[Congressional Record Volume 156, Number 173 (Wednesday, December 22, 2010)]
[Senate]
[Pages S11066-S11067]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               NOMINATIONS OF GOODWIN LIU AND EDWARD CHEN

  Mrs. FEINSTEIN. Madam President, I rise today to discuss two 
promising Asian-American judicial nominees from my State of California 
who have been denied simple, straightforward up-or-down votes on the 
floor of this body for what I believe are very spurious reasons.
  Goodwin Liu is associate dean and professor of law at the University 
of California, Berkeley, Boalt Hall School of Law. He has a truly 
outstanding record as a great legal mind:

       Phi Beta Kappa from Stanford and co-president of the 
     Student Body; a Rhodes Scholar at Oxford; a J.D. from Yale 
     Law School and an editor on the Yale Law Journal; judicial 
     clerkships on the D.C. Circuit and the U.S. Supreme Court; 
     recipient of both the Education Law Association's Award for 
     Distinguished Scholarship and the University of California at 
     Berkeley's highest award for teaching.

  Recognizing his brilliance, President Obama chose Professor Liu for a 
seat on the Court of Appeals for the Ninth Circuit.
  I have met personally with Goodwin Liu on several occasions, 
including a 4-hour discussion. I had him to my home for dinner. His 
status as a first-rate legal mind is undeniable.
  And his support for this nomination is legion:

       Justice Ruth Bader Ginsburg, former judge and Solicitor 
     General Ken Starr, leading conservative lawyer Clint Bolick, 
     California Correctional Peace Officers Association, 34 former 
     prosecutors, Numerous education leaders, including former 
     Secretary of Education Richard Riley and Joel Klein, the 
     Chancellor of the New York City schools, and Numerous 
     representatives of the Asian-American community.

  One set of support was particularly impressive to me. In the only 
time that I have seen the serving president and two former presidents 
of a major university write in support of a nominee or issue, the three 
most recent presidents of Stanford University, John Hennessy, Gerhard 
Casper, and Donald Kennedy, wrote to support Professor Liu's 
nomination, saying, in part:

       Goodwin Liu as a student, scholar, and trustee has 
     epitomized the goal of Stanford's founders, which was ``to 
     promote the public welfare by exercising an influence on 
     behalf of humanity and civilization, teaching the blessings 
     of liberty regulated by law, and inculcating love and 
     reverence for the great principles of government as derived 
     from the inalienable rights of man to life, liberty and the 
     pursuit of happiness.'' We highly recommend Goodwin Liu for 
     the honor and responsibility of serving on the United States 
     Court of Appeals for the Ninth Circuit.

  I admit that some of Professor Liu's writing have been questioned by 
conservatives. It is true that Goodwin Liu would not be a conservative 
judge. However, I do not believe that he would be an activist judge.
  As I have watched debates over the judiciary in my eighteen years in 
the Senate, the perception of ``judicial activism'' is for the party on 
the other side. Many believe that this current Supreme Court under 
Chief Justice Roberts is one of the more activist courts ever. It is 
indisputable that it has overturned many precedents that had stood for 
decades.
  Goodwin Liu deserves to have a fair up-or-down vote, as other 
controversial circuit court nominees have received. If a senator 
opposes his nomination, let them vote against him. That is what we are 
here for--to cast our votes yea or nay, up or down. But don't let 
Professor Liu die on the calendar, without even having the courage to 
give him a vote.
  Even worse in many ways is the similar treatment that Magistrate 
Judge Edward Chen has received. I recommended Judge Chen for a 
judgeship in the Northern District of California. If confirmed, he 
would be the first judge of Chinese descent to serve in this district, 
with its notable Chinese heritage.
  This would not be a novel role for Judge Chen: for the past 9 years, 
he has served as a magistrate judge on this same court. And his service 
there has been impeccable, and apparently unassailable: he has written 
more than 350 published opinions in that time, and there has not been 
an objection to a single one of them.
  But opponents of his nomination are hanging their hat on one quote 
from him, taken out of context.
  One of the darkest chapters in this country's history was the 
wholesale internment of Japanese-Americans during World War II. The 
Supreme Court upheld this heinous practice in the notorious case of 
Korematsu v. United States. In 1988, Congress passed and President 
Reagan signed the Civil Liberties Act and issued a formal apology for 
the internment. Before serving as a magistrate judge, Ed Chen 
represented the name party in that case, Fred

[[Page S11067]]

Korematsu, in his successful effort to overturn his conviction for 
defying the internment order.
  In 2005, Judge Chen attended Mr. Korematsu's funeral, and spoke about 
it a month later to law students. The line that critics have seized 
upon came from this speech, where Judge Chen said that, while listening 
to the congregation sing ``America the Beautiful'' at the funeral, he 
sometimes had ``Feelings of ambivalence and cynicism when confronted 
with appeals to patriotism--sometimes I cannot help but feel that there 
are too much [sic] injustice and too many inequalities that prevent far 
too many Americans from enjoying the beauty extolled in that anthem.''
  But the critics omit what Chen said right after that quotation:
       Yet I was moved to tears at Fred's memorial. Why? In part, 
     Fred was a living example of the patriotism embodied in the 
     song. Korematsu demonstrated that patriotism not by waving an 
     American flag, but by trying to vindicate the values and 
     principles that are embodied in that flag freedom, justice 
     and equality under the law. . . . I was also moved not only 
     because ``America the Beautiful'' echoed what I saw [in] 
     Fred. It was also because the song described the America that 
     Fred envision[ed]. The America whose promised beauty he 
     sought to fulfill, an America true to its founding 
     principles.
  Judge Chen didn't object to singing ``America the Beautiful''--he was 
moved to tears by it.
  Judge Chen's nomination enjoys widespread support, with extensive 
support from the law enforcement community, including: San Francisco 
Deputy Sheriffs' Association, Northern Alliance of Law Enforcement, 
which represents 20 different law enforcement associations in Northern 
California, Peace Officers Research Association of California, 11 
former Federal prosecutors for the Northern District of California and 
former San Francisco Chief of Police Anthony Ribera.
  And the list goes on.
  He also has widespread support from the bar, including the Bar 
Association of San Francisco, Hispanic National Bar Association, and 
many others.
  Yet despite this support, his nomination has been subjected to 
repeated, exceptional delay and obstruction, even being returned to the 
President during congressional recesses.
  The day was when district court nominees supported by both home State 
Senators with extensive law enforcement and legal community support 
were confirmed routinely. It is time now to end this delay and 
obstruction, give Ed Chen the fair up-or-down vote he so richly 
deserves, and confirm this well-proven, qualified nominee to the 
Federal district court.

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