[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
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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
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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.