked with distinction for a superior court judge,
Judge Eugene Cody, and I am proud that she earned her law
degree from my alma mater, Rutgers Law School. That should be
extra weight, Senator Grassley, in your consideration.
[Laughter.]
Senator Menendez. She is a respected member of the New
Jersey State Bar and past president of the Hispanic Bar
Association.
Let me conclude by saying these are two extraordinary
nominees. They represent among the best of New Jersey's legal
professionals. I believe they have the intellect, the judicial
temperament, and the experience to be great Federal district
judges, and I join Senator Lautenberg in strongly recommending
them to the Committee, and I am hopeful for quick passage by
the Committee and then through the Senate.
Thank you very much.
Senator Feinstein. Thank you very much, Senator Menendez.
And from Florida, Senator Nelson, welcome.
PRESENTATION OF ROY BALE DALTON, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. BILL NELSON,
A U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Nelson. Thank you, Madam Chairman, and to the
members of the Committee, thank you. And I want to give some
special note to the staff that is seated behind you because
they are the ones that go through all of the laborious tasks of
checking out all these nominees and then doing the due
diligence on them. So thank you all for making the process
work.
By the time the nominees from Florida get here, they have
been thoroughly vetted. They have not only been vetted by going
through the White House, but we have our own vetting process in
Florida, which is set up an unofficial judicial nominating
commission, and it is prominent citizens, not all lawyers, from
all over the State and the three different judicial districts,
three judicial nominating commissions that receive all the
applications after they advertise for the vacancy, process
those applications, and then interview. And you can imagine
some of the talent that is drawn to the position, and these
interviews go on for hours and hours. And their goal is to boil
down all of the talent down to three, and they produce three
names for Senator Rubio and me and have for years for the two
Florida Senators, going back to Bob Graham and Lawton Chiles
and then Bob Graham and Connie Mack, and so forth and so on,
all the way up to today.
So by the time the two Senators get these three names, they
are pretty well vetted. Then we interview them as well, and
then pass on our recommendations to the President. And then, of
course, they go through their whole vetting process along with
the American Bar Association's. So I want to thank the staff
back there for everything that you do.
Senator Rubio and I are here on behalf of Skip Dalton of
Orlando, and, first of all, I want to introduce you to his
family. May I do that, Madam Chairman?
Senator Feinstein. You may.
Senator Nelson. I would like--and if they will stand as I
call: Skip's wife, Linda--and, Skip, will you stand with her?--
and their daughter Taylor Dalton, and their son Lieutenant Bale
Dalton, and their daughter Lee Loflin, and her husband, their
son-in-law, Brendan Loflin; son Mack Dalton, and Skip's sister,
Debbie Melnyk. And then I have saved the best for last. Skip's
86-year-old mother, Dell Dalton. Thank you all. Thank you very
much.
Skip is a native Floridian. He is a graduate with high
honors of the University of Florida and the University of
Florida Law School. He is a fellow in the American College of
Trial Lawyers. He was a law partner of our former colleague,
Mel Martinez. He has been recognized with all kinds of
recognitions in the Florida Bar and the National Board of Trial
Advocates.
He has been extremely involved in our community, and later
after Mel came to the Senate, Skip came up here and gave 6
months of his life as Mel's general counsel here in the Senate
office.
He has worked as pro bono counsel to the victims of the
World Trade Center attack, and that was through a program of
Lawyers Caring. And I could go on and on. He is involved in his
church, the Cathedral Church of St. Luke in Orlando. He has
served as a guardian at litem for youthful offenders and
dependency cases. In other words, he has done what you would
like a practicing lawyer to do, and he has clearly been a part
and very active in the Orange County Bar Association.
He has been admitted to practice as a member of the trial
bar in the Federal district courts in Florida, the U.S. Court
of Appeal for two Circuit Courts of Appeal, and the Federal
Claims, and, of course, admitted to the Supreme Court. He is
also a licensed private pilot.
I think we have in one package here someone that we are
looking at. And, by the way, I might say that we were mindful--
some of our most outstanding people that the Senators have
recommended have been judges of State courts, magistrate judges
in the Federal courts. We were mindful to be looking for a
practicing lawyer as well. And you have got that in this
package right here.
So Senator Rubio and I heartily recommend Skip to you,
Madam Chairman and Senator Grassley.
Senator Feinstein. Thank you very much, Senator Nelson.
Senator Rubio, welcome.
PRESENTATION OF ROY BALE DALTON, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA, BY HON. MARC RUBIO, A
U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Rubio. Thank you, Madam Chairman. I will add just
briefly to what Senator Nelson has said.
First of all, the first good sign is that he is a double
Gator, which in Florida means you have gone to the University
of Florida twice, that is, the law school. That is always a
good sign and a good start, so we are happy to see that.
Beyond that, I would just add he has a five-out-of-five AV
rating from Martindale-Hubbell. He is involved in the Orange
County Bar Association. In particular, he has authored some
books that are used in continuing legal education training in
the State of Florida, and as Senator Nelson pointed out, he
actually was an employee of the U.S. Senate back in 2005 when
he served as counsel to my predecessor, Mel Martinez.
And so I join Senator Nelson in urging you to give Mr.
Dalton your full consideration, and we are proud to offer him
up to you here today.
Senator Feinstein. Thank you very much, both of you. It is
appreciated.
I would like to acknowledge some distinguished Members of
the House present in the audience: Representative Judy Chu, the
former Secretary of Transportation during the Ford
administration, Bill Coleman; Representative Bobby Scott; and
Representative Doris Matsui. Thank you for coming. We are
delighted that you see fit to come to this humble House, so
thank you very much.
I would like to take this opportunity to introduce the
nominee for the Ninth Circuit, and I must tell you, I do not
think he has gotten a fair shake. This is the second time he
has been nominated. On the Republican side, I regret to say
that only one member has sat down with him. I had the privilege
of spending several hours with him. My daughter is the
presiding judge of the superior court in San Francisco, so I
invited him to join us for a family dinner so I could get to
know him. And there was substantial legal discussion, and what
I found was a very interesting and very talented young man.
Professor Liu is the associate dean of the University of
California, Boalt Hall School of Law. He is a highly regarded
expert in the field of constitutional law and education law and
policy, and a well-regarded teacher of law at the University of
California.
He is a proud husband and father. He is a scholar of
formidable intellect who cares deeply about the law and takes
great care in formulating his thoughts and ideas. And he is a
person with an abiding commitment to public service.
What also comes through in talking with Professor Liu is
his deep appreciation for the opportunities our country
affords. He is the son of Taiwanese immigrants. His parents
came to this country as part of a program that recruited
primary care physicians to work in rural areas throughout
America. He spent his childhood in Augusta, Georgia; Clewiston,
Florida; and Sacramento, California. He attended public schools
where, far from having an easy time, he struggled first to read
and later to master the English vocabulary. He went on,
however, to become co-valedictorian of Rio Americano High
School in Sacramento and to attend Stanford University, my alma
mater, where he graduated Phi Beta Kappa and was elected co-
president of the undergraduate student body. I only made vice
president.
He was a Rhodes scholar at Oxford University, and he
graduated from Yale Law School, where he was an editor of the
Yale Law Journal. He served as a law clerk on the United States
Supreme Court to Justice Ruth Bader Ginsburg and on the United
States Court of Appeals to Judge David Tatel.
Professor Liu served as a legal and policy adviser in the
Department of Education. He also has private practice
experience at the prestigious law firm of O'Melveny & Myers,
and he now a tenured constitutional law professor and the
associate dean of the Boalt Hall School of Law.
Among other accolades, he has received the University of
California at Berkeley's highest award for teaching. He has
been a legal consultant to the San Francisco Unified School
District. He is a recipient of the Education Law Association's
Award for Distinguished Scholarship. He is an elected member of
the American Law Institute, and he is on the Board of Trustees
of Stanford University.
As a professor, he has written extensively. His work has
been published in prestigious journals such as the Stanford Law
Review, the California Law Review, and the Iowa Law Review.
There is no question that some of his written work is
thought provoking. As Professor Liu himself said at his last
hearing, ``The job of law scholars, when they write, largely, I
think, is to probe, criticize, invent, and be creative.''
Nor is there any question that the role of a judge is quite
different from that. Again, in Liu's own words, and I quote,
``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 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.''
He clearly recognizes that these are very different roles.
The question is: Can he make the transition? And I have every
confidence that he can.
I would also point out that the Committee has previously
confirmed Republican appointees, such as Michael McConnell for
the Tenth Circuit, Harvey Wilkinson for the Fourth Circuit,
Frank Easterbrook on the Seventh Circuit, and Kimberly Ann
Moore on the Federal Circuit. Moore and Wilkinson were younger
at their confirmation than Liu is now and had quite comparable
experience, and Michael McConnell's writings were at least
equally provocative, but from a conservative point of view. But
all of these nominees were confirmed, as I believe Professor
Liu deserves to be.
I had one situation and I am going to relay it here. We had
a nominee for the Tenth Circuit by the name of Southwick.
Democrats were not going to vote for him. I was implored not to
vote for him. Trent Lott came to me on the floor of the Senate
and said, ``Would you at the very least sit down with him and
listen to him? '' I did, for a long time, more than once. And I
reviewed what the allegations were, and I talked with him about
them, and I decided I was going to vote for him. And I did vote
for him, and he is now sitting on the Tenth Circuit. As a
matter of fact, I received a letter from him not too long ago
saying how much he appreciated that vote and what it meant to
me.
Well, since those days, we have become very polarized, and
it is a tragedy because if this kind of thing continues, nobody
can break away from the party and vote to approve another
party's person. And that would be a real tragedy for this
Committee.
For those who would question Goodwin Liu's ability to make
the transition, I would refer you to one of the conservatives
who has written to the Committee in support of his
confirmation, and I would like to call special attention to a
letter submitted by Kenneth Starr.
As many here will know, Kenneth Starr is currently the
president of Baylor University and has served in the past as a
D.C. circuit judge and as Solicitor General of the United
States. He was appointed to both positions by Republican
Presidents. Here is what he and Professor Akhil Amar wrote
about Professor Liu, and I quote: ``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 view, the traits that should weigh
most heavily in the evaluation of an extraordinarily gifted
nominee such as Goodwin Liu are professional integrity and the
ability to discharge faithfully an abiding duty to uphold the
law. Because Goodwin possesses those qualities to the highest
degree, we are confident that he will serve on the Court of
Appeals not only fairly and confidently but with great
distinction. We support and urge his speedy confirmation.''
Now, Professor Liu is a great asset to the faculty to the
University of California, and I really believe he will be a
superb judge on the Ninth Circuit. It is my hope that for those
on this Committee who do not know him, you will take the time
to get to know him, sit down with him, ask him questions. But,
please, do not turn your backs on a brilliant young man.
So now I would like to ask the nominees to come forward,
and we will begin the hearing.
Oh, it is just Goodwin Liu for the first panel, and it is
my understanding that you would like to introduce your family.
Please proceed.
Mr. Liu. Thank you so much, Senator Feinstein, and thank
you for the very generous introduction.
I do have some family members with me here today. Let me
begin with my parents, who are seated to my right, Yang-Ching
and Wen-Pen Liu. My parents came all the way from Sacramento,
California, to be with me here again.
Seated behind me is my wife, my wonderful wife Ann, who has
made her share of sacrifices to support me in this process. In
her arms is our baby boy Emmett, who last time, you will
remember, Senator Feinstein, he slept through the whole thing.
Hopefully we will have the same luck today.
[Laughter.]
Mr. Liu. And then seated next to them is my daughter
Violet, who turns 4 in a couple weeks. She said she likes
coming to these hearings. I said, ``Good for you, Violet.''
[Laughter.]
Mr. Liu. So I apologize if there is some sort of back-and-
forthing going on, but I think it is nap time for the kids.
I am also very fortunate that my wife's parents are also
here, Pamela Braley and Charles O'Leary, right behind my right
shoulder. They came all the way from Orono, Maine, where they
have lived for over 40 years.
And I am also joined by a cousin of mine, Sue Liu, who
hails from Salt Lake City, Utah, and another cousin, Lillian
Tsai, who grew up in the Chicago area.
I would also like to recognize and thank the many friends
and former students that I have here today in the hearing room,
and also I want to give a special recognition and thanks for
the Members of Congress who are here: Judy Chu, Bobby Scott,
Doris Matsui, and I am especially honored that Secretary Bill
Coleman has joined us. I have often thought a lot about Bill in
this process, and he has been a steady guide and mentor to me.
So I really appreciate his being here.
Senator Feinstein. Excellent. Would you stand and affirm
the oath? Do you affirm that the testimony you are about to
give before the Committee will be the truth, the whole truth,
and nothing but the truth, so help you God?
Mr. Liu. I do.
Senator Feinstein. Thank you very much.
I want to ask you right off the bat about an issue that has
caused considerable consternation among Committee members. In
2006, you submitted testimony to this Committee regarding the
nomination of now Justice Alito. In your testimony, you
criticized a series of his decisions, but the real concern has
been with the lengthy hypothetical at the end of your comments.
I would like to give you another chance to explain this so that
the members hear your response.
STATEMENT OF GOODWIN LIU, NOMINEE TO BE CIRCUIT JUDGE FOR THE
NINTH CIRCUIT
Mr. Liu. Certainly, Senator. I would be happy to address
that and thanks for the opportunity.
As you can imagine, Senator Feinstein, I have thought a lot
about that testimony in this process, and I would like to
acknowledge to you today and to the members of this Committee
what I acknowledged last year in a written response to a
question from Senator Kyl, and that is that I think that the
last paragraph of that testimony was not an appropriate way to
describe Justice Alito as a person or his legal views.
I think the language that I used was unduly harsh, it was
provocative, and it was unnecessary because what it was was a
summary in shorthand of a few cases from the legal analysis in
the pages that preceded that paragraph. And it also seemed to
suggest that Justice Alito endorsed certain Government
practices as a policy matter, when, in fact, his view was only
that those practices did not violate the Constitution.
So I think that I should have omitted that paragraph, and,
quite frankly, Senator, I understand now much better than I did
then that strong language like that is really not helpful in
this process. If I had to do it over again, I would have
deleted it, and I just hope, Senator, that you and the other
members of the Committee can read that statement in the context
of the other parts of my record and hope that the other parts
of my record show that I am a more measured and thoughtful
person than that single statement in isolation might suggest.
Senator Feinstein. Thank you.
[The biographical information follows.]
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Some have criticized your theory of constitutional fidelity
for considering evolving norms and social understandings along
with the text, principle, and precedent in interpreting the
Constitution. To me, those views are well within our
constitutional mainstream.
I think, for example, of Chief Justice John Marshall, who
famously said in 1819, ``We must never forget that it is a
constitution we are expounding. This provision is made in a
constitution, intended to endure for ages to come, and
consequently, to be adapted to the various crises of human
affairs.''
Or Oliver Wendell Holmes, who wrote in 1920 that the
Constitution ``must be considered in the light of our whole
experience and not merely in that of what was said a hundred
years ago.''
Or Sandra Day O'Connor, who wrote in her book ``Majesty of
Law,'' ``The Bill of Rights was drafted intentionally in broad
sweeping terms, allowing meaning to be developed in response to
the changing times and current problems.''
So can you explain to us your theory of constitutional
fidelity and how it is similar or different from the points
these Justices were making?
Mr. Liu. Yes, certainly, Senator. Let me answer your
question by first making very clear that if I were fortunate
enough to be confirmed in this process, it would not be my role
to bring any particular theory of constitutional interpretation
to the job of an intermediate appellate judge. The duty of a
circuit judge is to faithfully follow the Supreme Court's
instructions on matters of constitutional interpretation, not
any particular theory. And so that is exactly what I would do,
is I would apply the applicable precedents to the facts of each
case.
But to more directly address your questions about my
writings, I would say this: The notion of evolving norms is
simply a reference to--it is a way of describing how the
Supreme Court has applied some of the text and principles of
the Constitution to specific cases and controversies. So in
some instances, the Constitution's text is very clear. For
example, Article III says that you need two witnesses to
convict someone of treason, not one, so that is pretty clear.
But in other parts of the Constitution, it is not as precise.
And so, for example, in 1961, the Court confronted the
question of whether a telephone wiretap falls within the ambit
of the Fourth Amendment's definition of unreasonable searches
or seizures, and the Court grappled with this because up to
that point, a physical trespass had been necessary to make out
a search under the Fourth Amendment. But the Court in Katz in
1961 says we are going to abandon that requirement because
there is now a societal expectation of privacy in telephone
calls. And this was not just a matter of sort of recognizing
new technology. It was a matter of recognizing the social norms
that had grown up around using telephones.
And so when the book makes reference to evolving norms, it
is just a way of describing how references to practices like
that get--how they inform the Supreme Court's elaboration of
constitutional doctrine.
Senator Feinstein. Thank you very much.
Senator Grassley.
Senator Grassley. Professor Liu, I will take up where the
Chairman just left off. You said during your last hearing,
``Whatever I may have written in the books and in the articles
would have no bearing on my role as a judge.'' So I want to
focus on that comment as it relates to the book you co-
authored, ``Keeping Faith with the Constitution.''
As you say in the book itself, your entire purpose is to
propose and defend a theory of constitutional interpretation.
So it is a bit difficult for me--to us--how you can now say
that it would have no bearing on how you would rule as a judge.
So my first question should be fairly easy, a yes or no.
Today do you still stand by your book, ``Keeping Faith with the
Constitution'' ?
Mr. Liu. Senator, I do stand by that book as an expression
of my views as a scholar, but I recognize at the same time that
the role of a scholar is very different than the role of a
judge. And so were I confirmed to the Ninth Circuit, I would be
adopting the role of the judge, which is not, as I was trying
to express, not to follow any particular theory that I might
have but, rather, I follow the instructions of the United
States Supreme Court on matters of constitutional
interpretation.
Senator Grassley. Are there any arguments in that book that
today you would disavow?
Mr. Liu. You know, Senator, I have not read through the
book again. You know, scholars do consider and reconsider their
views. But off the top of my head, I cannot think of any.
Senator Grassley. In the book ``Keeping Faith with the
Constitution,'' you termed your judicial philosophy, as the
Chairman just said, as one of constitutional fidelity. That
phrase sounds nice, but, of course, it only sounds nice until
you learn what you mean by it.
In an interview you gave to the American Constitution
Society about the book, you explained in more detail your
judicial philosophy. You said, ``Our basic thesis is that the
way the Constitution has endured is through an ongoing process
of interpretation and that, where that interpretation has
succeeded, it is because of not in spite of fidelity to our
written Constitution.''
Continuing to quote, ``And 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.''
It seems to me that all you are doing is taking a judicial
philosophy that has been largely rejected by the American
people and rebranding it into a new label. In your book, you
define a living Constitution this way: ``On this approach, the
Constitution is understood to grow and evolve over time as the
conditions need and values of our society change.''
So my question is: How is your definition of a living
Constitution different from your theory of constitutional
fidelity which you described as interpreting the Constitution
in ways that ``adapt its principles and its text to the
challenges and conditions of our society in every single
generation'' ?
Mr. Liu. Well, Senator, what we tried to do in the book is
actually to reject the notion of the living Constitution
insofar as that label has come to stand for the idea that the
Constitution itself can sort of grow and evolve and morph into
whatever a judge might want it to say, and that is simply
wrong. I mean, the Constitution provides in Article V the only
process by which the text of the Constitution can change, and
we absolutely respect that.
Furthermore, I think the book fully respects the notion
that the text of the Constitution and the principles that it
expresses are totally fixed and enduring. Those things do not
change either.
The challenge, I think, for courts when they confront
cases, new cases and new conditions, is how to apply sometimes
broad principles to the specific facts of a case, and in terms
of this notion of adapting, let me just offer one more example.
Last year, the Supreme Court considered a case called city
of Ontario v. Quon. It was an interesting case about whether or
not a public employee has a reasonable expectation of privacy
in text messages that are sent from a Government-issued cell
phone. And the Court, interestingly, declined to decide that
issue because it observed that the dynamics of communication
are changing not just because we have new technology, but
really because society's expectations of privacy with respect
to the new technology have not fully settled. And so the Court
said that workplace norms are evolving, and that it is not
clear yet what kinds of expectations of privacy society is
prepared to recognize as reasonable.
And so this is just another example of how it is that--you
can call it evolving norms or you can just call it social
conditions--inform the Court's approach to the interpretation
of certain constitutional provisions.
Senator Grassley. My time is up.
Madam Chairman, I am going to have to be in and out today,
but I intend to return to ask some more questions.
Senator Feinstein. All right. Fine. Thank you.
Here is the early bird order. It is Franken, Lee, Coons,
Coburn, Blumenthal, Sessions, and Cornyn. So, Senator Franken,
you are up next.
Senator Franken. Thank you, Madam Chair.
Mr. Liu, I had the opportunity to speak to you in my office
and read your writings, and I really believe you are one of the
finest minds of your generation, and I hope that we as a Nation
could be lucky enough to have you as a jurist and a public
servant.
What I think is remarkable about your nomination is not its
strength but its diversity of support. A lot of people have
mentioned Ken Starr's letter supporting your nomination, and I
will get to that in a moment. But the one that caught my eye
was a lengthy blog post that went up today from University of
Minnesota Professor Richard Painter. This guy is a great law
professor, and he is no liberal. He worked to support the
confirmations of John Roberts and Samuel Alito and served as
President George W. Bush's chief ethics officer. And anyone who
has any doubts about your nomination should, I think, read this
article. So, Madam Chair, with your permission, I ask that the
article be entered into the record.
I would ask that Richard Painter, Professor Richard Painter
of the University of Minnesota, his blog post today be entered
into the record.
Senator Feinstein. So ordered.
Senator Franken. Thank you.
[The information appears as a submission for the record.]
Senator Franken. Let me just read one little thing from it.
``Liu's opponents have sought to demonize him as a `radical,'
`extremist,' and worse....However, for anyone who has actually
read Liu's writings or watched his testimony, it's clear that
the attacks--filled with polemic, caricature, and hyperbole--
reveal very little about this exceptionally qualified,
measured, and mainstream nominee.''
I want everyone to think about that. This is a guy who
participated in Samuel Alito's and Chief Justice Roberts'
nominations for the Bush administration. And, please, I ask
anyone who is considering voting against this nominee to read
this blog post, please. I ask my colleagues to do that.
Let us talk about the letter from Kenneth Starr and Akhil
Amar. They write, ``What we wish to highlight, beyond his
obvious intellect and legal talents, is his independence and
openness to diverse viewpoints as well as his ability to follow
the facts and the law to their logical conclusion, whatever its
political valence may be.''
Professor Amar and Ken Starr cite two examples to support
their conclusion, one having to do with Proposition 8. With
respect to that episode, they write, ``Goodwin knows the
difference between what the law is and what he might wish it to
be, and he is fully capable and unafraid of discharging the
duty to say what the law is.''
Can you tell us about the events that led to Kenneth Starr
and Professor Amar--what they were referring to?
Mr. Liu. Certainly. Certainly, Senator, and thank you for
the generous remarks.
So as I understand it, the letter from Kenneth Starr was
referring to testimony that I gave before the State Assembly
and Senate Judiciary Committees, the California State
committees. What had happened in California was that the
California Supreme Court had issued a ruling that had
invalidated laws that restricted marriage to a man and a woman.
And, thereafter, the voters of California enacted an
initiative, Proposition 8, which sought to constitutionalize
and did constitutionalize marriage between a man and a woman as
the sole definition of marriage in California.
Anticipating a legal challenge to that initiative under
State law, the Assembly and Senate Judiciary Committees held a
hearing in which they invited me to testify as a neutral legal
expert to assess the merits of the claims that many proponents
of invalidating Prop. 8 were making, that it was an improper
amendment of the Constitution under the procedures prescribed
by the Constitution. And I testified that Prop. 8 should be
upheld under the applicable precedents that were in existence
at the time.
I did also write that the Supreme Court, California Supreme
Court, might have some reasons for revisiting that precedent,
but under the applicable precedent it was a straightforward
case--straightforward in the sense that Prop. 8 should be
upheld and this was not, I suppose, a popular position with
some of the advocates. But it was, I think, a correct reading
of the law, and the California Supreme Court ultimately agreed.
Senator Franken. Thank you. My time is up.
Thank you, Madam Chair.
Senator Feinstein. Thank you very much, Senator Franken.
Senator Lee, you are up next.
Senator Lee. Thank you, and thank you, Professor Liu, for
coming and bringing your family to join to us today.
I would like to start out by talking a little bit about the
Commerce Clause. On page 72 of your book, ``Keeping Faith with
the Constitution,'' you wrote as follows: ``The Court has
declared certain subjects off limits to Federal regulation by
attempting to draw a line between economic and non-economic
activity''--referring presumably to the Lopez and Morrison line
of cases--``a line that looks much like the old distinction
between what directly affects commerce and what touches it only
indirectly in its incoherence and inefficacy in advancing
federalism values.''
If the distinction drawn by the Lopez and Morrison cases
and the standard established by those cases is ineffective and
incoherent, is this something that you could and would employ
as a judge?
Mr. Liu. Senator, as with all of the Supreme Court's
precedents, absolutely. I mean, I would faithfully apply that
standard under the guidance and instruction of the Supreme
Court.
Senator Lee. But what if it is incoherent? Then what do you
do?
Mr. Liu. Well, Senator, I think the Court actually grappled
with that very issue in the subsequent case, the Gonzales v.
Raich case, where they were posed with, I think, a similar
characterization issue as to whether or not marijuana grown and
used for medicinal purposes purely within local boundaries
qualified as a kind of activity that could be reached under the
Commerce Clause. And there I think the Court made an
accommodation. It said that though this is non-economic
activity, it belongs to a class of economic activity.
And so I am not sure exactly where that leaves us, but the
rule that emerges from Raich seems to be that non-economic
activity that belongs to a class of economic activity is
reachable under the Commerce Clause.
And so I think that the only point of the book was to
suggest that definitionally these things, like all distinctions
in the law, when you press very hard on them, there are gray
edges on the distinctions. But in the main, I think these are
workable in the role that I would be filling if I were
confirmed.
Senator Lee. In the wake of Gonzales v. Raich, and setting
aside for a moment the exceptions identified in Lopez and
Morrison, can you identify limits on Federal authority that
exist outside of Lopez and Morrison?
Mr. Liu. Well, Senator, it would be difficult for me to
present a hypothetical given that one never knows when an issue
will actually be litigated. But let me try to answer your
question by saying that my own understanding of this area
begins with one basic supposition, which is that the Federal
Government is a Government of limited power. The very
enumeration of Congress' powers in Article I presupposes that
there is that limit, and the Tenth Amendment to the
Constitution makes that explicit. It says that all ``powers not
delegated to the United States by the Constitution, nor
prohibited to it by the States, are reserved to the States,
respectively, or to the people.'' And from Madison to Hamilton
to the precedents of the Court that followed, every one of
these sources confirms that basic proposition.
And so any judge that approached a Commerce Clause question
would have to yield an answer to a problem that was consistent
with that fundamental bedrock proposition of our system.
Senator Lee. Getting back to your statement that the
distinction between economic and non-economic is drawn in Lopez
and Morrison is ineffective and inefficient, is there some
other way that you could have reached the same result in those
cases without drawing the economic/non-economic distinction,
either as to bear non-commercial gun possessions at issue in
Lopez or acts of violence at issue in Morrison?
Mr. Liu. Well, I think actually the opinions themselves
provide some guide to that. As I recall, the Lopez case just
simply did not indulge what it said was the sort of piling
inference upon inference in applying the substantial effects
test of the doctrine. So one way to read Lopez, I suppose, is
to say that the Court is simply unwilling to, you know, develop
a chain of reasoning from mere possession of an article of
commerce, to be sure--but the mere possession itself is non-
economic--to the economic effects that were posited by the
dissent. And that was simply too distant in the chain of, you
know, linkages to get to a substantial effect.
Senator Lee. In a 2008 Stanford Law Review article, you
wrote, ``The problem for courts is to determine at the moment
of decision whether our collective values on a given issue have
converged to a degree that they can be persuasively
crystallized and credibly absorbed into the legal doctrine.''
Can you tell me how a judge discerns when, whether, to what
extent a particular value has been persuasively crystallized so
as to become part of our law?
Mr. Liu. Well, Senator, I think that--in some sense, I
think that that is a kind of--what I wrote there is an
unremarkable observation about the way the Supreme Court
elaborates doctrine. So just to go back to the Fourth Amendment
examples I was providing earlier to Senator Feinstein, what
constitutes a reasonable expectation of privacy? Well, the
Court undertakes, I think, an objective analysis. It does not
ask what they themselves think is a reasonable expectation.
They ask what society thinks. And I think that the cases are
very clear that the inquiry is whether society has developed a
legitimate or recognizes a legitimate or reasonable
expectation. And I think they look to whatever indicators that
they can in the practices--in the case of the text messaging I
was describing, they looked to certain practices of employers
and the expectations of the employees. And they may look to the
case law as it has developed in the State courts and the
Federal courts.
And so this happens, I think, all over the constitutional
jurisprudence as elaborated by the Supreme Court, and so I
think this is in some sense kind of a banal observation about
the way the Court elaborates doctrine.
Senator Lee. I see my time has expired, so we may be able
to get back to that later.
Mr. Liu. Thank you.
Senator Feinstein. Thank you very much, Senator Lee.
Senator Coons.
Senator Coons. Thank you, Professor Liu, for being with us
today and for your, I think, remarkable record of public
service, your outstanding academic preparation, and your
family's willingness to stand by you through this, I know, long
process. And I am grateful for the chance to have visited with
you in person, have reviewed your writings and your work, and
to spend time with you in this hearing today. I think you would
be a very capable jurist, and we would be blessed to have you
join the Ninth Circuit. But I know there are a lot of questions
that have been raised about some of your writing as an academic
and then how that would or would not influence your work should
you become a circuit court judge.
One article in particular, a law review article entitled
``Rethinking Constitutional Welfare Rights,'' has been the
subject of some controversy, and in that you wrote that
fundamental rights can evolve over time. Could you just lay out
for me what role you believe the judiciary has in evolving or
recognizing the evolution of fundamental rights over time?
Mr. Liu. Certainly. That article, I think, was really an
article in two parts. The first half of the article is devoted
to rejecting the idea that courts have really any role in
inventing rights in the social and economic realm, and that is
very consistent with the instructions of the Supreme Court in
this area where in case after case the Supreme Court has said
that our Constitution is a charter of negative liberties and
not one of positive liberties, and I would faithfully and fully
apply those precedents were I confirmed in this process.
The back half of the article does recognize a limited
judicial role in interpreting rights that are created by
statute, so this is a crucial difference that much of the
article is actually directed at the notion that policymakers
are really the ones in charge when it comes to this contested
area, and that what courts do is on occasion, on limited
occasion, they assess the legislature's--they assess
eligibility requirements or termination procedures against the
dictates of the Equal Protection or Due Process Clauses. And
that judicial role, too, is supported by precedent, and those
precedents remain on the books. And so the role that I propose
I think is fully consistent with the state of the law as it is
today. And I feel prepared to fully follow that law if I were
confirmed as a judge.
Senator Coons. And can you point to anything else in your
scholarship to suggest that this has consistently been your
view that the role of the judiciary in recognizing the
evolution of rights is fairly limited and in many ways really
subservient to the policymaking or the legislative role?
Mr. Liu. Absolutely. I mean, in many ways, Senator Coons,
my scholarship has been devoted to the subject of education,
public education, as you know, and in another article in the
Yale Law Journal from 2006, I wrote, again, another piece that
was about education, but directed again at the legislature, the
policymakers, with the important caveats in the front of the
article that said that I am not contemplating any particular
judicial role here. And, in fact, I acknowledged that the
Supreme Court's decision in 1973 in the Rodriguez case that was
very much informed by principles of judicial restraint was the
basic approach that I was taking in that article, recognizing
that courts have very, very limited capacity, in some instances
no capacity, and no authority to wade into what are essentially
political decisions. And so much of my writing has been
centered on those very premises.
Senator Coons. Let me ask, if I could, one last question,
Professor, about something else that has been the subject of
some debate. What role, in your view, does foreign law play in
any judicial interpretation or application of domestic U.S.
law? What sort of authority, if any kind, does it have?
Mr. Liu. The answer is none, Senator. Foreign law has no
authority in our system unless American law requires it to have
authority, so in the case of a contract or treaty of some sort.
To clarify that issue, there is one paragraph of writing in
my record that acknowledges that solutions for legal problems
might come from other places in the world when they are common
problems that constitutional democracies face. But I think all
I meant by saying that was in the same way that judges look to
treatises and law review articles and other sources for ideas
about how to approach matters that come before them, they might
look to examples from other nations, too, but there is a
crucial distinction between that kind of information gathering,
to the extent it is even informative, and the use of those
sources as authority. No one would ever cite a law review
article as legal authority that controls a certain proposition
of law, and I think the same exact rule applies to any foreign
precedent or foreign law that a judge might look to.
Senator Coons. Thank you.
Senator Feinstein. Thank you very much, Senator Coons.
Senator Coburn.
Senator Coburn. Thank you, Madam Chairman.
At the recommendation of our Chairman today, I would like
to invite you to come by my office and have a sit-down at your
convenience before you are considered before the Committee. I
promised the Chairman that I would do that when your nomination
was discussed in the lame duck.
Earlier today, you said in your testimony that there are
areas of the Constitution that are very precise, so I have a
question for you. Article III, Section 2, ``The judicial Power
shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties
made, or which shall be made under their Authority.'' Is that
precise to you?
Mr. Liu. Well, Senator----
Senator Coburn. Because the idea of preciseness is an
important definition here for me.
Mr. Liu. Certainly. I mean, I think that Article III,
Section 2 contains with it an absolute requirement that judges
decide only cases or controversies and that they do not render
advisory opinions. I think that is fairly explicit in the text
of the Constitution, the provision you read.
Senator Coburn. Well, the reason I ask that question, the
Chairman quoted you in terms of your statement, absolute
fidelity to the law, the language, and the statutes. And your
statement that has caused difficulty is the following: ``The
resistance to this practice''--in terms of referencing foreign
law--``is difficult for me to grasp''--I mean, these are your
words--``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.''
If you have an absolute fidelity to the law, the language,
and the statutes, and this is precise, how could anyone ever
consider foreign law as a basis for a decision sitting on the
Supreme Court or an appellate court?
Mr. Liu. Well, Senator, the Supreme Court in this area I
think has largely followed the general approach that they have
looked to foreign law merely as confirmatory or for ideas about
how to approach a particular problem. I do not read the
precedents as dictating that those sources have authority in
the sense of legal, controlling, and binding authority in the
interpretation of U.S. law, and it is certainly not my view
that foreign law has that kind of authority.
Senator Coburn. All right. Let me give you a specific
example then. Justice Stevens in McDonald v. Chicago, ``The
fact that our oldest allies have almost uniformly found it
appropriate to regulate firearms extensively tends to weaken
petitioners' submission that the right to possess a gun of
one's choosing is fundamental to a life of liberty.''
Do you believe that there is merit to his argument? I mean,
he is now referencing foreign law in his defense of his
position on that case. Is that fidelity to the language, law,
and statutes? And is this precise?
Mr. Liu. Well, Senator, as I recall, Justice Stevens was in
dissent in that case, and were I confirmed as a judge, I would
follow the majority view.
Senator Coburn. I know. But, again, we have a Supreme Court
Justice who is relying on foreign law, so it is very clear to
this Senator to want to know exactly where you are given the
statement that you said, that it is difficult for you to grasp
that people would have trouble with the utilization of foreign
law?
Mr. Liu. Well, Senator, even in Justice Stevens' dissent,
if I can recall it correctly, there is no sense in which the
examples he gave--and I do not have any view, because I cannot
recall it very clearly, of the merits of how he used his
examples. But my point simply is I do not think that even in
his opinion that he is citing those sources is in any way
dispositive of the legal question that came before him. And as
I said, Senator, that opinion was a dissent, and if I were
confirmed as a judge, I would follow not only the holding of
the Supreme Court in McDonald v. City of Chicago, but one would
have to absolutely follow the reasoning of the case, and that
reasoning I think is dispositive.
Senator Coburn. I submitted two rounds of questions to you
following our other hearing, and on many you failed to give me
an answer. And I am going to run out of time, and I am going to
run out of time in this hearing, to be able to do that, so I
look forward to meeting with you in my office to try to get to
those answers.
The other question I want to go back to is your statements
about Justice Alito. You have said today that you would not--
knowing what you know today and the experience that you have
seen today, that you would not have included the last paragraph
in your critique. Is that a case of poor judgment, do you
think? Or is just a case of lack of knowledge and insight?
Mr. Liu. Senator, it was poor judgment.
Senator Coburn. Okay. Madam Chairman, I have 7 seconds
left, and I have a multitude of questions, so I will try to
accomplish that with the nominee in my office.
Senator Feinstein. Well, thank you, and thank you very much
for meeting with him. It is very much appreciated.
Senator Blumenthal.
Senator Blumenthal. Thank you, Madam Chairman. And thank
you, Professor Liu, and most particularly to your family, for
being here today. I want to commend you for the success so far
in your career. Really a great American success story, going to
public school in Sacramento, then to Stanford, to Oxford on a
Rhodes scholarship, and then to Yale Law School, and many years
of teaching, and for answering the questions today, difficult
questions, so candidly and forthrightly, most especially your
expression of regret for some of the comments you made about
then nominee Judge Alito.
I want to say about this process that I think that you are
entitled to an up-or-down vote by the U.S. Senate. But I also
feel that this scrutiny has been fair, it has been searching
and demanding, but I believe that this body has a
responsibility to ask the kind of questions that you have been
asked, and I hope that you agree that the process is a fair one
in that regard.
I want to really go to what I consider to be the central
question for any judge on the United States Court of Appeals,
which is where you would follow, and particularly what you
would follow, if your personal views, whether in your past
writings or your present deeply held beliefs, conflict with the
rulings and decisions of the United States Supreme Court. Is
there any doubt in your mind that you would follow faithfully
and consistently the rulings and the decisions of the United
States Supreme Court?
Mr. Liu. Senator, there is no doubt in my mind about that,
and, in fact, I would add that the approach that I have taken
in my writings has been fairly consistently to acknowledge what
the state of the law actually is, and then, of course, scholars
are paid to critique it and to say other things about it. But
it always begins with a clear acknowledgment of what the law
is, and so that is what I would follow.
Senator Blumenthal. And so, for example, on the question of
school choice and busing, I know that you have taken some
stands that would indicate your support for a broad-based
school choice initiative under some circumstances, and we may
disagree about it. I am not sure we do, but even if we did,
there is no question in your mind, even as a supporter, for
example, of school choice initiatives, school vouchers, that
you would follow the rulings of the United States Supreme
Court.
Mr. Liu. Absolutely I would, Senator.
Senator Blumenthal. And to follow what I think is really an
excellent line of questioning from Senator Lee, if the United
States Supreme Court were unclear--and I think he may have used
the word ``incoherent,'' which sometimes litigators regard the
United States Supreme Court as being on certain issues--what
would be your approach there? Would you also look to what the
combination of precedents from the United States Supreme Court
is and try to make the best sense of it and apply it as you saw
it?
Mr. Liu. That is exactly what one would do and what one
would have to do in the role of an intermediate appellate
judge.
Senator Blumenthal. And I know that one of the criticisms I
have seen, having reviewed your previous testimony, has related
to racial quotas. I think the statement has been made that you
support racial quotas with no foreseeable endpoint. Just so we
are clear, do you support racial quotas? And have you ever
supported them?
Mr. Liu. I absolutely do not, Senator.
Senator Blumenthal. And do you think that affirmative
action plans should exist forever?
Mr. Liu. No, I do not, Senator. I think affirmative action,
as it was originally conceived, it was a time-limited remedy
for past wrongs, and I think that is the appropriate way to
understand what affirmative action is.
Senator Blumenthal. Thank you very much. My time has
expired. I may have some additional questions, but, again, I
want to thank you for your testimony. I am greatly impressed by
it and wish you well.
Thank you.
Mr. Liu. Thank you.
Senator Feinstein. Thank you, Senator Blumenthal.
Senator Sessions.
Senator Sessions. Thank you, Madam Chairman.
Mr. Liu, we really do not have time to go into the kind of
discussions I guess we would all like to. It is awfully
difficult as Senators for us to get as prepared as we would
like. I think we do a pretty good job all in all.
You have gone through this before. You have answered
written questions before. I just want to note that you have had
no real experience practicing law or as a judge, only 2 years
in private practice arguing one case, I think, on appeal, a pro
bono case, but never having tried a case before a jury. You are
apparently an able professor, well liked, and have advanced in
the academic world.
I do believe that is a serious defect--I mean, a serious
lack, at least, in any judge who goes on a court one step below
the Supreme Court. So that to me is a serious matter. There is
no need, I guess, to argue about it or talk about it, but it is
something I have to weigh in my judgment as to whether or not
you should be on the court.
Second, from your writings--and I have been on this
Committee now 14 years--I consider them to be the most advanced
statement of the activist judicial philosophy that I have seen.
I do not think there is anyone close to that. And I think it is
a little bit a demonstration of some lack of sensitivity or
maybe deep practical legal experience that you have no
difficulty in talking around rather direct contradictions in
your writings and the positions you are taking here in the
Committee on some of the questions. I think they are very clear
distinctions, and I do not think they are easily breached.
With regard to the foreign law question, you suggest that
yours is not an unusual view, or I would just suggest it is
clearly--from the statement the Senator read, it is clearly in
accord with the most aggressive foreign law citation theories
and I think are unacceptable.
In your Yale Law Journal article of 2006, you wrote--you
might just put that up. ``Before the Fourteenth Amendment
mandates equal protection, it guarantees national citizenship.
This guarantee is affirmatively declared. It is not merely
protected against state abridgment. Moreover, the guarantee
does more than designate a legal status. Together with Section
5, it obligates the national government to secure the full
membership, effective participation, equal dignity of all
citizens in the national community. This obligation, I argue,
encompasses a legislative duty to ensure that all children have
adequate educational opportunity for equal citizenship. For
familiar reasons, the constitutional guarantee of a national
citizenship has never realized its potential to be a generative
source of substantive rights.''
Well, that is what it says. The words are pretty plain. You
become a citizen of the United States, but to become generative
of source of substantive rights to me takes that quite a bit
further, and it basically says a judge using those words can
begin to evaluate political, social policies, as you discuss in
your article, and begin to make decisions on those, because you
are talking about substantive rights to be found in the
document itself, in that clause, that judges can act upon.
I will ask you to respond to that as to whether don't you
think that is untethering a judge from the other restraints of
the Constitution?
Mr. Liu. Senator, if I may, I will try to address this in
four points.
First, the article says absolutely nothing about what a
judge should do. The article is addressed to policymakers, and
there is not a single sentence in that article that says that
judges should use that language as a generative source of
rights.
Second, the article acknowledges----
Senator Sessions. Well, who would find within that document
a source of substantive rights? Legislatures do not need to use
the Citizenship Clause to pass a welfare bill.
Mr. Liu. Senator, my argument in the article is merely that
the legislature, Members of Congress, may--not that they have
to, but that they may----
Senator Sessions. No, no, no. You said that constitutional
provision provides--is a potential source of substantive
rights, and I think that is clearly directed to the courts.
Mr. Liu. Senator, no, that is not my view, and I think the
article in the very beginning explains very clearly that I
avoid using the language of rights precisely because rights
connote judicial enforceability, which is something that I am
not interested in in that article. But if I may, Senator, make
a couple more points.
It is a bit hard for me to respond to--you mentioned that
there were contradictions between my record and my testimony.
If there are specific instances of that, I would be happy to
try to clarify that. But it is hard for me to respond to that
in the abstract.
And, last, Senator----
Senator Sessions. I am just telling you, I have to vote.
You know, I am sort of a judge here. You know, we go through
this, and I have to evaluate what I am hearing. And I just
would suggest to you that there are a number of contradictions
in your written statements and in your testimony and written
answers to the Committee's questions that I do not think
adequately address the differences.
Mr. Liu. Well, Senator, it is hard for me to respond
without knowing what contradictions you have in mind.
Senator Sessions. All right.
Mr. Liu. But the last point I would simply make is that in
terms of the gaps in my experience, I acknowledge, Senator, you
are correct. It is true my resume is primarily a scholarly
resume. I have spent a couple years in practice under the
tutelage of the likes of people like Bill Coleman, which I hope
is a credit to me, but it is limited.
I do think, though, that I do bring other strengths to the
role of an appellate judge. I think the role of a scholar has
always been one of rigorous inquiry and the consideration, the
fair consideration of arguments and counter-arguments, and the
ability to listen well to all the different sides of an issue.
And in terms of how I would approach the role, knowing that I
have some gaps in my experience, I take some instruction from
my own experience, having clerked for an appellate judge who
was not on the district court before. And one thing that he
always did was he always read the record of the case very, very
carefully. And I think that, you know, the temptation at the
appellate level, because the issues are kind of cleaned up and
neat, is to just decide them as abstract matters of law. But
the instruction, I think, always was to look at the record,
look at the record, look at the record, because it is important
to understand how a case came up the line to the appeals
process. And I think I would adopt the same approach if I were
fortunate enough to be confirmed.
Senator Sessions. Well, just briefly, Madam Chairman, in
that same article--you say that it was directed only to
policymakers--you use this language. You said, in your words,
that the article was an attempt, ``a small step toward
`reformation of thought' on how welfare rights may be
recognized through constitutional adjudication''----
Mr. Liu. Senator----
Senator Sessions [continuing].--``in a democratic
society.''
Mr. Liu. I am sorry for interrupting. There are two
different articles in question. The quote you are now reading
is from a 2008 Stanford Law Review article. The article you had
referenced previously, the one that contained the phrase
``legislative duty,'' was from a 2006 Yale Law Journal article.
And in that article there is not any reference made to a
judicial role.
Senator Sessions. Well, it is because you say it is a
source, potential source to generate substantive rights, and
that can only mean by a judge, because the legislature cannot
act on these matters without having to have the Citizenship
Clause of the Constitution to authorize it.
I am over my time, Madam Chairman. Thank you.
Senator Feinstein. Note the generosity of the Chairman.
[Laughter.]
Senator Sessions. You were very generous.
Senator Feinstein. You are welcome.
Senator Sessions. And I would say you are a most able
advocate for the judges from California that you believe in,
and I always respect your insight. Thank you.
Senator Feinstein. I wish it did some good.
[Laughter.]
Senator Feinstein. Senator Cornyn.
Senator Cornyn. Thank you, Madam Chairman.
Let me go back, Professor Liu, to the statements that were
referred to earlier that were the subject of your commentary
about Judge Alito, and just to read those for the record
because I think it helps people understand both what you said
and why there is concern about it.
You said, ``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 it will not 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
multiple regression analyses showing discrimination; and where
police may search what a warrant permits and then some. This is
not the America we know, nor is this the America we aspire to
be.''
Did I read that correctly?
Mr. Liu. You did, Senator.
Senator Cornyn. Professor Liu, this is the second time you
have had a nomination hearing before this Committee, correct?
The last time I believe it was April 6, 2010.
Mr. Liu. I cannot remember the exact date, Senator, but it
was in April.
Senator Cornyn. I think it is thereabout. Do you know why
your nomination was never called up on the floor of the Senate?
Mr. Liu. Senator, I have read various press accounts of it,
but I have no direct knowledge.
Senator Cornyn. Well, you are aware that under the Senate
rules, the only person who could do that would be the Majority
Leader, Senator Reid.
Mr. Liu. I think I am aware of that, yes, Senator.
Senator Cornyn. Have you had a conversation with him or his
staff about why he did not call your nomination up and have a
vote on the U.S. Senate on your nomination before it lapsed at
the end of the last Congress?
Mr. Liu. No. Not on that subject, no.
Senator Cornyn. So it is a mystery to you as to why you are
having to go through this twice, and you never had an
opportunity for a vote on your previous nomination.
Mr. Liu. Well, Senator, I would not perhaps say
``mystery.'' I mean, I have read some press accounts of how
vote decisions were determined in the end of the session. As I
have learned through this process, one cannot always trust
press accounts, but I do have some ideas about it.
Senator Cornyn. Well, you were denied a vote on your
nomination last Congress, correct?
Mr. Liu. I was, Senator.
Senator Cornyn. And the only one who could have scheduled
that for a vote would have been the Majority Leader, Senator
Reid, correct?
Mr. Liu. I believe that is true, yes.
Senator Cornyn. Professor Liu, you said in talking about
Chief Justice John Roberts' nomination to the Supreme Court,
you said, ``There is no doubt that Roberts has a brilliant
legal mind, but a Supreme Court nominee must be evaluated on
more than legal intellect.''
Is that a correct quote?
Mr. Liu. It is a correct quote?
Senator Cornyn. And you would agree that that should apply
to you as well?
Mr. Liu. Absolutely, Senator. I think that the advise and
consent process is in the Constitution because it is one of the
checks and balances in our system, that before any judge
assumes the bench for life tenure, that there ought to be a
political check on that process. And so, yes, I do agree with
that.
Senator Cornyn. Well, Professor Liu, the difficulty, I
think, that you are encountering with some of the members of
the Committee is because you have such a comprehensive set of
legal writings expressing opinions on everything from the death
penalty to same-sex marriage to what constitutes welfare rights
protected by the U.S. Constitution and the like. You are now
saying, ``Wipe the slate clean because none of that has any
relevance whatsoever to how I would conduct myself as a judge
if confirmed by the Senate.''
Is that correct?
Mr. Liu. That is correct, Senator, because my understanding
of the role of an intermediate appellate judge in the hierarchy
of the judicial system is to faithfully follow the instructions
of the higher court, which in this case is the United States
Supreme Court, as well as, I should add, circuit precedent. And
so I am very comfortable and confident saying to you, Senator,
that my scholarly views are not the ground on which I would
base decisions if I were lucky enough to be confirmed.
It is a different case, however--you mentioned what I wrote
about the Roberts' nomination. It is a different case,
obviously, with respect to the United States Supreme Court
because there the Justices applying the doctrine of stare
decisis may, if they apply the test in that way, overturn
precedent. And that is simply not something that an
intermediate appellate judge has any authority to do.
Senator Cornyn. Well, Professor Liu, as I believe I said at
your last nomination hearing, I believe that you have led a
remarkable life, and you have accomplished a lot. You have a
beautiful and supportive family, and you have a lot to be
grateful for, and I know you are. But that does not mean you
are qualified to serve as a member of the Federal judiciary,
and, in fact, your writings and your previous testimony and the
statements, some of which you now say represented bad judgment
on your part with regard to Judge Alito during previous
confirmation hearings, raise some serious questions about
whether you have the sort of temperament and the ability to set
aside your strongly held academic and scholarly views and to be
able to basically start over from scratch and ignore them.
The problem we have as members of this Committee is that we
have 5-minute rounds to ask you questions. We follow it up with
written questions, and you have answered most of those, I
believe. The difficulty is we know this kabuki theater
sometimes where nominees come into the hearing room and they
profess a nomination conversion--in other words, that their
previous strongly held and very articulately stated views are
inoperative, and we should not pay any attention to them, and
we should take at your word your ability--maybe it is your
hope, maybe it is your aspiration, but we need to know whether
you have the ability and you actually will, if confirmed as a
judge, do as you say you would do and set all of this aside and
decide based strictly on the matter of precedent and fidelity
to the Constitution itself.
We have had the sad experience just in the short time I
have been in the Senate where people come in and they say the
sorts of things that you are saying today about how they would
conduct themselves as a judge, but in practice they have either
been unable or unwilling to keep that promise. And the Senate
has no recourse whatsoever short of impeachment, which, as you
know, is extraordinarily rare.
So I just want to explain to you--I think we owe you, in
fairness, our candid views, my candid views. As I said, I think
you have accomplished a lot in your life. You have a lot to be
grateful for and proud of, but I am not convinced that this is
the right job for you.
So with that, Madam Chairman, I will thank you.
Senator Feinstein. Thank you very much.
Before recognizing Senator Klobuchar, I would like to place
in the record the statement of our Chairman, Pat Leahy, and he,
too, refers, Senator, to the confirmation of Professor
McConnell. I would like just to quote one thing.
``Professor McConnell's own provocative writings included
staunch advocacy for reexamining the First Amendment Free
Exercise Clause and the Establishment Clause jurisprudence. He
had expressed strong opposition to Roe v. Wade and to the
clinic access law, and he had testified before Congress that he
believed the Violence Against Women Act was unconstitutional.
[His] writings on the actions of Federal District Court Judge
John Sprizzo in acquitting abortion protesters could not be
read as anything other than praise for the extra-legal behavior
of both the defendants and the judge.''
And he was confirmed, and members on this side gave him the
benefit of the doubt.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Cornyn. Well, Madam Chairman, I appreciate that,
and I do not dispute anything you said, and I do believe Judge
McConnell did what he promised to do. My only point is there is
no recourse for the Committee or for the Senate voting to
confirm a nominee who does not do what they promised to do. And
so that is the quandary we find ourselves in.
Senator Feinstein. Well, I do not want to have a back-and-
forth, but Professor Liu can promise, but he cannot do now. He
can only once get appointed and then you measure that. There is
no way of--he has said he would.
Senator Cornyn. And, again, thank you for allowing me to
just briefly respond. We have had the experience in the case of
a Supreme Court Justice who came in and in the case of the
Second Amendment and the right to keep and bear arms said it
was an individual right, and then subsequently wrote a decision
on the Court and disavowed the very individual right that she
claimed that existed under the Second Amendment. That is my
only point. I am not disputing that Professor Liu may have
those aspirations. He may be making a good-faith representation
about his intentions.
I am just saying that you cannot ignore a body of legal
scholarship and writing like this expressing strongly held
views about this and just take for granted that someone will be
able to completely ignore that in approaching their job as a
judge. That is my only point.
Thank you.
Senator Feinstein. I will continue this discussion with you
sometime.
Senator Cornyn. I am sure you will.
[Laughter.]
Senator Feinstein. Senator Klobuchar.
Senator Klobuchar. Well, hello, Professor Liu. Welcome
back.
Mr. Liu. Thank you.
Senator Klobuchar. I think this is your second hearing. is
that right?
Mr. Liu. Yes, it is.
Senator Klobuchar. I remember talking with you then, and I
was listening as Senator Cornyn spoke about these 5-minute
rounds. You have had two hearings now, and you have also made
yourself available to members for whatever questions that they
have to meet with them in their office. Is that right?
Mr. Liu. That is true, yes.
Senator Klobuchar. Well, I appreciate you making yourself
so available to talk with them about any questions that they
have about your ability to do this job. And I have stated
before, using the Lindsey Graham standard, that I think you are
more than qualified to do this job based on your background,
the standard that he expressed during the Kagan and Sotomayor
hearings about someone's qualities and their academic
qualifications and their understanding of the law and their
willingness to follow the law.
I just wanted to go back into what Senator Cornyn was just
talking about, which is the difference of you work as a
scholar, and I think I mentioned before that I am a graduate of
the University of Chicago Law School and have seen Judge
Easterbrook and Judge Posner as professors and have often
thought that some of the things that they said in class or
views that they expressed in scholarly journals were not
necessarily what guided them as a judge when they actually had
to apply the law.
Could you talk a little bit again about your view of a
judge differing from the role of an advocate or scholar?
Mr. Liu. Certainly. Thank you, Senator Klobuchar.
I first want to just express that I appreciate Senator
Cornyn's making transparent and plain his concerns about my
nomination, and I think they are fair concerns to raise and
discuss. I think this is a robust and fair process. And it
enables me an opportunity, I think, to clarify that in all of
my academic writings, the role that I had was that of a
commentator, as it were. What a scholar does is a scholar pokes
and prods and critiques. A scholar does not make much headway
in the law schools by simply restating the law. And so that is
why scholarship comes out the way it does. It comes out as
critical, and it comes out as inventive and provocative. In
fact, those are the very qualities that are rewarded in that
profession.
The role of the judge is very, very different. The role of
the judge is fundamentally one of being faithful to the law as
it is. And I think I recognize that difference in the way I
approach scholarship, which is to say that I understand what
the law is first. Without grasping that essential foundation,
one cannot responsibly comment on it.
And so if I am able to take one hat off and put a different
hat on, the role simply changes and the nature of how you
approach cases changes. It is not that Judge Easterbrook or
Judge Posner or any judge who has been an academic consults
their own legal writings and refreshes their recollection about
what they thought as a matter of theory before deciding a case.
No. What they do is they read the briefs and they read the
record of the case, and they confine themselves, they
discipline themselves to that process because that is the
process of judging.
So that is how I understand that difference, and that is
how I would approach the job.
Senator Klobuchar. And I also know that there have been a
lot of comments about writings and taking certain things you
have said to try to demonstrate what people think might be your
judicial philosophy. Do you want to describe in your own words,
without just taking one sentence out of something you wrote,
what your judicial philosophy is?
Mr. Liu. Sure. My judicial philosophy in a nutshell, I
think, is that the courts of the United States have a very
limited role in our system of Government. It is limited because
the members of the judiciary hold life tenure without electoral
accountability, and they are asked to review the substantive
validity of democratically enacted statutes on occasion. And so
that is--because we are fundamentally a democratic system, that
is a role to be exercised very cautiously and in a very
restrained way.
It is also, however, a very important role because the
judiciary, as Hamilton told us long ago, is also an important
bulwark against the tyranny of the majority. And so we have
protections in the Constitution for various individual rights,
and we entrust the judiciary to enforce it precisely because
they are insulated from the politics of the moment.
And so it is a careful balancing act at all times, but in
approaching the cases that would come before me, I would take
my instruction from the United States Supreme Court in all of
those cases, and I think the Court has in the main across the
broad run of cases balanced those two important prerogatives--
one, the limitations of the judiciary; and, second, the
important bulwark against tyranny that the judiciary serves in
our system of Government.
Senator Klobuchar. Thank you.
Madam Chair, if I could ask one more question, I have been
managing the America Invents Act, as you know, so I missed the
first round here.
I wondered what you see in my job here, as I am going to be
heading up the Courts Subcommittee, and Senator Sessions is the
ranking Republican. But just generally what do you see as the
greatest challenges facing the Federal judiciary right now?
Mr. Liu. Well, I feel like it would be presumptuous of me
even to comment on that question, having not made it to the job
yet.
Senator Klobuchar. You have been trying really hard,
though, so you must have some thoughts on it.
Mr. Liu. You know, Senator Klobuchar, I do not have more
thoughts on this than any lay person might have. I mean, I have
paid attention to this process, obviously, because of my own
involvement in it, and obviously I have observed many claims
made about the crushing caseloads that have affected not just
the Ninth Circuit but many of the circuits around the country.
And so, you know, that attests, I think, the importance of this
process, and some of the challenges that you will face in the
years to come.
Senator Klobuchar. Well, thank you very much, and, again, I
just think about myself as a student in law school with
Professor Easterbrook and Professor Posner, and somehow they go
through this Committee and they got through the Senate, which
had very ideological--many differences at that time as well,
and I hope that the same will happen with you, Professor Liu.
You have great credentials.
Thank you.
Mr. Liu. Thank you, Senator.
Senator Feinstein. Thank you very much. That completes our
first round, and I would like to put some letters into the
record, which I will do.
[The letters follow:]
Senator Feinstein. I understand that Senator Sessions has
some questions he wishes--this is actually your third round.
Why don't you go ahead?
Senator Sessions. Mr. Liu, again, I am a bit baffled. You
talked just a moment ago about judges showing restraint, that
they are cautious, that they have a limited role. But I
improperly quoted this article a while ago, and you corrected
me, rightly. But this is the article on ``Rethinking
Constitutional Welfare.'' You talked about judges--and this is
your writing about how you think judges should perform. ``The
historical development and binding character about
constitutional understanding demand more complex explanations
than a conventional account of the courts as independent,
socially detached decisionmakers that say what the law is. The
enduring task of the judiciary,'' you say, ``is to find a way
to articulate constitutional law that the Nation can accept as
its own.''
Well, first, I think the Marbury v. Madison decision had
the famous line that a judge's role is to say what the law is.
But you go quite a bit further from that in your writings, and
then when asked about it, you give a statement that Justice
Scalia could give about the role of a judge.
So I guess you--doesn't this go far beyond what you just
said?
Mr. Liu. Senator, I think that is the first time I have
been accused of channeling Justice Scalia, so I will take
that----
[Laughter.]
Senator Sessions. Well, that was a pretty good statement.
Mr. Liu. Thank you, Senator.
Senator Sessions. But it is not consistent, I think, with
what you wrote.
Mr. Liu. Well, Senator, I do not recall--I would be happy
to look at that passage a little more carefully, if you would
like.
Senator Sessions. Well, I did not misquote it, I do not
think.
Mr. Liu. I think you quoted it accurately. I think the
passage, if I recall it correct, was trying to say that judges
cannot decide cases, whether it is in this area, welfare
rights, or any other area, on the basis of some independent
moral theory that they have about what people are entitled to,
if anything. And so that statement is part of an argument I
think in the article that says that what judges have to do is
they have to set aside their independent moral theories and not
import them into the law.
I think the Supreme Court has been absolutely clear in this
particular area, the welfare rights area, that there is that
danger that judges, unelected and unaccountable, based on their
own conceptions of justice might try to write that into the
law. And I fully respect those precedents in that article----
Senator Sessions. Well, you know, you mentioned a while
ago, pretty easily, I thought, on the question of privacy. You
said that, well, privacy is what society says it is, basically,
and how do you find that? Well, you look to what sources you
can.
But when you get away from respecting the limitations of
the Constitution and its language, then you get into finding
theories out here. Do you do polling data to determine what
rights are? Or do we look to foreign law, as Justice Stevens
said? You said you look to foreign law to get what advice they
get, but it is our Constitution that you are interpreting, the
one we adopted, not some foreign law.
So doesn't that indicate to me and to all of us that your
view is that a judge indeed is free to reinterpret the meaning
of the words of the Constitution and to advance what they
consider to be in effect some societal value, which is
unascertainable, really, by a judge in any fair and complete
way?
Mr. Liu. Well, Senator, on the Fourth Amendment example, I
was not actually giving my personal view about the subject. I
was trying to express what the Supreme Court itself has said
about the subject, and if I were an intermediate appellate
judge, I would have to faithfully follow the standard of a
reasonable expectation of privacy or a legitimate expectation
of privacy as society recognizes it, which is the applicable
standard in the Black Letter Law.
Senator Sessions. Well, I thank you, and I appreciate the
opportunity to have this exchange. You are an able lawyer with
a nimble mind and ability to articulate your position well. I
would just say that I believe the values you express in your
writings indicate that you have a very activist view of the
role of a judge. I think it would influence your
decisionmaking. I am not unaware that the Ninth Circuit is
considered to be the most liberal circuit in the country. One
year, they reversed 27 out of 28 cases, and the New York Times
wrote that the Ninth Circuit was considered by a majority of
the court as a rogue circuit.
So I am concerned about that, but I have no doubt of your
good will, your skill, your leadership ability, your academic
ability, and you have a wonderful family. Thank you.
Mr. Liu. Thank you, Senator.
Senator Feinstein. Senator Grassley has returned, and I
know he has additional questions.
Senator Blumenthal, do you have additional questions for
this witness?
Senator Blumenthal. I do not, Madam Chairman. I would yield
to Senator Grassley.
Senator Feinstein. Fine. And then I know we are keeping the
other nominees quite a time, but we will try to be quick in
your hearings. I think you have probably seen that this is a
very interesting hearing for this particular candidate.
Senator Sessions. Madam Chairman, I would offer for the
record a post of Ed Whelan, a lawyer, responding to Mr.
Painter's letter, Professor Painter's letter, that criticized
some of his writings, and he responds, I think, effectively, to
those criticisms.
Senator Feinstein. That was quick. It will go into the
record.
[The information appears as a submission for the record.]
Senator Feinstein. Senator, would you like to take the
floor?
Senator Grassley. If we were to, let us just say, wipe the
slate clean as to your academic writings and career, what is
left to justify your confirmation?
Mr. Liu. Senator, I would hope that you would not wipe my
slate clean, as it were. You know, I am what I am. My resume is
a scholarly resume, and all I can say about that is that I
appreciate the distinction between the roles.
I think there are important facets of being a scholar that
are very beneficial to being a judge: The ability to have a
broad knowledge of the law, the ability to see arguments and
counter-arguments, and to be fair to those arguments, and also
the ability, frankly, to listen well to the litigants'
positions and to subject all the arguments to the most rigorous
scrutiny. I think all of those are transferable skills from one
to the other.
What is not transferable absolutely are the substantive
views that one might take as a matter of legal theory. Those
are left at the door. And then when one becomes a judge, one
applies the law as it is to the facts of every case.
Senator Grassley. You devote an entire chapter in your book
to defending the Supreme Court holdings in cases like Roe and
Griswold and Lawrence. You describe these cases collectively as
``broad constellations of cases extending constitutional
protection to individual decisionmaking on intimate questions
of family life, sexuality, and reproduction.''
You argue, and I quote further, ``The rights affirmed in
the cases from Griswold . . . to Lawrence enjoy widespread
support and acceptance. They cannot be reconciled with an arid
textualism or an originalism that asks how the Framing
generation would have resolved the precise issues. But they are
wholly consistent with an approach to constitutional
interpretation that reads original commitments and contemporary
social contexts together. The evolution of constitutional
protection for individual autonomy in certain areas of intimate
decisionmaking reflects precisely the rich form of
constitutional interpretation this book envisions.''
So the question: Given that you argue these cases ``reflect
precisely the rich form of constitutional interpretation this
book envisions,'' is it fair to say that these cases
demonstrate fidelity to the Constitution under your judicial
philosophy?
Mr. Liu. Well, Senator, those are cases that have been
rendered by the United States Supreme Court. They are
precedents of the Court, and if I were confirmed as a judge, I
would fully follow them.
I do not think that there is in the writing any--it is a
scholarly--what you read is a scholarly description, one
scholarly description of a set of cases, and I am sure there
are scholars who would disagree. But what all scholars would
not disagree on, I think, is that however we might like to
characterize those opinions as a matter of theory--which is
what that is--the decisions speak for themselves in their own
language, and any judge would have to consult not my book or
any other person's book, but those decisions themselves in
applying the law to the facts of any particular case.
Senator Grassley. At your prior hearing, you responded to a
question from Senator Cornyn by citing Lawrence as a case in
which the Supreme Court relied on foreign law simply because it
was favorable to the majority opinion's position. In doing so,
did the Court ``read original commitment and contemporary
social contexts together'' ?
Mr. Liu. Senator, I am not sure, and I am not sure I
understand the question.
Senator Grassley. Well, I can state it again, but it is
pretty simple to me. We are trying to compare what you said
about original commitments and contemporary social contexts,
the extent to which the Lawrence decision and your reliance
upon foreign law was favorable to the majority opinions, how
that fits in with your quote that I have.
Mr. Liu. Well, Senator, in Lawrence, the Supreme Court was
interpreting the term ``liberty'' in the Due Process Clause of
the Fourteenth Amendment, and in interpreting that term, the
Court did look to a variety of sources, but most especially it
looked to the precedents of the Court itself. The primary
discussion, as I remember it, in the opinion is a discussion of
how the notion of liberty had traveled through a variety of the
Court's own precedents from the time of the early, I believe,
1900's all the way up through the present day.
With respect to the citation of foreign law, I think I had
said in our previous hearing that they are all reasons to be
skeptical as well about the use of foreign law because one has
to know whether or not one is cherrypicking in a sense among
the possible sources. And perhaps that was the caution that I
expressed in the first time that we had this conversation about
that case.
Senator Grassley. This will be my last question. We have
had a host of liberal academics admitting that the role was
largely invented out of whole cloth. Professor Laurence Tribe
has written, ``One of the most curious things about Roe is that
behind its verbal smoke screen, the substantive judgment on
which it rests is nowhere to be found.''
In 1985, Justice Ginsburg described Roe as ``heavy-handed
judicial intervention that was difficult to justify and appears
to have provoked, not resolved, conflict.''
Yale Law Professor Kermit Roosevelt, who wrote a book
entitled ``The Myth of Judicial Activism,'' said, ``As
constitutional argument, Roe is barely coherent. The Court
pulled its fundamental right to choose more or less from the
constitutional ether.''
Edward Lazarus, a former law clerk to Justice Blackmun,
wrote, ``As a matter of constitutional interpretation, even the
most liberal jurisprudes, if you administer truth serum, will
tell you it is basically indefensible.''
And, you know, we could go on and on, but my question to
you is this: Do you still believe that Roe and its progeny
demonstrate what you term ``constitutional fidelity'' ?
Mr. Liu. Senator, Roe is a precedent of the Court. It has
been reaffirmed as recently, I believe, as 1992 in the Casey
opinion by the Court. As a precedent of the Court, it is
entitled to the respect that the precedents of the Supreme
Court are entitled to. And in the case of an intermediate
appellate judge, if I were fortunate enough to be confirmed,
that means that Roe is a controlling case under the case law.
So I would have to apply it faithfully if I were confirmed.
Senator Grassley. And so you are saying that it
demonstrates what you have terms ``constitutional fidelity'' ?
Mr. Liu. Senator, the Supreme Court has said that it is an
appropriate decision under the United States Constitution. As
an intermediate appellate judge, I am obligated to respect
that.
Senator Grassley. Thank you, Professor Liu.
Senator Feinstein. I know this is tough, and I want to
thank you. I want to thank you for your bright mind. I want to
thank you for your scholastic intuition and judgment and
knowledge.
I thought the answer to Senator Grassley's last question
showed that you also have courage of your views, and I thank
you for that. I actually think you will be a fine--if you get
there, a fine appellate court judge. And I think this is really
hard because you see the polarization that exists. Whether we
can overcome it or not, I do not know. I hope members will meet
with you separately. I was delighted to hear that Senator
Coburn agreed to do so. That means a great deal to me.
One of my concerns--and I just want to spell it out--has
been that our Federal judiciary is made up of the best we can
get, the intellectual and legal giants of our time, and that we
not dumb it down. If you are able to make it, one thing I am
sure of: You will not dumb it down.
So thank you very much for being here, and you are now
excused.
Mr. Liu. Thank you, Senator Feinstein.
Senator Feinstein. We will ask the next panel to come up,
please. Perhaps I should swear you all in.
Do you affirm that the oath you are about to take, that you
will tell the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Sharp. I do.
Mr. Dalton. I do.
Judge Cecchi. I do.
Judge Salas. I do.
Senator Feinstein. Substitute ``testimony'' for ``oath.'' I
think this hearing is getting a bit long.
I do not believe that this will be a lengthy hearing. We
have had an opportunity to review your records. The Senators
introducing you I think were very complete and gave us a very
good view of your background.
I have one question that I would like to ask each one of
you to answer, and that is this: You have heard a lot earlier
about stare decisis. That is precedent. And I do not know
whether you have run into this in your careers or not. But I do
know that people come up here and say, oh, they agree with the
doctrine of stare decisis and they will abide by it, and then
they go on the court--and this has happened even with the
Supreme Court--and they do exactly the opposite. So I would
like to ask you that question for the record. Stare decisis
essentially ensures that our law will be stable, predictable,
and well reasoned over time.
So have you encountered this doctrine so far in your
career? And how will this doctrine influence your work as a
district judge, if you are confirmed?
We will begin with you, Mr. Sharp, please.
STATEMENT OF KEVIN HUNTER SHARP, NOMINEE TO BE UNITED STATES
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE
Mr. Sharp. Well, thank you, Chairman Feinstein, and thank
you, Ranking Member Grassley, for having us here.
My thoughts about this, my philosophy on this, starts from
the point of a great respect for the law and a great respect
for our system. And our system of justice only works to the
extent that the judges in that system follow precedent and
strictly follow the rules. If judges start to exercise will
instead of judgment, the system breaks down. And it loses--the
system loses respect from those people that have to work within
this system.
So, absolutely, as a judge, if fortunate enough to be
confirmed, I would strictly follow the precedents set down by
the circuit courts and the Supreme Court of the United States.
Senator Feinstein. Thank you.
[The biographical information follows.]
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Mr. Dalton.
STATEMENT OF ROY BALE DALTON, JR., NOMINEE TO BE DISTRICT JUDGE
FOR MIDDLE DISTRICT OF FLORIDA
Mr. Dalton. Thank you. I thank the Chairman. Thank you also
to the Ranking Member, Senator Grassley.
Madam Chairman, I can tell you that as a practicing lawyer
there are few things that are more frustrating, having been at
the bar for 34 years, than a judge who deviates from stare
decisis and ventures off into land that is uncharted. It
certainly strips the process of predictability, and I think as
my colleague says, certainly undermines confidence and
credibility in the courts.
Senator Feinstein. Thank you.
[The biographical information follows.]
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Judge Cecchi.
STATEMENT OF HON. CLAIRE C. CECCHI, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY
Judge Cecchi. Yes, thank you, Senator, for----
Senator Feinstein. Is your mic on? Just pull it a little
closer.
Judge Cecchi. It is on. Can you hear me now?
Senator Feinstein. Yes.
Judge Cecchi. Okay. Thank you, Senators, for convening this
hearing and certainly thank you for chairing it as well.
As a magistrate judge, I deal with this issue on a daily
basis, and I apply the law to the facts. I am very scrupulous
in my application of existing precedent, and it provides
stability to the court, it provides confidence in those who are
appearing before me, and it is the rule of law which governs
what I do every day. And if I were so fortunate to proceed in
this process, I would continue to do so.
Senator Feinstein. Thank you very much.
[The biographical information follows.]
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Judge Salas.
STATEMENT OF HON. ESTHER SALAS, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY
Judge Salas. Good afternoon, Madam Chairwoman, and also to
Senator Grassley. I want to thank the entire Committee for
giving us this opportunity. Thank you so much.
I, too, as a magistrate judge face this very issue every
day when I go into work, and I took an oath, and I stand by
that oath. I follow the law, only the law. I apply the law to
the facts that are before me, and I do not allow anything else,
my personal opinion, anything else, to come and cloud my
judgment. So, of course, I believe that precedent is paramount,
and I would continue to do my job, and I would continue to live
by my oath.
Senator Feinstein. Thank you very much.
[The biographical information follows.]
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I would like to give each of you an opportunity to
introduce your family so that it can be recorded in the record.
Mr. Sharp.
Mr. Sharp. Thank you, Senator. I have with me here today a
number of family and friends. First, my wife, Holly Sharp, is
here; my daughter Sydney, who is a student at Oldfield School
in Baltimore and was fortunate to get out of class today. My
mother, Annette Sharp, is here from Memphis, Tennessee. My
mother-in-law, Ashley Conner; my brother-in-law, Forrest
Conner; sister-in-law, Stephanie Conner. A good friend and
long-time law partner, Jay Drescher made the trip from
Nashville, along with my friend of some 20 years, former
Congressman Bob Clement from Nashville; Ken Larish; and Kurt
Schaefer who I practiced law with a number of years ago, who
now practices here. He had to leave, went to another event, but
former Secretary of Labor, Bill Brock, showed up to wish me
well, and I appreciate that.
Senator Feinstein. Thank you. Thank you very much.
Mr. Dalton.
Mr. Dalton. Thank you, Senator Feinstein. Senator Nelson
was kind enough to previously introduce my family, so I will
not repeat that.
Senator Feinstein. You will pass.
Mr. Dalton. Except to say that my father, who is buried up
the road at Arlington National Cemetery, I know is here with me
in spirit, and so the gang is all here and they honor me with
their presence.
Senator Feinstein. Thank you.
Judge Cecchi.
Judge Cecchi. Thank you. And, again, in addition to
thanking the Committee, I would like to thank Senator
Lautenberg and Senator Menendez for their support and their
kind words today. It is certainly much appreciated.
And with me today I have a number of friends and family,
and I would like to introduce them, starting with the smallest
first: my son, James, who is 7 years old, who is very happy to
be here today. I have my husband, James Cecchi, and I have my
mother, Helen Chadirjian; my brother, also a lawyer, Michael
Chadirjian. I have dear friends David Baron, John Agnello,
Debbie Agnello, and I have my top-notch staff, my career law
clerk, Melissa Reilly, and my judicial assistant, Dina Daggett.
And I would also like to raise the memory of my father,
Michael Chadirjian, and my father-in-law, James Cecchi, who
both had a tremendous influence on my life, and I wish they
could be here to share this moment with me.
Thank you.
Senator Feinstein. Thank you very much.
Judge Salas.
Judge Salas. Yes, thank you. I wanted to thank the Senators
as well, Senator Menendez and Senator Lautenberg. I want to
thank the President for his nomination, and I am humbled by his
nomination and his support.
I have my family as well here, and here is my husband, Mark
Anderl; my son, Daniel Mark, who is really excited, and he
wanted me to make sure, Madam Chairwoman, that you knew that he
got permission from his principal to be here, Sister Mary
Louise. So he is not going to get in trouble.
Senator Feinstein. That is excellent. We would not want him
here any other way. And I can tell he is very proud of you. He
has a big smile on his face.
Judge Salas. My brother, Carlos Salas, is here. My sister,
Julie Fabiny, is here. Her daughter, my niece, Hannah Fabiny. I
have three dear friends that traveled very far, one on the red-
eye from San Diego, my friend Juanita Sanchez. I also have
Allison Ecko here, and I also have Jane Gerrity Schneidman. Not
present are a number of family and friends watching on the
webcast, and I could not name them all, but they know who they
are and I thank them for their support.
I just finally want to say that the one person who is not
here is my mother, and she was too ill to travel. But she is
here in spirit.
Senator Feinstein. Thank you. Thank you very much.
Senator?
Senator Grassley. I have just one question for each of you.
They kind of follow the same theme, but they are a little bit
different approach, and none of them are meant to catch you off
guard, and I will refer to Professor Liu to some extent in my
questions, and it does not matter whether you have ever read
any of his stuff or not. It is just kind of a basis for a
philosophical question that I would like to get an answer from
each of you, so I will start with Mr. Sharp.
Professor Liu supports, quote-unquote, a social needs-based
view of the living Constitution. He has said, ``The problem for
the courts is to determine at the moment of decision whether
our collective values on a given issue have converged to a
degree that can be persuasively crystallized and credibly
observed into a legal doctrine.''
Do you believe it is proper for a judge to consider ``our
collective values on a given issue'' when interpreting the
Constitution?
Mr. Sharp. Thank you for the question, Senator. The short
answer is no, I do not. As a district court judge, the job of
that judge, if I am fortunate enough to be confirmed, would be
to look at the language of the statute or the law that needs to
be interpreted or applied to the facts in front of me, what the
Supreme Court has said about that, what the Sixth Circuit has
said about that, or what the other circuits have said about
that. And that is where it ends, applying that law to this set
of facts, and the other analysis should not play into it.
Senator Grassley. Okay. Mr. Dalton, on the issue of using
foreign law interpreting the U.S. Constitution, Professor Liu
has said, ``The U.S. Supreme Court has cited foreign authority
in cases limiting the death penalty and invalidating criminal
laws against homosexuals, sodomy among others. 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.''
So do you agree with a statement like that, whether
Professor Liu made it or anybody else made it?
Mr. Dalton. Thank you, Senator Grassley. I am a practicing
lawyer and not a constitutional scholar, but I can tell you
that, in my view, international law should play no role in the
interpretation or application of the laws of the United States.
Senator Grassley. Okay. And, Ms. Cecchi, Professor Liu
wrote a book in which he proposed and defended a theory of
interpreting the Constitution that he calls ``constitutional
fidelity.'' He described his philosophy in an interview with
the American Constitution Society, and you have heard me say
this twice now, if you were here during the other hearing, and
I assume you might have been. He said, ``And 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.''
Now, whether Professor Liu said that or anybody else, the
question is: Do you agree with the statement ``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'' ?
Judge Cecchi. Thank you very much for the question. While I
am not familiar with his works, I do understand the issue that
we are addressing here. And I do not agree with the position he
has taken. What I would advocate, what I do every day, is I
examine the provision that I need to examine, and I anchor
myself in the words of the document. And if I were reviewing
the Constitution, I would be looking at the Constitution, its
exact wording. I would be looking at any Supreme Court
precedent that has interpreted that provision to look for
guidance as to any interpretive tools. And I would be
faithfully trying to determine the intent of the Framers when
they drafted that document.
Senator Grassley. Thank you. And for Ms. Salas, Professor
Liu has said, ``Constitutional meaning is a function of both
text and context. The relevant context includes public values
and social understandings as reflected in the statutes, common
law, and other parts of the legal landscape.''
Do you believe it is proper for the courts to consider
``public values and social understandings'' when interpreting
the Constitution?
Judge Salas. To put it simply, Senator Grassley, no. I
think you have to look at the Constitution and the laws. You
have to look at the plain meaning of them. You have to look at
precedent. I am always guided by precedent, and I would, if I
am fortunate enough to be confirmed, always follow precedent,
follow the mandates of the Supreme Court and of the Third
Circuit, and that is what I would limit myself to.
Senator Grassley. Thank you all very much, and thank you,
Madam Chairman.
Senator Feinstein. You are welcome. You are welcome.
The record will be open for 1 week for Senators who have
questions for the record, and I want to thank our witnesses
today, wish you good luck, and thank you all, ladies and
gentlemen.
The hearing is adjourned.
[Whereupon, at 5:03 p.m., the Committee was adjourned.]
[The Questions and answers and submissions for the record
follow.]
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