[Congressional Record Volume 157, Number 69 (Wednesday, May 18, 2011)]
[Senate]
[Pages S3093-S3099]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         Debit Interchange Fees

  Mr. TESTER. Madam President, I thank Senator Boxer and Senator 
Grassley for their generosity. I am not here to talk about Goodwin Liu. 
I am going to talk about the debate over debit interchange.
  In a matter of weeks, the government is planning to price-fix debit 
card swipe fees below--below--the cost of doing business. They are 
going to price-fix debit card swipe fees below the cost of doing 
business.
  On the surface, the plan might make sense. But peel back the layers 
and we will see why a whole bunch of folks out there on both sides of 
the aisle are raising a flag.
  I am not asking to repeal the rules or even change them. I am asking 
that we take a closer look so we can get the information to understand 
the impacts, both intended and unintended. I have listened to the 
feedback my colleagues have shared on this issue. I have heard their 
concerns.
  While it is important to stop and examine the impact of limiting 
debit card swipe fees, some have said 2 years is simply too long. I am 
willing to adjust my legislation to address those concerns. Senator 
Corker and I have decided to shorten the timeframe from 24 months to 15 
months.
  Here is how the 15 months is going to be used. Fifteen months will 
provide the agencies with 6 months for a study. It will provide the 
Federal Reserve 6 months to rewrite the rules using that study. It will 
allow 3 months to implement the final rules. Fifteen months is the bare 
minimum to get this study right, and we want to get it right.
  For me, stopping and studying the unintended consequences of 
government price-fixing has everything to do with access to capital for 
small businesses and consumers in rural America. Make no mistake, the 
big banks are going to do fine no matter what. So I opposed bailing 
them out. All but two banks in my entire State are considered small 
community banks and will be affected by this debit interchange price-
fixing rule.
  All of Montana's credit unions will be affected as well. They will 
feel the pinch, and they will lose because the government is going to 
set a price for doing business that does not cover their costs.
  Let me say it again. The Federal Government is going to tell these 
folks what price to set on interchange rates, and it will not be enough 
for the little guys to be able to compete in the marketplace.
  Let me ask this: How would a big box retailer react if we set the 
price of T-shirts below what it cost to make, ship, and market them? 
You can bet the retailers would be up in arms--and rightfully so--about 
the government setting prices and telling them how to run their 
business.
  Some have suggested that the only way to have a competitive 
marketplace is by capping rates. That kind of reasoning does not make 
sense to a farmer like me. When we slant the playing field against 
small banks, they cannot compete with the big guys. If they go under, 
the businesses and consumers who rely on them are left hanging. That is 
why a populist farmer from rural America is on the side of common sense 
in this debate, and I am on the side of Montana small businesses and 
consumers.
  Last Thursday, I asked Fed Chairman Ben Bernanke about the impact of 
government price fixing as it applies to rural America. He is not the 
only major regulator who has raised serious questions about whether the 
supposed exemption for small banks will work. He is not the only one. 
Last week, Chairman Bernanke said ``it could result in some smaller 
banks being less profitable and failing.''
  Let me repeat that, in the words of Chairman Bernanke, the small 
banks in Montana and across America could fail under this planned rule.
  What does it mean if more banks fail? It means more consolidation in 
the banking industry. How in the world is that good for consumers? How 
is it better for a small business in Glendive, MT, to have to ask a 
bank headquartered on Wall Street for a loan instead of going to the 
bank on Main Street? Are big banks going to provide the same level of 
service as community banks? I think not. Will they be able to evaluate 
the prospects of a small business by only looking at data, without 
understanding the communities they serve? Will big banks create strong 
relationships with the people in rural America? Will they do that? How 
about those folks who are looking to start a small business?
  We know credit unions are one of the few financial institutions to 
ever consider going into Indian Country to help bring investment to 
some of the most impoverished areas in this country. Do you think if 
these small folks go under, there will be anyone else willing to lend 
on reservations? No way. No way.
  During last week's hearing, FDIC Chairwoman Sheila Bair said this new 
rule is ``going to reduce revenues at a number of smaller banks, and 
they will have to pass that on to customers in terms of higher fees.'' 
Rural America--especially in this fragile economy--cannot afford that.
  Today I want to share why a few businesses in Montana are opposed to 
government price fixing. Their stories are not uncommon. They are quite 
ordinary.
  Doris Rocheleau runs Doris's Day Care in Great Falls, MT. She has 
been doing business for nearly 30 years with a community bank. She 
tells me she is struggling to make ends meet, as many small businesses 
are, and paying more in monthly checking would hurt her very much.
  Also, in Great Falls there is a small business owner named Mark 
Voyles. Mark owns Y-Not Trucking. His reason for supporting my 
amendment to stop and study the government limit is because he 
``doesn't want to pay more fees on his money in his bank.''
  Cabela's is a large retailer, a popular sporting goods store in 
Billings, MT. They are wary of the Durbin amendment because they offer 
their customers a reward credit card. They have real concerns with 
government price controls and what they will mean for their ability to 
meet the needs of their customers.
  The bottom line is this: Allowing the government to price-fix debit 
card swipe fees is a slippery slope. Maybe that is why my amendment is 
to stop and study the impact of this proposed rule. It has broad 
bipartisan support from folks such as the National Education 
Association and Americans for Tax Reform--different sides of the 
economic equation. Then there are nonprofit organizations, such as 
Rural Dynamics in Montana. Rural Dynamics serves the entire State of 
Montana--thousands of folks every year. Their mission? To help 
individual people and families achieve economic independence, to make 
sure folks can earn, keep, and grow their assets to reach economic 
independence.
  Rural Dynamics is a well-respected organization. Many of their 
strategies involve helping Montanans manage their assets and save for 
their future, enabling them access to banking services. Anything that 
would result in undue higher fees would take their mission backwards.
  Rural Dynamics says simply: We want to understand the long-term risk 
associated with limiting debit card swipe fees, how it will impact 
rural America, how it will affect economic independence.
  Just as convincing as the small businesses in my State are the 
administration experts who have been tasked with trying to make this 
rule on debit interchange work. Chairman Bernanke last week said he is 
still not sure whether the small issuer exemption would work, saying:

       There are market forces that would work against the 
     exemption.

  Sheila Bair, Chairwoman of the FDIC, raised similar concerns about 
the workability of the small issuer exemption. So has Chairwoman Debbie 
Matz of the National Credit Union Administration. So has the Conference 
of

[[Page S3094]]

State Banking Supervisors. So has the National Association of State 
Credit Union Supervisors.
  This represents all--all--of the regulators of the small financial 
institutions at the State and national level--every one of them. These 
are the folks who are tasked with keeping our community banks and 
credit unions vibrant and strong, ensuring these institutions are well 
capitalized and making sound loans. Let me say again, all of them--all 
of them--have raised concerns about the impact of this rule on the 
small financial institutions they supervise.
  These regulators are not convinced these rules are going to be able 
to work in the way they were intended. My friends on the other side of 
this debate continue to attack these folks. They have said they are 
shills for the big banks; that they do not understand market forces; 
that they don't understand small institutions. This couldn't be further 
from the truth.
  And no one--no one--has been able to explain to me why studying this 
issue to make sure these rules do what they say they are supposed to do 
is a bad idea. To stop and to study. That is what the bipartisan bill I 
am sponsoring does. To stop and to study the unintended consequences 
for rural America and this country as a whole. If this rule goes into 
effect, the consumers and businesses who rely on community banks and 
credit unions--oh, yeah--are going to pay the price. And we can bet 
many retailers won't be eager to pass the few pennies they save down to 
you. Yet Doris Rochileau's monthly banking fees will go up. Mark Voyles 
will have to pay more to keep his money in his bank. The folks at 
Cabela's will be asking: What is next? And will it hurt their loyal 
customers? Thousands of Montanans who rely on Rural Dynamics will have 
more hurdles to jump over to reach economic independence.
  These stories hit home. They are the stories I tell when someone 
asks: Why would a populist farmer be against the government telling the 
small banks that drive our economy how to do business? I am not asking 
to repeal this provision; far from it. I am asking us to do our 
homework in this body, to make sure we understand exactly what it means 
for Montana and all of America.
  With that, I want to express my thanks to the good Senator from Iowa 
one more time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I come to the floor to speak on the 
nomination of Goodwin Liu to be Circuit Judge of the Ninth Circuit.
  I have said many times over the past 2 weeks--and perhaps for longer 
than the last 2 weeks--that by any fair measure we are moving judicial 
nominees at a very brisk pace. This month alone, we confirmed 7 judges 
in 10 days. In the short time we have been in session this year, we 
have confirmed 24 judges. That is a rate, almost, of one judge every 
other day. This year, the committee has favorably reported 51 percent 
of President Obama's nominees, yet it seems the more we work with the 
majority on filling vacancies, the more complaints we hear.
  Furthermore, as we work together to confirm consensus nominees, we 
are met with the majority's insistence that we turn to controversial 
nominees, such as the one before us today--Goodwin Liu--because this 
seems to be the most controversial of President Obama's nominees we 
have had to this point. I have pledged, and indeed I have demonstrated, 
cooperation in moving forward on consensus nominations. There is no 
doubt that Mr. Liu does not fall into the category of being a consensus 
nominee.
  My objections to this nominee can be summarized in five areas of 
concern: his controversial writings and speeches, an activist judicial 
philosophy, his lack of judicial temperament, his troublesome testimony 
and lack of candor before the committee, and his limited experience.
  Mr. Liu describes his writings as critical, inventive, and 
provocative, and that is what they are. He states he is simply a 
commentator and his role is merely to poke, prod, and critique. The 
problem I have with that is his legal scholarship goes well beyond 
simple commentary. The nominee argues the 14th amendment creates a 
constitutional right to some minimum level of public welfare benefits. 
That is a real reach. He has said:

       The duty of government cannot be reduced to simply 
     providing the basic necessities of life. . . . The main 
     pillars of the agenda would include . . . expanded health 
     insurance, child care, transportation subsidies, job 
     training, and a robust earned income tax credit.

  There is no doubt those may be policy issues Congress ought to deal 
with, but it is a real stretch to say that they are constitutionally 
protected rights.
  Mr. Liu is a strong proponent of affirmative action and the 
constitutionality of affirmative action. Celebrating the Supreme 
Court's decision in Grutter v. Bollinger, he said:

     . . . [a]chieving racial diversity throughout our leading 
     [educational] institutions is not merely constitutionally 
     permissible, but morally required.

  He believes bans on gay marriage are unconstitutional. The nominee 
was one of several law professors who filed a brief with the California 
Supreme Court in a suit seeking to have the California same-sex 
marriage prohibition declared unconstitutional.
  These statements, just a sample of his works, are not merely a 
scholarly reflection on the state of law. Instead, they are a 
prescription for change--big change. He stated, following President 
Obama's election in an interview with NPR's ``Weekend Edition'':

       Whereas I think in the last seven or eight years we had 
     mostly been playing defense in the sense of trying to prevent 
     as many--in our view--bad things from happening. Now we have 
     the opportunity to actually get our ideas and the progressive 
     vision of the Constitution and of law and policy into 
     practice.

  Mr. Liu holds a view of the Constitution that can only be described 
as an activist judicial philosophy. The centerpiece of his judicial 
philosophy--a theory he describes as ``constitutional fidelity''--
sounds nice until you learn what it actually means. Here is what he 
means by fidelity:

       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.

  Continuing on, he states:

       On this approach, the Constitution is understood to grow 
     and evolve over time as the conditions, needs, and values of 
     our society change.

  That is not a far cry from the unwritten constitution of Great 
Britain, where the Parliament is supreme and makes a determination from 
time to time on what the policies are, as opposed to in this country 
where the natural law--or the laws that are the rights we have given to 
us by our Creator, not by government--are the basis of our law.
  When I questioned the nominee at his hearing regarding his position, 
he stated his book respects the notion that the text of the 
Constitution and the principles it expresses are totally fixed and 
enduring. I must admit some confusion with this contradiction. Either 
the text and the principles are fixed and enduring or they are 
adaptable--something that grows and evolves, as it happens with the 
Constitution of Great Britain. Mr. Liu is, apparently, comfortable with 
this contradiction. I am not. It is a pattern I find throughout his 
testimony.
  I am concerned by his apparent lack of appreciation for the proper 
role of a judge in our system of checks and balances. His philosophy 
leads to an inevitable expansion of the power of the judiciary. For 
example, according to Mr. Liu, courts should play a role in creating 
and expanding constitutional welfare rights. He argues that once a 
legislative body creates a welfare program, it is the proper role of 
the courts to grasp the meaning and the purpose for that welfare 
benefit. He states the courts can recognize welfare rights by 
``invalidat[ing] statutory eligibility requirements or strengthen[ing] 
procedural protections against the withdrawal of benefits.'' That is 
forthrightly an attack on the legislative branch of government, and on 
its power to make statute and law. The courts are supposed to be 
interpreting, not making law.
  The nominee also seems to favor a social needs-based view of living 
constitutionalism. His scholarly work argues that judicial 
decisionmaking should be shaped by contemporary social needs and norms, 
rather than the certainty of the Constitution. Notably, he has said:


[[Page S3095]]


     . . . 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 legal doctrine.

  It is just as if what the writers of the Constitution in 1787 thought 
ought to be the basic law of this land means nothing today. So as you 
know, I think this is very troublesome. Our constitutional framework 
puts the legislative function in the Congress, not the courts. It is 
the legislative function, through the political process, where the 
people rule, that determine when a particular value is to become part 
of our law. This is not the duty of judges. The judiciary is limited to 
deciding cases and controversy, not establishing public policy.
  I would note further that this view of constitutional interpretation 
does not rely on the acts of the legislature or on the precedents 
established by higher courts. Rather, it is based on a concept of what 
he prefers to call ``evolving norms.'' Furthermore, as he testified 
before the committee, it is those ``evolving norms'' that inform the 
Supreme Court's elaboration of constitutional doctrine.
  Mr. Liu tried to sound like a mainstream jurist when he stated the 
duty of a circuit judge was to faithfully follow the Supreme Court's 
instructions on matters of constitutional interpretation. Who is going 
to argue with that? Again, that sounds nice, doesn't it, but what does 
it mean? If we accept his premise that the Supreme Court's instructions 
are based upon evolving norms, it follows that such ``evolving norms'' 
will shape the circuit courts' decisions as well. This activist theory 
leads to a judicial system substituting the whims of individual judges 
over the text and original meaning of the U.S. Constitution. This is 
not the duty of any circuit judge.
  Mr. Liu's legal views and judicial philosophy are clearly out of the 
mainstream. A small example illustrates this point. I questioned four 
of President Obama's district judge nominees who followed Mr. Liu on 
the day of his hearing. I asked each of them concerning a specific 
point about Mr. Liu's philosophy. Each and every one of them flatly 
rejected Mr. Liu's position.
  This included his view on judges considering ``collective values'' 
when interpreting the Constitution; on using foreign law; on 
interpreting the Constitution in ways that adapt its principles and its 
text; and on considering ``public values and social understandings'' 
when interpreting the Constitution.
  Based on his out-of-the-mainstream views, it is no surprise that his 
nomination is opposed by so many. Included in that opposition are 42 
district attorneys serving in the State of California. They are 
concerned, among other things, about his views on criminal law, capital 
punishment, and the role of the Federal courts in second-guessing State 
decisions.
  My third area of concern is that the nominee has made a number of 
critical statements which indicate a lack of judicial temperament. He 
has been very openly critical of the current Supreme Court.
  In one article, he said that the holding in Bush v. Gore was 
``utterly lacking in any legal principle.'' He has claimed that the 
current Court as a whole is unprincipled, saying that ``if you look 
across the entire run of cases, you see a fairly consistent pattern 
where respect for precedent goes by the wayside when it gets in the way 
of result.''
  Mr. Liu was highly critical of the nomination of Justice Roberts. He 
published an article on Bloomberg.com entitled ``Roberts Would Swing 
the Supreme Court to the Right.'' In that article, he acknowledged that 
Roberts was qualified, saying ``[t]here's no doubt Roberts has a 
brilliant legal mind. . . . But a Supreme Court nominee must be 
evaluated on more than legal intellect.'' He then voiced concerns that 
``with remarkable consistency throughout his career, Roberts ha[d] 
applied his legal talent to further the cause of the far right.'' He 
also spoke very disparagingly of Justice Roberts' conservative beliefs:

       [b]efore becoming a judge, he belonged to the Republican 
     National Lawyers Association and the National Legal Center 
     for the Public Interest, whose mission is to promote (among 
     other things) ``free enterprise,'' ``private ownership of 
     property,'' and ``limited government.'' These are code words 
     for an ideological agenda hostile to environmental, 
     workplace, and consumer protections.

  Let's think about what he just said there, about Judge Roberts, now 
Chief Justice Roberts. He said private ownership of property, limited 
government, and free enterprise are code words for an ideological 
agenda hostile to environment, workplace and consumer protections? Does 
he think we are Communist-run China, that the government runs 
everything, that their system of government is a better one? When they 
bring online a coal-fired plant every week? Plants that pollute the air 
and put more carbon dioxide into the air than we do in the United 
States? Where children are dying because the food is poisoned and 
consumers aren't protected? Where every miner is in jeopardy of losing 
their lives? That is how far off base this nominee is when he refers to 
free enterprise, private ownership of property, and limited government 
as being bad. But if you get government more involved, as they do in 
China, it is somehow a better place?
  The nominee has been very publicly critical also of Justice Alito in 
particular. He believes it is a valid criticism of Justice Alito to say 
that ``[h]e approaches law in a formalistic, mechanical way abstracted 
from human experience.'' And we are all familiar with Mr. Liu's 
scathing attack at Justice Alito's confirmation hearing. When asked 
about his testimony, Mr. Liu admitted the language was unduly harsh, 
provocative, unnecessary, and was a case of poor judgment. That is one 
statement of Mr. Liu with which I can I agree.
  I can appreciate that Mr. Liu now understands the unfortunate 
language he uses. The trouble I have with this, however, is that it 
shows that even when stepping out of the academic world, the nominee 
promotes extreme views and intemperate language. Even if I accept his 
rationale for the tone of his work in the academic world, that does not 
explain his congressional testimony. That was one opportunity where he 
could demonstrate a reasoned, temperate approach. Yet he failed that 
test. I think it may also indicate what we might expect from a Judge 
Liu, should he be confirmed--the same thing. To me, that is an 
unacceptable outcome.
  The fourth major area of concern is Mr. Liu's testimony and candor 
before the committee, which was troubling at times and lacked 
credibility. Even before he appeared before the committee, the nominee 
had difficulty providing the committee, with materials required by his 
questionnaire. As Senator Sessions said at the time:

       At best, this nominee's extraordinary disregard for the 
     Committee's constitutional role demonstrates incompetence; at 
     worst, it creates the impression that he knowingly attempted 
     to hide his most controversial work from the Committee.

  During his testimony, the nominee said, in reference to his past 
legal writings, ``whatever I may have written in the books and the 
articles would have no bearing on my action as a judge.'' Oh? Trying to 
paint himself as a judicial conservative, the nominee attempted to walk 
away from his previous positions. He tried to distance himself on the 
proper role of a judge, on the use of foreign law, on the 
appropriateness of racial quotas and from his previous views on free 
enterprise and private ownership of property. Even the Washington Post 
found his testimony a bit hard to believe. The Post's editorial stated:

       Mr. Liu is unlikely to shunt aside completely the ideas and 
     approaches he has spent years developing. But the real 
     problem, of course, is not that he adheres to a particular 
     judicial philosophy, but that he--like so many others before 
     him--feels the need to pretend not to have one.

  We have often heard the term ``confirmation conversion'' applied to 
nominees who appear to have a change of legal philosophy when they are 
nominated to a Federal judgeship. As I review the record, I think this 
nominee has taken that concept a step further--I would use the phrase 
``confirmation chameleon.'' It seems to me that Mr. Liu is willing to 
adapt his testimony to what he thinks is most appropriate at the time.
  I have discussed other contradictions already, but let me give you a 
clear example. Senator Cornyn of Texas asked him about his troubling 
record contained in his work-product that expressed opinions on issues 
such as the

[[Page S3096]]

death penalty, same-sex marriage, and welfare rights. Senator Cornyn 
then stated ``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 
responded, ``That is correct, Senator.''
  A few minutes later I asked him, ``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?'' The nominee responded, ``I would 
hope that you would not wipe my slate clean, as it were. You know, I am 
what I am.''
  Mr. Liu cannot have it both ways. Either his record stays with him or 
we wipe the slate clean. Perhaps in the long run it doesn't matter, 
because either way it leaves us with an individual who should not be 
given a lifetime appointment. If you include his record as a law 
professor, then we are left with the evidence of a left-leaning, 
judicial activist. If you do not include it, then we are left with a 2-
year associate with law clerk experience and little else.
  That leads me to my final point. I am concerned about the nominee's 
lack of experience. After graduating from law school in 1998, he 
clerked for Judge David S. Tatel on the U.S. Court of Appeals for the 
District of Columbia. When his clerkship ended, Mr. Liu became special 
assistant to the Deputy Secretary of Education for 1 year.
  In 2000, he worked as a contract attorney for the law firm of Nixon 
Peabody, LLP, where he ``assisted with legal research and writing.'' 
From 2000 to 2001, the nominee clerked for Justice Ruth Bader Ginsburg 
on the Supreme Court. After his Supreme Court clerkship, he became an 
associate at O'Melveny & Myers, where he remained for less than 2 
years. According to his questionnaire, he appeared in court only 
``occasionally.'' He also reported that his other work as an attorney 
has not involved court appearances. He has not tried any cases to 
verdict, judgment, or final decision, Since 2003, the nominee has been 
a full-time law professor at UC Berkeley School of Law, and in 2008 he 
became associate dean.
  After his nomination last year, the ABA Standing Committee on the 
Federal Judiciary gave Mr. Liu the rating ``Unanimous Well-Qualified.'' 
I am somewhat perplexed by this rating. According to the standing 
committee's explanation of its standards for rating judicial nominees, 
``a prospective nominee to the federal bench ordinarily should have at 
least twelve years' experience in the practice of law.''
  Further, ``the Committee recognizes that substantial courtroom and 
trial experience as a lawyer or trial judge is important.'' At the time 
of his nomination and rating, the nominee had graduated from law school 
less than 12 years prior. He has been a member of a State bar only 
since May 1999. As noted above, he has no trial experience and has 
never been a judge.
  I will conclude with this thought. Given his record and testimony, I 
do not believe the nominee has an understanding and appreciation of the 
proper role of a judge. I believe, if confirmed, he will bring a 
personal agenda and political ideology into the courtroom.
  It is ironic that in commenting on the Roberts nomination, Mr. Liu 
sad ``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--if that is 
possible. If confirmed, his activist ideology and judicial philosophy 
would seep well beyond the Berkeley campus--and it seems that is 
difficult. Sitting on the Ninth Circuit, his opinions and rulings would 
have far reaching effect on individuals and businesses throughout the 
nine-State circuit, including places like Bozeman, MT; Boise, ID, and 
Anchorage, AK.
  For the reasons I have articulated--No. 1, his controversial writings 
and speeches; No. 2, an activist judicial philosophy; No. 3, his lack 
of judicial temperament; No. 4, his lack of candor before the 
committee, and No. 5, his limited experience--as well as many other 
concerns which I have not expressed today, I shall oppose this 
nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from California.
  Mrs. FEINSTEIN. I ask unanimous consent I might be given permission 
to speak for one-half hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I have been on the Judiciary Committee 
for 18 years. I have never heard a harsher statement about a brilliant 
young man than I have just heard. During those 18 years, I have seen 
the standards for appointment change rather dramatically. I have seen a 
search engine develop on the Republican side to go out and find 
anything and everything an individual may have written, and then 
compile a dossier, almost like one would of a criminal, and then 
characterize and depict the individual in the terms they wish to do.
  I regret this, and I hope to lay out how the Democratic side, with a 
number of nominees, has not done the same thing. But to see a young man 
with the credentials Goodwin Liu carries belittled in the way he has 
been belittled in these hearings and also on this floor really upsets 
me.
  This man is a professor of law and the former associate dean of one 
of the 10 best law schools in America. He is a nationally recognized 
constitutional scholar. He is a truly brilliant legal mind. I have 
every confidence in his intellectual firepower, his integrity, and his 
even-keeled demeanor, and I believe it will make him a fine judge.
  Let me tell my colleagues a little about his background. He was born 
in Augusta, GA. He is the son of Taiwanese immigrants who were 
recruited to America to provide medical services in rural areas.
  He attended public schools in Clewiston, FL, and in Sacramento, CA. 
He first struggled to learn English and master vocabulary but, 
ultimately, he graduated co-valedictorian from Rio Americano High 
School in Sacramento.
  He was admitted to Stanford University, my alma mater. He graduated 
Phi Beta Kappa. He received numerous awards for his contributions to 
the university, and he was elected co-president of the student body. 
Pretty good.
  He received a Rhodes scholarship. He graduated with a master's degree 
from Oxford University. He attended Yale Law School. Once again, he was 
at the top of his class. He was editor of the Yale Law Journal. He won 
the prize for the best team argument in the moot court competition and 
won awards for the best academic paper by a third-year law student and 
the best paper in the field of tax law.
  He received prestigious judicial clerkships with Circuit Judge David 
Tatel on the U.S. Court of Appeals for the DC Circuit and then with 
Ruth Bader Ginsburg on the U.S. Supreme Court.
  He worked in the Department of Education as a special assistant to 
the Deputy Secretary of the United States of the U.S. Department of 
Education.
  He spent 2 years in private practice at O'Melveny & Myers, which is a 
prestigious law firm--not a minor firm, a major firm--where he handled 
commercial matters, including antitrust, insurance, and class action 
cases. Appellate law comprised roughly half his practice.
  Finally, in 2003, he accepted a tenure-track position on the faculty 
of Boalt Hall School of Law. At Boalt, he quickly established himself 
as one of our most astute legal scholars, with specialties in 
constitutional law, the Supreme Court, education law, and education 
policy.
  He published articles in the Yale Law Journal, the Stanford Law 
Review, the California Law Review, the Iowa Law Review, the Harvard Law 
and Policy Review, and many other academic journals.
  He received the Education Law Association's Steven S. Goldberg Award 
for Distinguished Scholarship in Education Law, and he was elected into 
membership of the American Law Institute.
  In 2008, his colleagues on the faculty of Boalt selected him as their 
associate dean. In 2009, the University of California at Berkeley 
awarded him their Distinguished Teaching Award, the highest award for 
teaching across the entire university.

[[Page S3097]]

  I believe he holds a deep appreciation for what opportunities our 
country affords. I believe his background and his legal prowess are 
fitting for him to become an appellate court judge. When one speaks 
with him about his family and upbringing, one gains a sense of him as 
someone who loves this country and bears an abiding belief that ours is 
a land of opportunity and a place where everyone has a chance to learn 
and grow and to thrive.
  Some of my colleagues have questioned a number of his writings and 
his temperament, and what figures very formidably, as I have talked to 
the Republican side, is particularly testimony he gave on the 
confirmation of Justice Alito. What he did was provide a long analysis 
of Alito's opinions and then at the end he used a rhetorical flourish 
that was, quite frankly, misguided. He strung together a series of 
facts from cases Alito had decided and then made a statement that I 
believe he very much regrets. It was over the top. But he has 
acknowledged it, he has been forthright, and he has apologized.
  Before the Senate Judiciary Committee he said:

       What troubles me most is that the passage has an ad hominem 
     quality that is unfair and hurtful. I regret having written 
     this passage.

  He said if he had to do it again: ``I would have deleted it.''
  It was a mistake--no question about it--but a mistake should not 
color this man's entire record.
  I wish to read from two letters we received in the Senate from people 
who knew and know Goodwin Liu well, not just for a moment but for 
years. The first was sent to us jointly by three successive presidents 
of Stanford University. I have never seen a letter on behalf of a 
nominee from three different presidents of a university of the quality 
of Stanford.
  Donald Kennedy was president when Goodwin Liu was a student at 
Stanford. He worked with Liu at the Haas Center for Public Service and 
was present when Liu won not only the Dinkelspiel Award, which is the 
university's highest award for undergraduate service, but also the 
James W. Lyons Dean Award for Service and the President's Award for 
Academic Excellence.
  Gerhard Casper is president emeritus of Stanford and currently 
provost at the University of Chicago. He knows Liu both as a Stanford 
alum as well as a colleague in the field of constitutional law. He is 
familiar with Liu, as, in his own words, ``a measured interpreter of 
the Constitution.''
  Finally, John Hennessy is Stanford's current President. He describes 
Liu as insightful, hardworking, collegial, and of the highest ethical 
standards.
  Together, these three presidents of the university wrote the 
following:

       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.

  It is a fitting and, I believe, an accurate tribute.
  We have one of the most brilliant legal scholars of our time. There 
is a majority here to confirm him. We know that. But, unfortunately, 
the minority is trying to use cloture to prevent us from ever casting a 
vote to confirm him.
  Let me turn to another letter. This one is from eight top executives 
of major American companies, including Yahoo, General Atlantic, Morgan 
Stanley, and Google. They have all worked closely with Liu on the 
Stanford board of trustees. They wrote to say the following:

       Even in a room full of highly accomplished leaders, Goodwin 
     is impressive. He is insightful, constructive, and a good 
     listener. Moreover, he possesses a remarkably even 
     temperament. His demeanor is unfailingly respectful and open-
     minded, never dogmatic or inflexible.

  Goodwin's strengths, they said:

     . . . are exactly what we expect in a judge: objectivity, 
     independence, respect for differing views, sound judgment.

  We know the American Bar Association has unanimously rated him ``well 
qualified'' for the U.S. court of appeals, and his background is 
similar to many who have been confirmed to the circuit court in the 
past. But some on the other side, nevertheless, say he is too young and 
he doesn't have judicial experience, or his credentials are not right.
  For those who ask for a judicial record to review, I would ask, what 
about Edward Chen? We considered Judge Chen's nomination last week. He 
was a district court nominee with a 10-year judicial record. He had 
written more than 350 published opinions, and the minority didn't 
criticize one. But most in the minority voted against his nomination 
anyway. So a judicial record doesn't get it done.
  Then there is the criticism based on age or other qualifications. But 
Liu's qualifications surpass those of many we have confirmed under 
Republican Presidents.
  Since 1980, the Senate has confirmed 14 circuit court nominees who 
were under the age of 40. That means they were all younger than Liu is 
now. All 14 were nominated and confirmed during Republican 
administrations.
  Let me give two examples. Judge Kimberly Moore sits on the U.S. Court 
of Appeals for the Federal Circuit. She was nominated by President Bush 
at the age of 38. She had 2 years of experience as a law clerk, less 
than 4 years in private practice, and 6 years as a professor at three 
different law schools. The Senate confirmed her unanimously.
  Judge Harvey Wilkinson is a judge on the U.S. Court of Appeals for 
the Fourth Circuit. He was nominated by President Reagan at the age of 
39. He had 1 year experience as a law clerk, 3 years as a newspaper 
editor, 1 year of government practice, and 5 years as a professor. He 
was confirmed.

  Judge Brett Kavanaugh, who now sits on the U.S. Court of Appeals for 
the DC Circuit, also comes to mind. He was 38 when he was nominated. 
Unlike Liu, he had little track record to review and much of the record 
that did exist was partisan. He had been a law clerk for 3 years, spent 
3 years in private practice, and spent the remainder of his career in 
the Solicitor General's Office, Ken Starr's Office of Independent 
Counsel, and the Bush White House. When the ABA conducted its reviews, 
many troubling reports were received, but I voted for cloture, as did 
many of my colleagues on this side, and he was confirmed.
  Professors are hardly a new game for us when it comes to judicial 
nominees.
  John Rogers is a judge on the U.S. Court of Appeals for the Sixth 
Circuit. At the time President Bush nominated him, he had only 4 years 
of practice experience, no appellate clerkships, and had spent the 
remainder of his career as a professor. He was confirmed by the Senate 
by a voice vote.
  Finally, there is Michael McConnell from the State of Utah. President 
Bush nominated Professor McConnell for the Tenth Circuit. At the time, 
he had been a constitutional law professor for 16 years and his 
writings contained scores of controversial thoughts, ideas, and 
provocations. In reviewing McConnell's record, many of us on the 
Democratic side found writing after writing that we strongly disagreed 
with. McConnell had repeatedly stated that Roe v. Wade was wrongly 
decided. He called the Supreme Court decision ``a grave legal error'' 
and ``an embarrassment.''
  He wrote that the Freedom of Access to Clinic Entrances Act and the 
Violence Against Women Act were unconstitutional. He criticized a 
Supreme Court decision barring racial discrimination at tax-exempt 
schools and one prohibiting sex discrimination in civic associations. 
He called the fundamental guarantee of one person, one vote ``wrong in 
principle.''
  But similar to Professor Liu, he made clear in the Senate 
confirmation process that he understood the difference between the role 
of a professor and the role of a judge. Here is what he said when asked 
about all of his writings:

       I have a whole bunch of writings out there that were 
     provocative, and innovative, and taking a different view. 
     Well, within--my academic colleagues understand that that's 
     what we do. If you try to make those look as though they are 
     legal analysis, as if they were what a lawyer thinks the law 
     is, of course they don't reflect the law. They're not meant 
     to. They're not a description of the law.

  Professor Michael McConnell, Senate Judiciary Committee, September 
18, 2002.
  He then assured us he would apply the law as written, not as put 
forward in academic theory. Guess what. He

[[Page S3098]]

was confirmed to the Tenth Circuit by voice vote. There was no cloture 
vote. He was confirmed by voice vote because the Democrats on this side 
of the aisle believed he would do just what he said. I don't understand 
why this same situation is not accorded to this brilliant young 
American.
  Today, we have Professor Liu before us. He has also written article 
after article as a law professor and people have disagreed with some of 
what he has written.
  Here is what he said:

       I think that there's a clear difference between what things 
     people write as scholars and how one would approach the role 
     of a judge. And those two are very different things. As 
     scholars, we are paid, in a sense, to question the boundaries 
     of the law, to raise new theories, to be provocative in ways 
     that it's simply not the role of a judge to be. The role of 
     the judge is to faithfully follow the law as it is written 
     and as it is given by the Supreme Court. And there is no room 
     for invention or creation of new theories. That's simply not 
     the role of the judge.

  A very similar statement. It was made by Goodwin Liu before the 
Senate Judiciary Committee, April 16, 2010.
  Professor McConnell went through by voice vote. The same kind of 
situation--voice vote--yet we may be prevented from even taking a vote 
on Professor Liu's nomination because he may not get a supermajority 
for cloture. I must say, what is sauce for the goose is sauce for the 
gander.
  Professor Liu, like Professor McConnell, is a brilliant legal mind. 
He has written extensively. He has been absolutely clear that if 
confirmed he would follow not any academic theory or writing, but the 
law as it is written and handed down by the U.S. Supreme Court. We took 
Professor McConnell at his word. Professor Liu deserves the same 
treatment.
  (Mr. WHITEHOUSE assumed the chair.)
  Mrs. FEINSTEIN. What is interesting to me is how much things have 
changed on this committee--and we have a new Presiding Officer who also 
is on the committee--since before the Presiding Officer came on, when 
we would look at a person's personal record, what they have said, what 
they think the kind of judge they will be, and make a decision.
  So I do not understand, if we can confirm Professor McConnell by 
unanimous consent, why can't we grant cloture to a man who has 
distinguished himself as one of the great legal scholars of our 
country?
  Let me address one particular criticism that has been made of 
Professor Liu's writings, and that is his writings on constitutional 
interpretation and fidelity to the Constitution.
  Some in the Senate have harshly criticized his book ``Keeping Faith 
with the Constitution'' because he says at one point that the Supreme 
Court has taken ``social practices, evolving norms, and practical 
consequences'' into account when interpreting the Constitution. This, 
some colleagues say, means he will be an activist.
  First, Liu has said this book was written as a professor, as an 
academic, that it is in no way a roadmap for how he would decide cases 
as a judge. He said, in his own words:

       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 I think some are using this nomination to try to set a new 
standard, to say that the only valid theory of constitutional 
interpretation is originalism. So I want to point out that Liu's 
comments about constitutional interpretation are hardly exceptional.
  In fact, they echo statements made by some of our very best jurists 
across the span of American history: Chief Justice John Marshall, 
Justice Oliver Wendell Holmes, and Justice Sandra Day O'Connor, to name 
a few.
  The most famous example: Chief Justice John Marshall wrote, in 1819, 
in the case of McCulloch v. Maryland:

       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.

  Chief Justice John Marshall.
  We are not all originalists here, and originalism does not define the 
legal mainstream. In an interview, published in the California Lawyer 
in January, Justice Scalia made the shocking statement that he does not 
believe the U.S. Constitution guarantees women equal protection of the 
law. This came out this January. This is a sitting Supreme Court 
Justice saying the Constitution does not guarantee women equal 
protection under the law.
  The text of the 14th amendment says no ``person'' shall be denied 
equal protection of the law--and after decades of precedent, unanimous 
Supreme Court decisions agree that women are protected. But regardless 
of text and precedent, Justice Scalia says it cannot be so because that 
is not what the drafters of the 14th amendment intended.
  This is not the American mainstream. Following this line of 
reasoning, the minimum wage would be unconstitutional, schools could 
still be legally segregated, States could prohibit married couples from 
using birth control, and I, as a woman, could be prohibited from 
standing here today as an elected Member of the Senate.
  That kind of thinking cannot be a criterion for acceptance onto our 
Federal courts. So some may disagree with Liu's statement about 
constitutional interpretation, but it is hardly far afield of the legal 
mainstream today.
  Let me tell you what others who are familiar with Liu's full record--
full record--have said about his work.
  Richard Painter, a chief ethics officer for President George W. Bush, 
relayed similar thoughts after reviewing Liu's record. Here is a quote: 
Liu's ``views are part of the legal mainstream'' and that the 
``independence, rigor, and fair-mindedness of his writings support a 
confident prediction that he will be a dutiful and impartial judge.'' 
``Liu respects the law, which is what we should expect of a judge.''
  Yet the Senate may well not give him cloture even to come to a vote 
on his confirmation. That is unfair.
  Jesse Choper, who reviewed all of Liu's writings as the chair of his 
tenure committee, has similarly said, ``in addressing a wide range of 
issues, Liu demonstrates rigor, independence, fair-mindedness, and--
most importantly for present purposes--sincere respect for the proper 
role of courts in a constitutional democracy.'' ``One thing is clear,'' 
he says, ``Liu's interpretive approach is part of mainstream legal 
thought.''
  Finally, someone who has been quoted often here today, Kenneth Starr, 
a prominent conservative and former Reagan appointee to the DC Court of 
Appeals, has written to us together with Professor Akhil Amar to say, 
Goodwin Liu is ``a person of great intellect, accomplishment, and 
integrity, and he is exceptionally well qualified to serve on the court 
of appeals.''
  Continuing to quote:

       In our view, the traits that should weigh most heavily in 
     the evaluation of an extraordinarily qualified nominee such 
     as Goodwin are professional integrity and the ability to 
     discharge faithfully an abiding duty to follow 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 competently, but with great 
     distinction.

  I have a very hard time understanding why people would do this: we 
listened to and read Judge McConnell's views, which were antithetical 
to many of us on this side, but we believed he would be a fair and good 
judge, and he was confirmed by voice vote; but today someone who has 
the finest education America has to offer, who is supported by scholars 
on both sides of the political aisle, who is truly scholastically 
exceptional, who could quote case after case after case in his 
hearings, may be denied cloture.
  If he is, this is not the Senate of the United States of which I am 
most proud. I hope I am wrong. I hope he will be granted cloture 
because he deserves a vote up or down. A majority vote--that is 
America--a majority vote on his confirmation. We will see what happens.
  Mr. INOUYE. Mr. President, I rise today in support of Goodwin Liu for 
confirmation to the U.S. Court of Appeals for the Ninth Circuit.
  Goodwin Liu and I share the immigrant experience. He is the proud son 
of Chinese immigrants and my father came to this great Nation from 
Japan. He holds degrees from some of the top universities in the world. 
Before attending Yale Law School, he worked with the Corporation for 
National

[[Page S3099]]

Service in Washington, DC, where he helped launch the AmeriCorps 
program. In 2000, he served as a law clerk for U.S. Supreme Court 
Justice Ruth Bader Ginsburg. Since 2003, he has taught law at the 
University of California, Berkeley School of Law, Boalt Hall. He has 
also served as a special assistant to the Deputy Secretary at the U.S. 
Department of Education, advising the Department on a range of legal 
issues including the development of guidelines to help turn around low 
performing schools.
  Goodwin also practiced as a litigant for the firm of O'Melveny & 
Myers in Washington, DC. There, appellate litigation comprised nearly 
half his practice.
  Were these accolades not enough to demonstrate Goodwin's capacity to 
serve as a Federal appellate judge, I would also point to the 
``unanimously well qualified'' rating he received from the American Bar 
Association, ABA, the ABA's highest rating for Federal judgeships. I 
believe Goodwin's extensive knowledge of the law, understanding of 
appellate procedure, and appellant litigation experience make him an 
outstanding candidate for confirmation.
  I would like to remind my colleagues that there are still many 
judicial vacancies that need to be filled. The constitutional right to 
a speedy trial correlates to the number of judges able to hear cases. 
While it is important to ascertain the character and capacity of a 
nominee to such an important position, postponing Goodwin Liu's 
confirmation does a disservice to our Nation, and to this body's 
responsibility for confirming Presidential nominees. I believe Goodwin 
Liu will make a fine judge, and will serve with distinction in the 
Ninth Circuit Court of Appeals. I ask my colleagues to join me in 
confirming Goodwin Liu to the U.S. Court of Appeals for the Ninth 
Circuit.
  I thank the Chair and yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BARRASSO. Mr. President, I ask unanimous consent to speak for up 
to 15 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.