[Congressional Record (Bound Edition), Volume 157 (2011), Part 6]
[Senate]
[Pages 7468-7493]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF GOODWIN LIU TO BE A U.S. CIRCUIT JUDGE FOR THE NINTH 
                                CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume the following nomination, which 
the clerk will report.
  The bill clerk read the nomination of Goodwin Liu, of California, to 
be United States Circuit Judge for the Ninth Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 2 
p.m. will be equally divided and controlled between the two leaders or 
their designees.
  The Senator from California.
  Mrs. BOXER. Mr. President, I am very honored to speak in favor of the 
Goodwin Liu nomination and to urge my colleagues on both sides of the 
aisle to cast a proud vote for an extraordinary person, a remarkable 
young man who, for want of a better word, is just a star in everything 
he has ever done.
  This is a picture of Goodwin. To say Goodwin personifies the dream of 
America is an understatement. To say this is a good nomination 
understates the way I feel about it. I thank the President for moving 
forward with Goodwin on two occasions, two nominations--or three times. 
I thank the Judiciary Committee for reporting him out on more than one 
occasion. Of course, I thank Senators Leahy and Reid and Feinstein for 
their hard work in getting us to this point.
  It is rather stunning for me to hear conservative Republicans come to 
the floor and blast this nominee because Goodwin Liu, Professor Liu has 
support from some of the most conservative legal minds in the country. 
Ken Starr, who, as we all know, was the special counsel on the White 
Water matter and who was considered at that time quite partisan and was 
one of the conservative, I think--I want to say stars of their thought, 
said:

       In our view--

  And he writes this with Professor Amar, and this was published.

       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.

  This is Kenneth Starr.
  So I say to my Republican conservative friends, before you come here 
and start attacking Goodwin Liu for things he has never done, read what 
some of your conservative leaders in the legal profession are saying.
  Just today in Politico there is yet another op-ed written by the 
chief White House ethics lawyer under George W. Bush for 2\1/2\ years, 
Richard Painter, a Republican serving a Republican administration. This 
is what he said:

       All that is required is for Senate Republicans to practice 
     what they preached for so long under Bush. Give Liu an up-or-
     down vote rather than a filibuster.

  Well, we are facing a filibuster. I want the American people to 
know--and everyone who is supporting Goodwin Liu and everyone who 
supports giving young, extremely talented people a chance to prove 
their mettle--

[[Page 7469]]

that this is someone who has been a star his whole life, someone who 
caught the dream. Give this man a chance. Don't filibuster this. Let's 
have an up-or-down vote.
  I think the ramifications--and I feel very strongly about this. I 
don't say this very often on the floor. I think the ramifications of 
this filibuster are going to be long and difficult for those who caused 
this good man to be filibustered, unless, of course, we get the 60 
votes we need. Why do I think that? I am going to tell my colleagues 
why I think that. I am going to spend the next few minutes talking 
about Goodwin and telling my colleagues about his life and his 
achievements and his amazing recognition by so many in his short 40 
years. Goodwin Liu has been extremely successful at each stage of his 
academic and professional career. He has reached for the stars, and he 
has grabbed them.
  He was the covaledictorian and captain of his tennis team in high 
school. Let's start with Goodwin in high school. He was born to 
Taiwanese immigrants who are both physicians, they moved to Sacramento, 
and they were quite an influence on Goodwin. They used to leave out 
math problems for him to solve even after he finished his homework. 
They said to Goodwin: You work hard and you can get what you want. They 
forgot to mention there is a filibuster that could interfere, but let's 
not go there because we certainly hope we get the 60 votes.
  So it starts in high school where we have a covaledictorian, a 
captain of the tennis team at Rio Americano High School in Sacramento. 
Then he goes to Stanford, where he graduates Phi Beta Kappa--a very big 
honor--from Stanford. While he is at Stanford, he is elected 
copresident of the student body. He receives an award called the Lloyd 
Dinkelspiel Award. It is the university's highest honor for outstanding 
service to undergraduate education.
  So in high school, he is a star. He is a star at Stanford. Then he 
goes to Oxford University, where he was a Rhodes Scholar, which is 
considered one of the most prestigious academic accomplishments.
  Following his time at Oxford, he decides to attend law school at Yale 
University. Once again, Goodwin goes to Yale and he is a star. He was 
an editor of the Law Journal. Along with a classmate, he won the law 
school's moot court competition. He wrote an article during his third 
year of law school that won two awards, one for best paper by a third-
year law student and another for the best paper on taxation.
  He had such a distinguished record in law school that it earned him a 
clerkship with Judge David Tatel of the U.S. Court of Appeals for the 
District of Columbia, and then he does so well there that he serves in 
one of the most prestigious clerkships in the country--a law clerk to 
Justice Ruth Bader Ginsburg on the U.S. Supreme Court.
  I say to my Republican colleagues, what are you thinking? We should 
thank Goodwin for being willing to continue his life of public service. 
We should be praising his decision to put up with all of this 
confirmation process. Instead, they have given him a horrible time, an 
awful time, a miserable time. I said yesterday on the floor while 
addressing his wife and his kids: You be proud of your dad and you be 
proud of your husband, because I say this: If he doesn't get this, it 
is about politics. It says more about the people here in this place 
than it does about Goodwin. Throughout this period they have made all 
these attacks on him, all these ideological attacks, frankly, on 
someone they made him become.
  This is a man with huge support from conservatives, moderates, and 
liberals. He brings people together because of his personality, his 
kindness, how intelligent he is, how he listens to people. That is what 
people tell us about him. Yet, still he has been viciously attacked, 
and we see politics being played.
  This will not be lost on the American people, I will tell my 
colleagues that right now, because this isn't just some guy whom the 
President bumped into one day and said: I think you would be good on 
the court. This is an extraordinary American who has fought so hard in 
every job he ever had to be the best, to bring the best qualities to 
his work. That is why he has won the support of former Bush officials 
and Kenneth Starr, the conservatives I know support Goodwin. But it is 
not good enough for the politics that are being played around here, and 
this is not going to go down easy if he doesn't get his up-or-down 
vote. This is not going to go down easy. I have had experience in this 
political world for a long time. I won 11 straight elections. They have 
all been really--not all but most of them--very hard. I know when there 
is an issue that touches the heart, and I know when there is a person 
who comes along who deserves better than what Goodwin Liu is getting 
from the Republicans. I am speaking of the Republicans here in this 
Chamber, not the Republicans outside.
  Let me read what Kenneth Starr said about this man. Let me read it 
again to my colleagues.

       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.

  That was Kenneth Starr. Well, Kenneth Starr's Republican friends are 
not listening. ``Speedy confirmation.'' This is an emergency vacancy. 
This is an emergency because they need to fill this position. What they 
are doing by playing politics with this is making sure the people of 
this country--because the Ninth Circuit is a very important circuit--
will not get justice, unless they change their minds and come to their 
senses and do what they said they would do.
  I won't quote who said these things, but I have heard many on the 
other side say: Oh, we don't want to filibuster judges. Let them get an 
up-or-down vote. Then we hear they are not going to vote to give 
Goodwin an up-or-down vote. What is the reason? There is no reason. 
Nobody can find a more qualified person. What is the message to the 
people in this country when we have someone who was a star in high 
school, a star in college, a star in law school, a star in everything 
he did, a law clerk?
  Now, he gave a lot of his life to public service in the Corporation 
for National Service, where he helped launch the AmeriCorps public 
service program. As a senior adviser in the program, he led the 
agency's efforts to build the AmeriCorps program at colleges and 
universities across this country.
  Between his clerkships, Goodwin returned to government service as a 
Special Assistant to the Deputy Secretary of Education.
  He won praise from Republicans, from Democrats, from conservatives, 
from liberals, from moderates in every position he ever held until he 
got to this Senate floor, where the conservative Republicans turned 
their backs on Kenneth Starr, turned their backs on Bush administration 
lawyers, turned their backs on the facts of Goodwin Liu's life for some 
agenda. I am telling you, this will not go down easy for them. This 
will not go down easy.
  Goodwin served in the private sector. He worked for a very well 
respected law firm, O'Melveny & Myers. He worked on a wide ring of 
matters from antitrust to white-collar crime. He also maintained an 
active pro bono practice--pro bono. He did things for free to help 
people who needed his help.
  Walter Dellinger of O'Melveny said Goodwin was ``widely respected in 
law practice and for his superb legal ability, his sound judgment, and 
his warm collegiality.''
  Well, let me tell you, the kind of treatment he is getting here is 
far from warm. It is cold. It is wrong. It is harsh.
  I want to read again what Kenneth Starr said. This is the third time. 
Kenneth Starr--you cannot get more conservative.

       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

[[Page 7470]]

     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.

  Kenneth Starr.
  Again, today, in an op-ed piece in Politico, George W. Bush's White 
House ethics lawyer said:

       All that is required is for Senate Republicans to practice 
     what they preached . . . : Give Liu an up or down vote rather 
     than a filibuster.

  But, no, we are facing a filibuster against someone who is a star. So 
as we follow Goodwin's career--star in high school, star in college, 
star in law school--everywhere he goes he is recognized.
  In 2003 he joined UC Berkeley's faculty as a law professor where he 
has excelled as a scholar and a teacher. He is considered in this 
Nation one of the leading constitutional law and education law 
experts--but not in this Chamber. What do they want from a nominee--
backing from conservatives, backing from liberals, backing from the 
mainstream?
  His article on education law issues won the Education Law 
Association's award for distinguished scholarship in 2006.
  He received the Distinguished Teaching Award in 2009, the 
university's most prestigious award.
  I have never--let me say this: I have seen some wonderful people come 
to this floor for confirmation, Democrats and Republicans. I have seen 
qualifications. I have voted for Republican judges, for Democratic 
judges. Honest to God, it is hard for me to recall someone who, at 
every stage of his life--and he is only 40 years old--has been able to 
achieve such excellence.
  What is the message coming from this body if we do not give this man 
an up-or-down vote? I am telling you, it will go down hard.
  The American Bar Association gave him the highest rating--the highest 
rating--and yet we are facing a filibuster.
  The Goldwater Institute--everybody knows Barry Goldwater, idol of 
conservatives--the director of the conservative Goldwater Institute 
endorsed Goodwin Liu. But that is not good enough for my Republican 
friends. They said they are endorsing him because of his ``fresh, 
independent thinking and intellectual honesty.'' But that is not enough 
for my friends on the other side. They said they were endorsing him 
also because of his ``scholarly credentials and experience to serve 
with distinction on this important court.''
  So we have heard from Kenneth Starr, a conservative icon. We have 
heard from George Bush's White House ethics lawyer for 2\1/2\ years, 
Richard Painter. He wrote today. Let's see what else Richard Painter 
wrote about Goodwin. These supporters of Goodwin's are passionate. That 
is why I say this is going to go down hard if we do not get this 
cloture vote. This is interesting. He writes:

       I've done my share of vetting judicial candidates and 
     fighting the confirmation wars. I didn't know much about Liu 
     before his nomination to the Ninth Circuit. But I became 
     intrigued by the attention the nomination generated, and I 
     wondered if his Republican critics were deploying the same 
     tactics the Democrats had used [against] Republican nominees. 
     They were. If anything, the attacks on Liu have been even 
     more unfair. . . .

  More unfair.

       Based on my own review of his record, I believe it's not 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.

  That is not good enough for my friends on the other side. Well, I 
will give them another quote.
  Former Republican Congressman Bob Barr has also offered praise of 
Professor Liu's ``commitment to the Constitution and to a fair criminal 
justice system,'' as he puts it. He noted:

       [Liu's] views are shared by many scholars, lawyers and 
     public officials from across the ideological spectrum.

  But Bob Barr's opinion is not good enough for my friends on the other 
side.
  I am even going to read a quote from a former Congressman who tried 
to get the Republican nomination twice to run against me, Tom Campbell. 
He and I have had a couple of disagreements, but not on Goodwin. Tom 
Campbell, who served 9 years as a Republican Congressman from 
California, said:

       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.

  So it goes on and on. I will give you another Republican. Brian 
Jones, who served as the general counsel at the Department of Education 
from 2001 to 2005 under George W. Bush, after Liu's tenure there, this 
is what he said about Goodwin that speaks to the heart and soul of this 
good human being:

       During [2001 and 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. . . . In those interactions, Goodwin's 
     efforts were models of bipartisan cooperation.

  Listen:

       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.

  And he says:

       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.

  Well, all those wonderful letters--and let me thank everyone who is 
engaged in this battle, from Kenneth Starr to the Goldwater Institute, 
and all the conservatives who have gotten involved in this campaign on 
Goodwin's side and all the liberals and all the moderates.
  Here is a man whose family came from Taiwan. They taught him every 
value of family. Goodwin has a beautiful family. They taught him every 
value of hard work, every value of education, every value of fairness 
and justice. Why we would not give this man an up-or-down vote--that is 
all we are asking. No, they bring out the filibuster, and it is going 
to go down hard if this man does not get this opportunity.
  So, Mr. President, this has been an honor for me to stand here for 2 
days to lay out the strong support that Goodwin Liu has, not just from 
the two home State Senators--and let's keep that one in mind, Senators. 
When you and your colleague in your State are backing a nominee, just 
keep in mind, do not ever tell us, well, that does not matter because 
it should matter. He has strong support from the two home State 
Senators, strong support across the political spectrum, strong support 
by community organizations.
  In closing, let me say this: Diversity is important on the bench. Why 
do I say that? I say that because America, we are a melting pot, and we 
are proud of this American dream. But if our court does not reflect 
this diversity, it could still be fair, it could still be just, but not 
as good as if we have a diversity of thought and ethnic diversity.
  The Ninth Circuit--this is interesting. The Ninth Circuit covers an 
area where 40 percent of Asian Americans live. Forty percent of Asian 
Americans live within the Ninth Circuit boundaries, and we do not have 
an Asian American judge.
  Is the Asian American community excited about this nomination? 
Absolutely. Whether they are Republicans--and many of them are--whether 
they are Democrats--and many of them are. I think it is almost like a 
50-50 split in the Asian American community.
  Well, pay attention to this. This is a moment. It should be a moment 
of great celebration. I am fearful--I am fearful--it might not be, but 
I am forever hopeful that it will be. If people listen, and they see 
the breadth of support for this man, and they take politics out of the 
equation and ideology out of the equation, they will vote for ending 
this filibuster, and they will vote for Goodwin.
  I yield the floor.
  Mr. HATCH. Mr. President, I rise in strong opposition to the 
nomination of

[[Page 7471]]

Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.
  As he said at the first hearing before the Judiciary Committee, his 
record is public, and he has written what he has written; he has said 
what he has said.
  That record is what we have to go on, the basis on which we have to 
make a decision about his nomination to the Federal bench or his 
confirmation by the Senate.
  Professor Liu's record endorses a powerful judiciary that can take 
control of the law in general and of the Constitution in particular. 
His activist judicial philosophy is fundamentally at odds with the 
principles on which our system of government is based.
  I examine a judicial nominee's entire record to determine if he is 
qualified by legal experience and, even more important, by judicial 
philosophy.
  As to Professor Liu's legal experience, I know the ABA has rated him 
unanimously ``well qualified.'' That is more than a little baffling 
since the ABA's own criteria state the nominee should have at least 12 
years of actual law and practice and substantial trial experience as a 
lawyer or trial judge. So it is a little bit more than baffling. 
Professor Liu has none of that. None of the actual law practice and 
substantial trial experience as a lawyer--none. Suffice it to say that 
understanding the mysteries of the ABA's judicial nominee ratings has 
eluded me for many years. Sometimes they do a great job. A lot of times 
they do not and politics enter in.
  The more important qualification for judicial service is the 
nominee's judicial philosophy and his understanding of the power and 
the proper role of government in our system of government. Professor 
Liu has been unequivocal about his views on this issue, writing and 
speaking directly about how judges should go about judging. He has 
written and spoken extensively about how judges should interpret and 
apply the law, especially the Constitution, to decide cases.
  The debate about judicial philosophy comes down to this. We can all 
read what the Constitution says. The real question is what the 
Constitution means, where the meaning of its words properly may be 
found. The debate is about who gets the final say on what the 
Constitution means, the people or the judges.
  America's founders clearly took the people's side in this debate. In 
his farewell address in 1796, President George Washington said that the 
very basis of our political system is that the people control the 
Constitution. He said until the people change the Constitution, it is 
sacredly obligatory upon all. That certainly includes, in fact that 
primarily includes, government because that is what the Constitution 
exists to do, to both empower and to limit government.
  The Constitution cannot limit government if it cannot limit judges 
and it cannot limit judges if they control what the Constitution means. 
The Constitution belongs to the people, not to judges.
  President Obama takes the opposite view. When he was a Senator and 
opposed the nomination of Chief Justice John Roberts, one of the 
greatest appellate lawyers in the history of the country--he said that 
judges decide cases based on their deepest values and core concerns, 
their perspective on how the world works, their empathy, and what is in 
their heart. That is what then-Senator Obama said.
  As a Presidential candidate he made the same case to the Planned 
Parenthood Action Fund and said these were the criteria by which he 
would pick judges.
  President Obama certainly kept that campaign promise in the person of 
Professor Goodwin Liu. Professor Liu has written that judges are 
literally on a search for new constitutional meaning. In article after 
article, in speech after speech, he argues that judges on this quest 
for new constitutional meaning may find it in such things as the 
concerns, conditions, and evolving norms of society; social movements 
and practices; and shifting cultural understandings. No matter how you 
cut it, these are simply alternative ways of saying the Constitution 
means whatever judges say it means. This is a blueprint for a judiciary 
that controls the Constitution.
  Professor Liu's approach treats the Constitution as if it were 
written in some kind of code or disappearing ink and treats judges as 
the only ones who have the key to figuring it out.
  Professor Liu, of course, is hardly the only one to make this 
argument. It is pretty standard fare for those who want our 
Constitution to say and mean something other than what it does. When 
these folks want government to have power the real Constitution denies, 
they urge judges to change the Constitution's meaning to be what they 
want. When these folks do not want government to have power the real 
Constitution allows, they urge judges to make up so-called rights that 
are not there at all.
  Whether seeking liberal or conservative political results, this is 
real judicial activism: judges taking control of our law by taking 
control of its meaning; judges remaking the Constitution in their own 
image. In my 35 years of actively participating in the judicial 
confirmation process, I don't recall someone who more forcefully and 
directly advocated such an activist judiciary.
  In a 2008 article published in the Stanford Law Review, for example, 
Professor Liu argued that the judiciary is ``a culturally situated 
interpreter of social meaning.''
  That would be a surprise to America's founders, who had a much more 
pedestrian view of the judiciary, which Alexander Hamilton described as 
the weakest and least dangerous branch.
  Thomas Jefferson warned that if judges could control the 
Constitution's meaning it would be nothing but a lump of wax that 
judges could twist and shape into any form they please. There is no 
room in this modest judicial role for something as grand as 
interpreting social meaning.
  I grant that there are individuals or institutions in our society 
that should play this role. I think elected representative bodies, such 
as the one in which I am proud to serve, should play this role. But the 
last body of people in our society who should play this role of 
culturally interpreting social meaning are judges in whose hands is 
placed the interpretation and application of the supreme law of the 
land.
  I, for one, did not take an oath to support and defend a judge's 
empathy or perspective on how the world works, whether that judge is 
liberal or conservative. I did not take an oath to support and defend a 
judge's view of evolving social norms or shifting cultural 
understandings. I took an oath to support and defend the Constitution 
of the United States, a document that belongs, in its words and its 
meaning, to the people of the United States. The Constitution I have 
sworn to support and defend places limits on government, including 
limits on the judiciary and the people alone have authority to change 
those limits.
  Professor Liu advocated an activist judiciary before he had been 
nominated to the judiciary, but when he came before the Judiciary 
Committee in each of two hearings he painted a very different picture. 
Before his nomination, for example, he wrote in the Stanford Law Review 
that judges must determine ``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.'' After his 
nomination he told the Judiciary Committee that there is no room for 
judges to invent or create new theories.
  Now it is anybody's guess what all of that collective value 
convergence and credible crystallization means. But if that is not a 
new theory, I don't know what it is.
  Before his nomination, Professor Liu wrote directly and forcefully 
about where judges should look for the meaning of the Constitution. He 
made a career of it, received awards for it, and became one of the 
stars of the leftwing legal universe. After his nomination when I 
raised some of his controversial writings at his first hearing, 
Professor Liu told me ``whatever I may have written in the books and 
articles would have no bearing on my role as a judge.''
  At the end of that same hearing last year, Professor Liu told one of 
my

[[Page 7472]]

committee colleagues that ``as you look across my entire record, there 
are many things I think relevant to the kind of judge I would be.''
  Which is it? Before he wants to be a judge he argues that judges can 
find new meaning for the Constitution in changing cultural 
understanding and evolving social norms. After he wants to become a 
judge he tells critics to ignore that record but tells supporters to 
consider that record. This has been about the most stunning 
confirmation conversion I have seen in all my time in the Senate.
  In closing, the fight over judicial nominees is a fight over judicial 
power. Judges must either take the law as they find it, as the people 
and their elected representatives make it, or judges may make the law 
into whatever they want it to be. Those are the two choices. Our 
liberty requires that people to whom the Constitution belongs alone 
have the authority to change it. Our liberty requires judges who will 
be controlled by that Constitution.
  President Obama and Professor Liu instead advocate a judiciary able 
to control the Constitution, to change the Constitution, to literally 
create from scratch a new Constitution. That will destroy our liberty.
  When I look at Professor Liu's record I see he consistently and 
strongly advocates an approach that allows judges to find the meaning 
of the Constitution virtually anywhere they want to. That is the 
opposite of the defined, limited role judges properly have in our 
system of government. I cannot support someone for appointment to the 
Federal bench, especially to what is already the most activist circuit 
in the country, who believes judges should have that much power.
  The Ninth Circuit Court of Appeals is indeed the most activist court 
in the country. It is a court that ignores the law consistently--or at 
least some of the judges on that court. Judge Reinhardt, who is a 
brilliant man by any measure, apparently doesn't even care what the 
words of the Constitution say. He is going to interpret things the way 
he wants. He is just one. There is a whole raft of them there. Judge 
Reinhardt gets reversed almost every time he writes an opinion--by the 
Supreme Court of the United States. The problem is that people can say: 
Isn't that taken care of by the Supreme Court? Yes, it is in those 
individual decisions. But in these circuit courts of appeals there are 
thousands of court cases and legal opinions written that will never be 
considered by the Supreme Court because the Supreme Court only 
considers between 80 and 100 cases a year. But thousands of cases are 
decided by these circuit courts of appeal, so they are important. Who 
we put on them is important, too. We don't need any more judicial 
activists, either from the right or left, interpreting the Constitution 
in accordance with their own predilections rather than what the 
Constitution actually says.
  Goodwin Liu has a long history of positions that are outrageous to 
those of us who want the courts to be what they should be, interpreters 
of the laws, not makers of the law. They are not elected to anything 
and they are appointed for life on the basis that they will do what is 
right and that they will uphold the law regardless of whether they 
agree with it.
  I have to say folks on our side who have listened to Goodwin Liu, we 
know what he stands for and what he has taught in schools. What he has 
written in books and law review articles is contrary to what judges 
should do. I don't care that the American Bar Association has given him 
such a sterling rating.
  This is an important issue. I wish I didn't have to vote against 
Goodwin Liu because I like him personally. In fact, this is not about 
him as a person but whether he will be the right kind of judge. I am 
convinced that he will not and, therefore, I must strongly oppose his 
nomination.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I would like to speak on the Liu 
nomination. I appreciate the good advocacy of Senator Boxer. But I 
would remind her that she and her Democratic colleagues changed the 
ground rules of the Senate and created filibusters that had heretofore 
not been done in early 2001.
  I opposed that, but after much debate, several years in which a half 
dozen fabulous nominees to the courts were being blocked by 
filibusters, the Gang of 14 decided that matter and said: Well, we all 
agree now. We will not filibuster except in extraordinary 
circumstances.
  I think as a matter of law, not as a matter of character and 
personality but as a matter of approach to law, extraordinary 
circumstances exist in this case.
  I have heard my colleague talk about Professor Liu's unusual 
intellectual abilities, his academic career, clerkship on the Supreme 
Court, and his prolific writings--and certainly I do not dispute he is 
a good man and involved in debate about law in America.
  What they fail to mention, however, is his lack of any meaningful 
experience as a practicing attorney. He has never tried a case before a 
jury and has argued only once before a Federal court of appeals--only 
once. This is a very serious shortcoming for a number of reasons, the 
most important of which is the plain fact that significant legal 
experience litigating in court provides insight to someone who would be 
a judge and an understanding that words have meaning and consequences.
  It is a real legal world testing ground in which persons can prove 
their judgment and their integrity and their skill. It also provides a 
maturing experience, where one learns that words have reality and that 
a single word in a deed, a contract, a letter or even an e-mail can 
determine which party receives millions of dollars in a lawsuit or even 
whether they go to jail.
  Seasoned lawyers bring much to the bench, as do judges who have had 
previous experience when they go on to the courts of appeals. This lack 
of litigation experience leaves me with only two sources of how to 
evaluate how this nominee would behave on the bench: his writings, 
which are extensive, and his testimony before the committee, which 
frankly, I thought did not have much value.
  From his writings, one cannot help but see that Mr. Liu has 
extraordinary beliefs about our laws and Constitution, beliefs that 
fall far outside the mainstream. They just do. Professor Liu does not 
believe judges are bound to apply the Constitution according to what it 
actually meant at its drafting or what it plainly says. But he believes 
judges are free to adapt the Constitution according to how they 
perceive the needs of modern society.
  In fact, he has written this:

       Interpreting the Constitution requires adaptation of its 
     broad principles to the conditions and challenges faced by 
     successive generations. The question is not how the 
     Constitution would have been applied at its founding, but 
     rather how it should be applied today in light of changing 
     needs, conditions, understandings of our society.

  This is an untethering of a judge from law, in my opinion. He has 
also written that the Constitution has no fixed meaning. He has written 
that ``our Constitution has shown a remarkable capacity to absorb new 
meaning and new commitments forged from passionate dialogue and debate, 
vigorous dissent and sometimes disobedience.''
  He goes on to say: ``Fidelity to the Constitution requires judges to 
ask not how its general principles would have been applied in 1789 or 
in 1868, but rather how those principles should be applied today in 
order to preserve their power and meaning in light of concerns, 
conditions, and evolving norms of our society.''
  To that, I would disagree and say: Words do have meaning. They mean 
something specific. When they are written down in a statute or a 
Constitution, that meaning does not change by the mere passage of time 
or the mere shifting of political winds or the judge's personal views 
about what may be the concerns, conditions, and evolving norms of our 
society.
  Judges are not empowered to do that. They are not empowered to impose 
their views about the concerns, conditions, and evolving norms of our 
society. Judges are given the power to decide cases and to say what the 
plain

[[Page 7473]]

meaning of the law is. For a judge to believe otherwise is a serious 
threat to the rule of law and to the principles that make this Nation 
great.
  Professor Liu's writings express extreme views about more than 
Constitutional interpretation. His writings have often expressed an 
unorthodox view of the role of a judge. Alexander Hamilton famously 
wrote in the Federalist Paper 78 that:

       The judiciary . . . has no influence over either the sword, 
     the purse; no direction either of the strength or of the 
     wealth of the society; and can take no active resolution 
     whatever. It may truly be said to have neither force nor 
     will, but merely judgment.

  Frankly, having read his writings and listened to his testimony, for 
all his great capabilities and fine character, I have concluded that he 
indeed lacks the most essential quality of a judge; that is, good 
judgment, proven in the practice of law or as a previously appointed 
judge.
  I agree with the role of a judge as envisioned by Chief Justice 
Marshall when he wrote: ``It is emphatically the province and duty of 
the Judicial Department to say what the law is.''
  I think Chief Justice Roberts perfectly summed up the role of a judge 
as the Founders saw it, as we have been raised to understand it, when 
he said that a judge should be a neutral umpire who calls the balls and 
strikes without preference for either side.
  But Professor Liu does not agree with that analogy. He attacked Chief 
Justice Roberts. He does not argue that the task of judges is to read 
the words of the Constitution according to their original meaning. 
Instead he has written that:

       The historical development and binding character of our 
     constitutional understanding demand more complex explanations 
     than a conventional account of the courts as independent, 
     socially detached decision makers that say what the law is. 
     The enduring task of the judiciary . . . is to find a way to 
     articulate constitutional law that the nation can accept as 
     its own.

  This is utterly wrong. That view cannot be accepted because it calls 
for a judge to ponder, to seek, to render a decision that is popular or 
fits the judge's own values. Most certainly such a decisionmaking 
method is not law. It is not objective. It is subjective. It allows a 
judge to base rulings on factors that are incapable of being a 
standard. It introduces politics, ideology, religion, and whatever else 
may be in a judge's mind in a decisionmaking process. That is contrary 
to the entire history of the American rule of law that served us so 
well.
  Mr. Liu has also written that ``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.'' These words 
describe a policymaker not a judge.
  Professor Liu's writings also show he does not share our Founding 
Fathers' vision in many different areas. He does not see the 
Constitution as a charter of freedom from government interference. 
Instead, he argues that portions of the Constitution create positive 
rights to welfare benefits. He attempts to derive all these rights from 
the citizenship clause of the fourteenth amendment.
  That clause reads simply this: ``All persons born or naturalized in 
the United States and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside.''
  It may be difficult to determine exactly what some of the words mean 
in the Constitution. However, our language has not changed so much that 
these words could possibly be read to mean that all Americans have a 
right to various benefits, such as--this is what Mr. Liu has written:

       . . . expanded health insurance, child care, transportation 
     subsidies--

  I kid you not--

     job training and a robust earned income tax credit.

  That is what he has written in several important law journals; not 
remarks in a casual conversation. He has written in law journals. He 
writes that word ``citizenship'' does not mean citizenship in that 
clause but rather ``the ability to be a fully able participating member 
of society.''
  The Constitution did not say that. The citizenship clause simply made 
a person a citizen. His article asserts that education, health 
insurance, childcare, transportation subsidies, job training, and 
presumably other welfare benefits we might need are constitutional 
rights because the citizenship clause ultimately requires equality of 
results in those contexts.
  He asserts that the judge's role is to ensure such a result is 
achieved, even if the legislature may not so find. That is like no 
definition of citizenship I have ever heard. Professor Liu's 
interpretation of the citizenship clause is so far disconnected from 
the actual text of the document and what the people meant when they 
ratified it that it would be unrecognizable to those who drafted it.
  Some of Professor Liu's supporters have said--as he did before the 
committee--that his argument about the citizenship clause was directed 
only at Congress, the legislative branch, executive branch, and it was 
never meant for judges. That simply does not square with what he wrote, 
and we have researched this and tried to be fair to him.
  In 2008, Professor Liu published an article entitled ``Rethinking 
Constitutional Welfare Rights.'' Constitutional welfare rights. In that 
article, he set out to make--as he said--``a small step toward 
reformation of thought on how welfare rights may be recognized through 
constitutional adjudication.''
  That means by judges. Judges do adjudication. In that same article, 
Professor Liu argued that, once a legislative body creates a welfare 
program, it is the role of the courts--he said the courts--to determine 
the community meaning and purpose of that welfare benefit, in light of 
the needs of ``equality'' and ``national citizenship.''
  Professor Liu explicitly stated that when necessary, courts should 
recognize or expand these welfare rights by ``invalidating statutory 
eligibility requirements''--this is his language he wrote--``by 
invalidating statutory eligibility requirements''--that means welfare 
eligibility requirements--``or strengthening procedural protections 
against the withdrawal of benefits.''
  In other words, Professor Liu believes judges have the right and, 
indeed, the duty, to rewrite laws written by Congress when they think 
those laws are inadequate or when the judge, without the traditional 
limits of legal standards, decides the case on what the judge thinks is 
fair.
  This truly is a dangerous, nonlegal philosophy. His writings also 
show he holds a number of views on some of the most controversial 
topics of our day that are extreme.
  He believes the longstanding definition of marriage as between a man 
and a woman is unconstitutional. He filed a brief, with other law 
professors in the California case, on that subject. We asked him about 
that at the hearing. Frankly, his answer was not satisfactory, in the 
sense that he said he was only referring to California law, when, in 
fact, his brief cited the U.S. Constitution, which has similar 
language.
  He also made statements that raise questions as to his temperament. 
He was very nice at our hearing. We have heard nice things said about 
him. I just ask if you consider these nice comments he made about Chief 
Justice Roberts, for example. He said that Chief Justice Roberts has 
``a vision for American law--a right-wing vision antagonistic to 
important rights and protections we currently enjoy.'' He criticized 
him for being a member of 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 all Mr. Liu's words. He considers those improper goals and 
says, ``These are code words for an ideological agenda hostile to 
environmental, workplace, and consumer protections.''
  Give me a break. With respect to Justice Alito--a fabulous member of 
the Supreme Court, who is so experienced, so much more seasoned as a 
nominee than this nominee comes close to being--he went even further, 
appearing in person before the Judiciary Committee to testify that 
Justice Alito

[[Page 7474]]

``envisions an America where police may shoot and kill an unarmed boy 
to stop him from running away with a stolen purse; where Federal agents 
may point guns at ordinary citizens during a raid, even after no sign 
of resistance; where a black man may be sentenced to death by an all-
white jury for killing a white man; and where police may search what a 
warrant permits, and then some.''
  When asked about that in committee, he acknowledged that was 
unnecessarily colorful language. Nobody should say that kind of thing. 
It was an intemperate remark and was unfair to Justice Alito.
  Thus, I have concluded that the nomination presents an extraordinary 
circumstance that requires me to oppose cloture on the nomination, 
which I am reluctant to do. I have voted against some nominees, but I 
have voted for probably 90 percent of President Obama's and President 
Clinton's nominees while I have been in the Senate. But this nominee, I 
believe, represents an extraordinary circumstance. His record reveals 
that he believes the Constitution is a fluid, evolving document, with 
no fixed meaning; that he believes the role of a judge is to 
participate in a ``dialogue'' with the legislature about what welfare 
benefits are required by the Constitution, and that the traditional 
definition of marriage is unconstitutional. His record also reveals he 
is willing to use the courts in order to achieve what he thinks is the 
proper level of social welfare benefits, and that he is willing to 
attack the integrity and distort the records of honorable judges in 
order to promote his views of what he thinks the Constitution should 
require.
  I do believe our Senate would have done better not to have had 
filibusters. That was my view. But we had a debate on that, and it 
changed. If Senator Boxer and other Democrats now have rethought that 
matter and wish to talk to me, I would certainly be willing to consider 
restoring the traditional view of the Senate regarding filibusters of 
judges. I don't think that is likely to happen, because it was done 
systematically and deliberately, with great deliberation and 
determination by the Democrats in 2001, I believe, and they imposed 
that change on the Senate. That is what we are operating under today.
  Based on that, I do believe Professor Liu should not be confirmed.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mrs. Hagan). The Senator from Texas is 
recognized.
  Mr. CORNYN. Madam President, I join my colleague from Alabama, who 
has served for a long time on the Senate Judiciary Committee, as have 
I, in voicing my strong opposition to this nominee.
  It is odd, it seems to me, to have someone who has actually been 
nominated three separate times by this President, and I think it tells 
us something about the President's determination to nominate and see 
confirmed someone who is unsuited for service as a Federal judge.
  In saying that, it doesn't mean they don't have rights to speak 
freely about their strongly held views. They do. That is what we do 
here in the legislative branch. That is not what we expect out of a 
life-tenured judge. We expect judges to be impartial, to render 
justice, and to decide cases, not to be roving policymakers making the 
country into their image of what it should be. We cannot vote for these 
judges. Judges are appointed and they serve for a lifetime. In return 
for that lifetime appointment and that protection from the sort of 
accountability that other elected officials are required to have, we 
understand and our Constitution provides, that they have a limited but 
important role, and that is to apply the law as written, apply the 
words of the Constitution as written, and not to sort of make it up as 
you go along or to dream up new rights along the way that are not 
subject to a vote of the American people, or subject to an election.
  Based upon nearly everything that Mr. Liu, Professor Liu, has written 
or said, I have some very serious concerns about his impartiality and 
suitability to serve as a life-tenured judge. My concerns start with 
his lack of judicial temperament.
  During the confirmation hearings of Justice Sam Alito, who is now on 
the U.S. Supreme Court, Mr. Liu went out of his way to testify under 
oath before the Senate Judiciary Committee in a way I can only describe 
as vicious and disgraceful. This is what he said:

       Judge Alito's record envisions an America where police may 
     shoot and kill an unarmed boy to stop him from running away 
     with a stolen purse; where Federal agents may point guns at 
     ordinary citizens during a raid, even after no sign of 
     resistance; where the FBI may install a camera where you 
     sleep on the promise that they won't turn it on unless an 
     informant is in the room; where a black man may be sentenced 
     to death by an all-white jury for killing a white man, absent 
     a multiple regression analysis showing discrimination; and 
     where police may search where a warrant permits, and then 
     some.

  I humbly submit this is not the America we know, nor is it the 
America we aspire to be. These were the words of a person who President 
Obama has, three times, nominated to serve on the Ninth Circuit Court 
of Appeals, one of the highest courts in the land, which is expected to 
dispassionately decide cases without fear, favor, or any preconceived 
notion about the outcome. I think these words, perhaps more than 
anything else, demonstrate Professor Liu's nonsuitability to serve as a 
Federal judge. These were not an off-the-cuff set of remarks or a 
temporary lapse in judgment; they were a product of carefully scripted 
and prepared testimony provided to the Senate Judiciary Committee 
during the Alito hearings.
  Despite Professor Liu's comments, Justice Alito was confirmed with 
bipartisan support. During his failed confirmation process last year, I 
asked Professor Liu that, if given the opportunity, would he change 
anything about his remarks about Justice Alito. In response, Mr. Liu 
claimed that he regrets having written that passage, calling it 
``unduly harsh and provocative.''
  Well, Professor Liu waited 4 years to provide that semi-apology to 
Justice Alito for these shameful remarks. Like so many nominees who 
come before the Senate Judiciary committee, they seem to undergo a 
nomination conversion that changes the tone and nature of their remarks 
and attitudes. Frankly, we cannot depend on this conversion sticking. 
We need greater assurance that the nominees who come before the Senate 
are going to exercise a sort of dispassionate judgment that we expect 
of judges.
  Frankly, Professor Liu has shown himself capable of incredibly poor 
judgment--and not just one time. After Chief Justice Roberts was 
nominated to the Supreme Court, Mr. Liu again went out of his way to 
criticize then-Judge Roberts. He argued that Justice Roberts' record 
``suggests that he has a vision for American law--a right-wing vision--
antagonistic to important rights and protections that we currently 
enjoy, and that he is not afraid to flex judicial muscle to achieve 
it.''
  In that same article, he attacked Justice Roberts' membership in the 
National Legal Center for Public Interest, calling its mission to 
promote free enterprise, private property, and limited government--he 
called those code words for an ideological agenda hostile to the 
environment, workplace, and consumer protections.
  So Professor Liu considers free enterprise, private property, and 
limited government code words for an ideological agenda hostile to the 
environment, workplace, and consumer protections. That is what he said. 
Is that the kind of person we want, the Senate should want, or that 
America should want to sit in judgment, enforce our Constitution and 
laws passed by the Congress? Well, I think not.
  Yet, in another dramatic nomination conversion during his failed 
nomination process last year, Professor Liu responded to my written 
questions by calling this statement a ``poor choice of words.''
  There are several more examples of Professor Liu's lack of judicial 
temperament. His record is already crystal clear. It is one thing for 
Professor Liu to disagree with a person--we do that every day on the 
floor of the Senate, in committee, and around the country,

[[Page 7475]]

across kitchen tables in our homes--but it is quite another to 
repeatedly engage in these types of inaccurate and, frankly, disgusting 
attacks against a public official trying to do their job the way they 
think it should be done. For Professor Liu to only reflect upon his 
statements once he is offered a life-tenured judgeship on the court of 
appeals is unacceptable.
  Given his lack of experience as a practicing lawyer, obviously his 
lack of experience as a judge, never having served as a judge, it is 
impossible for me to trust his assurances that now all of a sudden he 
will calmly and impartially apply the law as written by Congress or as 
written in the Constitution of the United States.
  I would cite just one other example of my experience on the Judiciary 
Committee, this one involving now Justice Sonia Sotomayor. Justice 
Sotomayor is a charming woman. She came into the Senate Judiciary 
Committee hearings and won over many people who were, frankly, a little 
skeptical of her nomination based on some of her previous writings and 
speeches. But I remember one particular question, she was asked whether 
she accepted as an individual right the guarantee in the second 
amendment of the Constitution the right to keep and bear arms, and she 
said she did. She accepted a decision in a case called the Heller case 
that said that was an individual right of a citizen.
  A few months later, in a case called McDonald v. Chicago, she wrote a 
dissenting opinion from a Supreme Court decision where she said the 
right to keep and bear arms is not a fundamental right.
  You can parse the words, ``an individual right,'' ``a fundamental 
right,'' but to me it is clear that Justice Sotomayor, during her 
confirmation hearings, tried to parse the words in a way so as not to 
raise alarms about her commitment to the Bill of Rights and the second 
amendment to the Constitution. But then once she was confirmed as a 
judge on the Highest Court in the land--of course, she serves for life 
with no accountability either to Congress or to the voters, and she, 
indeed, serves with impunity, even though her testimony before the 
committee and her decisions, once on the Court are inconsistent.
  We just cannot take a chance that Professor Liu has somehow had a 
true conversion in his views and his attitudes during the nomination 
process.
  Aside from his questionable temperament, Professor Liu's activist 
views of the law are equally troubling. In his book called ``Keeping 
Faith with the Constitution,'' Professor Liu summarizes activist 
philosophy in this way. He said:

       Fidelity to the Constitution requires judges to ask not how 
     its general principles would have applied in 1789 or 1868, 
     but rather how those principles should be applied today in 
     order to preserve their power and meaning in light of the 
     concerns, conditions, and evolving norms of our society.

  What does that mean? Does that mean the words on the page do not 
necessarily mean what they say; that a judge is going to somehow 
subjectively read into those words what the evolving norms of our 
society are and to change an outcome to decide a case, to decide what 
our Constitution means based on their subjective impression of those 
words and what evolving norms in society means?
  That is sometimes called a doctrine of believing in a living 
Constitution; that the words on the page are mutable or changeable and 
can morph over time and mean different things based on a judge's 
interpretation of what those evolving norms are. To me, that is a 
license to lawlessness. It is a license for a judge--an unelected, 
lifetime-tenured individual who takes an oath to uphold the 
Constitution and laws of the United States--that is untethered to any 
concept of what the law means, something that can be applied with equal 
application to every man, woman, and child in America and gives a judge 
a chance to impose their political or ideological views on what the 
Constitution means. That is dangerous, it is lawless, and it is not 
upholding the Constitution that we, even as Members, swear to uphold in 
our different jobs as policymakers.
  Particularly troubling for Professor Liu is his controversial and, I 
would say, ridiculous view that our Constitution somehow guarantees a 
European-style welfare state. We are engaged in a very important debate 
on the floor of the Senate, and during the course of this vote on the 
debt ceiling--which I suppose we will have sometime in July, or not--
with whether we are going to continue to be an opportunity society or 
whether we have become an entitlement society, a welfare state.
  Professor Liu, in his article, ``Rethinking Constitutional Welfare 
Rights,'' has argued that the Constitution includes an ``affirmative 
right to health insurance, childcare, transportation subsidies, job 
training, and a robust earned-income tax credit.''
  I must have missed that in my copy of the Constitution. I do not 
remember the Founding Fathers writing in the Constitution, nor the 
States ratifying language in the Constitution, that guarantees a right 
to a robust earned-income tax credit. When Senator Sessions gave 
Professor Liu the opportunity to clarify his views in April 2010, he 
replied:

       I do believe that, Senator. But those arguments are 
     addressed to policymakers, not the courts.

  I think Professor Liu is being disingenuous, and I am trying to be 
charitable. When he says the Constitution includes these rights but 
says those arguments are addressed to policymakers, not the courts, he 
is denying that a court that might agree with him might enforce those 
rights as a matter of constitutional law. This is not just addressed to 
policymakers. That is not being honest. I do not blame him if he has an 
honestly held view about these matters. I would welcome candor in 
expressing those strongly held views. But they are views more 
appropriately expressed in the court of public opinion where we debate 
the values and meaning of our laws and what kind of country we want 
this to be, not in people who want to be judges and impose those views 
as a matter of judgment in an individual case, transforming the written 
Constitution into something completely different than what each of us 
can read on a printed page or what we learned in school our 
Constitution actually means.
  In other words, Professor Liu believes the Constitution contains an 
unenumerated list of goods and services, such as free health insurance, 
daycare, and bus passes that Federal legislators must provide to every 
citizen.
  It is not difficult to see how an activist judge might one day use 
Professor Liu's theory to force Congress to provide for these lavish 
welfare benefits, even though our country faces a historic debt crisis, 
as we do now. What is more, Professor Liu has suggested that under his 
view of the Constitution, it may be unconstitutional to repeal certain 
welfare programs once they are enacted.
  For example, in ``Rethinking Constitutional Welfare Rights,'' 
Professor Liu wrote that legislation may give rise to a cognizable 
constitutional welfare right if it has ``sufficient ambition and 
durability, reflecting the outcome of vigorous public contestation and 
the considered judgment of a highly engaged citizenry.''
  That is a mouthful. What he is saying is, once the legislature passes 
a law, the legislature has no power to repeal that law because it 
somehow then is transformed into a constitutional right and beyond the 
power of Congress to change. That is radical.
  Professor Liu's writings also have suggested his unconventional 
belief that the death penalty is unconstitutional, that same-sex 
marriage is a constitutional right, and that it is appropriate for 
judges to consider foreign law when reaching their legal conclusions 
about what American law means.
  Taken as a whole, Professor Liu's record demonstrates that he would 
use his position as a Federal judge to advocate his ideological 
theories and undermine the well-settled principles of the U.S. 
Constitution. That is simply unacceptable to me. I think it should be 
unacceptable to the Senate.
  Given his lack of temperament, his poor judgment, and his activist 
view of

[[Page 7476]]

the role of judges and the law, I am left with no choice but to fight 
Professor Liu's confirmation with every tool at my disposal.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. Madam President, I rise today to continue to express my 
views in support of the nomination of Professor Goodwin Liu, a nominee, 
as you know, to the Ninth Circuit Court of Appeals. Much has been said 
on the Senate floor in recent hours, and I rise to offer my comments on 
some of the concerns that are being debated.
  For once, it is great to actually hear debate on the floor of this 
Chamber. I have been here, as you know, Madam President, just 6 months. 
As someone who is new to the Judiciary Committee, new to the debates 
and dialog of this Chamber, I am struck at the things I am hearing 
about Professor Goodwin Liu and the significant divergence between what 
I have found in questioning him, looking at his record, and speaking 
with my colleagues and what I have heard on the floor just today.
  I will do my best to try and lay out what I see as the real record of 
the real Professor Goodwin Liu, a nominee to the Ninth Circuit Court of 
Appeals.
  Some have come to the floor today and argued that Professor Liu lacks 
the candor or the temperament to serve on a circuit court. As someone 
who clerked for the Third Circuit Court of Appeals for a distinguished 
judge, I will suggest something that I think is commonplace, which is 
that candor and an appropriate temperament are critical to service on a 
circuit court of appeals.
  A lot of these charges raised against Professor Liu seem to center on 
a few comments that Professor Liu made during the nomination hearing 
for now-Justice Alito or some purported deficiencies in his disclosures 
to the Judiciary Committee. Let me speak briefly to both of those, if I 
may.
  Professor Liu has apologized at length and in detail for the 
intemperate tone of one brief passage that he wrote as part of his 
testimony before the Judiciary Committee during the Alito nomination 
hearings now some 6 years ago. I take this apology at face value. I 
take his expression of regret at the tone at face value. But anyone who 
has taken the time to meet him, to interview him, to question him, I 
think has to conclude that despite this one brief episode of the use of 
intemperate language, he is not an intemperate person.
  In fact, the American Bar Association, as my colleague, Senator 
Boxer, pointed out previously today, specifically considered Professor 
Liu's temperament when it gave him its highest rating of ``unanimously 
well qualified'' in the recommendation for his consideration by this 
body.
  Let me next turn briefly to claims about candor before the committee 
which I believe are equally unfounded. He has, in fact, testified 
before the Judiciary Committee for a total of 5 hours and answered 
hundreds of questions and requests for additional information. He has 
been sharply criticized for missing some documents from his initial 
response to what is a searching committee questionnaire.
  I will comment for those following this debate that Professor Liu has 
been a prolific scholar and speaker. He is someone who has published 
extensively. He is someone who has spoken extensively. He is the first 
controversial circuit court nominee to have his nomination take place 
not just in the computer age but in the YouTube age when a combination 
of cell phones and video recorders have literally made a record of 
every bag lunch, every 5-minute speech, every off-the-cuff remark made 
by this nominee before us.
  The argument that his need to supplement the record with some 
documents not initially produced and that somehow that reflects some 
lack of candor, and somehow that suggests a lack of truthfulness that 
should disqualify him not for a vote but not even for a consideration 
of a vote is wholly without merit.
  As the White House Chief Ethics Counsel under President Bush, Richard 
Painter, has written: Professor Liu's ``original answers to the 
questions''--asked by the Judiciary Committee--``was a careful and 
good-faith effort to supply the Senate with the information it needed 
to assess his nomination.''
  It means a great deal to me that someone such as Mr. Painter 
concluded that Professor Liu provided a lot more information than most 
nominees do in similar circumstances. Frankly, it seems to me 
overreaching to try to suggest that simply because in the YouTube age 
this professor, who provided us with hours of testimony, pages of 
responses, failed to notice the committee about some brown bag lunches 
and off-the-cuff comments rises to the standard of justifying a 
filibuster.
  Let me next turn to the suggestion that he is insufficiently 
qualified to hold the position of circuit judge--an important concern, 
because we want judges of judicial temperament, of openness and candor 
and good character, and also those who are sufficiently experienced. As 
I said a moment ago, the American Bar Association, after conducting a 
confidential and comprehensive review of his qualifications, concluded 
he was ``unanimously well-qualified''--its highest possible rating.
  In previous nomination debates, Senators of this body, Senators of 
the other party, have touted the ABA rating as a comprehensive and 
exhaustive evaluation that provides valuable insight that ought to be 
trusted. Several Members of this body--several Senators--including some 
who spoke immediately before me have made those exact references to the 
value of the ABA rating process. Reasonable minds may be able to differ 
on the margins, but it is not credible, in my view, to claim a 
candidate with Professor Liu's remarkable legal education, long record 
of public service and experience, and the ABA's highest rating is not 
qualified to serve on a circuit court.
  The charges or suggestions that Professor Liu is unqualified because 
he is young or because he lacks significant courtroom experience are 
also hollow and one-sided when we look at the real record. Since 1980, 
14 nominees younger than Professor Liu--advanced by Republican 
Presidents--have all been confirmed. For example, Judge Neil Gorsuch, 
on the Tenth Circuit, was 38 when nominated; Judge Brett Kavanaugh, an 
acquaintance and, I would say, friend of mine from law school--now on 
the DC Circuit--was 38 when nominated; and now-Justice Samuel Alito was 
39 when nominated to the Third Circuit.
  Republican nominees with similar or lesser practical courtroom 
experience than Professor Liu have also been nominated and confirmed. 
Circuit Court Judge Frank Easterbrook and J. Harvie Wilkinson were both 
under 40 when nominated without any practicing legal experience at all. 
Yet this lack of practical experience didn't prevent either of these 
judges from becoming the most well respected and widely regarded in 
their circuits.
  I would ask my colleagues to seriously consider looking instead at 
the standard that was applied when a similarly controversial professor 
came before this body. I was not here at the time, but I understand 
from the record that Democratic Senators approached the nomination of 
Michael McConnell, President George W. Bush's nominee to the Tenth 
Circuit, in a way that was generous and that accepted at face value 
some of his assertions.
  Like Professor Liu, Professor McConnell was a widely regarded law 
professor who was nominated to a Federal appeals court without having 
first served as a judge. Many Democratic Senators at the time had 
concerns about Professor McConnell's conservative writings, which 
included strong opposition to Roe v. Wade, congressional testimony that 
the Violence Against Women Act was unconstitutional, and harsh 
criticism of the Supreme Court's 8-to-1 decision in the Bob Jones case. 
Despite these positions--which one could argue are at the outer edge, 
even the extreme of the legal canon at the time--Professor McConnell 
was confirmed, not after a filibuster, not after a long series of 
grinding nomination hearings and public discourse, but Professor 
McConnell was confirmed by voice vote of this

[[Page 7477]]

Chamber 1 day after his nomination was confirmed by the Judiciary 
Committee.
  In supporting Professor McConnell's nomination, Democratic Senators 
at the time credited his assurances that he understood the difference 
between the role of law professor and judge and that he respected and 
would follow precedent. In my view, the Senators of this body should 
credit similar assurances that Professor Liu has provided during his 
confirmation hearings and that Professor Liu has provided to me in an 
individual interview in answer to hundreds of written questions from 
members of the committee as well as in answer to challenges presented 
here.
  Let me next turn to some challenges or concerns that have been raised 
about Professor Liu's view on education. A bipartisan group of 22 
leaders in education law, policy, and research have written to support 
Professor Liu's nomination and to highlight his scholarship and 
reputation in the field of education law and policy. They wrote:

       Based on his record, we believe Professor Liu is a careful, 
     balanced, and intellectually honest scholar with outstanding 
     academic qualifications and the proper temperament to be a 
     fair and disciplined judge.

  Later, they wrote in this letter:

       His work is nuanced and balanced, not dogmatic or 
     ideological.

  Madam President, I ask unanimous consent to have printed in the 
Record the letter to which I just referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   March 23, 2010.
     Re Federal Judicial Nomination of Goodwin H. Liu, U.S. Court 
         of Appeals for the Ninth Circuit.

     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: We are a 
     bipartisan group of 22 leaders in education law, policy, and 
     research who support the nomination of Professor Goodwin Liu 
     to be a judge on the U.S. Court of Appeals for the Ninth 
     Circuit. Your committee will undoubtedly receive much 
     commentary about Professor Liu's scholarly work in 
     constitutional law. We write to highlight his scholarship and 
     reputation in the field of education law and policy. 
     Collectively, we have read his work in this area; we have 
     seen him speak at many panels and conferences; and some of us 
     have worked closely with him on research projects or on 
     policy issues when he served in the U.S. Department of 
     Education. Based on his record, we believe Professor Liu is a 
     careful, balanced, and intellectually honest scholar with 
     outstanding academic qualifications and the proper 
     temperament to be a fair and disciplined judge.
       Professor Liu is one of the nation's leading experts on 
     educational equity. His scholarly work on topics such as 
     school choice, school finance, desegregation, and affirmative 
     action is unified by a deep and abiding concern for the needs 
     of America's most disadvantaged students. In analyzing 
     problems and proposing solutions, Professor Liu's writings 
     are thorough, pragmatic, and scrupulously attentive to facts 
     and evidence. His work is nuanced and balanced, not dogmatic 
     or ideological. For example:
       He has argued for more resources for low-performing schools 
     while also advocating greater opportunities, including school 
     vouchers, to enable disadvantaged students to choose better 
     schools.
       He has argued for greater equity in school finance while 
     also urging reforms that would loosen regulations and 
     increase local control over spending decisions.
       He has praised the No Child Left Behind Act for focusing 
     education policy on achievement outcomes and inequities while 
     also urging reforms to ameliorate the Act's unintended 
     negative consequences.
       He has argued that the Fourteenth Amendment guarantee of 
     national citizenship encompasses a duty to provide adequate 
     education while emphasizing that the responsibility for 
     enforcement belongs to Congress, not the judiciary.
       He has written in support of affirmative action while also 
     emphasizing that affirmative action primarily benefits 
     middle- and high-income minorities and does not do enough to 
     promote socioeconomic diversity.
       We do not necessarily agree with all of Professor Liu's 
     views. But we do agree that his record demonstrates the 
     habits of rigorous inquiry, open-mindedness, independence, 
     and intellectual honesty that we want and expect our judges 
     to have. His writings are meticulously researched and 
     carefully argued, and they reflect a willingness to consider 
     ideas on their substantive merits no matter where they lie on 
     the political spectrum. Moreover, we are confident in 
     Professor Liu's ability to decide cases based on the facts 
     and the law, regardless of his policy views. His scholarship 
     amply demonstrates that kind of intellectual discipline, and 
     our high regard for his work is widely shared. Indeed, the 
     Education Law Association selected Professor Liu in 2007 to 
     be the first-ever recipient of the Steven S. Goldberg Award 
     for Distinguished Scholarship in Education Law.
       In short, Professor Liu is exceptionally qualified to serve 
     on the federal bench. He would make an outstanding judge, and 
     we urge his speedy confirmation.
           Sincerely,
       Cynthia G. Brown, Vice President for Education Policy, 
     Center for American Progress Action Fund.
       Michael Cohen, President, Achieve, Inc.; Assistant 
     Secretary for Elementary and Secondary Education, U.S. 
     Department of Education, 1999-2001.
       Christopher T. Cross, Chairman, Cross & Joftus LLC; 
     Assistant Secretary for Educational Research and Improvement, 
     U.S. Department of Education, 1989-91.
       Linda Darling-Hammond, Charles E. Ducommun Professor of 
     Education, Stanford University.
       James Forman Jr., Professor of Law, Georgetown University 
     Law Center; Co-Founder and Board Chair, Maya Angelou Public 
     Charter School.*
       Patricia Gandara, Professor of Education and Co-Director of 
     The Civil Rights Project/Proyecto Derechos Civiles, UCLA.
       James W. Guthrie, Senior Fellow and Director of Education 
     Policy Studies, George W. Bush Institute.
       Eric A. Hanushek, Paul and Jean Hanna Senior Fellow, Hoover 
     Institution, Stanford University.
       Frederick M. Hess, Director of Education Policy Studies 
     American Enterprise Institute.
       Paul Hill, John and Marguerite Corbally Professor and 
     Director of the Center on Reinventing Public Education, 
     University of Washington.
       Richard D. Kahlenberg, Senior Fellow, The Century 
     Foundation.*
       Joel I. Klein, Chancellor, New York City Department of 
     Education; Assistant Attorney General, Antitrust Division, 
     U.S. Department of Justice, 1997-2001.
       Ted Mitchell, President and Chief Executive Officer, 
     NewSchools Venture Fund.
       Gary Orfield, Professor of Education, Law, Political 
     Science, and Urban Planning and Co-Director of The Civil 
     Rights Project/Proyecto Derechos Civiles, UCLA.
       Michael J. Petrilli, Vice President for National Programs 
     and Policy, Thomas B. Fordham Institute; Research Fellow, 
     Hoover Institution, Stanford University; Associate Assistant 
     Deputy Secretary, Office of Innovation and Improvement, U.S. 
     Department of Education, 2001-05.
       Richard W. Riley, Partner, Nelson Mullins Riley & 
     Scarborough LLP; U.S. Secretary of Education, 1993-2001; 
     Governor of South Carolina, 1979-87.
       Andrew J. Rotherham, Co-Founder and Publisher, Education 
     Sector.
       James E. Ryan, William L. Matheson & Robert M. Morgenthau 
     Distinguished Professor of Law, University of Virginia School 
     of Law.
       William L. Taylor, Chairman, Citizens' Commission on Civil 
     Rights.
       Martin R. West, Assistant Professor of Education, Harvard 
     University.
       Judith A. Winston, Principal, Winston Withers & Associates, 
     2002-2009; General Counsel, U.S. Department of Education, 
     1999-2001, 1993-97.
       Bob Wise, President, Alliance for Excellent Education; 
     Governor of West Virginia, 2001-2005; Member, U.S. House of 
     Representatives, 1983-2001.
       (*affiliation listed for identification purposes only)

  Mr. COONS. Madam President, during his confirmation hearings, 
Professor Liu said this, in testifying before 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.

  Professor Liu also stated to the committee:

       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.

  These two statements, which reflect Professor Liu's testimony to the 
committee, are well within the mainstream.
  Professor Liu has written and spoken about his support for diversity 
in public schools and, in my view, there is nothing extreme in this 
view. Ever since Brown v. Board of Education was decided by a unanimous 
Supreme Court in 1954, the Supreme Court of the United States has 
recognized the legitimacy of State action to desegregate schools.
  In fact, the Supreme Court upheld the use of race as one factor in 
admissions decisions in the 2003 case of

[[Page 7478]]

Grutter v. Bollinger. Although some on the far right of the Supreme 
Court have argued that both Brown and Grutter should be disregarded to 
the extent they recognize the permissibility of efforts to achieve 
diversity in public institutions, it is, I would argue, those Justices 
who are out of step with the mainstream of Federal jurisprudence and of 
the constitutional tradition of this country.
  Even in its most recent case on point, the 2007 decision in Parents 
Involved v. Seattle School District, which struck down a specific 
desegregation program, five of the nine Justices who made up the 
majority agreed with Liu that achieving diversity remains a compelling 
governmental interest.
  The notion that somehow Professor Liu is an idealog on these issues 
is belied by his actual record. As a scholar, Professor Liu has 
supported market-based reforms to promote schoolhouse diversity--
reforms that are often labeled conservative. Professor Liu believes, 
and has written in support of, school choice and school vouchers, 
stating they have a role to play in improving educational opportunities 
for disadvantaged children. He has publicly advocated for these 
programs on a nationwide scale, earning praise from conservatives in 
the process.
  Clint Bolick, director of the conservative Goldwater Institute--
referred to previously by my colleague, Senator Boxer--has written:

       I have known Professor Liu . . . since reading an 
     influential law review article he coauthored . . . supporting 
     school choice as a solution to the crisis of inner-city 
     public education. It took a great deal of courage for [him] 
     to take such a strong public position . . . I find Professor 
     Liu to exhibit fresh, independent thinking and intellectual 
     honesty.

  He closes his letter by saying:

       He clearly possesses the scholarly credentials and 
     experience to serve with distinction on this important court.

  Professor Liu has, in my view, made very clear that he understands 
the difference between being a law professor, a scholar and advocate, 
and a judge. He has assured us during his nomination hearings before 
the committee and again in personal conversations with me he would 
follow the court's precedent if confirmed. During his confirmation 
hearings Professor Liu testified to our committee:

       [I]f 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, I would apply 
     the applicable precedents to the facts of each case.

  As I said before, and I will say again, I believe this quote from 
Professor Liu deserves exactly the same weight and deference and 
confidence as similar assertions by then-Professor McConnell, now 
Circuit Court Judge McConnell, when he was confirmed by voice vote in 
this Chamber. To speak otherwise is to do violence to the tradition of 
deference to those who give sworn testimony, to hearings, and to the 
deliberations of this body.
  Last, let me turn to some points that were raised recently about 
whether Professor Liu believes Americans have a constitutional right to 
welfare benefits, such as education, shelter, or health care; and, if 
confirmed, would somehow declare those constitutional rights from the 
bench.
  Professor Liu has authored, as I have said, many different Law Review 
articles, and in one, the 2008 Stanford Review Article, entitled, 
``Rethinking Constitutional Welfare Rights,'' he, in fact, criticized 
another scholar's assertion from a 1969 article that courts should 
recognize constitutional welfare rights on the basis of a so-called 
``comprehensive moral theory.'' Professor Liu rejected that.
  In 2006, he penned a Yale Law Review article that argued the 14th 
amendment authorizes and obligates Congress to ensure a meaningful 
floor of educational opportunity.
  His record is replete with sources that make it clear Professor Liu 
respects and recognizes the role of this body--of Congress--and the 
role of the Supreme Court in establishing, interpreting, and applying 
both precedent and constitutional theory, and that he accepts, 
acknowledges, and will respect the very real limits on a circuit court 
judge in innovating in any way.
  Madam President, in closing, allow me to simply share with you and 
the Members of this body that--new to this body, new to the fights that 
have divided this Chamber and have deflected real deliberation on 
nominees to circuit courts and the Supreme Court--I have taken the time 
to review his writings, to interview him individually, to attend the 
nomination hearing, and have come to the conclusion that candidate, 
nominee Professor Goodwin Liu is a qualified, capable, competent, in 
fact, exceptional legal scholar, who understands and will respect the 
differences between advocacy and scholarship and serving as a member of 
the circuit court in the Judiciary of the United States.
  I urge the Members of this body, I urge my colleagues to take a fresh 
look at the record and to allow this body to vote. Why on Earth this 
record of this exceptionally qualified man would justify a filibuster 
is utterly beyond me and suggests that, unfortunately, we have become 
mired in partisanship rather than allowing debate and votes on this 
floor, which, in my view, if we followed the best traditions of this 
body, would lead to the confirmation of Goodwin Liu to the Ninth 
Circuit.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Madam President, I would tell my colleague from Delaware 
that he makes some very excellent points and they were very well 
stated.
  I have spent a number of years--now almost 7--on the Judiciary 
Committee, and my observations make me painfully aware of our process. 
Goodwin Liu is a stellar individual. There is no question about it. He 
is a stellar scholar. There is no question about it. But my 
observations have taught me, as we have voted and put judges on the 
appellate court and on the highest Court, that what is said in 
testimony before the committee doesn't bear out or have any impact on 
what happens once somebody becomes a judge. My observation is that 
people are who they are.
  I actually spent a significant time with Goodwin Liu. I think he is a 
genuine great American. The question, however, is not whether he is a 
stellar scholar, of stellar intellect, or whether he is a great 
American. The question is: Do his beliefs match what the Constitution 
requires of appellate judges and higher judges. And I have come to the 
conclusion that being stellar and being a great teacher and professor, 
being a wonderful judge, is not enough. I take the words to heart, that 
my colleague said, because we all make mistakes. His comments on Judge 
Alito and Judge Roberts, he said, were poor judgment; he should not 
have done it. There is not anybody in this body who has not done the 
same thing, so we cannot hold that against him, and I do not.
  But what I do think matters is whether the oath to the Constitution 
and our laws and our treaties and the foundational documents of our 
Constitution do matter. I believe that where we find ourselves today as 
a country--not having the debates on the Senate floor as we should be 
having the debates on the Senate floor--is partially to blame because 
of where the judges have put us. They have not been loyal to the 
document. They expanded the commerce clause well beyond its ever-
anywhere-close intent. The general welfare clause, that now finds us at 
a time when we are nearing bankruptcy, and we cannot get out of our 
problems without retracting tremendously the size and scope of the 
Federal Government. We cannot grow our economy with the tax revenue 
increases that are going to be required to get out of this problem. It 
comes back down to what do they believe about the Constitution.
  The best way to find that out is, before they ever thought about 
being nominated and before they are trying to be controversial in a 
teaching environment, what are their great thoughts and what are their 
beliefs. I do not believe professors write articles to be

[[Page 7479]]

controversial. I believe they write articles based on what their 
learned research tells them. I just have a frank disagreement with 
Professor Liu on the role of a Federal judge.
  I actually believe what the Constitution says. It says:

       The judicial Power should extend to all Cases, in Law and 
     Equity, arising under this--

  And the word is ``this''--

       Constitution, the Laws of the United States, and the 
     Treaties made, or which shall be made. . . .

  The problems I have with Professor Liu are that I believe he 
advocates for an unconstitutional role for judges. He believes the 
Constitution is a living document, that it is indeterminate.
  I recognize I am just a doctor from Oklahoma and I don't have a law 
degree, but I can read these words as plain as anybody else. I don't 
think they are indeterminate. I think some of the things our Founders 
did were wrong, and we have corrected them through the years, through 
wise Supreme Court decisions, but also through amendments to the 
Constitution.
  He also believes the Constitution should be subject to ``socially 
situated modes of reasoning that appeal culturally and historically to 
contingent meanings.'' What that says to me is what this says is wide 
open.
  I really like the guy. I got along fabulously with him. He is a 
wonderful individual. But I don't think he is who we want on the 
appellate court. I think what potential judges say and write, when we 
take the totality of what they say and write--not what they say at a 
hearing because it all changes once they are nominated--what they say 
and write is very important about what kind of judge they are going to 
become.
  You heard Senator Cornyn relate about Justice Sotomayor, based on 
``here is her testimony,'' and in the first case what she does is 
exactly opposite of what her testimony does but is totally consistent 
with what her beliefs were and her writings in previous cases. It used 
to be the Judiciary Committee didn't bring the judges before them. We 
looked at the history.
  Let me address something else. What the ABA says doesn't matter to me 
anymore because there was a controversial nominee from Oklahoma the ABA 
rated ``qualified,'' when four distinct people interviewed by the ABA 
said the individual wasn't qualified, and that was totally discounted 
by the ABA. The people who were actually interviewed said the person 
was not qualified. The ABA gave them a ``qualified'' rating anyway. 
These are their peers. That basis for saying we have qualifications is 
no longer trustworthy in my mind and hasn't been for some time. I think 
the due diligence is lacking in the ABA and their method for scoring 
who is qualified or who is not.
  The final point I would make is, although he has written a lot, and a 
lot of it has been controversial, one of the things that really bothers 
me is his profound belief that he has the right to use foreign law to 
interpret the U.S. Constitution. That is really code word for saying: 
If I do not like what is written in this document, I will go find some 
jurisprudence somewhere else and apply it to this document that gets me 
the result I want, rather than being truthfully and honestly obedient 
to what this document says.
  I know that sounds overly simple, but it is not. The fact that we are 
not applying our Constitution and its meaning and what our Founders 
said about what it meant and we are ignoring it is one of the things 
that has put us in the perilous state we are in today.
  We are going to have a great test sometime in the next year on the 
massive expansion of the commerce clause that was put in the law 
through the Affordable Care Act. I will predict in this body today, if 
that is upheld, there will be no need for State and local governments 
anymore because there will be no limitation on what we as a Federal 
Government can do to limit the freedom and free exercise of the tenth 
amendment to the States.
  The idea that one can take what this Constitution very clearly says: 
``all cases in law or equity arising under this Constitution''--not 
foreign law, not foreign constitution, not foreign thought, but our 
law--it does not mean we cannot learn from other things, but we cannot 
use foreign law to interpret our Constitution. It is a violation of a 
judicial oath every time one of our Supreme Court Justices references 
their opinion based on foreign law. It is a violation of their oath 
because their oath is to this Constitution, not some other 
constitution. So we see that occasionally, especially in minority 
opinions, and oftentimes in previous majority opinions, that have 
gotten our country into the problem we are in.
  I believe Goodwin Liu a generally wonderful man. He is a stellar 
intellectual thinker. By reports he is an outstanding professor and is 
a great human being. That does not qualify him to be on the Ninth 
Circuit Court of Appeals. What will qualify him is absolute fidelity to 
our Constitution and our future and not the creative ways that we can 
change that through our own wills or whims of judges to get a result 
that is different than what our Constitution would say that we should 
have.
  So I, regretfully--and it is truly with regret--will be voting 
against cloture for his nomination because I do not like this process. 
I think it hurts us. I think it divides our body. My hope is we can 
handle these in the future much better than we have handled them in the 
past.
  I see the assistant majority leader on the Senate floor, and I will 
yield to him.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, at 2 o'clock we will have a vote on the 
Senate floor. A man is seeking a judgeship. There is no question in 
anybody's mind that this is a judgeship that should be filled. 
Professor Goodwin Liu wants to serve in the U.S. Circuit Court of 
Appeals for the Ninth Circuit. He was nominated in February of 2010. 
Here we are in May of 2011. The significance of that delay is the fact 
that this is a vacancy that causes a problem. The Administrative Office 
of the U.S. Courts--no political office but the court's office--
declared a judicial emergency in this circuit and said they need this 
vacancy filled. So nobody questions that there is at least a sense of 
urgency in filling the seat.
  So you ask yourself, if the President nominated someone back in 
February of 2010, why in May of 2011 are we just getting around to it? 
I think that question needs to be directed to the other side of the 
aisle. They have found reasons to delay this and to raise questions 
which have brought us to this moment.
  So how about this professor? Is he qualified to serve at the second 
highest level of courts in America on the Ninth Circuit? The American 
Bar Association did not waste any time evaluating Professor Goodwin 
Liu. They awarded him their highest possible rating--``unanimously 
well-qualified.'' If we look at his background, it is no surprise.
  The son of immigrants, he attended Stanford University, where he 
graduated Phi Beta Kappa. He won a Rhodes Scholarship, attended Yale 
Law School, where he was editor of the Yale Law Review. He served as a 
law clerk to Judge Tatel of the DC Circuit and to Supreme Court Justice 
Ruth Bader Ginsburg.
  After finishing his second clerkship, the one at the Supreme Court, 
he worked for years at the law firm of O'Melveny & Myers in Washington. 
Then he joined the faculty at the University of California-Berkeley Law 
School. He has won numerous awards for his teaching and academic 
scholarship, including the highest teaching award given at the Cal-
Berkeley Law School.
  What is the point of this debate? We know he is well qualified. We 
know there is a judicial emergency that requires us to fill this seat--
and we should have done it a long time ago. When we look at his resume, 
it would put every lawyer, including myself, to shame, when we consider 
all that he has done leading up to this moment in his career.
  It turns out those who oppose him do not oppose his qualifications. 
They think he has the wrong philosophy, the

[[Page 7480]]

wrong values. They criticize him for a handful of statements he made 
while he served as a professor. Isn't it interesting, the double 
standard that is being applied?
  I was here in 2002 when a Tenth Circuit Court of Appeals nominee by 
the name of Michael McConnell was up to be considered. He had been a 
law professor at the University of Utah and the University of Chicago. 
At his nomination hearings, Senator Orrin Hatch, who strongly supported 
his nomination, said:

       I think we should praise and encourage the prolific 
     exchange of honest and principled scholarly writing, assuming 
     such scholars know the proper role of a judge to interpret 
     the law as written and to follow precedent.

  What was Senator Hatch defending in Professor McConnell's background? 
It was the fact that he had called Roe v. Wade, a landmark Supreme 
Court decision, ``illegitimate.'' Professor McConnell had defended Bob 
Jones University's racist policies on the grounds that they were 
``church teachings,'' even though the Supreme Court rejected his 
argument in an 8-to-1 decision, and he claimed the Violence Against 
Women Act was unconstitutional.
  That was fodder for a lot of questions that should have been asked 
and were asked. He had made some very extreme statements as a 
professor. But Professor McConnell assured the Senate that when he left 
the classroom and entered the courtroom he would put his views aside 
and follow the law. The Senate did not stop him with a filibuster. The 
Senate took Professor McConnell at his word and gave him an up-or-down 
vote on the Senate floor, and he was confirmed. That is all we are 
asking for when it comes to Professor Liu. I point out that other well-
respected Federal judges have also served in academic roles before 
coming to the bench.
  Richard Posner of the Seventh Circuit in Chicago is a friend of mine. 
Every once in a while we get together for an amazing lunch. He is such 
a brilliant guy. We disagree on so many things, but I can't help but 
sit there in awe of this man's knowledge of the law and of the world 
and his prolific authorship of books on so many subjects.
  I think most would agree he has taken some pretty controversial views 
himself. In a 2005 debate on civil liberties with Geoffrey Stone, Judge 
Posner said:

       Life without the self-incrimination clause, without the 
     Miranda warnings, without the Fourth Amendment's exclusionary 
     rule, with an unamended USA PATRIOT Act, with a depiction of 
     the Ten Commandments on the ceiling of the Supreme Court, 
     even life without Roe v. Wade would still, in my opinion 
     anyway, be eminently worth living.

  Is there any fodder there for political commentators? He was a 
sitting judge when he said that. Some of my friends on the left would 
have had a field day with that quote.
  Some of my friends on the right might have disagreed strongly with 
Judge Posner when he wrote an article about the 2008 Supreme Court 
decision in DC v. Heller, a case where the court stated the Second 
Amendment right to bear arms confers an individual right. Judge Posner 
wrote that the Court's decision in Heller ``is questionable in both 
method and result, and it is evidence that the Supreme Court, in 
deciding constitutional cases, exercises a freewheeling discretion 
strongly flavored with ideology.''
  I suspect there are a lot of Senators on the other side of the aisle 
who disagree with that quote.
  So let's get down to the bottom line. We recognize the value of 
academic freedom and discourse. We understand a professor has a 
different role in America than someone sitting on a bench judging a 
case. We trust them. We give them basic credit for integrity when they 
say they can separate the two lives. They understand the two 
responsibilities.
  Professor Liu is a man widely recognized for his integrity and 
independence. That is why he has the support of prominent conservative 
lawyers. Kenneth Starr--no hero on the Democratic side of the aisle--
has said he would be a great judge. Bob Barr, former Republican 
Congressman, and Goldwater Institute Director Clint Bolick express 
support for Liu's nomination. In fact, Ken Starr and Yale law Professor 
Akhil Amar wrote:

       [I]n 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 these qualities to the highest 
     degree, we are confident he will serve on the Court of 
     Appeals not only fairly and competently, but with great 
     distinction. We support and urge his speedy confirmation.

  Well, we are not going to grant their wishes with a speedy 
confirmation; the question is whether 60 Senators will decide that 
Professor Goodwin Liu is entitled to a vote--a vote--an up-or-down 
vote--in the Senate.
  Professor Liu said at his confirmation hearing:

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

  Professor Liu is committed to respect and follow the judicial role. I 
am confident he will fulfill that role with distinction.
  This is a good man, a great lawyer, an extremely well-qualified 
nominee. His nomination has been languishing before this Senate since 
February of last year. He has had to put his life on hold in many 
respects waiting for the Senate to act.
  We will have a cloture vote in about an hour. I think we know what is 
going on here. For many on the other side of the aisle, they are guided 
by advisers who tell them: Keep as many critical judicial posts open 
for as long as possible. Help is on the way in the next election. We 
don't want to allow this President to fill these vacancies, and 
particularly when it comes to the circuit courts because of the 
tremendous responsibility and opportunity there is for important and 
historic decisions.
  So Professor Liu has been caught in this maelstrom. He is now going 
to be subjected to this filibuster vote. I sincerely hope my colleagues 
will be fair and honest in their vote. I hope they will look at the 
obvious record of this man to fill an important vacancy, a man found 
unanimously ``well qualified'' by the American Bar Association, a 
person with a legal resume that is peerless, someone who has stated 
purely and unequivocally that he will follow the law. To dwell on 
statements he has made as a professor is to do a great disservice to 
academic freedom and to ignore the obvious. When Republican nominees 
came before us, we have used our discretion to separate out their 
academic lives with their promise that as judges they will look at the 
world in a very sober, honest way.
  I intend to vote in support of cloture and in support of this 
nomination. I urge my colleagues to do the same.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Madam President, several of my colleagues have expressed 
concerns about the nomination of Goodwin Liu. I share many of those 
concerns and do not wish to belabor points they have already made. I 
will limit my comments today to two fundamental reasons why I find 
myself unable to support the nomination of Professor Liu to serve as a 
judge on the U.S. Court of Appeals for the Ninth Circuit.
  First, I am truly dismayed by the lack of judgment displayed in 
Professor Liu's 2006 testimony regarding the confirmation of Samuel 
Alito as an Associate Justice for the U.S. Supreme Court. Throughout 
extensive written testimony and during an appearance before the Senate 
Judiciary Committee, Professor Liu unfairly criticized then-Judge Alito 
and his long judicial record as, among other things, having ``shown a 
uniform pattern of excusing errors and eroding norms of basic 
fairness.'' In particular, the final paragraph of Professor Liu's 
written testimony which served as a summary of his entire analysis of 
Judge Alito was nothing short of an inflammatory attack. He wrote:

       Judge Alito's record envisions an America where police may 
     shoot and kill an unarmed boy to stop him from running away 
     with a stolen purse; where federal agents may point guns at 
     ordinary citizens during a raid, even

[[Page 7481]]

     after no sign of resistance; where the FBI may install a 
     camera where you sleep on the promise that they won't turn it 
     on unless an informant is in the room; where a black man may 
     be sentenced to death by an all-white jury for killing a 
     white man. . . .

  Professor Liu's unseemly attack on Justice Alito generated 
considerable attention at the time, as well as understandable concern 
about Professor Liu's temperament, his judgment, and his basic ability 
to be fair.
  So far as I know, it was only after he was nominated to be a judge on 
the U.S. Court of Appeals for the Ninth Circuit that Professor Liu 
offered any apology for his testimony about Justice Alito. A few weeks 
ago, Professor Liu told members of the Judiciary Committee that he had 
learned from the outrage his remarks caused ``that strong language like 
that is really not helpful in the process.'' Professor Liu's 
observation is certainly true, but it misses the central point. His 
comments about Justice Alito were offensive not simply because they 
were unhelpful in his confirmation process, but because they were 
misleading and they were an unwarranted personal attack on a dedicated 
judge and public servant.
  Professor Liu's treatment of Justice Alito and his last-minute and 
incomplete handling of the concerns raised by his remarks lead me to 
believe that he lacks the basic judgment and discretion necessary to be 
confirmed to a life-tenured position in the judiciary.
  The second reason I feel compelled to oppose this nomination has to 
do with the integrity of our Nation's system of constitutional 
government and the rule of law. In my careful and considered judgment, 
the judicial philosophy espoused by Professor Liu is fundamentally 
inconsistent with the judicial mandate to be a neutral arbiter of the 
Constitution and to uphold the rule of law.
  I do not base this conclusion on the fact that his approach to the 
law is in many respects different from my own. That is not a 
prerequisite and that is not the basis of my opposition to this 
nominee. Most of the judges nominated by President Obama do not share 
my personal textualist and originalist commitments. Yet in my short 
time as a Member of the Senate, I have voted to confirm many nominees 
with whom I fundamentally disagree.
  Professor Liu, by contrast, is not simply a progressive nominee with 
a somewhat more expansive view of constitutional interpretation than is 
common among many sitting judges, nor is he a nominee whose 
controversial remarks are few and can be overlooked given a long 
history of mainstream legal practice and observations.
  Throughout the course of his numerous speeches, articles, and books, 
Professor Liu has championed a philosophy that in my judgment is 
incompatible with faithfully discharging the duties of a Federal 
appellate judge in our constitutional Republic. His approach advocates 
that judges go far beyond the written Constitution, statutes, and 
decisional law to ascertain and incorporate into constitutional law--in 
Professor Liu's own words--``shared understandings,'' ``evolving 
understandings,'' ``social movements,'' and ``collective values.''
  In a 2008 Stanford Law Review article describing the judicial role, 
Professor Liu wrote:

       [T]he problem for courts is to determine, at the moment of 
     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.

  In so framing the process of judicial decisionmaking, he advocated a 
conception of a judiciary as a ``culturally situated interpreter of 
social meaning.''
  In a 2009 book entitled ``Keeping Faith with the Constitution,'' he 
wrote that constitutional interpretation rightly ``incorporates the 
evolving understandings of the Constitution forged through social 
movements, legislation, and historical practice.''
  In an interview later that year, Professor Liu suggested that the 
judicial role is an individual process that includes ``lessons learned 
from experience, and an awareness of the evolving norms and social 
understandings of our country.''
  These are just a few examples of a clear, consistent, and extreme 
approach to judging that Professor Liu has championed in many settings 
over the course of many years. His approach necessarily requires a 
judge to violate separation of powers principles, making law based on 
the judge's subjective understanding of public opinion, communal 
values, historical trends, or personal preferences, rather than 
faithfully interpreting and applying the laws made by the legislative 
and executive branches.
  A noted judge who has faithfully served in the role to which 
Professor Liu has been nominated, and who as a result was intimately 
familiar with the very real dangers of legislating from the bench, 
shared this vital insight:

       It is absolutely important to freedom to confine the 
     judiciary's power to its proper scope as it is to confine 
     that of the President, Congress, or state and local 
     governments. Indeed, it is probably more important, for only 
     courts may not be called to account by the public.

  I rise today in defense of our Nation's constitutional separation of 
powers and, ultimately, in defense of the essential liberty that it 
protects.
  I also feel the need to respond to the point made by my distinguished 
colleague, the Senator from Illinois, moments ago. This is not an 
opposition that is based on a disagreement with a particular set of 
legal analyses. My colleague from Illinois noted there was some 
opposition to Judge McConnell who was confirmed by this body to serve 
on the U.S. Court of Appeals for the Tenth Circuit, notwithstanding the 
fact that many in this body disagreed with particular legal conclusions 
that had been reached by then-Professor McConnell. This is different 
than that. This is not about a disagreement with a particular legal 
conclusion. It is instead about a concern arising out of a systemic, 
broad-based interpretive approach, one I believe doesn't give due 
regard to the rule of law, to the notion that we are a nation that 
lives under the law, that our laws consist of words, that words have 
defined, finite meaning, and that in order for our laws to work 
properly, that meaning needs to be respected and it needs to be 
interpreted in and of itself and held as an independent good by the 
judiciary on a consistent basis.
  Professor Liu's appalling treatment of Justice Alito leaves grave 
doubt in my mind as to whether he possesses the requisite judgment to 
serve as a life-tenured judge. I have come to the conclusion that 
Professor Liu's extreme judicial philosophy is simply incompatible with 
the proper role of a judge in our constitutional Republic.
  For these reasons, as well as those articulated by many of my 
colleagues, I am compelled to oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I thank the Chair.
  I rise to support the nomination of Goodwin Liu to be a member of the 
U.S. Court of Appeals for the Ninth Circuit. I believe Mr. Liu's 
academic qualifications, strong intellect, his character, and his 
temperament make him a person who would be a valuable addition to the 
Federal bench. Therefore, I urge my colleagues to vote for cloture and 
then in favor of his confirmation.
  Mr. Liu brings an outstanding academic and professional background to 
this nomination and a personal life story that is quintessentially 
American. It is not a reason in itself, certainly, to vote to confirm 
him as a judge of this high court, but it speaks to the endless 
opportunities for upward mobility in this country for people who work 
hard. Where you end up is not determined by where you start out in this 
country.
  Goodwin Liu is the second son of Taiwanese immigrants. As a young 
boy, his family settled in Sacramento. He began to work hard from the 
beginning, ultimately graduating from Stanford University. He received 
a Rhodes Scholarship to Oxford University and eventually graduated from 
Yale Law School.
  Should he be confirmed to the Ninth Circuit, Professor Liu would 
become the second Asian American currently

[[Page 7482]]

serving on a Federal appeals court. He is now an associate dean and 
professor of law at the University of California, Berkeley School of 
law. He is widely recognized and respected broadly throughout academic 
and legal communities in the United States.
  I note that prior to entering academia, he was an appellate litigator 
with O'Melveny & Myers--a first-rate firm here in Washington--and 
clerked for both Circuit Court Judge David Tatel and Supreme Court 
Justice Ruth Bader Ginsburg, representing different points on the 
ideological legal spectrum, and served them both, I know, with great 
distinction.
  Although I do not agree with everything Goodwin Liu has ever written 
or said, his views, it seems to me, have been well expressed and well 
reasoned and quite intelligent. I think he has a thoughtful approach to 
complex legal questions, and I am impressed he has earned the respect 
and support of thinkers and lawyers from all sides of the legal 
ideological spectrum, which I think speaks, ultimately, to his personal 
evenhandedness, to the power of his intellect, and what we can expect 
of him as a judge of the circuit court.
  I was particularly impressed--and I know it has been quoted before, 
but it speaks volumes--by the comments of former Judge Ken Starr, a 
former dean also, who said Goodwin Liu is ``a person of great 
intellect, accomplishment, and integrity, and he is exceptionally well-
qualified to serve on the court of appeals.''
  I know many of my colleagues have concerns about this nomination, 
about things Professor Liu has either written or said, and I understand 
those. I have some of those concerns. I read the statement he made 
about Judge Alito. It has the ring of a passionate litigator making an 
argument with probably more zeal than he himself appreciates as he 
looked at it in the aftermath.
  But for those who have concerns, I urge my colleagues to vote 
accordingly on an up-or-down vote, not to sustain this filibuster and, 
therefore, prevent an up-or-down vote on this nomination.
  I have always felt that in our advice and consent role--this is my 
own personal reading of it--the President, by his election, earns the 
right to make these nominations. We do not have to decide, in 
confirming a nominee, that we would have made this nomination, only 
that the nominee is acceptable, is within the range of those acceptable 
and capable of doing the job for which he is nominated.
  Not so long ago, in 2005, there was a move to reduce the right to 
filibuster and require 60 votes, particularly with regard to Supreme 
Court nominees but others as well. That led to the formation of the so-
called Gang of 14. I was proud to be a member of that group, and we 
reached an agreement, one of whose I wish to read now on ``Future 
Nominations.'' This is one of them: Goodwin Liu.

       Signatories will exercise their responsibilities under the 
     Advice and Consent Clause of the United States Constitution 
     in good faith. Nominees should only be filibustered under 
     extraordinary circumstances, and each signatory must use his 
     or her own discretion and judgment in determining whether 
     such circumstances exist.

  End of quote from the agreement of the Gang of 14.
  I do not think these are extraordinary circumstances, when you 
consider Goodwin Liu's intellect, his varied background, the character 
he has, and this broad range of endorsements from people. To me, a 
disagreement about a statement made in the heat of an argument or even 
the substance of an article published is not strong enough to prevent 
this nominee from having what I think is his right and the President's 
right to get a vote up or down--not to block him by requiring 60 votes.
  So I urge my colleagues to vote for cloture. I am going to do so with 
a full measure of comfort and confidence about the kind of judge 
Goodwin Liu would be but with a full measure of comfort that I am 
exercising my responsibility under the advice and consent clause, as I 
have always seen it, including as it has been informed by my proud 
participation in the memorandum of understanding of the Gang of 14 in 
2005.
  I thank you very much and yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, I rise in regretful opposition, quite 
frankly, to having to vote to deny cloture for a judicial nominee. I 
also was in the Gang of 14, and the whole effort was to make sure the 
Senate follows constitutional and historical norms; that is, giving 
great deference to Presidential elections when it comes to the 
judiciary.
  So to my conservative colleagues, the best way to make sure you have 
conservative judges is to win elections. Because if we start blocking 
all the judges whom we do not like, who have a different view of the 
law than we, our friends on the other side will return the favor and 
you wind up having a chaotic situation.
  There is a reason Justice Ginsburg got 90-something votes and Justice 
Scalia got 90-something votes. It used to be the way you did business 
around here. When a President won an election, they were able to pick 
qualified nominees for the court. Unless you had a darn good reason, 
they went forward. I think that should be the standard.
  To me, I do give a lot of deference. It is not one speech. It is not 
an article. Justice Sotomayor, whom I voted for, had made a famous 
speech that she thought the experiences of a Latino woman maybe were 
more valuable to the court than that of a White male, and people got up 
in arms about that. It bothered me. She explained herself. I look at 
the way she lived her life, and I understood, based on the way she 
lived her life, that she was a fair person who did not represent 
bigotry on her part toward White males.
  We all make statements and write articles and get in debates and I am 
not going to use that as a reason to disqualify somebody from sitting 
on the judiciary. I would not want that done to our nominees, and I do 
not intend to do it to the other side.
  But here is what Mr. Liu did that, to me, is a bridge too far. When a 
conservative wins the White House, you expect people such as Chief 
Justice Roberts and Justices Alito and Scalia. When a liberal wins, you 
expect people such as Justices Ginsburg and Elena Kagan and Sotomayor. 
That is the way it works. All of them are well qualified; they just 
have a different approach to the law. But there are a lot of 9-to-0 
decisions.
  The one thing that drives my thinking is, Mr. Liu chose--not in an 
article he wrote as a young man, not in some debate that got carried 
away but to appear before the Judiciary Committee and basically say 
Judge Alito's philosophy would create:

     . . . an America where police may shoot and kill an unarmed 
     boy to stop him from running away with a stolen purse--

  That line probably comes from some case Judge Alito was involved in--

     where federal agents may point guns at ordinary citizens 
     during a raid, even after no sign of resistance; where the 
     FBI may install a camera where you sleep on the promise that 
     they won't turn it on unless an informant is in the room; 
     where a black man may be sentenced to death by an all-white 
     jury for killing a white man, absent a multiple regression 
     analysis showing discrimination. . . .

  These statements about Judge Alito and the decisions he has rendered 
and his philosophy are designed to basically say that people who have 
the philosophy of Judge Alito are uncaring, hateful, and should be 
despised. That is a bridge too far. Because I share Judge Alito's 
philosophy, we may come out at a different result on a particular case, 
but I do not think I fall in the category of being hateful, uncaring, 
and someone you should despise.
  These statements given to the Judiciary Committee were designed to 
inflame passion against Judge Alito based on his analysis of cases 
before him during his judicial tenure.
  If that is not enough, Chief Justice Roberts' record, according to 
Mr. Liu, suggests he has a vision for American law--a ``right-wing 
vision antagonistic to important rights and protections we currently 
enjoy.''
  It is one thing to debate your opponent. It is another thing to have 
strong opinions. But this is not an accidental statement. This was 
calculated, delivered at a time where it would do maximum damage.

[[Page 7483]]

  All I am saying to future nominees: I expect President Obama to 
nominate people of a liberal judicial philosophy. I do not deny you 
access to the court because you may have said something in an article I 
do not like, you may have represented a client with whom I disagree. 
But the one thing I will not tolerate is for a conservative or a 
liberal person seeking a judgeship to basically impugn the character of 
the other way of thinking.
  These words are not that of a passionate advocate who may have went 
too far, according to Senator Lieberman, in my view. These words were 
designed to destroy, and they ring of an ideologue. He should be 
running for office, not sitting on the court. There is a place for 
people who think this way about conservative judicial philosophy: Run 
for President. Run for the Senate. Do not sit on the court. Because the 
court has to be a place where you accept differences, you hash it out, 
you render verdicts. Based on the way he views Justice Alito and Chief 
Justice Roberts and his disdain for their philosophy, I do not believe 
he could give someone such as me a fair shake.
  So at the end of the day, I ask one thing of my Democratic 
colleagues. I will try my best to make sure the Senate stays on track 
and that we do not get on the road of filibustering judges haphazardly 
based on the fact they are somebody we do not agree with. I have tried 
my best not to go down that road because I think it will destroy the 
judiciary and disrupt the Senate.
  If you are a conservative in the future wanting to be a judge and you 
come before our committee, when a liberal nominee is before the 
committee, and you question their patriotism and you suggest they are 
hateful people who should be despised for their philosophy, then I will 
render the same verdict against you.
  We want people on the court who are well rounded, who are qualified, 
who understand America is a big place, not a small place. In Mr. Liu's 
world I think he has a very small view of the law. Those on the other 
side who think differently should be engaged intellectually or 
challenged through academic debate. He has tried to basically rip their 
character apart, and he will not get my vote. A conservative who feels 
the same way about liberal philosophy would not get my vote either.
  I am looking for the model of Miguel Estrada, who was poorly treated, 
who wrote a letter on behalf of Elena Kagan, saying: She was my law 
school classmate. We don't agree on much when it comes to the law, but 
she is a wonderful person, well qualified, and deserves to be on the 
bench.
  That is the way conservatives and liberals should engage each other, 
in my view, when it comes to the judicial nomination process.
  This was a bridge too far for Lindsey Graham.
  I yield the floor.
  Mr. McCAIN. Madam President, as a member of the Gang of 14 in 2005, I 
agreed that ``Nominees should be filibustered only under extraordinary 
circumstances.'' The nomination of Mr. Liu rises to a level of 
``extraordinary circumstances'' due to his clear belief that judges 
have vast powers to shape and even rewrite the law--a contention I 
deeply oppose as an elected representative of the people who believes 
it is the duty of the Congress to shape and write the laws and not that 
of the judiciary.
  With no litigation or judicial experience to examine, the Senate can 
only consider Mr. Liu's academic writings and public comments. These 
writings and his testimony before the Senate Judiciary Committee show 
Mr. Liu believes that the Constitution is a living, breathing document 
that must change to accommodate new progressive ideas. Specifically, 
Mr. Liu has said, ``The Framers deliberately chose broad words so they 
would be adaptable over time.''
  Additionally, in a November 2008 article published in the Stanford 
Law Review, Mr. Liu wrote,

       The problem for courts is to determine, at the moment of 
     decision, whether our collective values on a given issue have 
     converged to a degree that they can be persuasively 
     crystallized and credibly absorbed into legal doctrine. This 
     difficult task requires keen attention to the trajectory of 
     social norms reflected in public policies, institutions, and 
     practices, as well as predictive judgment as to how a 
     judicial decision may help forge or frustrate a social 
     consensus.

  Mr. Liu's remarks show that he does not subscribe to the philosophy 
that Federal judges should respect the limited nature of judicial power 
under our Constitution. Judges who stray beyond their constitutional 
role believe that judges somehow have a greater insight into the 
meaning of the broad principles of our Constitution than 
representatives who are elected by the people. These activist judges 
assume that the judiciary is a superlegislature of moral philosophers.
  Despite this difference in judicial philosophy, I believe Mr. Liu has 
had a remarkable career in academics and has an inspiring life story as 
the child of immigrants from Taiwan. However, an excellent resume and 
an inspiring life story are not enough to qualify one for a lifetime of 
service on the Federal bench. Those who suggest otherwise need only to 
be reminded of Miguel Estrada who was filibustered by the Democrats 
seven times because many Democrats disagreed with Mr. Estrada's 
judicial philosophy. This was the first filibuster ever to be 
successfully used against a court of appeals nominee.
  I supported Mr. Estrada's nomination to the DC Circuit Court of 
Appeals, not because of his inspiring life story or impeccable 
qualifications, but because his judicial philosophy was one of 
restraint. He was explicit in his writings and responses to the Senate 
Judiciary Committee that he would not seek to legislate from the bench.
  Judicial activism demonstrates a lack of respect for the popular will 
that is at fundamental odds with our republican system of government. 
And, as I stated earlier, regardless of one's success in academics and 
in government service, an individual who does not appreciate the 
commonsense limitations on judicial power in our democratic system of 
government ultimately lacks a key qualification for a lifetime 
appointment to the Federal bench. For this reason, and no other, I am 
unable to support Mr. Liu's nomination.
  Shaping the judiciary through the appointment power is one of the 
most important and solemn responsibilities a President has and 
certainly one that has a profound and lasting impact. The President is 
entitled to nominate those whom he sees fit to serve on the Federal 
bench, and unless the nominee rises to ``extraordinary circumstances,'' 
I have provided my constitutional duty of ``consent'' for most 
nominees.
  I regret I am unable to do so for Mr. Liu, but I believe his 
inability to respect the limited nature of the judicial power under our 
Constitution should preclude him from a lifetime appointment to the 
Ninth Circuit Court of Appeals.
  Mr. WHITEHOUSE. Madam President, I rise today to urge my colleagues 
to support Professor Goodwin Liu's nomination to the U.S. Court of 
Appeals for the Ninth Circuit.
  Professor Liu is abundantly qualified to serve on the bench. He has a 
sharp legal mind, is a careful and rigorous thinker, and understands 
the proper limited role of a judge. He has shown a commitment to public 
service throughout his career and his remarkable success reflects well 
on the great opportunities our country offers and the qualities of Mr. 
Liu and his family. If confirmed, he would be a credit to the Ninth 
Circuit and to his home State of California.
  People who know Professor Liu, Republican and Democrat alike, think 
very highly of him and have commended him for his intellect, integrity, 
and temperament.
  Among many other Republicans and conservatives, Professor Liu can 
count as supporters former Whitewater prosecutor Ken Starr, former 
Republican Congressman Bob Barr, and Clint Bolick, the litigation 
director of the Goldwater Institute. Former Republican Congressman Tom 
Campbell has said that Liu ``will bring scholarly distinction and a 
strong reputation for integrity, fair-mindedness, and collegiality to 
the Ninth Circuit.'' Susan A. McCaw, who was an ambassador in George W. 
Bush's administration wrote

[[Page 7484]]

that ``Goodwin's strengths are exactly what [she] expect[s] in a judge: 
objectivity, independence, collegiality, respect for differing views, 
[and] sound judgment,'' and noted that he ``possesses these qualities 
on top of the brilliant legal acumen that is well-established by his 
record and the judgment of those most familiar with his scholarly 
work.''
  Furthermore, Professor Liu has the support of leading law enforcement 
groups and prosecutors, as well as business groups, and the 
endorsements of the New York Times, the Washington Post, the Los 
Angeles Times, the San Francisco Chronicle, and the Sacramento Bee. He 
has also been deemed unanimously well qualified by the American Bar 
Association.
  These recommendations are part of an ample record on which the Senate 
can base its decision. Professor Liu's voluminous writings and 
unprecedented thoroughness in responding to questions from the 
Judiciary Committee give us great insight into his temperament and 
approach to the difficult questions of constitutional law.
  This record reveals a genuine thoughtfulness and intellectual rigor. 
This has made Professor Liu one of the leading legal academics of his 
generation. As Professor Liu himself has said, the scholar's role is 
``to question the boundaries of the law [and] to raise new theories.'' 
Professor Liu also clearly understands that the scholar's role is 
different from the role of a judge, explaining that it is the function 
of a scholar ``to be provocative in ways that it's simply not the role 
of a judge to be.'' He further elaborated that he would leave his 
personal views behind if taking the bench: ``What is not transferable 
[from the position of scholar to the position of judge] . . . are the 
substantive views that one might take as a matter of legal theory. 
Those are left at the door. When one becomes a judge, one applies the 
law as it is to the facts of every case.''
  I would remind my Republican colleagues that they have been ready in 
the past to credit academics with the ability to put aside their 
scholarly views when they take the bench. True, this was for 
nominations made by a Republican President, but there is no reason why 
the rules should be different for President Obama. Consider the 
nomination of Judge Michael McConnell, for example. He was confirmed to 
the Tenth Circuit in 2002 by a unanimous vote on the Senate floor, 
despite having, as a scholar, vigorously criticized Roe v. Wade as 
``illegitimate'' and wrongly decided, and having made sundry other 
criticisms of Supreme Court precedent. The Senate took him at his word 
that he would follow the law rather than his personal beliefs. A proper 
recognition of Professor Liu's strong character, integrity, and 
commitment to the rule of law should lead us to the same conclusion 
today.
  In short, it is time to confirm this highly qualified nominee and I 
urge all my colleagues to support his nomination.
  Mr. KYL. Madam President, it is with great reluctance that I vote 
against cloture on any nominee, including Professor Goodwin Liu. It is 
my general view that every nominee deserves an up or down vote.
  Ever since the tradition was established that filibusters would be 
avoided, except in ``extraordinary'' circumstances, I have tried to 
apply that standard in an objective way.
  This is one such occasion when I cannot vote for cloture on the 
nominee. I believe extraordinary circumstances exist. I have serious 
concerns as to whether Professor Liu could lay aside his ideas and 
ideologies and approach cases from a purely objective, unbiased point 
of view. It is very clear he would violate one of the first principles 
of judicial character, which is to approach each case without 
prejudice.
  I will highlight some specific examples to illustrate my concerns.
  First, is Professor's Liu's views on the use of foreign law in U.S. 
courts. He stated:

       [T]he use of foreign authority in American constitutional 
     law is a judicial practice that has been very controversial 
     in recent years. . . . The resistance to this practice is 
     difficult for me to grasp, since the United States can hardly 
     claim to have a monopoly on wise solutions to common legal 
     problems faced by constitutional democracies around the 
     world.

  Of course, judges should never task themselves with finding ``wise 
solutions'' from ``foreign authorities,'' instead of interpreting U.S. 
law. And Americans shouldn't have to walk into a courtroom not knowing 
under which nation's law they will be judged!
  Second, is Professor Liu's troubling view of constitutional ``welfare 
rights.'' Professor Liu wrote that courts should interpret ``welfare 
rights,'' such as education, shelter, subsistence, and health care (and 
the funding for each) as constitutional rights.
  Of course, no such welfare rights exist in our Constitution, and it 
is inappropriate for the courts to attempt to invent new rights or 
revise the Constitution to advance an ideological or political 
position.
  Third, Professor Liu wrote that he believes the Constitution is a 
``living document,'' ``indeterminate,'' and subject to ``socially 
situated modes of reasoning.'' Moreover, Professor Liu believes that 
judges should look to ``our collective values,'' ``evolving norms,'' 
and ``social understandings'' in interpreting the Constitution.
  Again, the Constitution is not subject to new definitions and 
interpretations. These views may be appropriate in the confines of 
liberal academia, but they have no place in a U.S. courtroom.
  In addition to his controversial views on judging and the 
Constitution, I have an additional set of concerns, as well. Those 
concerns relate to Professor Liu's charges against Supreme Court 
Justices Roberts and Alito. Before his own nomination to the bench, 
Professor Liu led the opposition to their nominations to the High 
Court. His descriptions of their qualifications show very poor 
judgment.
  For instance, Professor Liu spoke very disparagingly of Justice 
Roberts stating:

       [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.

  Professor Liu also wrote that regardless of Chief Justice Roberts's 
qualifications, ``a Supreme Court nominee must be evaluated on more 
than legal intellect.''
  So, in other words, Professor Liu believes that a good judge must 
possess more than intellect and allegiance to the law.
  Professor Liu also made some inappropriate comments when testifying 
against Justice Alito's nomination, stating:

       Judge Alito's record envisions an America where police may 
     shoot and kill an unarmed boy to stop him from running away 
     with a stolen purse; where federal agents may point guns at 
     ordinary citizens during a raid, even after no sign of 
     resistance . . . where a black man may be sentenced to death 
     by an all-white jury for killing a white man . . . and where 
     police may search what a warrant permits, and then some.

  He also criticized Justice Alito because ``[h]e approaches law in a 
formalistic, mechanical way abstracted from human experience.''
  Again, these comments are inappropriate and demonstrate that 
Professor Liu does not possess the requisite standards for impartial 
judging.
  In conclusion, I do not vote against Professor Liu lightly. But the 
President has nominated someone who does not possess the requisite 
impartiality for judging. I am firmly convinced that, rather than apply 
the law, Professor Liu would apply his own preconceived notions and 
standards to advance his liberal views. Therefore I oppose his 
nomination.
  Mr. AKAKA. Madam President, today I rise to speak in support of 
Goodwin Liu to be a Federal judge on the U.S. Court of Appeals for the 
Ninth Circuit.
  I am confident that Professor Liu, as a nationally recognized expert 
on constitutional law, is highly qualified for this prestigious 
position. His understanding of the role of a circuit judge--to follow 
the instructions and precedents set by the Supreme Court--will allow 
him to remain a neutral mediator. This judicial philosophy will be

[[Page 7485]]

the basis for his restrained actions, and will be balanced by his 
experiences as a professor and in the public and private sectors. 
Professor Liu's background speaks volumes about his qualifications and 
his strong work ethic.
  Goodwin Liu, the son of immigrant parents from Taiwan, is a graduate 
of Stanford University. He was elected copresident of the student body 
and graduated Phi Beta Kappa. He was also awarded the Lloyd W. 
Dinkelspiel Award, the university's highest honor for outstanding 
service to undergraduate education.
  After, Stanford, Goodwin Liu attended Oxford University on a Rhodes 
Scholarship and earned a master's degree in philosophy and physiology. 
He continued his education at Yale Law School, where he was an editor 
of the Yale Law Journal and won the prize for best team argument in the 
law school moot court competition. His academic accomplishments earned 
him clerkships with Judge David S. Tatel on the U.S. Court of Appeals 
for the DC Circuit and Justice Ruth Bader Ginsburg on the U.S. Supreme 
Court.
  Between these prestigious clerkships, Goodwin Liu served as a special 
assistant to the Deputy Secretary at the U.S. Department of Education. 
In that capacity, he advised the Secretary and Deputy Secretary on a 
range of legal and policy issues, including the development of 
guidelines to help turn around low-performing schools. He also spent 2 
years as a senior program officer for higher education at the 
Corporation for National Service, AmeriCorps, leading the agency's 
effort to build community service programs at colleges and universities 
nationwide.
  Goodwin Liu also worked in the private sector for a prominent 
Washington law firm and maintained an active pro bono practice. In 
2003, he returned to California to join the faculty of Boalt Hall, one 
of the Nation's top law schools, where he established himself as an 
outstanding scholar and teacher. A few years later, Goodwin's work on 
``Education, Equality, and National Citizenship'' won him the 
Educational Law Association's Steven S. Goldberg Award for 
Distinguished Scholarship. He quickly earned tenure and was elected to 
the American Law Institute. In 2009, after being promoted to associate 
dean, he received Berkeley's most prestigious teaching award, the UC 
Berkeley Distinguished Teaching Award for excellence in teaching.
  Goodwin Liu is an exceptionally qualified nominee and a shining 
example of the American dream. I have long been impressed by his 
academic and career achievements, and after meeting with him yesterday 
I am thoroughly convinced that he will be an outstanding judge for the 
Ninth Circuit, which encompasses Hawaii and includes over 40 percent of 
our Nation's Asian-American and Pacific Islander population. Goodwin 
Liu was given the American Bar Association's highest rating of 
``Unanimously Well Qualified'' based on his integrity, professional 
competence, and judicial temperament. He is highly qualified, 
intelligent, and he will help the court better reflect the broad 
population it serves.
  He has strong support in the Senate and he deserves an up-or-down 
vote.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I would like to inquire how much time we 
have on our side.
  The PRESIDING OFFICER. Three minutes forty-five seconds.
  Mr. GRASSLEY. Mr. President, I have a few closing remarks regarding 
the nomination of Goodwin Liu. Yesterday, I outlined my objections to 
this nominee in some detail. As I stated, my objections to this nominee 
can be summarized with 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.
  I hope the President will withdraw this nomination and send to the 
Senate a consensus nominee to fill this vacancy. We have demonstrated 
over and over again our cooperation in moving forward on consensus 
nominations. The President needs to nominate mainstream individuals, 
who understand the proper role of a judge.
  Nominees who would bring a personal agenda or political ideology to 
the courtroom will have great difficulty in being confirmed.
  Yesterday, a few Senators met with Mr. Liu. After that meeting, one 
of my colleagues from the other side of the aisle made the following 
statement, ``The court of appeals is where law is made, and we need the 
finest minds in the world for that.'' I am troubled by that statement 
on more than one level.
  First, intellect is an important element I consider in the 
confirmation process. Mr. Liu does have an outstanding academic record. 
His intellect is not the issue. The nominee himself noted there was 
more to being a judge than intellect. He stated, with regards to the 
nomination of Chief Justice Roberts, ``[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.'' Mr. Liu went on, demonstrating a lack of judicial 
temperament, to disparage Justice Robert's views on free enterprise, 
private property and limited government. In my statement yesterday I 
made my views very clear on how I feel about Mr. Liu's remarks, so 
there is no reason to repeat that.
  The point is, intellect is only one component. Using Mr. Liu's 
standards, a nominee ``must be evaluated on more than legal 
intellect.'' Mr. Liu does have a fine intellect, but he has used his 
talent to consistently promote views that are far out of the 
mainstream. Shortly after President Obama was elected, he said, ``Now 
we have the opportunity to actually get our ideas and the progressive 
vision of the Constitution and of law and policy into practice.'' I do 
not intend to give Mr. Liu that opportunity.
  The second problem I have with the statement is the assertion that 
``The court of appeals is where law is made.'' We have heard this view 
before. While serving as a circuit judge, Sonia Sotomayor stated that 
the court of appeals ``is where policy is made.''
  Now I understand there are elements of our society who wish this were 
the case. Those who can not get their policy views enacted through the 
legislative process, as our Constitution requires, often turn to the 
courts. But I flatly reject this notion.
  The Constitution vests the legislative power in the Congress, not the 
courts. Judges are simply not policymakers. The court of appeals is not 
where law is made. The courts are vested with the judicial power. That 
means they are to decide cases and controversies. They are to apply the 
law, not make the law.
  Unfortunately, this philosophical disagreement occasionally finds its 
way into the debates on nominations. But let me remind the Senate where 
this started. Going back to the nomination of William Rehnquist in 
1971, Democrats have used or attempted to use the filibuster to delay 
or defeat judicial nominees. Fortunately, it is a rare occasion. There 
have been a total of 46 cloture votes, including this one, on 32 
different judicial nominations in American history. Of the 32 judicial 
nominees subject to cloture votes, 22 were against Republican nominated 
judges. Between 1971 and 2000, there were 11 cloture votes on judicial 
nominees. Most of those filibusters, attempted by Democrats, were 
unsuccessful and cloture was invoked.
  However, beginning in 2002, Senate Democrats changed the rules. There 
were 30 cloture votes on 17 of President Bush's judicial nominees. 
Eight of President Bush's nominees are not on the bench because of the 
filibuster or threatened filibuster by Senate Democrats.
  This does not include a number of Bush's nominees that were subjected 
to the so-called ``pocket filibuster'' in Committee by the Democratic 
majority in the 110th Congress, including Peter Keisler to the DC 
Circuit and Robert Conrad to the 4th Circuit, among others.
  We hear about the notion of ``extraordinary circumstances'' as a 
justification or requirement for extended

[[Page 7486]]

debate. That was an outcome of an agreement in the 109th Congress. 
However, even after that time, Senate Democrats have used a broad and 
inconsistent application of that term. Even after that agreement, 
Senate Democrats attempted to filibuster judicial nominees. However, 
they do not seem to find it applicable to the nominee before us today. 
I disagree. The nomination of Goodwin Liu does raise extraordinary 
circumstances, as I outlined in depth yesterday.
  I have no personal animosity towards Mr. Liu. I recognize he has a 
fascinating personal story and has accomplished much. This debate is 
not about his ethnic background or personal history.
  I wish Mr. Liu well in his academic career. But a lifetime position 
on the Federal bench is not where he belongs. Therefore, I will vote no 
on the cloture motion and urge my colleagues to do the same.
  I ask unanimous consent to have printed in the Record documents in 
opposition to the nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From nationalreview.com, Mar. 3, 2011]

       Miguel Estrada on Goodwin Liu's Contemptible Mud-Flinging

                             (By Ed Whelan)

       More on Richard Painter's insipid argument (see point 2 
     here) that Goodwin Liu's attacks on the nominations of Chief 
     Justice Roberts and Justice Alito shouldn't be held against 
     him:
       Former D.C. Circuit nominee Miguel Estrada, whose 
     unsuccessful nomination Richard Painter despicably tried to 
     invoke in support of his shoddy Huffington Post defense of 
     Liu, strongly disagrees with Painter. In an e-mail to me, 
     Estrada writes (emphasis added):
       No one doubts that Senators from both parties have behaved 
     shamefully toward nominees of the other party. The treatment 
     of then-Judge Alito by Democratic members of the Judiciary 
     Committee is not yet all that far in the rear-view mirror, 
     and some of President Obama's nominees have waited far too 
     long. There is much to be said, therefore, for the 
     proposition that the degradation of the judicial confirmation 
     process is a problem that cries out for a long-term solution. 
     The one thing that ought to be reasonably clear, however, is 
     that someone who personally contributed to the sorry state of 
     the confirmation process, by jumping in the mud pit with both 
     feet and flinging the mud with both hands, is not well 
     positioned to demand that standards be elevated solely for 
     his benefit. Surely Mr. Painter can find a better case than 
     this to dramatize the need for reform.
                                  ____


                [From nationalreview.com, Mar. 2, 2011]

      Richard Painter's Deceptive Portrayal of Goodwin Liu--Part 1

                             (By Ed Whelan)

       On Huffington Post, law professor (and former Bush White 
     House ethics adviser) Richard Painter offers an extensive, 
     but badly flawed, defense of Goodwin Liu that falsely accuses 
     me of ``invent[ing] a series of myths about Liu with no basis 
     in reality.'' The opening part of Painter's essay consists of 
     regurgitating ill-informed or utterly conclusory endorsements 
     of Liu from various folks, including some conservative who 
     ought to know better. See, for example, my critique of the 
     letter that Ken Starr submitted (jointly with Akhil Amar).
       Given that Liu's hearing starts soon, I'm going to race 
     through Painter's supposed myths in this post and the next 
     (in the same order as he lists them):
       1. According to Painter, I have propagated the ``myth'' 
     that ``Liu believes judges `may legitimately invent 
     constitutional rights to a broad range of social ``welfare'' 
     goods, including education, shelter, subsistence, and health 
     care.''' My actual quote states that Liu argues in a law-
     review article that ``judges (usually in an `interstitial' 
     role) may legitimately invent constitutional rights to a 
     broad range of social `welfare' goods, including education, 
     shelter, subsistence, and health care.'' It's telling that 
     Painter has to excise the italicized parenthetical in order 
     to falsely accuse me of misstating Liu's views. Nor does he 
     address (much less take issue with) my detailed posts on the 
     matter.
       2. According to Painter, it is a ``myth'' that Liu 
     ``believes in a `freewheeling constitutional approach' that 
     allows people `to redefine the Constitution to mean whatever 
     they want it to mean.''' Painter cherry-picks the most 
     innocent-sounding of Liu's statements and ignores the 
     controversial ones. (See, for example, the material in this 
     post of mine.).
       3. According to Painter, it is a ``myth'' that Liu ``is a 
     supporter of racial quotas in the schools, and he supports 
     school choice only insofar as it furthers that goal.'' That 
     is no myth, as I have documented. Painter doesn't even 
     address my arguments.
       4. According to Painter, it is a myth that Liu ``supports 
     racial quotas forever.'' Painter doesn't address my argument, 
     and he hides behind a ridiculously narrow definition of 
     quotas.
       5. According to Painter, it is a ``myth'' that Liu supports 
     ``reparations for slavery'' and a ``grandiose reparations 
     project.'' Painter pretends to provide a full account of 
     Liu's discussion of ``solutions for racial equality'' but 
     somehow completely omits the remarks of Liu's that I've 
     highlighted, including:
       Then there's a further issue, which is that maybe there are 
     white families who were not involved as directly or even 
     indirectly with the slave trade, but who still benefited from 
     it. And then there is the whole question, which you put on 
     the table, about people who came to America after, and, you 
     know, like my family. And why is it that this movie speaks to 
     me so deeply yet?
       And so, what I would do, I think I would draw a distinction 
     between a concept of guilt, which locates accountability in a 
     sort of limited set of wrong-doers, and, on the other hand, a 
     concept of responsibility, which is, I think, a more broad 
     suggestion that all of us, whateverour lineage, whatever our 
     ancestry, whatever our complicity, still have a moral duty to 
     . . . make things right. And that's a moral duty that's 
     incumbent upon everybody who inherits this nation, regardless 
     of whatever the history is.
       And I think, to add one more point on top of that, the 
     exercise of that responsibility . . . necessarily requires 
     the answer to the question, ``What are we willing to give up 
     to make things right?'' Because it's gonna require us to give 
     up something, whether it is the seat at Harvard, the seat at 
     Princeton. Or is it gonna require us to give up our 
     segregated neighborhoods, our segregated schools? is it gonna 
     require us to give up our money?
       Its gonna require giving up something, and so until we can 
     have that further conversation of what it is we're willing to 
     give up, I agree that the reconciliation can't fully occur.
                                  ____


                [From nationalreview.com, Mar. 2, 2011]

      Richard Painter's Deceptive Portrayal of Goodwin Liu--Part 2

                             (By Ed Whelan)

       I'll continue with Painter's last three supposed ``myths'' 
     and then offer some broader comments on Painter's defense of 
     Liu:
       6. Painter says it's a ``myth'' that Liu supports ``direct 
     judicial imposition of interdistrict racial-balancing 
     orders'' in public schools. Painter tries to give his readers 
     the impression that Liu accepts Milliken v. Bradley as 
     settled law. But he somehow doesn't disclose that Liu (in 
     remarks that he failed to disclose to the Senate Judiciary 
     Committee) called for Milliken to ``be swept into the dustbin 
     of history.''
       7. Painter says it's a ``myth'' that Liu supports ``using 
     foreign law to redefine the Constitution.'' Painter relies 
     entirely on Liu's self-serving confirmation testimony and 
     clips a passage to omit the fact that Liu wrote in 2006 that 
     it ``is difficult for [him] to grasp'' how anyone could 
     resist the ``use of foreign authority in American 
     constitutional law.''
       8. Painter says it's a ``myth'' that Liu supports ``the 
     invention of a federal constitutional right to same-sex 
     marriage.'' I addressed this matter in detail just yesterday 
     and fully stand by my account. (Painter falsely attributes to 
     me the claim that Liu's amicus brief in the California 
     supreme court was ``truly an argument under the U.S. 
     Constitution.'')
       I'll briefly add some closing comments:
       If Painter were really interested in a real debate on Liu, 
     he wouldn't have waited until the day of the hearing to 
     launch his shoddy attack on me. He could have done so at any 
     time over the last eight months. Instead, he's tried to gain 
     some tactical advantage by depriving me of a fair opportunity 
     to respond. (I've had to write these responsive posts within 
     the space of two hours or so of discovering Painter's essay, 
     and I'm sure that there's much that I would say better, or 
     more fully, if I had time.)
       Painter claims to have ``reached the conclusion that Liu 
     deserves an up-or-down vote in the Senate and ought to be 
     confirmed'' only after ``reading Liu's writings [and] 
     watching his testimony?'' But the fact of the matter is that 
     Painter, evidently suffering a severe case of battered-
     conservative-academic syndrome, raced onto the Liu bandwagon 
     without having any understanding of what was at issue, and 
     (both now and in a previous op-ed) he has resolutely ignored 
     or distorted the many highly problematic aspects of Liu's 
     record.
                                  ____


                [From nationalreview.com, Mar. 3, 2011]

      Richard Painter's Deceptive Portrayal of Goodwin Liu--Part 3

                             (By Ed Whelan)

       I'll limit myself to a couple of additional observations 
     (beyond my Part I and Part 2 posts) on Richard. Painter's 
     deeply defective Huffington Post defense of Goodwin Liu:
       1. In addition to failing to confront my actual arguments, 
     Painter relies heavily on the argument-by-authority fallacy. 
     As he puts it:

[[Page 7487]]

       ``Now, you can believe the top experts in the areas of 
     Liu's scholarship and prominent conservatives such as Ken 
     Starr and Clint Bolick--or you can believe National Review 
     Online's Ed Whelan. I know where I would put my marbles.''
       Set aside that Painter, having evidently lost his marbles, 
     would have to find them first before he could put them 
     anywhere. Painter leaves the false impression that folks like 
     Starr and Bolick have actually responded to my critiques of 
     Liu and of their misunderstandings of his record. So far as 
     I'm aware, they haven't.
       (It's also amusing that Painter can't even be evenhanded in 
     his mistaken argument by authority. While he invokes various 
     credentials of Liu supporters, he identifies me only as 
     ``National Review Online's Ed Whelan.'')
       2. Towards the end of his piece, Painter tries to dismiss 
     the relevance of Liu's demagogic and irresponsible arguments 
     against the confirmations of Chief Justice Roberts and 
     Justice Alito. According to Painter, ``[i]t is critically 
     important . . . that people feel free to speak their minds 
     about Supreme Court and other judicial nominations without 
     fear of retribution.'' But as I explained ten months ago when 
     Painter made the same bad argument, Painter completely misses 
     the point: The shoddy quality of Liu's opposition to Roberts 
     and Alito reflects very poorly on him. There is no reason to 
     encourage cheap attacks like Liu's by not holding him 
     accountable.
                                  ____


                [From nationalreview.com, Mar. 3, 2011]

              Painter Shouldn't Distort Whelan's Arguments

                             (By John Yoo)

       I've seen Richard Painter's post criticizing Ed Whelan for 
     his posts on the nomination of Goodwin Liu. Painter 
     accurately reports that I've said that Liu (a colleague of 
     mine at Berkeley Law) is a good nominee to the Ninth Circuit 
     for a Democratic president. However, I don't want that to be 
     thought of as endorsing, in any way, what Painter says about 
     Ed's writings on Liu.
       What bothers me about Painter's post is that he accuses Ed 
     of distorting Liu's record, but I believe that that's what he 
     has done to Ed. He should provide in full or link to Ed's 
     criticisms of Liu and let the reader decide, rather than 
     describing (or misdescribing) and dismissing Ed's posts in a 
     short sentence or two. I don't think the Painter post is fair 
     on this point. To me, such posts actually may hurt Liu if it 
     appears that his supporters are not fully engaging his 
     critics and their best arguments.
                                  ____


                [From nationalreview.com, Mar. 10, 2011]

             Clint Bolick: Richard Painter Is ``Off-Base''

                             (By Ed Whelan)

       A follow-up to my refutation (Part 1, Part 2, and Part 3) 
     of Richard Painter's smears against me in his deeply 
     defective Huffington Post defense of Ninth Circuit nominee 
     Goodwin Liu:
       Clint Bolick, whose support for Liu Painter cites 
     repeatedly, has invited me to publish this statement of his:
       Although Ed Whelan and I have taken different positions on 
     the judicial nomination of Prof. Goodwin Liu, I believe that 
     Richard Painter has mischaracterized a number of Ed Whelan's 
     arguments as ``myths.'' In particular, Painter's assertions 
     are off the mark regarding Whelan's criticisms of Liu on the 
     creation of welfare rights, reparations, racial balancing, 
     and the use of foreign law. Obviously, opinions vary 
     regarding the merits of the nomination, but Painter is off-
     base on several crucial assertions.
       Given our bottom-line differences on the Liu nomination, I 
     am particularly grateful to Clint Bolick, as I also am to 
     John Yoo, for standing up against Painter's smears. It's 
     striking that two of the very small number of conservatives 
     that Painter relies on for their support of Liu have 
     repudiated Painter (versus zero, so far as I'm aware, who 
     have endorsed his smears). Further, another conservative, 
     Miguel Estrada, whose own nomination battle Painter tried to 
     use in support of Liu, has emphatically condemned Liu's 
     mudslinging against the Roberts and Alito nominations.
       At this point, it should be clear that it would be reckless 
     at best for anyone to accept Painter's propositions at face 
     value. I am not arguing that the reader must accept my word 
     on Painter (or Bolick's or Yoo's) or on Liu. Rather, the 
     interested reader should carefully examine the competing 
     accounts (both on the matters that Bolick identifies above 
     and on those he doesn't address) and determine who has argued 
     responsibly and effectively and who hasn't. I am confident of 
     the judgment that the intelligent and fair-minded reader will 
     reach.
                                  ____


          Confused Amar/Starr Letter in Support of Goodwin Liu

                             (By Ed Whelan)

       Law professors Akhil Reed Amar and Kenneth W. Starr have 
     sent the Senate Judiciary Committee a badly confused letter 
     in support of Goodwin Liu's nomination to the Ninth Circuit. 
     The core of their letter is dedicated to the proposition that 
     Liu has ``independence and openness to diverse viewpoints as 
     well as [the] ability to follow the facts and the law to 
     their logical conclusion, whatever its political valence may 
     be'' (or, as they later put it, the ``ability to discharge 
     faithfully an abiding duty to follow the law'').
       Amar and Starr offer two examples in purported support of 
     their proposition, but neither helps. First, they cite Liu's 
     limited support of school-choice programs. As I've explained, 
     Liu supports school-choice programs only insofar as they 
     advance racial quotas. Once one understands that (and there's 
     no indication that Amar and Starr do), it's difficult to see 
     how Liu's position on school choice evidences his 
     ``independence and openness to diverse viewpoints,'' and his 
     position certainly has no relation to his supposed ``ability 
     to follow the facts and the law to their logical 
     conclusion.''
       Second, Amar and Starr cite Liu's correct prediction that 
     the California supreme court would uphold Proposition 8 
     ``under applicable precedents'' (their phrase). They assert 
     that his correct prediction shows that Liu ``knows the 
     difference between what the law is and what he might wish it 
     to be.'' But this is a glaring non sequitur. Liu wasn't 
     stating how he would rule; he was predicting how the 
     California supreme court would. Moreover, in an op-ed, Liu 
     stated that the challenge to Proposition 8 was a ``good 
     argument, but one that faces difficult precedents,'' and he 
     argued that ``there are good reasons for the California 
     Supreme Court to rethink its jurisprudence in this area.'' So 
     much for his ``know[ing] the difference between what the law 
     is and what he might wish it to be.''
       Amar's and Starr's assertion of Liu's ``ability to follow 
     the facts and the law to their logical conclusion'' is also 
     curious, as it's not really his ``ability'' that anyone has 
     questioned. It's his willingness and commitment. Further, 
     anyone familiar with Liu's gauzy constitutional theorizing 
     would recognize that the whole concept of following the law 
     doesn't have much substance in his framework. Take, for 
     example:
       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. This 
     difficult task requires keen attention to the trajectory of 
     social norms reflected in public policies, institutions, and 
     practices, as well as predictive judgment as to how a 
     judicial decision may help forge or frustrate a social 
     consensus.
       It is, of course, theoretically possible that someone who 
     advocates a freewheeling judicial role could himself be quite 
     scrupulous in following a whole body of precedent that he 
     detests. But Amar and Starr provide zero reason for anyone to 
     believe that Liu would carry out the judicial role in that 
     manner, and there is nothing in his record to support 
     speculation that he would.

  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I have listened to a lot of the debate 
about Professor Liu, and having sat in on the hearings with him, having 
met with him, having gone through the whole record, I sometimes wonder 
who this is everybody is talking about. It is not the man I heard from, 
the man who testified under oath and had to speak very candidly, very 
honestly about his positions. He is a man who is admired by legal 
thinkers and academic scholars from across the political spectrum.
  He has spent his career in public service, private practice, and as a 
teacher since receiving degrees from Stanford University and Yale Law 
School. He is a Rhodes scholar. After law school, Professor Liu clerked 
for DC Circuit Judge David Tatel, and Supreme Court Justice Ruth Bader 
Ginsburg. No one can question his intellect or his qualifications. He 
should be treated with respect and admired, not maligned and 
caricatured. His honest testimony during two hearings before the 
Judiciary Committee should be credited, rather than ignored.
  Professor Liu's parents, wife, children, friends and community are 
justifiably proud of him and have looked forward to his confirmation to 
the court of appeals since he was first nominated in February 2010. We 
saw his beautiful children at each of his two confirmation hearings--
indeed, the first was born only weeks before his first hearing and was 
nearly a year old at his second. The son of Taiwanese immigrants, 
Professor Liu would bring much-needed diversity to the Federal Bench. 
There is no Asian Pacific American judge on the Ninth Circuit Court of 
Appeals, which, of course, includes California and Hawaii and a number 
of Western States.
  If we look at the record, Professor Liu is a nominee with significant 
support from across the political and ideological spectrum. Among the 
letters I will have printed in the Record is one

[[Page 7488]]

from Kenneth Starr, the former Solicitor General during President 
George H. W. Bush's administration. For those who have may have 
forgotten, he was the independent counsel who investigated President 
Clinton during the Clinton administration.
  He and distinguished Professor Akhil Amar wrote:

       [I]t is our privilege to speak to his qualifications and 
     character, and to urge favorable action on his nomination in 
     the discharge of your constitutional duties of advice and 
     consent. In short, Goodwin is a person of great intellect, 
     accomplishment, and integrity, and he is exceptionally well-
     qualified to serve on the court of appeals. The nation is 
     fortunate that he is willing to leave academia to engage in 
     this important form of public service.

  We also heard from Clint Bolick, who is the director of the 
conservative Goldwater Institute, named after a former colleague of 
mine, Barry Goldwater. He said:

       Having reviewed several of his academic writings, I find 
     Professor Liu to exhibit fresh, independent thinking and 
     intellectual honesty. He clearly possesses the scholarly 
     credentials and experiences to serve with distinction on this 
     important court.

  A bipartisan group of eight chief corporate executives who know 
Professor Liu from his service on the Stanford University Board of 
Trustees recently wrote to the Senate in support of Professor Liu's 
nomination:

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

  I ask unanimous consent that these letters be printed in the Record 
at the conclusion of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. I could put in the Record many more from the broad set of 
preeminent lawyers, organizations, and leaders in the academic world 
who support this nomination. Professor Liu's nomination merits our 
support, not this filibuster.
  The Senate should vote on this nomination. In 2005, when the 
Republican majority threatened to blow up the Senate to ensure up-or-
down votes for each of President Bush's judicial nominations, Senator 
McConnell, then the Republican whip, said:

       Any President's judicial nominees should receive careful 
     consideration. But after that debate, they deserve a simple 
     up-or-down vote. . . . It's time to move away from advise and 
     obstruct and get back to advise and consent. The stakes are 
     high . . . . The Constitution of the United States is at 
     stake.

  Other Republican Senators made similar statements back then. Many 
declared that they would never support the filibuster of a judicial 
nomination. Some have tried to stay true to that vision and principle. 
That is why the filibuster against Judge Hamilton failed and that 
against Judge McConnell was ended. This filibuster should also be 
ended.
  Now the Senators, many of whom are still serving on the other side of 
the aisle, claim to subscribe to a standard that prohibits filibusters 
of judicial nominees, except in ``extraordinary circumstances.'' None 
of them have shown there are any extraordinary circumstances here. The 
President has nominated an outstanding lawyer, supported by his home 
State Senators and favorably reported by a majority of the Senate 
Judiciary Committee. This nomination is to fill a vacancy, a judicial 
emergency, on the Ninth Circuit.
  The 14 Senators who signed the Memorandum of Understanding in 2005, 
the then-Gang of 14, wrote about their ``responsibilities under the 
Advice and Consent Clause of the United States Constitution'' and that 
fulfilling their constitutional responsibilities in good faith meant 
that ``[n]ominees should only be filibustered under extraordinary 
circumstance.'' Well, let's be responsible. Let's bring it to a vote.
  I had hoped 2 weeks ago, when 11 Republican Senators joined in voting 
to end the filibuster against Judge Jack McConnell of Rhode Island that 
the Senate was moving away from the narrow partisan attacks of judicial 
nominations that have slowed us almost from the day President Obama 
took office. Instead, for the sixth time since President Obama took 
office just over a couple of years ago, we have had to seek cloture to 
overcome a Republican filibuster of one of President Obama's well-
qualified judicial nominations.
  The 14 Senators who signed the Memorandum of Understanding in 2005 
wrote about the need for the President to consult with Senators. Well, 
this President, unlike his predecessor, has been a model in that 
regard. Unlike President Bush, President Obama actually has consulted 
with both Republican and Democratic Senators in the home States. And 
unlike my predecessor, the Republican Chairman of the Judiciary 
Committee, I have not proceeded with any nominee against the wishes of 
a home State Senator. So apparently we have one rule if it is a 
Republican President and a Republican chairman of the committee, but 
everything changes if we have the nominees of a Democratic President. I 
protected Republican home State Senators. In return, I would expect 
Republican Senators to respect the views of other Senators, and to work 
with the President.
  In 2005 they called for a return to our earlier practices and the 
reduction of rancor in the confirmation process and a return to the 
traditions of the Senate. I have worked very hard to do just that. I 
think of the vote on Janice Rogers Brown to the DC Circuit. She was a 
nominee who had argued that Social Security was unconstitutional, 
saying that ``[t]oday's senior citizens blithely cannibalize their 
grandchildren.'' I think most of us disagreed with her on that, but she 
got an up-or-down vote. They agreed to invoke cloture on the nomination 
of Priscilla Owen to the DC Circuit. Owen, a nominee whose rulings on 
the Texas Supreme Court were so extreme, they drew a condemnation of 
other conservative judges on that court. In fact, President Bush's 
White House counsel and later Attorney General, called one of her 
opinions an unconscionable act of judicial activism. But she was a 
Republican and she got a vote.
  By the standard utilized in 2005 to end filibusters and vote on 
President Bush's controversial nominees, this filibuster should be 
ended and the Senate should vote on the nomination.
  There were no ``extraordinary circumstances'' to justify the 
Republican filibuster of Judge David Hamilton, President Obama's very 
first judicial nomination. David Hamilton of Indiana was a 15-year 
veteran of the Federal bench. President Obama nominated Judge Hamilton 
in March 2009, after consultation with the most senior and longest-
serving Republican in the Senate, Senator Dick Lugar of Indiana, who 
then strongly supported the nomination. Rather than welcome the 
nomination as an attempt by President Obama to step away from the 
ideological battles of the past, Senate Republicans ignored Senator 
Lugar's support, caricatured Judge Hamilton's record and filibustered 
his nomination. After rejecting that filibuster, Judge Hamilton was 
confirmed. The majority leader has had to file cloture on four other 
highly qualified judicial nominations, and now Professor Liu's 
nomination is the sixth.
  No Senator could claim the circumstances surrounding the filibusters 
of President Obama's other circuit court nominations to be 
extraordinary. Republicans filibustered the nomination of Judge Barbara 
Keenan, a nominee with nearly 30 years of judicial experience, and who 
had been the first woman to hold a number of important judicial roles 
in Virginia. Once the filibuster was ended, she was ultimately 
confirmed 99-0 as the first woman from Virginia to serve on the Fourth 
Circuit.
  Senate Republicans filibustered the nomination of Judge Thomas 
Vanaskie, despite his 16 years of experience as a Federal district 
court judge in Pennsylvania. That filibuster ended when the Senate 
agreed to vitiate the cloture, end the filibuster, and proceed to a 
vote. There were no extraordinary circumstances.
  Last year, Senate Republicans filibustered the nomination of Judge 
Denny Chin, an outstanding judge with 16 years experience. They delayed 
his Senate consideration for months.

[[Page 7489]]

There was no reason to do it. Finally, when that filibuster ended, the 
Senate proceeded to vote and confirm the only active Asian Pacific 
American judge serving on the Federal appellate court. The only one in 
all of our courts. This nominee is likewise deserving of a vote and not 
a partisan filibuster.
  Following the recent filibuster of the nomination of Judge Jack 
McConnell to the district court in Rhode Island, this filibuster is the 
sixth time the majority leader has had to seek cloture to bring a 
judicial nomination to a vote.
  I will say how it is unusual to have a second hearing on a 
nomination, at the request of Republican members of the committee. I 
said at the time that I hoped they would evaluate him fairly with open 
minds. Any Senator who listened to Professor Liu's answers during hours 
of questions at two confirmation hearings and considered his responses 
to hundreds of written followup questions--hundreds--should come away 
understanding this is an exceptional lawyer and scholar who will make 
an outstanding judge, a judge who respects the rule of law and reveres 
the Constitution.
  Professor Liu's answers under oath and his reputation as a well-
respected constitutional law professor paint a very different picture 
than the caricature created by the attacks from the special interest 
groups. Republican Senators did not wait for his hearing before 
declaring their opposition.
  Senator Feinstein noted at Professor Liu's first hearing over a year 
ago that he has an extraordinary legal mind and is a person of 
integrity. I agree. No fairminded person can or should question his 
qualifications, talent, or character. Nobody can doubt his temperament. 
Through hours and hours and hours of questioning, we saw his judicial 
temperament. Unlike some of the nominees supported by the other side, 
he actually answered the questions. He assured the committee time and 
time again that he understands the role of a judge and the need for a 
judge to follow the law and adhere to the rule of law. He met every 
test presented to him by Senators on the Judiciary Committee from 
either side of the aisle. He exceeds every standard we have used to 
measure judicial nominees.
  Yet in the course of the debate on this nomination we have heard 
troubling and baseless attacks on Professor Liu's character and 
integrity. Incredibly, despite this nominee's testimony at two 
confirmation hearings and his answers to hundreds of written questions, 
he has been accused of lack of candor. Professor Liu has not been a 
stealth nominee. In fact, his record as a professor, public servant and 
advocate has been a remarkably open and public one. Senators have been 
able to review an unprecedented volume of information provided by this 
nominee and ask him hundreds of questions about it. He has been 
available to meet with Senators and many have taken him up on the 
opportunity. So accusations that Professor Liu has been less than 
candid are misplaced, and a decision to simply ignore his record, his 
testimony before the committee, and his assurances under oath that he 
understands the role of a judge and would follow precedent if confirmed 
is misguided.
  The many letters of strong support we have received from 
conservatives and Republicans who have reviewed Professor Liu's record 
and know the nominee show the hollowness of the partisan attacks on 
Professor Liu's character. In their letter, Ken Starr and Professor 
Amar describe Professor Liu as, ``a person of great intellect, 
accomplishment and integrity.'' A bipartisan group of eight CEO's based 
their support for Professor Liu's nomination on their observation of 
``his character and intellect.'' A bipartisan group of 22 leaders in 
education law, policy and research cited Professor Liu's ``independence 
and intellectual honesty'' as among the many of his exemplary traits 
leading them to support his nomination. Senators can in good faith 
oppose this nomination, though I disagree with them, but the attacks on 
a fine man's character have no place in this debate.
  Nonetheless, each time the Judiciary Committee considered Professor 
Liu's nomination a total of three times--Republican Senators voted 
against. When Senators are not willing to give serious and open-minded 
consideration to nominations it reduces the hearings and committee 
process to a game of delay and partisan points-scoring. That, too, is 
wrong.
  I urge Senators to reject the special interest pressure groups and to 
approach this nomination the way I approached a similar nomination of a 
law professor by President Bush, the nomination of Professor Michael 
McConnell to the Tenth Circuit. He was a widely regarded law professor. 
Like Professor Liu, Professor McConnell was nominated to a Federal 
appeals court without having first served as a judge. He was one of two 
dozen such nominations confirmed after being nominated by President 
Bush.
  Professor McConnell's own provocative writings included staunch 
advocacy for reexamining the first amendment free exercise clause and 
the establishment clause jurisprudence. He had expressed strong 
opposition to Roe v. Wade and to the clinic access law, and he had 
testified before Congress that he believed the Violence Against Women 
Act was unconstitutional. Professor McConnell's writings on the actions 
of Federal District Court Judge John Sprizzo in acquitting abortion 
protesters could not be read as anything other than praise for the 
extra-legal behavior of both the defendants and the judge.
  Some thought Professor McConnell would turn out to be a conservative 
activist judge on the Tenth Circuit. I was concerned about his refusal 
to take responsibility for his harsh criticism of the Supreme Court's 
decision in the Bob Jones case. But I put faith in Professor 
McConnell's assurance that he understood the difference between his 
role as a teacher and an advocate and his future role as a judge. He 
assured us that he respected the doctrine of stare decisis, and that as 
a Federal appeals court judge he would be bound to follow Supreme Court 
precedent. I valued the fact that his home State Senator, Senator 
Hatch, supported him. The similarity there--except for the philosophy--
is exactly the same with McConnell and Liu. McConnell was reported 
favorably by the Judiciary Committee with my support, and he was 
confirmed to the Tenth Circuit by the Senate just one day after his 
nomination was reported. We voted for McConnell. They want to stop Liu.
  Numerous conservative legal scholars have praised Professor Liu's 
understanding of constitutional law, stating that it falls well within 
the mainstream of American legal thought. Nothing I have read or heard 
from Professor Liu gives me any reason to doubt his conviction about 
the critical importance of the rule of law as the guiding principle of 
judicial decisionmaking. As a professor he has done what great 
professors do--challenge our view of the law. But he has left no doubt 
that as a judge he would do what great judges do in applying the law 
fairly to each case.
  I thank Professor Liu's home State Senators, Senator Feinstein and 
Senator Boxer, for their staunch advocacy for his nomination. I also 
thank the many Senators who have come to the floor to speak in support 
of Professor Liu's nomination, including the majority leader, Senator 
Reid, the assistant majority leader, Senator Durbin, and Senators 
Blumenthal, Coons, Cardin, Franken, and Lieberman.
  I hope Senators from both sides of the aisle will join me in ending 
the filibuster of Professor Liu's nomination. He has demonstrated a 
command of the law and devotion to it. He has shown that he understands 
the role of the judge and how it differs from his career as an advocate 
and an academic.
  I hope every Senator will treat Professor Liu with the same fairness 
that we gave Professor McConnell, and give the same weight to Professor 
Liu's assurances that we gave to McConnell's identical assurances. Then 
the Senate will finally be able to consider and confirm this 
extraordinary nominee.
  How much time remains?
  The PRESIDING OFFICER. There is 13 minutes 30 seconds remaining.

[[Page 7490]]



                               Exhibit 1

                                                   March 19, 2010.
     Senator Patrick J. Leahy,
     Chairman,
     Senator Jeff Sessions,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Dirksen Senate Office Building, Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: As your 
     Committee considers the nomination of Goodwin Liu to serve on 
     the U.S. Court of Appeals for the Ninth Circuit, it is our 
     privilege to speak to his qualifications and character, and 
     to urge favorable action on his nomination in the discharge 
     of your constitutional duties of advice and consent. In 
     short, Goodwin is a person of great intellect, 
     accomplishment, and integrity, and he is exceptionally well-
     qualified to serve on the court of appeals. The nation is 
     fortunate that he is willing to leave academia to engage in 
     this important form of public service.
       The Committee is no doubt familiar with Goodwin's personal 
     story as the son of immigrants from Taiwan and his sterling 
     record of achievements and accolades. We know Goodwin as a 
     fellow teacher and scholar of the law; we have read some of 
     his writings, and we have seen him speak in academic and 
     public settings. What we wish to highlight, beyond his 
     obvious intellect and legal talents, is his independence and 
     openness to diverse viewpoints as well as his ability to 
     follow the facts and the law to their logical conclusion, 
     whatever its political valence may be. These are the 
     qualities we expect in a judge, and Goodwin clearly possesses 
     them.
       Two examples help make the point. First, Goodwin (and his 
     co-author Bill Taylor) wrote an article in Fordham Law Review 
     in 2005 defending the use of school vouchers to provide 
     better educational opportunities for children trapped in 
     failing schools. The article provides a careful and candid 
     review of the evidence on how vouchers have worked in 
     practice, and it responds to the critics of vouchers in a 
     direct and forceful way. We are fairly sure that this piece 
     did not win Goodwin any friends in the liberal establishment, 
     but it reflected his sincerely reasoned view about one way to 
     improve the life chances of some of our most disadvantaged 
     children. Goodwin's commitment to this issue brought him to 
     Pepperdine in 2006 for a meeting organized by Clint Bolick, 
     then president of the Alliance for School Choice. Given how 
     far apart he and Clint are on other issues, Goodwin's 
     enthusiastic participation in that meeting demonstrates his 
     willingness to find common ground even with people who have 
     quite different beliefs from his own.
       A second example hits closer to home for one of us. In 
     2008, Goodwin joined an amicus brief by constitutional law 
     professors in support of the plaintiffs who challenged 
     California's marriage laws in the state supreme court. The 
     court ruled for the plaintiffs, but in November 2008 the 
     voters of California effectively reversed that ruling by 
     enacting Proposition 8, a state constitutional amendment that 
     limits marriage to opposite-sex couples. In October 2008, 
     before Proposition 8 passed, Goodwin was called to testify at 
     a joint hearing of the California Assembly and Senate 
     Judiciary Committees on the legal issues raised by 
     Proposition 8. He was asked to testify as a neutral legal 
     expert (indeed, he was the sole witness tapped for that 
     role), and on the core issue that later became the subject of 
     a state constitutional challenge, Goodwin correctly 
     forecasted that Proposition 8 would be upheld by the 
     California Supreme Court under applicable precedents. Again, 
     Goodwin's position, which he also stated in a Los Angeles 
     Times editorial, could not have pleased his friends who 
     sought to invalidate Proposition 8. But, as the example 
     shows, 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.
       As his academic colleagues, we would add a further point. 
     Given what we know of Goodwin, it seems no accident that he 
     was asked by his dean (literally before the ink was dry on 
     his tenure review) to assume the role of associate dean. If 
     Berkeley is like other law schools, the duties of that 
     position include planning the curriculum and, importantly, 
     serving as something of a catch-all for faculty requests and 
     complaints. His appointment to that role is additional 
     evidence of his reputation for collegiality, fairness, and 
     good judgment.
       In sum, you have before you a judicial nominee with strong 
     intellect, demonstrated independence, and outstanding 
     character. We recognize that commentators on all sides will 
     be drawn to debate the views Goodwin has expressed in his 
     writings and speeches. In the end, however, 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 (apart from the en banc process) 
     adherence to circuit precedent as well. Thus, 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.
           Respectfully submitted,
     Akhil Reed Amar,
       Sterling Professor of Law and Political Science, Yale Law 
     School.
     Kenneth W. Starr,
       Duane and Kelly Roberts Dean and Professor of Law, 
     Pepperdine University School of Law.
                                  ____



                                          Goldwater Institute,

                                    Phoenix, AZ, January 20, 2010.
     Re Nomination of Goodwin Liu to Ninth Circuit.

     Hon. Orrin Hatch,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Sen. Hatch: I hope the new year is off to a good start 
     for you.
       I understand that the President will send to the Senate the 
     nomination of Goodwin Liu to serve on the U.S. Court of 
     Appeals for the Ninth Circuit. He is associate dean and 
     professor of law at Boalt Hall at the University of 
     California, and a former Rhodes Scholar and clerk to Justice 
     Ruth Bader Ginsburg. Although Prof. Liu and I differ on some 
     issues, I strongly support his nomination.
       I have known Prof. Liu for several years, since reading an 
     influential law review article he co-authored with William 
     Taylor of the Citizens' Commission on Civil Rights supporting 
     school choice as a solution to the crisis of inner-city 
     public education. It took a great deal of courage and 
     integrity for Prof. Liu and Mr. Taylor to take such a strong 
     and public position. Subsequently, Prof. Liu participated in 
     a program hosted by the Alliance for School Choice bringing 
     together diverse supporters of expanded educational 
     opportunities.
       Having reviewed several of his academic writings, I find 
     Prof. Liu to exhibit fresh, independent thinking and 
     intellectual honesty. He clearly possesses the scholarly 
     credentials and experience to serve with distinction on this 
     important court.
       Thank you for considering my comments, and I hope our paths 
     cross soon. With all best wishes.
           Very sincerely,
                                                     Clint Bolick,
     Director.
                                  ____

                                                     May 17, 2011.
     Hon. Harry Reid,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
     Hon. Mitch McConnell,
     U.S. Senator, Russell Senate Office Building, Washington, DC.
       Dear Senator Reid and Senator McConnell: We are a 
     bipartisan group of eight business leaders who write in our 
     personal capacities in support of University of California 
     law professor Goodwin Liu's nomination to the Ninth Circuit 
     Court of Appeals. We know Goodwin from his service on the 
     Stanford University Board of Trustees, and having observed 
     his character and intellect in the intimate setting of a 
     high-level fiduciary board, we have no doubt that he would 
     make a superb federal judge.
       The Stanford Board of Trustees is the university's 
     governing body. It is the custodian of the university's 
     endowment and properties, and it sets the annual budget, 
     appoints the president, and determines policies for operation 
     and control of the university. Election to the board involves 
     a rigorous screening process that considers an individual's 
     temperament, collegiality, professional accomplishments, 
     leadership abilities, and judgment, among other qualities. 
     The 32 current trustees include leading venture capitalists, 
     foundation and university presidents, and more than a dozen 
     chairmen or CEOs of major corporations and private equity 
     firms. The board meets five times a year for two days at a 
     time, so board members get to know each other quite well.
       Goodwin's election as a trustee is indicative of his 
     professional stature and integrity, as well as his record of 
     public service. Through the careful and confidential scrutiny 
     involved in the board's screening process, Goodwin emerged as 
     a person widely admired for his intellect, fairness, and 
     ability to work well with people of differing views.
       On the board, Goodwin has lived up to his reputation. 
     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.
       In short, Goodwin's strengths are exactly what we expect in 
     a judge: objectivity, independence, collegiality, respect for 
     differing

[[Page 7491]]

     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.
       The confirmation of exceptionally qualified nominees like 
     Goodwin should not be a partisan issue. We believe Goodwin 
     deserves the support of Senators from both parties; at the 
     least, he deserves a timely up-or-down vote. We are pleased 
     to join the diverse range of individuals who endorse 
     Goodwin's nomination and urge his swift confirmation.
           Sincerely,
     Mariann Byerwalter,
       Chairman, JDN Corporate Advisory LLC.
     Steven A. Denning,
       Chairman, General Atlantic LLC.
     John A. Gunn,
       Chairman, Dodge & Cox.
     Frank D. Lee,
       CEO, Dragonfly Sciences, Inc.
     Hamid R. Moghadam,
       Chairman and CEO, AMB Property Corporation.
     Ruth Porat,
       Executive Vice President and Chief Financial Officer, 
     Morgan Stanley.
     Ram Shriram,
       Founding Board Member, Google, Inc.
     Jerry Yang,
       Co-Founder and Chief Yahoo, Yahoo!, Inc.

  Mr. LEAHY. 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The minority leader is recognized.
  Mr. McCONNELL. Mr. President, over the past two years, our Nation has 
been engaged in a great debate about the kind of country we want 
America to be--a place of maximum liberty and limited government, or a 
place where no problem is too big or too small for the government to 
get involved.
  This debate arose because of a President who made no apologies about 
wanting to move America to the left, and it continues today, despite 
widespread opposition to the President's policies, because of the 
President's clear determination to forge ahead.
  But just as Rome wasn't built in a day, neither is President Obama's 
vision assured. Rather, it is a work in progress.
  A big part of the President's plan was to put government in charge of 
our Nation's health care system.
  Another part was making sure government calls the shots over private 
industry and elections--so much so that we are actually having a debate 
right now about whether businesses need to ask the White House's 
permission to move to another State, and whether private businesses 
should be forced to disclose political contributions in order to get a 
Federal contract.
  And still another part of the President's vision involves the people 
he wants to put on our Nation's courts.
  Do we want people who have reverence for the U.S. Constitution and 
who believe it means what it says or do we want people on our courts 
who care more about advancing an ideology that is antithetical to the 
Constitution than they do about upholding it.
  This is the question Presidents need to ask themselves when it comes 
to judicial nominees. And I think this President's preference in this 
area is clear.
  Based on some of the nominations we have seen, President Obama wants 
men and women on the courts who will advance his vision, who would 
expand the scope of government beyond anything the founders could have 
ever imagined.
  Yet not until now has the Senate been asked to confirm someone who 
has so openly and vigorously repudiated the widely accepted meaning and 
purpose of the Constitution. And here I am referring, of course, to the 
nomination of Goodwin Liu to the Ninth Circuit Court of Appeals.
  So this afternoon I would like to take a moment to explain why I 
believe it is so critically important that the Senate reject this 
nomination now by opposing cloture on it.
  The first thing I would say about Mr. Liu is that I have nothing 
against him personally. No one disputes that he has a compelling 
personal story or that he is possessed of a fine intellect. But earning 
a lifetime appointment isn't a right, nor is it a popularity contest.
  Rather, it is incumbent upon those of us who are required to vote on 
judicial nominees like him to evaluate each one of them closely--to 
examine their judicial philosophies, to look at their records, and to 
consider their temperaments. And that's just what we have done here. 
What have we found?
  When it comes to Mr. Liu's record as a practicing lawyer, the first 
thing to say is that it is almost nonexistent. He has no prior 
experience as a judge and minimal experience actually practicing the 
law.
  This means that in evaluating what kind of judge Mr. Liu would be, 
and in trying to determine his judicial philosophy, we are necessarily 
limited to what he has written.
  And what do Mr. Liu's writings reveal? Put simply, they reveal a 
left-wing ideologue who views the role of a judge not as that of an 
impartial arbiter but as someone who views the bench as a position of 
power.
  As recently as 2 years ago, Mr. Liu said he believed that the last 
presidential election gave liberals, as he put it, ``a tremendous 
opportunity to actually get [their] ideas and the progressive vision of 
the Constitution and of law . . . into practice.''
  Here is an open acknowledgement by Mr. Liu that a judge should use 
his position to advance his own views. This is repugnant. Anyone who 
holds such a view as a judge would undermine the integrity of the 
courts.
  And what are Mr. Liu's views?
  In an article he published 3 years ago, Mr. Liu wrote that courts 
should interpret the U.S. Constitution as containing a right to 
education, shelter, subsistence, and health care--a constitutional 
right. By this he meant that the courts should determine how 
``particular welfare goods'' should be distributed rather than the 
people themselves, through the democratic process.
  The point is that Mr. Liu appears to view the judge not as someone 
whose primary job is to interpret the Constitution but as someone whose 
lifetime tenure liberates him to advance his views of what the 
Constitution means and empowers him to impose it on others. In his 
view, it is the job of a judge to create new rights, regardless of what 
the Constitution says or what the American people, acting through the 
democratic process, want.
  And while this philosophy may be popular on left-wing college 
campuses, it has no place whatsoever in a U.S. courtroom. Everyone who 
enters our courtrooms should have the assurance that judges will uphold 
their rights equally and that they won't overstep their bounds. Mr. 
Liu's writings provide no such assurance. On the contrary, they suggest 
a deeply held commitment to the view that the Constitution can mean 
pretty much whatever a judge wants it to, that judges can just make it 
up as they go along.
  In Mr. Liu's court, the defendant couldn't expect to be protected by 
the Constitution and the laws, because the law is subject to the whim 
of the judge. This is precisely the opposite of what Americans expect 
in a judge. It also happens to be the opposite of what the Founders 
envisioned for the courts. As it says in Federalist 78, the Judiciary 
``has neither force nor will, but merely judgment.''
  Compare this with Mr. Liu, whose writings suggest again and again 
that a judge shouldn't look so much at the words of the Constitution 
when setting out to interpret it, as they should ``our collective 
values'' or our ``evolving norms''.
  Let's be clear. It is the judge, in Mr. Liu's view, who will 
determine what ``norms'' are ``evolving,'' not the American people.
  Clearly, the Constitution itself would take a backseat in his court.
  Indeed, even a brief review of his writings suggests that, as a 
judge, Mr. Liu might very well accord greater respect to foreign law 
than he would to our own Constitution.

[[Page 7492]]

  As he once wrote:

       The U.S. can hardly claim to have a monopoly on wise 
     solutions to common legal problems faced by constitutional 
     democracies around the world.

  Again, this might fly in a left-wing classroom--but it is cold 
comfort to those who look to the courts for equal justice under the 
law. Americans shouldn't have to wonder when they walk into an American 
courtroom which Nation's laws they will be judged under.
  So, as I see it, there is no question, based on his writings, that 
Mr. Liu's judicial philosophy is completely antithetical to the 
judicial oath that he would be sworn to uphold.
  Upon his own nomination to the bench, Professor Liu has sought to 
distance himself from his legal writings. He has also told the 
judiciary committee that he stands by them. Well, he can't have it both 
ways. And as others have pointed out, if we can't go by what Professor 
Liu has written, there is nothing left upon which to evaluate him.
  On the question of qualifications, Mr. Liu just doesn't have much 
legal experience outside of the classroom. And while no one is saying 
teachers can't be good judges, this particular teacher's judicial 
philosophy, as evidenced by his writings, is so far outside the 
mainstream that anyone who believes in the primacy of the U.S. 
Constitution should be deeply troubled by the prospect of his 
appointment to the court.
  I believe this nominee is precisely the kind of judge we want to 
prevent from getting on the bench. He should not be confirmed. I will 
vote against cloture. I urge my colleagues to do the same.
  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. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sanders). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, I will use leader time to give my remarks. I 
ask unanimous consent that as soon as I have finished my remarks, the 
vote go forward.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, 2 days ago I came to the floor to talk about 
the nomination of Goodwin Liu, an extremely well-qualified, fairminded, 
and widely respected legal scholar. The President has nominated him to 
serve his country on the U.S. Court of Appeals for the Ninth Circuit.
  All week, this body has heard speeches about Mr. Liu's merits, so I 
will repeat them only briefly. He was a Rhodes Scholar and clerked on 
the U.S. Supreme Court. He served as associate dean at the California 
Berkeley School of Law and is a professor there right now. He has done 
a lot of pro bono work and even helped launch AmeriCorps. On top of all 
that, he has lived the American dream. He is the highly successful son 
of immigrants.
  His integrity has been praised by Democrats and Republicans, not just 
one or two but many. Former Republican Congressman--and a very 
conservative Congressman--Bob Barr commended Liu's commitment to the 
Constitution. One of President Bush's former lawyers said Liu falls 
within the mainstream. Even Ken Starr, the Whitewater special 
prosecutor, endorsed this man who served in the Clinton administration.
  The record is clear. Any claims that Goodwin Liu is anything but 
deserving of our confirmation is simply inaccurate. But I recognize 
every Senator has the right to vote how he or she feels they should 
vote. It is worth noting, however, that the vote before us now is not a 
vote to confirm him; it is a vote on whether he deserves an up-or-down 
vote. There is no question he does deserve an up-or-down vote.
  A simple up-or-down vote is hardly a controversial request. This is 
not only my view and the view of my fellow Democrats, it is a view of 
my Republican friends as well. In a 2004 Law Review article, one of our 
Republican colleagues, the junior Senator from Texas and longtime 
member of the Texas Supreme Court, wrote the following:

       Wasteful and unnecessary delay in the process of selecting 
     judges hurts our justice system and harms all Americans. It 
     is intolerable no matter who occupies the White House and no 
     matter which party is in the majority party in the Senate . . 
     . Filibusters are by far the most virulent form of delay 
     imaginable.

  The junior Senator from Texas is in the Chamber today. We will see if 
he still feels that way or if he will, in his own words, hurt our 
justice system and harm all Americans with intolerable virulent delays. 
We will carefully be watching how he votes.
  We will also be carefully watching another Republican Senator, the 
senior Senator from Tennessee, who said this in 2005:

       I pledged, then and there, I would never filibuster any 
     President's judicial nominee, period. I might vote against 
     them, but I will always see them come to a vote.

  The senior Senator from Tennessee is here today. ``Never'' is about 
as unambiguous as it gets. We will be watching to see if he upholds his 
public pledge.
  A third Republican Senator, the junior Senator from Georgia, said 
this in 2005:

       I will vote to support a vote, up or down, on every 
     nominee, understanding that, were I in the minority party or 
     the issues reversed, I would take exactly the same position 
     because this document, our Constitution, does not equivocate.

  The junior Senator from Georgia will be voting this afternoon. Now, 
as he predicted, he is in the minority and the issue is reversed. We 
will see if, as he promised, he will take the same position or if he 
will equivocate.
  Here is a fourth. Four years ago, another Republican Senator, the 
senior Senator from Utah, former chairman of the Judiciary Committee, 
said this on this floor:

       We may not use our role of advise and consent to undermine 
     the President's authority to appoint judges . . . It is wrong 
     to use the filibuster to defeat judicial nominees who have 
     majority support, who would be confirmed if only we could 
     vote up or down. That is why I have never voted against 
     cloture on judicial nominations.

  Yet another pledge never to vote against cloture on a judicial 
nomination. That is four. There are more. That is precisely the vote 
before us now. We will be watching to see if the senior Senator from 
Utah follows his own counsel or if he, in his own judgment, undermines 
the authority of the President of the United States.
  These pledges were made publicly and plainly. In a court of law, they 
would be considered pretty clear evidence. It does not take the great 
legal mind of a Goodwin Liu to recognize that simple principle.
  We have heard the promises. Now we will hear the votes.


                             Cloture Motion

  The PRESIDING OFFICER. By unanimous consent, pursuant to rule XXII, 
the Chair lays before the Senate the pending cloture motion, which the 
clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Goodwin Liu, of California, to be United States Circuit Judge 
     for the Ninth Circuit.
         Harry Reid, Patrick J. Leahy, Charles E. Schumer, Richard 
           Blumenthal, Daniel K. Akaka, Al Franken, Richard J. 
           Durbin, Sheldon Whitehouse, Dianne Feinstein, Jeff 
           Merkley, Christopher A. Coons, Mark Begich, Amy 
           Klobuchar, Barbara Boxer, Jack Reed, Debbie Stabenow, 
           Sherrod Brown.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that the debate on the 
nomination of Goodwin Liu, of California, to be United States Circuit 
Judge for the Ninth Circuit shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus) is 
necessarily absent.

[[Page 7493]]


  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Texas (Mrs. Hutchison), the Senator from Kansas (Mr. Moran), and 
the Senator from Louisiana (Mr. Vitter).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 52, nays 43, as follows:

                       [Rollcall Vote No. 74 Ex.]

                                YEAS--52

     Akaka
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Manchin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--43

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Enzi
     Graham
     Grassley
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Kyl
     Lee
     Lugar
     McCain
     McConnell
     Nelson (NE)
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Snowe
     Thune
     Toomey
     Wicker

                        ANSWERED ``PRESENT''--1

       
     Hatch
       

                             NOT VOTING--4

     Baucus
     Hutchison
     Moran
     Vitter
  The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are 
43, and 1 Senator responded ``Present.'' Three-fifths of the Senators 
duly chosen and sworn not having voted in the affirmative, the motion 
is rejected.
 Mr. MORAN. Mr. President, today, I was unavoidably absent for 
vote No. 74 on cloture for the nomination of Goodwin Liu, of 
California, to be a U.S. circuit judge for the Ninth Circuit. I was in 
my home State of Kansas at the time of the vote. Had I been present, I 
would have voted to oppose the invoking of cloture on the 
nomination.
  The PRESIDING OFFICER. The Senator from Illinois.

                          ____________________