[Congressional Record (Bound Edition), Volume 157 (2011), Part 5]
[Senate]
[Pages 7431-7446]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF GOODWIN LIU TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT

  Mr. REID. I ask unanimous consent that the Senate proceed to 
executive session to consider Calendar No. 80, the nomination of 
Goodwin Liu, of California, to be U.S. Circuit Judge for the Ninth 
Circuit; further, that on Thursday, May 19, following morning business, 
the Senate resume consideration of the nomination and the time until 2 
p.m. be equally divided in the usual form prior to a cloture vote on 
the nomination as under the previous order.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The clerk will report.
  The legislative clerk read the nomination of Goodwin Liu, of 
California, to be United States Circuit Judge for the Ninth Circuit.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. KIRK. Mr. President, I ask unanimous consent to speak as in 
morning business for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator is recognized.


         calling for the resignation of dominique strauss-kahn

  Mr. KIRK. Mr. President, I rise today to call for the resignation of 
Mr. Dominique Strauss-Kahn, head of the International Monetary Fund. 
The criminal allegations against Mr. Strauss-Kahn are alarming and 
undermine confidence in the institution at a critical juncture in our 
economic history. Mr. Strauss-Kahn has forfeited our confidence and 
should resign or be fired from his position at the IMF.
  Over the last 2 years, the IMF presided over the European debt 
crisis, which included controversial bailouts of Greece, Ireland and 
Portugal. I remain especially concerned about the U.S. taxpayer share 
of funding these European bailouts and American taxpayers' exposure to 
new sovereign risks. While I have questions about the actions taken by 
the IMF to handle the debt crisis, the institution's role in our global 
financial system requires strong leadership.
  The IMF's Deputy Managing Director, John Lipsky, should assume full 
responsibility of the IMF and the process to determine a permanent 
replacement should commence at once. I encourage U.S. Executive 
Director of the IMF, Meg Lundsager, to strongly advocate for Mr. 
Strauss-Kahn's resignation or termination and aid in the search for a 
more worthy replacement.
  The PRESIDING OFFICER. The Senator from Ohio.


                      Trade Adjustment Assistance

  Mr. BROWN of Ohio. Mr. President, I appreciate the courtesy of the 
senior Senator from Virginia who is about to speak. I will be brief.
  I wish to applaud the President today on his comments and the 
administration's comments, especially the comments of Trade Ambassador 
Kirk and Gene Sperling, the President's top economic adviser. They have 
made it clear they will not submit the three free trade agreements--one 
with Colombia, one with Panama, and one with South Korea--until 
legislation has come to their desks to take care of the issue of trade 
adjustment assistance.
  This Congress, because of some objections on the other side of the 
aisle, allowed the trade adjustment assistance language to expire in 
February. That simply means many workers who lost their jobs because of 
free trade agreements, or lost their jobs because of trade--not 
necessarily the countries we had trade agreements with--were going to 
get some assistance so they could, in fact, be retrained so they could 
go back to work. Losing their jobs had everything to do with what 
happens in other ways but has nothing to do with their job performance 
or even their company's job performance.
  The President made the right decision by saying we are not going to 
move forward with these free trade agreements. I don't much like them, 
but that is not the point. We are not going to move forward until we 
have helped these workers find jobs.
  Second, we are going to make sure, as Senator Casey and I have said 
on the floor before, that the health coverage tax credit is also 
renewed. That matters, to be able to continue the health coverage of 
many workers.
  And, third, that the work of Senator Wyden, Senator Stabenow, and 
Senator McCaskill will continue, to work on trade enforcement in making 
sure these trade rules and trade laws that are in effect will actually 
be in force so we can protect American jobs.
  When we pass these trade agreements, they always cost us jobs. It is 
about time we take care of workers and communities that suffer from it.
  I thank Senator Webb, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WEBB. Mr. President, I wish to speak today on the pending 
nomination of Professor Goodwin Liu for a seat on the Ninth Circuit 
Court of Appeals. Regretfully, I will be voting against this nomination 
for reasons I will explain. At the same time, I wish to emphasize my 
profound respect for this institution and for my fellow Senators from 
both parties, and I believe it would be wrong to vote against a cloture 
motion whose intent is to proceed with debate on the merits of one who 
has been nominated to be a judge. I made this point loudly and clearly 
when the nomination of one of my Virginia constituents, Barbara Keenan, 
was filibustered. Philosophical consistency--and my admiration and 
respect for all the work Chairman Leahy has been doing in order to fill 
the many vacancies in our Federal court system--compel me to vote to 
proceed with the debate on Mr. Liu, but I do not, however, intend to 
vote in favor of his confirmation.
  I have met with Mr. Liu. I have read many of his writings and most of 
the testimony from his two confirmation hearings. He is clearly 
talented and whatever he ends up doing, he is certain to have a long 
future in our country. He also has been blessed beyond words by the 
goodness of our society. Both his parents came to this country already 
as physicians. He attended our finest universities. He was a Rhodes 
scholar. He is a Yale Law School graduate, and he has spent almost his 
entire career as a talented, if somewhat controversial, professor of 
law. When I met with Mr. Liu I found him to be personable and clearly 
bright.
  But intellect in and of itself does not always give a person wisdom, 
nor does it guarantee good judgment, and the root word of judgment is, 
of course, judge. This is our duty today: to decide whether Professor 
Liu's almost complete lack of practical legal experience, coupled with 
his history of intemperate, politically charged statements, allows us a 
measure of comfort and predictability as to whether he would be fair 
and balanced while sitting on one of the highest courts in the land. 
Mr. Liu's temperament and his frequently strident political views have 
been called into question by many well-intentioned observers, including 
my respected colleague, Senator Lindsey Graham, who, like myself, voted 
in favor of both Justices Sotomayor and Kagan. Senator Graham concluded 
that Professor Liu seems better fit for a life in politics rather than 
on the bench. My own concern is that we in the Senate have no real 
ability to know whether Mr. Liu would temporize these views or conduct 
himself in a different manner if he were to be given a seat in one of 
the highest judicial positions in our country.
  The list is long, and time is short, but I would summarize my 
concerns through two observations.
  The first involves Professor Liu's public comments regarding Supreme 
Court Justice Alito, which I know will be repeated by others. Mr. Liu's 
view was that:

       Judge Alito's record envisions an America where police may 
     shoot and kill an unarmed boy to stop him from running away 
     with a stolen purse . . . where a black man may be sentenced 
     to death by an all-white jury for killing a white man . . . I 
     humbly submit that this is not . . . the America that we 
     aspire to be.

  Obviously, I share the view of many others that whether one agrees or 
disagrees with Justice Alito's view of the Constitution, this is hardly 
a fair representation of his view of our society.

[[Page 7432]]

  The second observation is more telling and it goes to the America we 
all should aspire to be: an America where every person, regardless of 
race, creed, national origin, or personal circumstances, has the same 
opportunities to succeed to the full extent of their potential. Let me 
make a point that a lot of people seem uncomfortable with in speeches 
on this floor. That means White people too. Economic disadvantage is 
not limited to one's race, ethnic background, or time of immigration to 
America. When it comes to policies that are designed to provide 
diversity in our society, we do ourselves an enormous injustice by 
turning a blind eye to the wide variance among White cultures as we 
discuss greater representation from different minority groups.
  For all of his emphasis on diversity programs, I do not see anywhere 
that Mr. Liu understands this vital point. In fact, one tends to see 
the opposite. In 2004, Mr. Liu made a speech at an American 
Constitution Society Conference. In this speech he mentioned: ``The 
power of the courts to influence society, . . . the power of legal 
principle to ratify inequality.'' He then went on to comment:

       If we work hard, if we stick to our values, if we build a 
     new moral consensus, then I think someday we will see 
     Millikan, Rodriquez, Adarand, be swept into the dustbin of 
     history.

  So we know, first, that Mr. Liu wants to use the courts to influence 
society and to ratify his view of inequality. OK. How does that fit 
into Adarand being swept into the dustbin of history?
  What was Adarand about? Well, it was about Randy Pech, one of five 
kids born to a welder and a mom, whose family had lost their farm in 
Iowa during the Great Depression. The mom then worked as a sales clerk 
in a department store. Neither of them had ever gone to college. Mr. 
Pech left college after 3 years and started a company that put up 
guardrails along highways. His startup was the money he would have used 
in his fourth year of college and his loan was accomplished by using 
his parents' retirement pensions as collateral. He made a bid as a 
subcontractor on a highway construction project in Colorado that was by 
far the lowest bid, but he lost to a minority-owned company because our 
own government was paying bonuses to contractors who made subcontracts 
with so-called ``disadvantaged businesses,'' and Mr. Pech happened to 
be White. The Supreme Court decided that this was wrong and decided in 
Mr. Pech's favor, although the Civil Rights Commission pointed out 10 
years later that the Supreme Court's decision was still not being 
complied with by Federal agencies.
  Mr. Liu offered an explanation for his comments during his 
confirmation process, but taken in the context of his other remarks, I 
find that statement unconvincing.
  Last July I wrote an article in the Wall Street Journal saying that 
while I continue to support the original goal of affirmative action, 
which was to assist African Americans who still suffer the badges of 
discrimination and slavery, it is time for us to recognize that we harm 
ourselves any time we cut away any person or group from the opportunity 
to reach their full potential in our wonderful and unique society. As 
one can imagine, I got a few questions from some groups about this 
article, so let me answer those questions--and sum up my concerns about 
Mr. Liu--with an observation.
  The same day my Wall Street Journal ran, July 23, a Remote Area 
Medical Clinic was held in the open air of the Wise County fairgrounds 
in the Appalachian mountains of southwest Virginia. These clinics bring 
medical professionals into underserved areas where medical care is hard 
to find. They are not that different from what we used to do out in the 
impoverished villages of Vietnam when I was a Marine infantry officer 
many years ago. Twelve of my staff members went down to Wise County to 
volunteer. Working in tents, mobile units, and horse stalls, over these 
3 days the RAM clinic took care of 6,869 patient visits and pulled more 
than 4,000 teeth in the open air of the Wise County fairgrounds. In 
this part of Virginia, nearly half the population lives below 200 
percent of poverty, almost a quarter of them have no insurance 
whatsoever. Age-adjusted mortality rates in some counties are as much 
as 70 percent higher than in the rest of Virginia. This Appalachian 
mountain region is, of course, predominantly White. Let me emphasize 
that these conditions come from cultural issues based on many 
generations of hardship and strife and not simply individual choice.
  Back there in those mountains, there is no doubt somebody who is 
thinking that if he could put together a little money and maybe get 
somebody to believe in him, maybe he could start up a construction 
company just like Randy Pech did and compete for government contracts 
on a completely fair playing field, which has always been the gift and 
the miracle of America. I want him to have that opportunity, just as I 
want every other American to have it. And I don't want a judge on a 
circuit court somewhere telling him that his own chance for a fair and 
prosperous future should be swept into the dustbin of history.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. PORTMAN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Energy Policy

  Mr. PORTMAN. Mr. President, over the past couple of days here on the 
Senate floor we have had a lot of discussion about domestic energy 
production and there have been a lot of good points made. But, frankly, 
it is more of a political exercise than something that is going to help 
the American people.
  If one listened to the debate, one might think there is no consensus 
and no way forward. I disagree with that. I think given our energy 
challenges, including $4 a gallon gasoline, we need an energy policy 
that encourages more affordable, reliable, and cleaner energy. I think 
we can reach a consensus on a few areas, and let me raise a couple of 
them today.
  The first is natural gas exploration and development. In my own State 
of Ohio, we have had exciting new developments over the past several 
years. Geologists have known we have big shale formations in the 
eastern part of the United States for years, but until recently we 
haven't had the drilling technologies that allowed us to tap into these 
huge reserves. We now have that.
  In Ohio, we have both the Marcellus and the Utica shale finds that, 
unfortunately, have not been tapped yet but have tremendous potential. 
Some of the oil and gas reserve estimates associated with these finds 
are truly amazing. For the State of Ohio alone, in one of those 
formations--Utica--I am told we could yield over 15 trillion cubic feet 
of natural gas. So this is a great opportunity both to be sure we have 
the energy we need to power our economy but also to create jobs that go 
into energy production.
  By the way, other States around us, including Pennsylvania, West 
Virginia, and upstate New York, as an example, have even more 
production potential than Ohio. Already there are some Ohio counties, 
such as Belmont County and Jefferson County and Columbiana County, that 
are beginning to explore some of these finds, and we are very hopeful 
that in some of these counties, where there is incredibly high 
unemployment, we will be able to begin production soon. These counties 
have been hard hit by the downturn in the economy, and they can use the 
economic activity and the jobs that will be created by this production.
  Earlier this year, I visited an Ohio company that is an example of 
one of the industries that is going to benefit from this natural gas 
production. It is V&M Star. It is a company that makes piping. It is 
near Youngstown, OH. They just decided to expand their manufacturing 
capability. Why? Because they are looking at Marcellus and Utica, 
understanding this is going to create great opportunities for them.

[[Page 7433]]

They are investing in our State. They are investing in jobs. They are 
doing it because of these finds. We have to be sure we put out the 
Federal policies to promote and encourage the development of these 
resources.
  In addition to using natural gas for electricity generation and as a 
feedstock for a lot of industries, including the chemical industry, 
natural gas holds incredible potential as an alternative to gas. Today, 
we are talking about the need to be less dependent on foreign oil, 
which happens to be one of the top issues on both sides of the aisle. 
Natural gas is a way we can do that very directly because it can be 
used particularly in fleets. Today, the equivalent price for a gallon 
of natural gas is $1.60. Think about that: as compared to $4 for 
gasoline, $1.60 for natural gas. The infrastructure costs create some 
challenges, but, again, for fleets, where there is central refueling, 
it makes all the sense in the world. Widespread conversion of our 
fleets, including our Nation's buses, garbage trucks, and utility 
vehicles, would help reduce demand for gasoline.
  America arguably has the greatest energy reserves in the world, 
depending on which estimate you look at. We have to find a way to 
responsibly tap these reserves, in a way that we can become less 
dependent on foreign nations for energy needs, in a way where we will 
stop sending so much of our wealth overseas to pay for foreign imports, 
particularly of crude oil.
  Ohio is still in the throes of an economic downturn. Today, we are at 
9 percent unemployment in Ohio. Underemployment makes Ohio's situation 
even worse. One way to create jobs and to get Ohio back on track is by 
expanding, again, the use of our own resources, including natural gas. 
There should be a consensus on this issue. We should be promoting 
Federal policies to encourage the exploration and the development of 
these resources, and we should do it now.
  Another area where I think you could see some consensus on energy 
policy in the short term in the Senate is in the area of energy 
conservation and efficiency. We should both find more and use less. It 
is that commitment to use less that led me, last week, to introduce 
legislation with Senator Shaheen from New Hampshire called the Energy 
Savings and Industrial Competitiveness Act. It is S. 1000, for those 
who would like to check it out.
  It is a bipartisan bill, a targeted and achievable piece of 
legislation that would leverage energy efficiency investments in a 
number of areas, including the building and industrial sectors but also 
with the Federal Government. It would help consumers and the Federal 
Government save money on their energy bills and help industry improve 
the efficiency of their production processes.
  Again, this is an example of where we should be able to come together 
as Republicans and Democrats to get something done. There is widespread 
consensus that energy efficiency is the low-hanging fruit, a way to 
reduce our energy use and, again, to make America's economy more 
competitive. As with anything, the devil is in the details. There will 
be some Senators who may disagree with some of the specifics in this 
legislation, but, again, it is the type of bill we should be debating 
on the floor of this Senate. With a little hard work, I believe it is 
one we can ultimately get enacted into law.
  Instead, again, we have spent the better part of this week debating 
two bills; one that, in my view, would have done more harm than good, 
by raising taxes on certain businesses, while doing nothing to increase 
energy production or lower gas prices; and another one I supported that 
I think would do a lot of good but we knew did not have the necessary 
60 votes to move forward and, therefore, we were not able to make 
progress this week for the American people.
  We have all the ingenuity, the know-how, and the resources within our 
own borders to be able to have the energy we need to run our economy 
and to improve our economy and to create jobs. I hope moving forward we 
can find agreement on these issues and begin to tap this great American 
potential.
  I yield the floor and suggest the absence of a quorum.
  Mr. CARDIN addressed the Chair.
  The PRESIDING OFFICER. Will the Senator withhold his suggestion?
  Mr. PORTMAN. I will.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Thank you very much, Mr. President.
  I rise in strong support of the nomination of Goodwin Liu to be U.S. 
Circuit Judge for the U.S. Circuit Court of Appeals for the Ninth 
Circuit. I urge my colleagues to invoke cloture on this nomination.
  I am disappointed we had to file a cloture motion. I hope my 
colleagues would want to vote up or down on this nomination, and I hope 
they would vote for his confirmation.
  As we begin the debate on the nomination of Mr. Liu, let me start by 
telling my colleagues how thoroughly his nomination has been vetted by 
the Judiciary Committee under the leadership of Chairman Leahy.
  President Obama first nominated Goodwin Liu for this position in 
February of last year. That was over 1 year ago. The Judiciary 
Committee has held two separate hearings on this nomination. Mr. Liu's 
latest set of questions and answers, for the record, spanned over 130 
pages. The Judiciary Committee has favorably reported his nomination on 
three separate occasions: in May of 2010, September of 2010, and April 
of 2011.
  So I am disappointed my Republican colleagues have refused to allow 
this nomination to come to a vote without the necessity of filing a 
cloture motion. As we know, the majority leader has filed cloture on 
this nomination. Senators have had ample information on the background, 
experience and qualifications of this nominee and it is time for the 
Senators to perform their constitutional duty to debate the nomination 
and to vote up or down on this nominee.
  I was privileged to serve on the Judiciary Committee in the 111th 
Congress and participated in a debate of the Goodwin Liu nomination on 
several occasions. I was pleased to cast my vote in favor of Mr. Liu's 
nomination in committee, and I look forward to supporting his 
nomination on the floor.
  When I examine judicial nominations that are submitted by the 
President, I use several criteria.
  First, I believe judicial nominees must have an appreciation for the 
Constitution and the protections it provides to each and every 
American.
  Second, a nominee must embrace a judicial philosophy that reflects 
mainstream American values, not narrow ideological interests.
  Third, a judicial nominee must respect the role and responsibilities 
of each branch of government, including a healthy respect for the 
precedents of the court.
  Fourth, I look for nominees with a strong commitment and passion for 
the continued forward progress of civil rights protections.
  Finally, I want a judge who has the necessary experience, 
temperament, and commitment to public service.
  I wish to share with my colleagues a little background on Mr. Liu, 
his qualifications, and why I intend to support his nomination.
  Goodwin Liu, in many ways, embodies the American dream. He is the son 
of immigrants to this country. His parents were doctors who came to the 
United States from Taiwan in the late 1960s, when foreign doctors were 
being recruited to work in underserved areas.
  Goodwin Liu did not speak English until kindergarten. During high 
school, Goodwin Liu had the opportunity to serve as a page in the House 
of Representatives, after being sponsored by late Congressman Bob 
Matsui of California, whom I had the privilege of serving with in the 
House of Representatives.
  Professor Liu has a sterling academic record. He earned his B.S., Phi 
Beta Kappa, from Stanford University, where he was elected copresident 
of the student body. A Rhodes Scholar, he earned his M.A. from Oxford 
University. He received his J.D. from Yale Law School, where he was an 
editor of the Yale Law Journal. He then went on to clerk for DC Circuit 
Court Judge David Tatel and Supreme Court Justice Ruth Bader Ginsburg.

[[Page 7434]]

  Professor Liu has a track record of working on public policy issues 
in public service. He worked for 2 years at the Corporation for 
National Service. He served as a special assistant to the Deputy 
Secretary of Education, where he worked on numerous legal and policy 
issues.
  Professor Liu has worked in private practice. After his clerkships, 
he served as an associate in the Washington, DC, law firm of O'Melveny 
& Myers, working on a wide range of business matters. About half his 
practice consisted of appellate litigation, preparing him well to serve 
on a court of appeals. He has also maintained an active pro bono 
practice at that firm, which also tells me of his commitment to equal 
justice under the law.
  Professor Liu then went on to his current occupation, joining the 
faculty of the University of California Berkeley School of Law and 
helping to teach our next generation of lawyers. He serves as a 
professor at the law school, was promoted to an associate dean of the 
law school, and was elected to the American Law Institute.
  Professor Liu has received the law school's Distinguished Teaching 
Award. Professor Liu is considered an expert on constitutional law and 
education law and policy, with a particular focus on the needs of 
America's most disadvantaged students. He is the author of numerous law 
review articles and the coauthor of an influential book on 
constitutional law interpretation entitled ``Keeping Faith with the 
Constitution.''
  I heard my colleague talk about Goodwin Liu. But I would just urge my 
colleagues not to penalize an individual because he is active or 
expresses his own opinions. We should judge the nominees based upon 
their qualifications and their commitments to interpret the law as 
required on the court.
  Professor Liu answered numerous questions about his approach to 
constitutional interpretation during his two confirmation hearings. He 
testified:

       The role of the judge is to be an impartial, objective and 
     neutral arbiter of specific cases and controversies that come 
     before him or her, and the way that process works is through 
     absolute fidelity to the applicable precedents and the 
     language of the laws, statutes, or regulations that are at 
     issue in the case.

  I do not know who would disagree with that. That is what many of us 
have been calling for on both sides of the aisle.
  He has also answered questions about his ideology as a judge. He 
testified:

       It would not be my role to bring any particular theory of 
     constitutional interpretation to the job of an intermediate 
     appellate judge. The duty of a circuit judge is to faithfully 
     follow the Supreme Court's instructions on matters of 
     constitutional interpretation, not any particular theory. So 
     that is exactly what I would do. I would apply the applicable 
     precedents to the facts of each case.

  Once again, I could not agree with that statement more. In written 
responses to Senators' questions, he also stated:

       I do not believe it is ever appropriate for judges to 
     indulge their own values or policy preferences in determining 
     what the Constitution and laws mean.

  Professor Liu certainly has written a number of thought-provoking 
articles on controversial public policy issues of the day, but this 
should not disqualify him from being a judge. I am confident Professor 
Liu understands the difference between being an advocate and being a 
judge and I hope we can draw that distinction and will respect the 
difference if he is confirmed and puts on the judicial robe.
  Specific questions concerning affirmative action were asked during 
his confirmation hearings. So let me quote from Professor Liu's 
testimony to the Judiciary Committee:

       I absolutely do not support racial quotas, and my writings, 
     I think, have made very clear that I believe they are 
     unconstitutional.

  He then said:

       I think affirmative action, as it was originally conceived, 
     was a time-limited remedy for past wrongs, and I think that 
     is the appropriate way to understand what affirmative action 
     is.

  I think we should take a look at his record on this, and I think it 
is unfair to judge him based upon certain innuendoes.
  Professor Liu also has broad support from distinguished legal 
scholars from both parties. The former Solicitor General and White 
House prosecutor, Ken Starr, praised Professor Liu's ``strong 
intellect, demonstrated independence, and outstanding character''--
qualifications we all want to see on the court. We want to see 
intellect, we want to see independence, and we want to see character. 
Ken Starr summed that up fairly well.
  In a March 19, 2010, letter to the Senate Judiciary Committee, Mr. 
Starr joined with another professor, stating:

       Goodwin is a person of great intellect, accomplishment, and 
     integrity, and he is exceptionally well qualified to serve on 
     the court of appeals. . . . What we wish to highlight, beyond 
     his on obvious intellect and legal talents, is his 
     independence and openness to diverse viewpoints, as well as 
     his ability to follow the facts and the law to their logical 
     conclusion. . . .
       These are qualities we expect in a judge. And Goodwin 
     clearly possesses them . . . [A] judge takes an oath to 
     uphold and defend the Constitution, and in the case of a 
     circuit judge, fidelity to the law entails adherence to 
     Supreme Court precedent and . . . adherence to circuit 
     precedence as well. . . . Goodwin knows the difference 
     between what the law is and what he might wish it to be, and 
     he is fully capable and unafraid of discharging the duty to 
     say what the law is.

  That is what Ken Starr said about a person he knows very well, 
Goodwin Liu, and he strongly recommends his confirmation to our 
colleagues. I also want to discuss the importance of improving 
diversity on our courts. If confirmed, Professor Liu would be only the 
second Asian American currently serving on a Federal appeals court, and 
the only Asian American in active service in the Ninth Circuit.
  The Ninth Circuit is home to over 40 percent of the Asian American 
population in the United States. Finally, Professor Liu has received 
the highest possible judicial rating, ``unanimously well qualified'' 
from the American Bar Association's Standing Committee on the Federal 
Judiciary.
  With this distinguished record and recommendations that we have 
received, we have an excellent nominee to serve on the court of 
appeals. I urge my colleagues to vote for his confirmation.
  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.
  Mrs. BOXER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. Mr. President, it is my privilege, it is my honor, to 
support Goodwin Liu, a Californian--and a brilliant Californian--who 
has been nominated by the President to the U.S. Ninth Circuit Court of 
Appeals. And what a fine nomination this is. I thank the President for 
his belief in Goodwin, and his, I think, amazing perception that this 
is a young man--and he is young, he is about 40. This is a young man 
who is just exceptional, is a perfect example of the American dream, 
and someone who has worked so hard to put himself into this position 
where he was nominated for this great honor.
  I want to show folks a picture of Goodwin. He is a very special and 
talented person. He has had a long struggle with this nomination, which 
we will talk about. I also wish to thank, of course, Chairman Leahy for 
working hard to bring this nomination to the Senate floor, and Senator 
Feinstein, my colleague, for her hard work in the committee and her 
leadership in helping to shepherd this nomination in the Senate.
  This vote is not only historic, because Goodwin will make history--if 
he gets this vote. This vote is long overdue. First, let me talk about 
why it is historic. It is historic because if we get the 51 votes we 
need today, Professor Liu will be one of only two Asian Americans 
currently serving as a Federal appellate judge in the United States. 
There is currently only one Asian American among the 160 active judges 
on the Federal Courts of Appeals, and there is no active Asian American 
judge on the Ninth Circuit,

[[Page 7435]]

which has jurisdiction over an area that is home to more than 40 
percent of our Nation's Asian American population.
  Let me repeat that. There is no active Asian American judge on the 
Ninth Circuit, which has jurisdiction over an area that is home to more 
than 40 percent of our Nation's Asian American population. The beauty 
of our great Nation--one of the beauties--is our great diversity. 
America is great because we are representatives of so many faiths and 
so many ethnic backgrounds. We know all of our institutions, whether it 
is here in the Senate or anywhere, all of our institutions do better 
when they have a diversity of views and diversity. Clearly, when 
someone as brilliant as Goodwin gets this nomination, we should be so 
proud in this body. We should be joining hands over party lines. We 
should be pleased that our court would have such a brilliant member.
  Professor Liu was originally nominated in February 2010 for a 
judicial emergency seat, one that has been vacant since January 2009. 
So we have had a judicial emergency, and yet we have had a hard time 
getting this vote to the floor.
  Chief Justice Roberts called on Senators not to play politics with 
our nominees. He warned that ``delays in filling vacancies have created 
acute difficulties in some judicial districts.'' Undoubtedly, the Ninth 
Circuit certainly is one of the jurisdictions that Chief Justice 
referred to because the Ninth Circuit is the Nation's largest and 
busiest appellate court in the country, accounting for over 20 percent 
of all new appellate cases in the country, according to court 
statistics.
  Now, I have said--and I heard Senator Cardin, and I thought he just 
did a beautiful job of laying out why he is supporting Goodwin Liu. But 
I also heard some other comments that did not connect to Goodwin Liu. I 
heard comments that just did not fit what Goodwin Liu has said about 
his role as a judge.
  So I wanted to put up a couple of the quotes directly from Professor 
Liu and what he said about his role as a judge. He said:

       I think the role of the judge is to be an impartial, 
     objective, and neutral arbiter of specific cases and 
     controversies that come before him or her. And the way that 
     that process works is through absolute fidelity to the 
     applicable precedents and the language of the laws, statues, 
     regulations that are at issue in the case.

  Another statement by Professor Liu I wanted to share with you. He 
said:

       If I were fortunate enough to be confirmed in this process, 
     it would not be my role to bring any particular theory of 
     constitutional interpretation to the job of an intermediate 
     appellate judge. The duty of a circuit judge is to faithfully 
     follow the Supreme Court's instructions on matters of 
     Constitutional interpretation, not any particular theory. And 
     so that is exactly what I would do, is I would apply the 
     applicable precedents to the facts of each case.

  It could not be clearer. So if you hear any colleague of mine saying 
something else about how Professor Liu views the role of a judge in 
this particular appellate area, just refer them to these quotes.
  Professor Liu has sat before the Senate Judiciary Committee twice for 
more than 5 hours--5 hours--answering any and all questions posed to 
him during the hearing. He has also answered numerous written questions 
from committee members. He has been voted out of the Judiciary 
Committee three times.
  I just ask the American people, as they tune in to this debate--they 
may not be familiar with the confirmation process--if they think it is 
fair for someone like Professor Liu--and we will put his picture back 
up so we personalize this--this young man, this husband, this father, 
this teacher, to have to sit for all of those hours, and then to 
finally be brought to the floor, after the third time we voted it--that 
is why I praised Senator Leahy for doing this again because sometimes 
there are reasons that we go back and back and back. There are reasons 
of fairness and justice and because we do not want to miss an 
opportunity to put someone like Professor Goodwin Liu on the bench.
  Now, I will tell you, there have been 12 months of attacks on Goodwin 
Liu, misrepresentations, unfounded distortions of his record. I want 
the American people to know this. Politics is tough. I can tell you, 
running four times for Senate, it is tough. It is brutal. It is ugly. 
But there is no reason to turn that venom on a nominee like this, and 
it is offensive to me.
  Through it all, Professor Liu could have said: You know what, I 
cannot take this. I do not need this. My kids do not need this. My 
family does not need this. But he showed courage and character and 
dignity.
  I was so pleased when President Obama nominated Goodwin Liu to serve 
on the U.S. Ninth Circuit Court of Appeals because Goodwin Liu is 
considered one of the brightest legal scholars not just in California 
but in the Nation. He is a respected authority on constitutional law.
  At UC Berkeley's Boalt Hall School of law, where he is an associate 
dean and a professor, he is admired widely for his writings and his 
devotion to his students.
  To Professor Liu, if you are watching these proceedings, I am proud 
of you. To Professor Liu's wife, Ann, and his two small children, 
Violet and Emmett, I say thank you for your patience and your 
unyielding support. You should be so proud of your dad.
  Let me tell you a little bit about Goodwin Liu's background. He was 
born in Augusta, GA, the son of Taiwanese immigrants who came to this 
country to practice medicine in underserved areas.
  In 1977, they moved to Sacramento, where his parents were primary 
care physicians for over 20 years. In Goodwin, his parents instilled 
both perseverance and a strong work ethic, even leaving math problems 
on the kitchen table every day of the summer to supplement his school 
work. As a high school student, he pulled all-nighters studying the 
dictionary to expand his vocabulary and raise his SAT scores. His hard 
work paid off, propelling him to Stanford University, where he 
graduated Phi Beta Kappa, and then to Oxford University, where he was a 
Rhodes scholar.
  I say to my colleagues on the other side, who often say it ought to 
be the results of your life that count, it ought to be your record that 
counts, it ought to be your qualifications that count--Stanford 
University, Phi Beta Kappa, Oxford University Rhodes scholar.
  Liu's experience at Stanford and Oxford in student government, as a 
summer school teacher for low-income youth, codirecting a K-12 youth 
education conference, and studying philosophy encouraged him to pursue 
the law and public service. In fact, Liu spent the next 2 years at the 
Corporation for National Service helping to launch the groundbreaking 
AmeriCorps program. He led the agency's effort to build community 
service programs at colleges and universities throughout the country, 
and he traveled to over 30 States to encourage service among students.
  The spark of public service and the law clearly ignited, Liu then 
went on to attend Yale Law School. His stellar record of achievements 
continued at Yale, where Liu, along with a classmate, won the prize for 
the best team argument in the moot court competition. Several of his 
papers won awards, and he earned prestigious clerkships on both the 
court of appeals and the Supreme Court.
  What more does anyone want from a nominee? I can't even imagine, 
frankly, even matching this.
  In between the clerkships, Liu again chose public service, working at 
the U.S. Department of Education, helping to implement a congressional 
appropriation to help turn around low-performing schools. Former South 
Carolina Governor Richard Riley, who was Secretary of Education at the 
time, called Liu a ```go-to' person''--in his words--``for important 
projects and complex issues because of Liu's ability to see the big 
picture while also mastering the details of legal and policy 
problems.'' What else do you want in a judge? He has an ``ability to 
see the big picture while also mastering the details of legal and 
policy problems.'' That is a quote from former South Carolina Governor 
Richard Riley.

[[Page 7436]]

  After completing his Supreme Court clerkship, Liu joined the 
litigation practice at O'Melveny & Myers, working on a wide range of 
business matters while maintaining an active pro bono practice. So you 
have a person who worked in government, private practice, and in 
education. He earned high praise from his peers, including Walter 
Dellinger, chair of O'Melveny's appellate practice, who said Liu was 
``widely respected in law practice for his superb legal ability, his 
sound judgment and warm collegiality.''
  Then Liu joined the faculty at UC Berkeley's Boalt Hall School of Law 
in 2003 and quickly established himself as an outstanding teacher as 
well as a constitutional law and education law and policy expert.
  Think about this. This is a young life, with all these experiences, 
including raising a family.
  In the classroom, Liu is popular and well regarded. His introductory 
constitutional law course is consistently one of the most 
oversubscribed at Boalt. They want to hear him. They want to be in his 
presence to understand how the Constitution works and why this country 
is so special. In 2009, Liu received UC Berkeley's Distinguished 
Teaching Award, the university's most prestigious teaching excellence 
award, and was selected by that year's graduating class to be 
commencement speaker.
  Students often remark on Liu's efforts to illustrate the impact of 
the law on everyday life. As anyone who has taken his con law class 
knows, to demonstrate that principle, Liu uses a wedding photo that 
shows him and his new bride, Ann O'Leary, the Irish American daughter 
of a social worker and union leader from Orono, ME. The two married in 
Virginia, a State that restricted interracial marriages until the 
Supreme Court invalidated the provision in the landmark 1967 case 
Loving v. Virginia.
  Berkeley Law School Dean Christopher Edley describes Professor Liu 
this way:

       Goodwin Liu is an outstanding teacher, a brilliant scholar, 
     and an exceptional public servant.

  Professor Liu is widely respected and has tremendous support across 
the legal spectrum and from both sides of the political aisle.
  I want to read what Ken Starr said about Goodwin Liu. Remember Ken 
Starr, the former Whitewater prosecutor? This is what he said. He wrote 
this with Professor Amar in an op-ed piece that ran:

       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. We support and urge his speedy confirmation.

  I point out to my Republican friends that Ken Starr is one of your 
heroes. Come on, listen to what he says about Goodwin Liu. Don't come 
to the floor and say things about Goodwin that aren't so. Please come 
to your senses about Goodwin Liu.
  There is another supporter I want to talk about too. This is former 
Bush administration counsel, Richard Painter:

       I have done my share of vetting judicial candidates and 
     fighting the confirmation wars. I didn't know much about Liu 
     before his nomination, but I became intrigued by the 
     attention the nomination generated, and I wondered if his 
     Republican critics were deploying the same tactics Democrats 
     used to attack Republican nominees. They were. If anything, 
     the attacks on Liu have been even more unfair. Based on my 
     own review of his record, I believe it is not even a close 
     question that Liu is an outstanding nominee whose views fall 
     well within the legal mainstream.

  That conclusion is shared by leading conservatives who are familiar 
with Liu's record. We even have a quote from Clint Bolick of the 
Goldwater Institute, one of the most conservative institutes. They 
endorsed Liu. This is what they said:

       Because of his fresh, independent thinking and intellectual 
     honesty, as well as scholarly credentials and experience, he 
     will serve with distinction on this important court.

  If that is not enough for my Republican friends, I have some more. I 
have former Republican Congressman Bob Barr. He offered praise of 
Professor Liu's ``commitment to the Constitution and to a fair criminal 
justice system.'' Barr also noted that ``[Liu's] views are shared by 
many scholars, lawyers and public officials from across the ideological 
spectrum.''
  Tom Campbell of California, a former Republican Congressman--someone 
who actually attempted to run against me a couple of times for the 
Senate--wrote that ``Goodwin will bring scholarly distinction and a 
strong reputation for integrity, fair-mindedness, and collegiality to 
the Ninth Circuit.'' Reflecting on Liu's many years of work in serving 
the public interest, Campbell also said, ``I am not surprised that 
[Liu] has again been called to public service.''
  Yes, he has been called and nominated, but he won't be able to 
continue his extraordinary work unless we get 51 votes here. I know 
there is some letter that is circulating that attacks Goodwin Liu 
again. I hope my colleagues will read not just what I am saying but 
what leading Republicans are saying about how talented Goodwin Liu is. 
Every single thing the man has done has turned to gold--every single 
thing he has done. He is best at everything he does. Why would we lose 
this opportunity for the American people to have him serve them in this 
important capacity? I ask that rhetorically. I cannot imagine why 
anybody would vote no.
  Here is another one. Professor Liu has even drawn praise from Brian 
Jones, who served as General Counsel at the Department of Education 
after Liu's tenure there. This is what Brian Jones, the General Counsel 
at the Department of Education, said:

       During [2001 abd 2002], and even after he became a law 
     professor in 2003, [Goodwin] volunteered his time and 
     expertise on several occasions to help me and my staff sort 
     through legal issues he worked on during the previous 
     administration. In those interactions, Goodwin's efforts were 
     models of bipartisan cooperation. He brought useful knowledge 
     and careful lawyerly perspectives that helped our 
     administration to achieve its goals.
       But I am convinced, based on his record and my own 
     experiences with him, that he is thoughtful, fair-minded and 
     well qualified to be an appellate judge.

  I don't know why the Republicans filibustered this nomination. I 
don't know why they filibustered this. I don't understand it.
  Let's look at some of the organizations that back Goodwin. Of course, 
those in the Asian American community are so proud, as they should be 
and as I am, because Goodwin is a Californian by choice.
  In an op-ed published just today, former Secretary Norm Mineta, the 
first Asian Pacific American member of a President's Cabinet; that is, 
the Bush Cabinet, wrote that ``Professor Liu is an extremely well-
qualified nominee who has the intellectual capacity, experience, 
temperament and integrity to be an excellent jurist.'' Mineta went on 
to warn that ``if Liu is not confirmed, Asian Pacific Americans may be 
left with the impression that there continues to be a glass ceiling 
blocking Asian Pacific Americans from top-level leadership positions 
regardless of their qualifications.''
  Again, Norm Mineta--and anybody who knows Norm knows what a wonderful 
human being he is. George W. Bush chose Norm Mineta, who is a Democrat, 
to be the Secretary of Transportation. Norm Mineta says that because 
Professor Liu is so qualified and has so much intellectual capacity, 
such great experience, such great temperament, and so much integrity, 
he warns that ``if Liu is not confirmed, Asian Pacific Americans may be 
left with the impression that there continues to be a glass ceiling 
blocking Asian Pacific Americans from top-level leadership positions 
regardless of their qualifications.''
  We also have a quote from the Committee of 100, a national nonprofit, 
nonpartisan membership organization that addresses issues concerning 
Sino-U.S. relations affecting the Chinese American community. They 
wrote that ``[Liu's] ascension to the bench would signal that talented 
people of all backgrounds are integral to our justice system.''

[[Page 7437]]

  What we do here matters. It matters whom we send to these important 
positions. We have someone here who will break down barriers, but, do 
you know what, that would not be enough. He has to be great, he has to 
be outstanding, and he is all those things. Yet we are very nervous 
about getting 51 votes. We are very nervous that politics is being 
played. We don't know what is going to happen at the end of the day. 
That is why I am taking this time, because I want my colleagues to know 
that if they cast an ``aye'' vote, it should bring a smile to their 
faces, and they should feel good in their hearts and their minds that 
they are doing the right thing.
  Twenty-five prominent Asian-Pacific Americans who serve as general 
counsel to Fortune 1000 companies and other large companies wrote:

       Professor Liu has earned praise from conservatives and 
     progressives alike for his sense of fairness, open-
     mindedness, and integrity. His intellect and qualifications 
     are beyond dispute. Indeed, Professor Liu has been rated 
     unanimously ``well-qualified'' by the American Bar 
     Association.

  They go on:

       It is worth noting that Professor Liu, if confirmed, would 
     become the only Asian Pacific American active appellate court 
     judge in the Ninth Circuit, and only the second Asian Pacific 
     American active appellate court judge nationwide. Especially 
     given the large number of Asian Pacific Americans in 
     California, Hawaii, and other states, covered by the Ninth 
     Circuit--

  And I said before I think it is 40 percent of Asian Americans who 
live in this particular area that the court covers--

       the lack of an Asian Pacific American judge in this circuit 
     is striking. We feel that Professor Liu would serve our 
     country well and with distinction.

  Professor Liu has drawn law enforcement support, including the 
California Correctional Peace Officers Association, as well as the 
National Asian Peace Officers Association, which noted that Professor 
Liu has ``earned the respect of [its] members and the large audience of 
the law enforcement community.''
  David Lum, the president of National Asian Peace Officers 
Association, went on to compliment Liu as ``a person of integrity, 
dedication, passion, enthusiasm, and law and order.''
  Liu has also received support from the business community, including 
from the prominent business executives with whom Liu served on the 
Stanford University board of trustees. In a letter of support, Liu's 
fellow trustees wrote the following:

       Across a wide range of complex issues, Goodwin routinely 
     asks thoughtful and incisive questions. He is good at 
     thinking independently and zeroing in on important issues 
     that need attention. 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. Given these qualities, it was no surprise that he 
     was asked to chair the board's Special Committee on 
     Investment Responsibility after serving just one year of his 
     five-year term.

  Again and again, there is a thread running through this man's life at 
40. That is how old he is, 40--40 years old. Everything this man has 
done, this young man has been unbelievably--I want to say unimaginable 
at his age that he has done all he has done.
  They continue:

       In short, Goodwin's strengths are exactly what we expect in 
     a judge: objectivity, independence, collegiality--

  This is what the Stanford trustees say--

     respect for differing views, sound judgment. Goodwin 
     possesses these qualities on top of the brilliant legal 
     acumen that is well-established by his professional record 
     and the judgment of those most familiar with his scholarly 
     work.

  It goes on and on.
  The President of Stanford University, along with two presidents 
emeritus, wrote to endorse Liu's nomination. They said that Liu ``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.''
  This eloquence that is coming out of people's mouths about Goodwin--
honestly, I have stood here many times, and I have spoken on behalf of 
many nominees. I honestly have not had a situation where the eloquence 
and passion of the supporters has come through as it has for this young 
man. He is a blessing, honestly. I feel at this moment we need to back 
him--all of us--and bring this country together around someone who 
epitomizes the American dream.
  I want to speak about, as I wind down, newspapers across the country 
that weighed in to support Liu's nomination.
  The Washington Post remarked that:

       Mr. Liu has sterling credentials that earned him the 
     highest rating from the American Bar Association. And there 
     have been no allegations of impropriety to disqualify him 
     from serving. The brilliant professor [they call him], who 
     just turned 40 in October, testified that he would not allow 
     his academic musings to interfere with the duties of a lower-
     court judge to follow precedent. He should be confirmed and 
     given the opportunity to demonstrate that he can do that.

  I was going to ask unanimous consent because I know Senator Tester 
has been waiting for 40 minutes--I ask the Senator, does he need about 
5 or 7 minutes in morning business?
  Mr. TESTER. Yes.
  Mrs. BOXER. I ask unanimous consent that Senator Tester be able to 
speak for 7 minutes in morning business before we get to Senator 
Grassley; is that acceptable?
  Mr. GRASSLEY. If the Senator is done, that is OK.
  Mrs. BOXER. I am almost done.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Mrs. BOXER. I am closing in the next 2 minutes.
  The Sacramento Bee noted that Liu would add luster to any court. The 
Los Angeles Times joined the New York Times in endorsing his 
confirmation.
  We heard from Professor Liu when I opened, and I am going to close by 
saying this: When we ask people in this country to give back to this 
Nation and they step to the plate and they want to give their talent to 
this Nation and they are supremely qualified and they bring with them 
mainstream views, mainstream endorsements, bipartisan endorsements from 
the progressive community to Ken Starr, for goodness' sake, give this 
man an up-or-down vote and do not say that you believe that judges 
deserve an up-or-down vote when you are in the majority and suddenly 
say they do not deserve it now.
  I hope we will see the 60 votes for cloture and then the 51 votes for 
confirmation. I am privileged to have had this opportunity to share the 
story of Professor Goodwin Liu with my colleagues.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. TESTER. Madam President, I think this is appropriate. I ask 
unanimous consent to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         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

[[Page 7438]]

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 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

[[Page 7439]]

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:

     . . . 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

[[Page 7440]]

``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 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

[[Page 7441]]

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.
  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

[[Page 7442]]

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 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

[[Page 7443]]

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

[[Page 7444]]

universities in the world. Before attending Yale Law School, he worked 
with the Corporation for National 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.


                              Health Care

  Mr. BARRASSO. Mr. President, I come to the floor, as I have week 
after week since we passed the health care law, giving a doctor's 
second opinion of the law. I come today because last month President 
Obama delivered a very big speech on spending. Unfortunately, it seemed 
to be more of a political attack than a substantive speech offering a 
detailed plan to attack the American debt crisis.
  The President did, however, mention one bit of substance that really 
should raise a red flag to the American people. He said:

       We will slow the growth of Medicare costs by strengthening 
     an independent commission.

  Well, the Washington commission he is referring to is called the 
Independent Payment Advisory Board. This board may sound harmless, but 
let me assure you that the American people deserve to know and have a 
right to know more detail about the board and its work.
  Many Americans may not remember that the health care law created this 
unelected, unaccountable board of Washington full-time bureaucrats. The 
sole purpose of the board is to cut Medicare spending based on 
arbitrary budget targets--not based on the number of people on Medicare 
or the number of seniors but based on arbitrary budget targets. These 
are cuts above and beyond the $500 billion already taken from a nearly 
bankrupt Medicare Program during the health care law--taken from our 
seniors--not to save Medicare but to start a whole new government 
program.
  Now the President wants to slow the growth of Medicare costs by 
strengthening this independent commission. Well, this board empowers 15 
unelected Washington bureaucrats to make these Medicare cuts, all 
without full transparency and accountability to the American seniors 
and also to elected officials.
  Once again, this board proved that the President and the Democrats in 
Congress who voted for the health care law simply didn't have the 
political courage to make tough spending decisions. Instead, they took 
the easy road and pulled a classic Washington maneuver: they created a 
board and then punted the tough decisions to the board. Well, this 
forced Congress to abdicate two important congressional duties. First 
is the constitutional responsibility to manage Medicare spending. The 
second is the responsibility to explain to the American people why 
specific payment changes might be necessary to keep Medicare afloat--
all because the President and Washington Democrats refused to lead. 
They simply threw up their hands and said: Let someone else deal with 
it.
  If expanding this independent board is--they call it ``independent,'' 
but I am not so convinced it is. It is called the Independent Payment 
Advisory Board. If expanding the board is the one and only concrete 
proposal the President has to reform Medicare and reduce the debt and 
most Americans have never even heard of it, then it is important that 
we take the time on the Senate floor today to discuss exactly how this 
board works and the impact it will have on medical care in America.
  I call this the top 10 things you need to know about the Independent 
Payment Advisory Board. To me, this issue is so important that I plan 
to talk about five of them today, and I will come back next week, as 
part of the doctor's second opinion on the health care law, and talk 
about the next five.
  No. 1, this board is how Washington will limit patient care.
  When Congressman Paul Ryan offered his 2012 budget plan, the 
President and members of his party launched an all-out media assault on 
Medicare spending. The White House and Democrats used inflammatory and 
patently false statements to scare people about the Ryan plan. What 
they failed to mention, however, is that the President's own health 
care law actually has significant caps on Medicare spending. To enforce 
the caps, the President and Washington Democrats went with their tried-
and-true solution: create another board.
  What does this mean for people who are currently on Medicare and for 
future Medicare patients? A centralized Washington board will 
arbitrarily cut payments to Medicare providers--doctors, nurses, and 
other people taking care of patients. They are going to squeeze 
Medicare savings by cutting provider payments and treatment options, 
which will punish patients. Why? To start a whole new government 
program--not for the people who paid into Medicare but for a whole 
different group of people. Not only will medical professionals facing 
these cuts decide to simply stop seeing Medicare patients--and we see 
that now. Frankly, doctors are running away from Medicare, not wanting 
to see those patients. Individuals and families will watch helplessly 
as a Washington bureaucrat decides what kind of treatments that person 
can have.
  No. 2, this board is going to make recommendations, and those 
recommendations will automatically become law.
  How can it be that something the board does automatically becomes 
law? But their spending recommendations automatically become law--
unless Congress acts to stop it. If Congress would actually want to 
stop the board's policies, there are very few options. The options are 
severely limited. Overriding the board's recommendations requires a 
three-fifths majority vote in the Senate, a high hurdle to jump, or 
Congress can pass a different Medicare spending plan. But there is a 
catch. It still has to meet the same arbitrary spending target. So if 
Congress does nothing, then Health and Human Services Secretary 
Kathleen Sebelius will implement the board's plan.

[[Page 7445]]

  Medicare consumes about 13 percent of the Federal budget, and former 
Office of Management and Budget Director Peter Orzag called this board 
``the largest yielding of sovereignty from Congress since the creation 
of the Federal Reserve.''
  The bottom line is that this board isn't making recommendations to 
Congress; this board is passing law. Well, Congress doesn't have to 
approve these policies of the board, and the President doesn't have to 
sign them. They are law. This represents an unprecedented shift of 
power from the legislative branch of the Federal Government to an 
unelected board of 15 bureaucrats.
  No. 3, the policies of this board cannot be challenged in court.
  On April 19 of this year, the New York Times published an article 
entitled ``Obama Panel to Curb Medicare Finds Foes in Both Parties.''
  This article explains that:

       In general, federal courts could not review actions to 
     carry out the board's recommendations.

  Well, there is an institute called Arizona's Goldwater Institute. 
They filed a lawsuit based upon this payment advisory board. Part of 
the lawsuit says:

       Congress has no constitutional power to delegate nearly 
     unlimited legislative power to any federal executive branch 
     agency, much less to entrench health care regulation against 
     review, debate, revision, or repeal. . . . Such federal 
     overreaching must be rejected if the principles of limited 
     government and the separation of powers by the United States 
     Constitution mean anything.

  That is what the lawsuit says.
  Let's go to No. 4. This board's mission is to cut provider payments. 
The board is strictly limited in what it can do to achieve Medicare 
spending reductions. By law, the board cannot raise revenue by 
increasing taxes. It cannot increase patient cost-sharing methods, such 
as premiums, copayments, and deductibles. It cannot alter Medicare 
eligibility or benefit package.
  What can it do? One thing and one thing only: It will adjust provider 
reimbursement rates. We all know Medicare payment rates are already 
well below market rates. That is why so many doctors are limiting the 
number of Medicare patients they see and, in more severe cases, 
refusing to treat Medicare patients at all.
  Additional subjective cuts to Medicare will not make the program more 
efficient or more available. These measures will simply reduce the 
supply of medical care to the Medicare patients of America.
  The Medicare Chief Actuary, Richard Foster, warned us that the health 
care law's Medicare cuts would cause providers to leave the program, 
and we are seeing that today. It is not because they do not want to 
treat Medicare patients; it is because the doctors know the payments 
will be too low to even cover their costs. Mr. Foster, the Medicare 
Chief Actuary, has said approximately 15 percent of our Nation's 
hospitals would drop out of Medicare in 10 years.
  Then No. 5: This board could eventually impact all patients, not just 
Medicare patients. Washington Democrats have long supported policies 
that give government more power to set health care prices, not just in 
public programs such as Medicare, but also in the private sector. 
President Bill Clinton asked for this authority in a 1994 debate on 
what at the time was called ``Hillary care.'' It was one reason his 
effort failed. President Obama learned from that failure. Make no 
mistake, he wants to achieve the same objective. This time he is using 
this board as a Trojan horse to sell it.
  If President Obama's health care law remains the law of the land, 
millions of Americans will have government-subsidized health insurance. 
Paying for this new entitlement program will cost trillions. It will be 
no surprise when we inevitably hear cries for increased cost control. 
This is when the President will make his move--proposing to extend this 
board's reach beyond Medicare to the new health care law's subsidized 
insurance premiums. Last month, the President opened the door to this 
strategy when he proposed in his speech to expand this board's power 
and its control over Medicare.
  That is why I come to the Senate floor each and every week to deliver 
a doctor's second opinion about the health care law--a law that I 
believe is bad for patients, bad for providers--the nurses and doctors 
who take care of those patients--and bad for our taxpayers. I believe 
the more the American people discover about this so-called independent 
payment advisory board, the more unpopular the President's health care 
law will become.
  Mr. President, I yield the floor and 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. FRANKEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so 
ordered.
  Mr. FRANKEN. Mr. President, I rise to speak in support of the 
confirmation of Professor Goodwin Liu to the U.S. Court of Appeals for 
the Ninth Circuit. As a member of the Judiciary Committee for the past 
2 years, I have had the opportunity to meet with Professor Liu and vote 
on his nomination on several occasions. He is a singularly talented 
individual, and I wish to associate myself with the remarks all my 
colleagues have made in support of his confirmation.
  But the strongest arguments I have heard in support of Professor Liu 
haven't come from my colleagues. In fact, they haven't even come from a 
Democrat. No, the most persuasive arguments I have heard for confirming 
Professor Liu come from the former chief ethics lawyer for the 
administration of President George W. Bush, a gentleman named Richard 
Painter. Professor Painter, a Republican, is now a prominent law 
professor at the University of Minnesota.
  Earlier this year, Professor Painter wrote a lengthy article that 
systematically catalogued Professor Liu's strengths and systematically 
answered his critics. This is his conclusion:

       In sum, Liu is eminently qualified. He has support from 
     prominent conservatives. . . . He is pragmatic and open-
     minded, not dogmatic or ideological. . . . Many, though by no 
     means all, of his scholarly views do not align with 
     conservative ideology or with the policy positions of many 
     elected officials in the Republican Party. . . . 
     Nevertheless, his views are part of the American legal 
     mainstream. The independence, rigor, and fair-mindedness of 
     his writings support a confident prediction that he will be a 
     dutiful and impartial judge.

  When I circulated Professor Painter's article to the members of the 
Judiciary Committee, my Republican colleagues sent me a series of 
articles critiquing Professor Liu. I would like to take a few moments 
to rebut the criticisms in these articles because they simply don't 
hold water.
  The first and most common criticism of Goodwin Liu is that he somehow 
believes in a so-called living Constitution. His opponents are 
especially worried about his suggestion that in interpreting the 
Constitution, judges should consider the ``evolving norms and 
traditions of our society.''
  Professor Liu has written an entire book about his theory of 
constitutional interpretation. On page 2 of that book, he writes that 
we need to consider a lot of different things when we interpret the 
Constitution. We need to consider the original understanding of the 
Framers. We need to consider the purpose and structure of the 
Constitution. We need to consider precedent. We need to consider the 
practical consequences of our laws. Lastly, we need to consider the 
evolving norms and traditions of our society. So this is just one 
thing--one thing--that we should take into account.
  But even more important, this idea that we should merely consider the 
evolving standards of our society in interpreting the Constitution is 
not a radical idea. In fact, it isn't even a new idea. This issue 
frequently comes up in fourth amendment cases. Over 40 years ago, in a 
1967 case called U.S. v. Katz, the Supreme Court was asked to determine 
whether a wiretap constituted a search under the fourth amendment. If 
it did, law enforcement would have to get a warrant to get a wiretap.
  The problem, of course, was that the Founders never anticipated the 
telephone, let alone the wire to the telephone. So this was a new 
question for

[[Page 7446]]

the Court. But the Court voted 7 to 1 to find that a wiretap was, in 
fact, a search under the fourth amendment, and one of the main reasons 
they cited was that people in modern society had come to expect and 
assume that their phone calls were private. Two years later, in a 
separate case called Smith v. Maryland, the Court formally adopted the 
rule that the fourth amendment will protect people where our society 
recognizes a reasonable expectation of privacy. So for 40 years, it has 
been the law of this land that you have to look at social norms when 
interpreting the fourth amendment.
  Here is another example, one that Senator Feinstein cited, but still, 
it bears repeating. This is what Chief Justice Marshall said about the 
Necessary and Proper Clause in McCulloch v. Maryland.

       . . . [t]his 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.

  McCulloch v. Maryland was decided in 1819. So the idea that we should 
merely consider the state of our society when we interpret the 
Constitution isn't new, it is old. It is very old. In fact, it is 
arguably older than the Senate Chamber we are standing in, which first 
opened in 1859.
  Professor Liu's detractors have also accused him of believing that 
judges may ``legitimately invent constitutional rights to a broad range 
of social `welfare' goods, including education, shelter, subsistence, 
and health care.'' That is the accusation. This argument is based on an 
article Professor Liu wrote in 2008.
  But if you actually read the article, you will find this statement 
right in the introduction. This is a quote from the article:

       [B]ecause the existence of any welfare right depends on 
     Democratic instantiation of our shared understandings, the 
     Judiciary is generally limited to an interstitial role within 
     the context of a legislative program. Courts do not act as 
     `first movers' in establishing welfare rights . . .

  In other words, Professor Liu is being accused of saying judges can 
invent welfare rights because of an article he wrote where he said 
judges cannot invent welfare rights.
  The final point I wish to address is the idea that Professor Liu 
somehow supports ``using foreign law to redefine the Constitution.'' 
Professor Liu's critics cite an obscure speech he gave at a Japanese 
law school 5 years ago. According to his critics, he said in this 
speech that it is ``difficult for him to grasp how anyone could resist 
the use of foreign authority in American constitutional law.''
  I went and got a copy of the speech. If you read it, you will see 
that Professor Liu was referring to a series of Supreme Court decisions 
written by Justice Anthony Kennedy, where Justice Kennedy reviewed the 
laws of foreign countries on certain issues. Justice Kennedy didn't use 
the laws of foreign countries to decide the cases before him, he used 
them to get a sense of how other countries were resolving the legal 
issues before him.
  Professor Liu was basically saying he found it difficult to grasp how 
people could disagree with Justice Kennedy. He has repeatedly said in 
his testimony, under oath, that he does not believe that foreign law 
should be binding in any way on Federal law.
  There are other critiques against Professor Liu that I will not go 
into further, but I urge my colleagues to dig behind these blanket 
statements. To paraphrase Gertrude Stein, I think you will find there 
is no there there.
  I think what my colleagues will find is an extraordinary intellect, a 
fundamentally decent man, and someone who will be a strong and 
impartial jurist. I urge my colleagues to vote for cloture and to vote 
to support his nomination.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________