>> thank you very much. you are a great panel. craig, always great to have you here. greg, always great to have you here. and certainly dan and lives, first time but i hope not the

last. thank you all very much. [applause] in a few moments a debate on the nomination of law professor goodwin liu to the ninth circuit court of appeals.

>> you must be willing to lean on others, to listen to others, and yes, love others. >> watch 2011 commencement speeches on c-span memorial day weekend and search more than 800 has commencement addresses from politicians, activists, authors and other world leaders and more online at the peabody award-winning c-span of your library were you can search, watch, clip and share everything we've covered from 1987 through today. it's washington your way. >> in early 2010 president obama nominated law professor goodwin liu to the ninth circuit court of appeals. the 111th congress adjourned without taking action so the president renominated mr. liu with the start of the 112th congress. last month the judiciary committee sent the nomination to the floor on a 10-eight a vote.

a test vote is scheduled for this afternoon. in a few moments some of what senator said about the nomination yesterday. first we talk with a reporter who is covering the senate. thob >> host: joining us is david tht ingram, capitol hill reporter at the legal times and the "national law journal." tell us, who is goodwin liu and why is his nomination to the ninth circuit considered controversial? possible that 2011 could be the first year since 1958 that the federal government won't hold an offshore lease sale, the first time since 1958. does that mean we're less dependent on oil and gasoline than we were in 1958 or 1959 or 1969 or -- no, it doesn't mean that. we're more dependent. and we need to move forward with looking at the resources we have. recently -- recently meaning sat

dimeaning --recently meaning sa. the president appears to have reversed course on this issue and has called for the alaska and gulf of mexico lease leasese reinstated. i think this bill actually helps what the president called for on saturday. that would be lightning speed for the senate to pass a bill on wednesday or thursday that the president asked for on saturday. but i think this is very much in line with what i would add submit a new position for the president to take. but it's one that he seemed to take firmly on saturday, and this legislation would help him out. the number of lease sales is undetermined by the president's address, but we could help by pursuing leasing and permitting with this act. this act directs the interior

department to conduct the offshore lease sales that the administration challenged -- or, canceled, rather, in december of 2010. these were lease sales that were under way. the process was well along, and the administration canceled those lease sales in december of last year. these were lease sales in the western and central gulf and on the virginia outer continental shelf and the alaska outer continental shelf. let's go back to that point, let those lease sales move forward, as they were doing before they were canceled. the president just said saturd saturday, let's do this. well, let's do t and let's give him the tools and encouragement he needs to do it right now. he needs to do it right now. lawyers. permane that put him in a position to bh

sort of a spokesman for the legal wing of the democraticde party that would take a look ahead of what may come up in thr senate. why did bringing it up again, a the intr procedural vote in the senate? e and it didn't move through, didn't get about the last time to.everyb is the wayod since february 201o has anything changed? any indication that he make itai through this time around? >> guest: that was about twoment republicans also wanted to filibuster and that judge was a district court judge in rhode island who made it through. he survived the filibuster. so there's some thinking that pn their votes are there for test. ameri he needs 60er votes. but everyone says it's going to beam close.supply there are some republicans who e certainly will not filibuster him even if they don't support his nomination, and the question is are the

republicans who while they might not support goodwin liu, will so notrt vote to block him in the y -at some democrats blocked nominees, of george w. bush. mr. b >> host: david ingram the u right for the legal times of the "national law journal," thank you for that update.ck my >> guest: you're welcome.om speak today seat on the ninth circuit court of appeals. i would like to begin by saying regretfully i will be voting against this nomination, for reasons that i will explain, but at the same time i want to emphasize my profound respect for this institution and for my fellow senators from both parties, and i believe it would be wrong to vote against a cloture motion whose intent is to proceed forward with debate on the merits of someone who has been nominated to be a judge. i made this point loudly and clearly when the nomination of one of my virginia constituents,

barbara keenan, was filibustered, and with respect to philosophical consistency and my admiration for all the work that chairman leahy has been doing in order to fill the many vacancies on our federal court system, i am going to vote to proceed on the -- for the debate on mr. liu, but i do not, however, intend to vote in favor of his confirmation. i have met with mr. liu. i have read many of his writings and most of the testimony from his two confirmation hearings. he is clearly talented. whatever he ends up doing, he is certain to have a long future in our country. he also has been blessed beyond words by the goodness of our society. both his parents came to this country already as physicians. he attended our finest universities. he was a rhodes scholar. he is a yale law school graduate. he has spent almost his entire career as a talented if somewhat controversial professor of law.

when i met with mr. liu, i found him to be personable and clearly bright. but intellect in and of itself does not always give a person wisdom, nor does it guarantee good judgment, and the root word of judgment is, of course, judge. and this is our duty today, to decide whether professor liu's almost complete lack of practical legal experience, coupled with his history of intemperate, politically charged statements, allow us a measure of comfort and predictability as to whether he would be fair and balanced while sitting on one of the highest courts in the land. mr. liu's temperament and his frequently industry dent political views have been called into question by many well-intentioned observers, including my respected colleague, senator lindsey graham, who like myself voted in favor of justices sotomayor and

kagan. professor liu seems better fitted for a life in politics rather than the bench. we don't know if mr. liu could conduct himself in a different manner if he were to be given a seat at one of the highest judicial positions in our country. the list is long and time is short, mr. president, but i would summarize my concerns through two observations. the first involves professor liu's public comments regarding supreme court justice alito, which i know will be repeated by others. mr. liu's view was that -- quote -- judge alito's record in visions in america where police shoot and kill an unarmed boy to stop him from running away with a purse, or a black men may be sentenced to death by an all-white jury for killing a white man. i humbly believe this is not the america we aspire to be. end quote. obviously, i share the view of many others that whether one agrees or disagrees with justice

alito's view of the constitution, this is hardly a fair representation of his view of our society. the second observation is more telling, mr. president, and it goes to the america that we all should aspire to be, an america where every person, regardless of race, creed, national origin or personal circumstances, has the same opportunity to succeed to the full extent of their potential. let me make a point, that a lot of people seem uncomfortable with on speeches on this floor. that means white people, too. economic disadvantage is not limited to one's race. ethnic background or time of immigration to america. and when it comes to policies that are designed to provide diversity in our society, we do ourselves an enormous injustice by turning a blind eye to the wide variance among white cultures as we discuss greater representation from different minority groups. for all of its emphasis on

diversity programs, i do not see anywhere that mr. liu understands this vital point. in fact, one tends to see the opposite. in 2004, mr. liu made a speech at an american constitution society conference. in this speech, he mentioned -- quote -- "the power of the courts to influence society, the power of legal principle to ratify inequality." he then went on to comment that -- quote -- "if we work hard, if we stick to our values, if we build a new moral consensus, then i think someday we will see millikin rodriguez adarandan be swept into the dust pin of history. so we know mr. liu wants to use the courts to change society and ratify society. what was ata -- adaran about?

it was about randy peck. one of five kids born to a welder who lost his job during the great depression. the mom worked as a salesgirl in a department store. neither of them went to college. mr. peck left the company and started a company that put guardrails up along highways. his start-up was the money he would have used in his fourth year of college. his loan was accomplished by using his parents' retirement pensions as collateral. he made a bid as a construction contractor on a highway in colorado that was by far the lowest bid, but he lost to a minority-owned company because our own government was paying bonuses to contractors who made subcontracts with so-called disadvantaged businesses, and mr. peck happened to be white. the supreme court decided that this was wrong and decided in mr. peck's favor. although the civil rights commission pointed out ten years

later that the supreme court's decision was still not being complied with by federal agencies. mr. liu offered an explanation for his comments during his confirmation process, but taken in the context of his other remarks, i find that statement unconvincing. mr. president, last july, i wrote an article in "the wall street journal" saying that while i continued to support the original goal of affirmative action, which was to assist african-americans who still suffer from the badges of discrimination and slavery, it's time for us to recognize that we harm ourselves any time we cut away any person or group from the opportunity to reach their full potential in our wonderful and unique society. as you might imagine, i got a few questions from a few groups about this article, so let me answer those questions and sum up my concerns about mr. liu with an observation.

the same day that my "wall street journal" article ran, july 23, a remote area medical clinic was held in the open air of the wise county fairgrounds in the appalachian mountains of far southwest virginia. these r.a.m. clinics bring medical professionals into underserved areas where medical care is hard to find. they're not that different from what we used to do out in the impoverished villages of vietnam when i was a marine infantry officer many years ago. 12 of my staff members went down to wise county to volunteer. working in tents, mobile units, horse stalls over these three days, the r.a.m. clinic took care of 6,869 patient visits and pulled more than 4,000 teeth in the open air of the wise county fairgrounds. in this part of virginia, nearly half the population lives below

200% of poverty. almost a quarter of them have no insurance whatsoever. age-adjusted mortality rates in some counties are as much as 70% higher than the rest of virginia. in this appalachian mountain region is, of course, predominantly white. and let me emphasize, mr. president, that these conditions proceed from cultural issues based on many generations of hardship and strife and not simply individual choice. mr. president, back there in those mountains, there is no doubt somebody who's thinking, and if he could put together a little money and maybe get somebody to believe in him, maybe he could start up a construction company just like randy peck did and compete for government contracts on a completely fair playing field, which has always been the gift and the miracle of america. i want him to have that opportunity, just like i want every other american to have it, and i don't want a judge on a

circuit court somewhere telling him that his own chance for a fair and prosperous future should be swept into the dust pin of history. i thank the will. the presiding officer: thank you. mr. cardin: mr. president? the presiding officer: the senator from maryland. tkreupb i rise in support -- mr. cardin: i rise in support of goodwin liu and urge my colleagues to invoke cloture on this nomination. i am disappointed we had to file a cloture petition. i would hope my colleagues would want to vote up or down on this nomination and i hope they would vote for his confirmation. as we begin the debate on the nomination of mr. liu, let me start by telling my colleagues how thoroughly his nomination has been vetted by the judiciary committee under the leadership of chairman leahy.

president obama first nominated goodwin liu for this position in february of last year. that's over one year ago. the judiciary committee has held two separate hearings on this nomination. mr. liu's latest set of questions and answers for the record spanned over 130 pages. the judiciary committee has favorably reported his nomination on three separate occasions: in may of 2010, september of 2010, and april of 2011. so i'm disappointed that my republican colleagues have refused to allow this nomination to come to a vote without the necessity of filing a cloture petition. as you know, the majority leader has filed cloture on this nomination. senators have had ample information on the background, experience and qualifications of this nominee and it's time for the senators to perform their constitutional duty to debate the nomination and to vote up or

down on this nominee. mr. president, i was privileged to serve on the judiciary committee in the 111th congress and participated in the debate of goodwin liu on several occasions. i was pleased to cast my vote in favor of mr. liu's nomination, and i look forward to supporting his nomination on the floor. when i examine judicial nominations that are submitted by the president, i use several criteria. first, i believe judicial nominees must have an appreciation for the constitution and the protections it provides to each and every american. second, a nominee must embrace the judicial philosophy that reflects mainstream american values, not narrow ideological interests. third, a judicial nominee must respect the role and responsibilities of each branch of government, including the healthy respect for the precedents of the court. fourth, i look for nominees with

a strong commitment and passion for the continued forward progress of civil rights protection. finally, i want a judge who has the necessary experience, temperament and commitment to public service. i want to share with my colleagues a little background, a little of the background on mr. liu, his qualifications and why i intend to support his nomination. goodwin liu in many ways embodies the american dream. he's the son of immigrants in this country. his parents were doctors who came to the united states from taiwan in the late 1960's when foreign doctors were being recruited to work in underserved areas. goodwin liu did not speak english until kindergarten. during high school, professor liu had the opportunity to serve as a page in the united states house of representatives after being sponsored by the late congressman bob matsui of california who i had the privilege of serving with in the house of representatives.

professor liu has a sterling academic record. he earned his b.a., phi beta kappa from stanford university where he was elected copresident of the student body. a rhodes scholar, he earned his m.a. from oxford university. he received his j.d. from yale law school where he was editor of the "yale law journal." he then went on to clerk for d.c. circuit judge davis tattle and supreme court justice ruth bader ginsburg. professor liu has a track record of working on public policy issues in public service. he worked for two years at the corporation for national service. he served as special assistant to deputy secretary of education where he worked on numerous legal and policy issues. professor liu has worked in private practice. after his clerkships, he served as an associate in the washington d.c. law firm of

malvoney and myers, working on a wide range of business matters. about half of his practice consisted of appellate litigation, preparing him well to serve on a court of appeals. he's also maintained an active pro bono practice at that firm, which also tells me his commitment to equal justice under the law. professor liu then went on to his current occupation, joining the faculty of the university of california at berkeley school of law and helping to teach our next generation of lawyers. he serves as a professor at the law school, was promoted to associate dean of the law school and was elected to the american law institute. professor liu has received the law school distinguished teaching award. professor liu is considered an expert on constitutional law and education law and policy with a particular focus on the needs of america's most disadvantaged students. he's the author of numerous law

review articles and coauthor of an influential book on constitutional interpretation entitled "keeping faith with the constitution." mr. president, i heard my colleague talk about goodwin liu, but i would just urge my colleagues not to penalize an individual because he's active or expresses his own opinions. we should judge the nominees based upon their qualifications and their commitments to interpret the law as required on the court. professor liu answered numerous questions about his approach to constitutional interpretation during his two confirmation hearings. he testified that -- and i quote -- "the 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 applicable precedents and the language of the laws, statutes

and regulations that are issued in the case." end quote. i don't know of who would disagree with that. that's what many of us have been calling for on both sides of the aisle. he's also answered questions about his ideology as a judge. he testified that -- and i quote -- "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." end quote. once again, mr. president, i couldn't agree with that statement more. in written responses to senators' questions, he also stated that -- and i quote -- "i do not believe it's ever appropriate for judges to

indulge their own values or policy preferences in determining what the constitution and laws mean." end quote. professor liu certainly has written a number of thought-provoking articles on krofrpl public policy -- on controversial public policy issues of the day but this should not disqualify him from being a judge. i am confident that professor liu understands the difference between being an advocate and being a judge, and i hope we can draw that distinction and will respect the differences if he is confirmed and puts on the judicial robe. mr. president, the specific question concerning affirmative action were asked during his confirmation hearings, so let me quote from professor liu's testimony to the judiciary committee -- and i quote -- "i absolutely do not support racial quotas in my writings, and i think i made that very clear that i believe they are unconstitutional." end quote.

he then said -- i quote -- "i think affirmative action as it was originally conceived was a time-limited remedy for past wrongs and i think it is an appropriate way to understand what affirmative action is." end quote. so i think we should take a look at his record on this, and i think that it's unfair to judge him based upon certain innuendos. professor liu also has broad support from distinguished legal scholars from both parties. former solicitor general and white house prosecutor ken starr praised professor liu. and i'm going to quote -- "his strong intellect, demonstrated independence and outstanding character." end quote. the qualifications that we all want to see on the court. we want to see intellect. we want to see independence. and we want to see character. ken starr i think summed that up

fairly well. in march -- in a march 19, 2010, letter to the senate judiciary committee, mr. starr joined with another professor stated -- and i'm going to quote again -- "goodwin is a person of great intellect, accomplishment and integrity and he is exceptionally well qualified to serve on the court of appeals. what we wish to highlight beyond his obvious intellect and legal talents is his independence and openness to diverse viewpoints as well as his ability to follow the facts and the law to their logical conclusion. these are qualities we expect in a judge, and goodwin clearly possesses them. a judge takes an oath to uphold and defend the constitution. and in the case of a circuit judge, fidelity to the law entails adherence to supreme court precedent and adherence to circuit precedent as well. goodwin knows the difference

between what the law is and what he might wish it to be. and he's fully capable and unafraid of discharging the duty to say what the law is." end quote. mr. president, that is what ken starr said about a person he knows very well, goodwin liu. and strongly recommends his confirmation to our colleagues. i also want to discuss the importance of improving diversity on our courts. if confirmed, professor liu would be only the second asian-american currently serving on a federal appeals court and the only asian-american in active service in the ninth circuit. the ninth circuit is home to over 40% of asian-american population in the united states. finally, mr. president, professor liu has received the highest possible judicial rating, unanimously well-qualified, from the american bar association

standing committee on the federal judiciary. mr. president, with this distinguished record and recommendations that we have received, we have an excellent nominee to serve on the court of appeals. i urge my colleagues madam president. i come to the floor to speak on the nomination that's now before the senate, the nomination of goodwin liu to be circuit judge of the ninth circuit. i've said many times over the past two weeks and maybe even for a longer period of time than two weeks, by any fair measure, removing judicial nominees at a very brisk pace -- we're moving judicial nominees at a very brisk pace. this month alone we confirmed seven judges in ten days. in the short time that we have been in session this year, we've confirmed 24 judges. that's a rate almost of one judge every other day.

this year the committee has favorably reported 51% of president obama's nominees. yet, it seems that the more we work with the majority on filling vacancies, the more complaints that we hear. furthermore, as we work together to confirm consensus nominees, we're met with the majority's insistence that we turn to controversial nominees like the one before us today, goodwin liu. because this seems to be the most controversial of the president obama nominees we've had to this point. i have pledged and indeed i have demonstrated cooperation in moving forward on consensus nominations. there is no doubt that mr. liu does not fall into that category of being a consensus nominee. my objections to this nominee can be summarized in five areas

of concern: his controversial writings and speeches and actist judicial philosophy, his lack of judicial temperament, his troublesome testimony and lack of candor before the committee. and, five, his limited experience. mr. liu describes his writings as critical, infective and provocative, and that's really what they are. he states that he is simply a commentator, and his role is merely to poke, prod, and critique. the problem i have with this is that his legal scholarship goes well beyond simple commentary. the nominee argues that the 14th amendment creates a constitutional right to some minimal level of public welfare

benefits. that's a real reach. he has said that -- quote -- "the duty of government cannot be reduced to simply providing the basic necessities of life, the main pillars of the agenda would include expanded health insurance, child care, transportation subsidies, job training, and robust earned-income tax credit. there is no doubt that those may be policy issues congress ought to deal with, but it's a real stretch to say that there are constitutionally protected right. mr. liu is a strong proponent of affirmative action and the constutionality of affirmative action. celebrating the supreme court's decision in grutter versus bollinger, he says -- quote -- "achieving racial diversity throughout our leading educational institutions is not

merely constitutionally permissible, but morally required." he believes ban on gay marriages are unconstitutional. the nominee was one of several law professors who filed a brief with the what professors who filed a brief with the supreme court and the same-sex marriage prohibition was declared unconstitutional. these statements, just a sample of his words, are not merely scholarly reflection on the state of law. instead, they are a prescription for change. big change. he stated on president obama's election in an interview with npr, quote, whereas i think in the last seven or eight years we the sense we had been trying to prevent as many, in our view, bad things from happening; now we have the opportunity to

actually get our ideas and the progressive vision of the constitution and laws and policies into practice." end of quote. mr. liu holds a view of the constitution that can only be described as an activist judicial philosophy. the centerpiece of his judicial philosophy, a theory that he describes as constitutional fidelity, sounds nice until you learn what it actually means. what he means by fidelity is -- quote -- "the constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every single generation." continuing, he states "on this approach, the constitution is understood to grow and evolve

over time as the conditions and needs and values of our society changes." that's not a far cry from the unwritten constitution of the great britain where the supremacy of parliament makes a determination from time to time what the policies are as opposed in this country where the natural law or the laws that are -- the rights that we have given to us by our creator, not by government, are the basis of our law. when i questioned the nominee at his hearing regarding his position, he stated that his book respects the notion that the text of the constitution and the principles that it expresses are totally fixed and enduring. i must admit some confusion with this contradiction. either the text and the principles are fixed and enduring, or they're adaptable,

something that grows and evolves like it happens with the constitution of great britain. mr. liu is apparently comfortable with this contradiction. i'm not. it's a pattern that i find throughout his testimony. i'm concerned about his appreciation of the proper role of a judge in our system of checks and balances. his philosophy leads to an inevitable expansion of the power of the judiciary. for example, according to mr. liu, courts should play a role in creating and expanding constitutional welfare rights. he argues that once a legislative body creates a welfare program, it is the proper role of the courts to grasp the meaning and the purpose for that welfare benefit. he states that the courts can recognize welfare rights by -- quote -- "invalidating statutory eligibility requirements or strengthening procedural

protections against the withdrawal of benefits." forthrightly, an attack on the legislative branch of government of its power to make statute and law, whereas the courts are supposed to be interpreting, not making, law. the nominee also seems to favor a social needs space view of living constitutionalism. his scholarly works that judicial decision making should be shaped by contemporary social needs and norms rather than the certainty of the constitution. notably, he has said that -- quote -- "the problem for our 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

observed into legal doctrine." end of quote. just as if what the constitution writers in 1787, what they thought ought to be the basic law of this land means nothing today. so as you know, i think that this is very troublesome. our constitutional framer puts the legislative function in the congress, not the courts. it is the legislative function through the political process where the people rule that determine when a particular value is to become part of our law. this is not the duty of judges. the judiciary is limited to deciding cases and controversy, not establishing public policy. i would note further that this view of constitutional interpretation does not rely on the acts of the legislative or on the precedents established by higher courts. rather, it is based on a concept of what he prefers to call --

quote, unquote -- evolving norms. furthermore, as he testified before the committee, it is those evolving norms to which inform the supreme court's elaboration of constitutional doctrine. mr. liu tried to sound like a mainstream skwraoufrt when he -- jurist when he stated the duty of a circuit judge was to faithfully follow the supreme court's instructions on matter of constitutional interpretation. now who's going to argue with that? but again, that sounds nice, doesn't it, but what does it mean? if we accept his premise that the supreme court's instructions are based upon evolving norms, it follows that such evolving norms will shape the circuit court's decision as well. this activist theory leads to a judicial system substituting the whims of individual judges over the text and the original

meaning of the u.s. constitution. this is not the duty of any circuit judge. mr. liu's legal views and judicial philosophy are clearly out of the mainstream. just a small example illustrates this points. i questioned four of president obama's judicial nominees who followed mr. liu on the day of his hearing. i asked each of them concerning a specific point about mr. liu's philosophy. each and every one of them flatly rejected there liu's position. this included his views on judges' collective values when interpreting the constitution, on using foreign law when interpreting our constitution, and on interpreting the constitution, ways it adopts its principles and its text and on considering -- quote, unquote --

public values and social understanding when interpreting the constitution. based on his kwrouft mainstream -- on his out-of-the mainstream view, it is no surprise that his nomination is opposed by so many. included in that opposition are 42 district attorneys serving the state of california. they are concerned, among other things, about his view on criminal law, capital punishment and the role of the federal courts in second-guessing state decisions. my third area of concern is that this nominee has made a number of critical statements which indicate a lack of judicial temperament. he has been very openly critical of the current supreme court. in one article, he said that the holding in bush v. gore was, quote, unquote, utterly lacking

in any legal principle. he claimed the current court as the whole is unprincipled saying that -- quote -- "if you look across the entire run of cases, you see a fairly consistent pattern where the respect for president goes by the wayside when it gets in the way of result." end of quote.mr. . mr. lugar: was highly critical. nomination of justice roberts. he published an article on bloomberg.com entitled "roberts would swing the supreme court to the right." this that article he acknowledged that roberts was qualified, saying, "there'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 with -- quote -- "with remarkable consistence throughout his career, roberts had applied his legal talent to further the causes of the far right."

he also spoke very disparagingly of judge robert's conserve beliefs. "before becoming a judge, he belonged to the republican national lawyers association and the national legal center for public interest, whose mission is to promote, among other things, free enterprise, private property values, and limited government. these are code word for an ideological agenda hostile to vierntle workplace, and consumer protection." now, let's think about what he just said there about judge roberts, now chief justice roberts. private ownership of property, limited government, free enterprise, code words for an ideological agenda hostile to the environment, workplace, and consumer protection? does he think we're the

communist-run klein, that the government runs everything, that its he a better place when they put online every week a coal-fired plant to pollute the air, put more carbon dioxide in the air than we do in the united states, and where children are dying because food is poissonned and consumers aren't protected and every minor i minner in thea coal mines is in jeopardy of losing their lives? that's how out of place this guy is, when he talks about free enterprise, private ownership of property, and limited government being something -- somehow bad. but if you get government more involved, like dhow in china, -y do in china, it's somehow a better place. this nominee has been critical of another jus justice, justice alito in particular. he believes it is a valid criticism of justice alito to say that -- quote -- "he

approaches flaw a formalistic, mechanical way, abstracted from human experience. " and we -- and we are all familiar with mr. . mr. lugar:'s scathing attack on justice -- with mr. liu's scathing attack on justice alito's testimony. mr. liu admitted the language was unduly harsh, provocative, unnerks and was a case of poor judgment. mr. grassley: now, that's one statement of mr. liu's with wick agreement. i can appreciate that mr. liu now understands the unfortunate language he uses. the trouble i have with this, however, is that it shows that even when stepping out of the academic world, the nominee promotes extreme views and intemperate language. even if i accept his rationale for the tone of his work in the academic world, that does not explain his congressional testimony.

that was one opportunity where he could demonstrate a reasoned, tempered approach, yet he failed the test. i think it may also indicate that we may expect from judge liewrks should he be confirmed, the same thing. to me, that's an unacceptable yowlt come. the fadge major area of concern is mr. liu's testimony and candor before the committee, which was troubling at times and lacked credibility. even before he appeared before the committee, the nominee had difficulty providing the committee with materials required by his questionnaire. as senator sessions said at the time, "at best, the nominee's extraordinary disregard for the committee's constitutional role demonstrates incompetence. at worse, it creates an impression that he knowingly attempted to hide his most controversial work from the committee." during his testimony, the nominee said in reference to his

past legal wrieltings, "whatever i have written in the books and articles that have no bearing -- should have no bearing on my actions as a judge." oh,? trying to paint him satisfies judicial conservative, the nominee attempted to walk away from his previous position. he tried to distance himself on the proper role after jurnlings on of use of foreign larks on the a. ppropriateness of racial quotas frandz his previous views on free enterprise and private ownership of property. even "the washington post" found his testimony a bit hard to believe. the "post" editorial stated "mr. liu is unlikely to shun aside the views but the real problem is not that he add hears to a particular judicial philosophy that he, like so many others before him, feels he needs to pretend not to have one."

we have often heard the term "confirmation conversion" applied to nominees who appear to have a change of legal philosophy when they're nominated to the federal judgeship. as i review the record, i think this nominee has taken that concept a step further, and i would use the phrase "confirmation chameleon." it seems to me that mr. . mr. lugar--it seems to me that t me give you a clear example. senator cornyn of texas asked him about his troubling record contained in his work product that expressed opinions on issues such as the death penalty, same-sex marriages and welfare rights. senator cornyn then stated, "you're now saying wipe the slate clean because none of that has any reflts whatsoever to how i would conduct myself as a

judge if confirmed by the senate; is that correct? end of groat senator cornyn. and mr. lou liu responded, "that is correct, senator." a few minutes lairkts i asked him if he were -- quote -- "-- this is my quote -- "if we were to let us just say wipe the slate clean, as to your academic writings and career, what is left to justify your confirmation?" the nominee respond, "i would hope that you would not wipe my slate clean, as it were, you know, i am what i am." end of quote. mr. liu cannot have it both ways. either his record stays with him or we wipe the slate clean. perhaps in the long run it doesn't matter, because either way it leaves us with an

individual who should not be given a lifetime appointment. if you include his record as a law professor, then we're left with evidence of left-leaning judicial activism. if you do not include it, then we're left with a two-year associatassociate with law clerk experience and little else. that leads me to my final point: i am concerned about the nominee's lack of experience. after graduating from law school in 1998 he clerked for judge davidavid s. tatel on the u.s. t of appeals d.c. when his clerkship ended, mr. liu became deputy assistant for education. in 2000 he worked as contract attorney for a law firm, nixon peabody, l.l.p., where he -- quote -- "assisted with legal writings." he clerked for justice ruth

bader ginsburg on the supreme court. after that clerkship, he became an associate at o'medical have en knee and my,where he remained for less than two years according this his question yairks he appeared in court only occasionally. he also reported that his other work as an attorney has not involved court appearances. he has not tried any cases to verdict, jurntle or final decision. since 2003, the nominee has been a full-time law professor at u.c. berkly school of law and in 2008 he became associate dean. after his nomination last year the a.b.a. standing committee of the federal judiciary gave mr. l hivment u the rating of "unanimous, we will-qualified." i am somewhat perplexed by this rating according to the standing committee's explanation of the standard for rating judicial nominees -- quote -- "a perspective nominee to the federal bench ordinarily should

have at least 12 years experience in the practice of law." further, "the committee recognizes that substantial courtroom and trial experience as a lawyer and trial judge is important." at the time of his nomination and rating the nominee had graduated from law school less than 12 years prior. he has been a member of the state bar only since may 1999. as noted above, he has no trial experience, has never been a judge. so, i want to conclude with this thought. given his record and testimony, i do not believe the nominee has anding and appreciation of the proper petroleum of a judge. i believe, if confidence, he will bring a personal agenda and political ideology into the courtroom. it is ironic that in comment on robert's nomination, mr.ly. u said "the nomination is seismic event that threatens to deepen the nation's red-blue divide. instead of choosing a census

caned, the president has opted for a conservative thoroughbred who, if confirmed, will likely swing the court sharply to the right on many crit caicials." if confirmed, i'm concerned that mr. liu will deeply divide the ninth circuit and move the court even further to the left. if that's possible. if confidence, his activist ideology and judicial philosophy will seep well beyond the berkeley campus. that seems like that's difficult. signature on the ninth circuit, his opinion and rulings would have far-reaching effect on individuals and businesses throughout the ninth state circuit, including places like boozman, montana and anchorage, alaska. hiss for the reasons i've articulated, his wrights and speeches, two, an activist judicial philosophy, three, his lack of judicial temperament, four, his lack of candor before committee, and, five, his

limited experience as well as many other concerns, which have not expressed today, i shall oppose this nomination and i yield the floor. objection. mrs. feinstein: very much, mr. president. i have bipartisan on the judiciary committee for 128 years. i have never -- i have been on the judiciary committee for 18 years. i have never heard a harsher statement about a brilliant young man than i have just heard. during those 18 years i have seen the standards for appointment change rather dramatically. i have seen a search engine develop on the republican side to go out and find anything and everything an individual may have written and then compile a dossier almost like you would of a criminal and then characterize and depict the individual in the terms that you wish to do. i really regret this and i hope to lay out how the democratic side, with a number of nominees, has not done the same thing.

but to see a young man with the credentials that goodwin liu carries really belittled in the way in which he has been belittled in these hearings and also on this floor really, really upsets meevment this man is a professor of law and the former associate dean of one of the 10 best law schools in america. he's a nationally recognized constitutional scholar. he is a truly brilliant legal mind. i have every confidence in his intellectual fireporks his integrity and his even-keeled demeanor and believe it will make him a fine judge. let me tell you a little bit about his background. he was born in august starks georgia. he is the son of taiwanese immigrants who were recruited to america for provide medical services in rural areas.

he attended public schools in clewiston, florida, in sacramento, california. he first struggled to learn english and master vocabulary but ultimately he graduated covaledictorian from rio americano high school in sacramento. he was admitted to stanford university, my alma mart. he graduated phi beta cap pavment he received numerous awards for his contributions to the university and he was elected copresident of the student body. prit pretty good. he received a rhodes scholarship. he grads waited with a master's degree from oxford university. he attended yale law school, once again he was at the top of his class. he was editor of the "yale law journal." he won the prize for the best team argument in the moot court competition. and he won awards for the best academic paper by a third-year student and the best paper in

the field of tax law enforcement he received prestigious judicial clerkships with circuit judge david tatel of the united stat s circuit court of appeals and then with ruth bader ginsburg. he worked in the department of education as a special assistant to the deputy secretary at the united states department of education. he spent the two years at o'melveny and miers, a prestigious law firm, where he handled commercial matters, antitrust, class action cases, trusts. appellate law comprised roughly half of his practice. and finally in 2003, he accepted a tenure track position on the faculty of bolt hal boalt halt f law. at boalt, he quickly established

himself as one of our most astute legal scholars, with specialties in constitutional law, the supreme court, and education law and education policy. he published articles in the "yale law review," "the stanford law review, "the california law review," the "iowa law review," the "harvard law and policy review," and many other academic journals. he received the education law association's stephen goldberg award for distinguished scholarship in education law, and he was elected into membership of the american law institute. in 2008, his colleagues on the faculty at boalt selected him as their associate dean, and in 2009, university of california at berkeley awarded him their distinguished teaching award, the highest award for teaching across the entire university.

now, i believe he holds a deep appreciation for what opportunities our country affords. i believe his background and his legal prowess are fitting for him to become an appellate court judge. and when you speak with him about his family and upbringing, you gain a sense of him as someone who loves this country and bears an abiding belief that ours is a land of opportunity and a place where everyone has a chance to learn and grow and to thrive. my colleagues, some of them, have questioned a number of his writings and his temperament and what figures very formidably, as i've talked to the republican side, was particularly testimony that he gave on the confirmation of justice alito. and what he did was provide a long analysis of alito's

opinions and then at the end he used a rhetorical flourish that was, quite frankly, misguided. he strung together a series of facts from cases alito had decided and then made a statement that i believe he very much regrets. it was over the top but he has acknowledged it. he has been forthright, and he has apologized. before the senate judiciary committee, he said -- and i quote -- "what troubles me most is that the passage had an add hominem quality that is unfair and hurtful. i regret having written this package -- this passage." he said if he had to do it again, "i would have deleted it." it was a mistake, no question about it, but a mistake should not color this man's entire record. i want to read from two letters that we've received in the senate from people who knew and

know goodwin liu well. not just for a moment but for years. the first was sent to us jointly by three successive presidents of stanford university, and i've never seen a lottery behalf of a nominee -- a letter on behalf of a nominee from three different presidents of a university of the quality of stanford. donald kennedy was president when goodwin liu was a student at stanford. he worked with liu at the haas center for public service and was present when liu won not only the dinklespeil award, which is the university's highest award for undergraduate service, but also the james w w.lyons' dean award for service and the president's award for academic service. gerhart caspar is president emeritus of stanford and currently provost of the university of chicago. he knows liu both as a stanford

alum and also as a colleague in the field of constitutional law. he is familiar with liu as, in his own words, he calls -- quote -- "a measured interpreter of the constitution." and finally, john hennessey is stanford's current president. he describes liu as insightful, hard working, collegial and the highest ethical standards. so today, these three presidents of the university wrote the following. "goodwin liu, as a student, scholar, and trustee has epitomized the goal of stanford's founders, which was to promote the public welfare by exercising an influence on behalf of humanity and civilization, teaching the blessings of liberty, regulated by law, and inculcating love and reverence for the great principles of government as derived from the inalienable

rights of man to life, liberty and the pursuit of happiness. it is fitting and i believe an accurate tribute. we have one of the most brilliant scholars, legal scholars of our time and unfortunately there's a majority here to confirm him. we know that. but unfortunately the minority is going to use cloture to prevent us from ever casting a vote to confirm him. let me turn to another letter. this one is from eight top executives of major american companies, including yahoo, general atlantic, morgan stanl stanley, and google. they've all worked closely with liu on the stanford board of trustees, and they wrote to say the following: "even in a room full of highly accomplished leaders, goodwin is impressive.

he is insightful, constructive and a good listener. moreover, he possesses a remarkably even temperament. his demeanor is unfailingly respectful and open-minded, never dogmatic or flexible. goodwin's strengths," they say -- quote -- "are exactly what we expect in a judge. objectivity, independence, respect for differing views, sound judgment." we know the american bar association has unanimously rated him well qualified for the united states court of appeals. and his background is similar to many who have been confirmed to the circuit court in the past. but some on the other side nevertheless think he's too young and he doesn't have judicial experience or his credentials are not right. for those who ask for a judicial

record to review, i would ask, what about edward chen? we considered judge chen's nomination last week. he was a district court nominee with a ten-year judicial record. he had written more than 350 published opinions and the minority didn't criticize one. but most in the minority voted against his nomination anyway. so a judicial record doesn't get it done. then there are the criticism based on age or other qualifications. but liu's qualifications surpass those of many we have confirmed under republican presidents. since 1980, the senate has confirmed 14 circuit court nominees who are under the age of 40. that means they were all younger than liu is now. all 14 were nominated and confirmed during republican

administrations. let me give you two examples. judge kimberly moore sits on the united states courts of appeals for the federal district. she was nominated by president bush at the age of 38. she had two years of experience as a law clerk, less than four years in private practice, and six years as a professor at three different law schools. the senate confirmed her unanimously. judge harvey wilkinson is a judge on the united states court of appeals for the fourth circuit. he was nominated by president reagan at the age of 39. he had one year experience as a law clerk, three years as a newspaper editor, one year of government practice, and five years as a professor. he was confirmed. judge brett kavanaugh, who now sits on the united states courts of appeal for the d.c. circuit, also comes to mind. he was 38 when he was nominated. unlike liu, he had little track

record to review and much of the record that did exist was partisan. he had been a law clerk for three years, spent three years in private practice, and spent the remainder of his career in the solicitor general's office. ken starr's office of independent counsel and the bush white house. when the a.b.a. conducted its reviews, many troubling reports were received. but i voted for cloture, as did my colleagues on this side, and he was confirmed. professors are hardly a new game for us when it comes to judicial nominees. john rogers is a judge on the united states court of appeals for the sixth circuit. at the time that president bush nominated himself, he had only four years of practice experience, no appellate clerkships, and has spent the remainder. his career as a professor. he was confirmed by the senate by a voice vote.

and finally, there is michael mcconnell from the state of utah. president bush nominated professor mcconnell for the 10th circuit. at the time, he had been a constitutional law professor for 16 years and his writings contained scores of controversial thoughts, ideas, and provocations. in reviewing mcconnell's record, many of us on the democratic side found writing after writing that we strongly disagreed with. mcconnell had repeatedly stated that roe v. wade was wrongly decided. he called the supreme court decision -- quote -- "a grave legal error." and "-- quote -- "an embarrassment." he wrote that the freedom of access to clinic entrances act and the violence against women act were unconstitutional. he criticized a supreme court

decision barring racial discrimination at tax-exempt schools and one prohibiting sex discrimination in civic associations. and he called the fundamental guarantee of one person, one vote wrong in from principle. but like professor liu, he made clear in the senate confirmation process that he understood the difference between the role of a professor and the role of a judge. here's what he said when asked about all of his writings. "i had a whole bunch of writings out there that were provocative and innovative and taking a different view. well, within -- my academic colleagues understand that that's what we do. if you try to make those look as though they are legal analysis, as if they were what a lawyer

thinks the law is, of course they don't reflect the law. they're not meant to. they're not a description of the law." professor michael mcconnell, senate judiciary committee, september 18, 2002. he then assured us he would apply the law as written, not as put forward in academic theory. and guess what? he was confirmed to the 10th circuit by unanimous consent. there was no cloture vote. he was confirmed by unanimous consent. because the democrats on this side of the aisle believed that he would do just what he said. i don't understand why this same situation is not accorded to this brilliant young american.

so today we have professor liu before us. he's also written article after article as a law professor and people have disagreed with some of what he's written. and here is what he said. "i think there's a clear difference between what things people write as scholars and how one would approach the role of a judge. and those two are very different things. as scholars, we're paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative in ways that it's simply not the role of a judge to be. the role of a judge is to faithfully follow the law as it is written and as it is given by the supreme court. and there is no room for invention or creation of new theories. that's simply not the role of the judge." a

very -- a very similar statement. it was made by goodwin liu before the senate judiciary committee, april 16, 2010. he went through by unanimous consent. same kind of situation, unanimous consent. and yet, we may be prevented from even taking a vote on the nomination because he will not get a supermajority for cloture. i must say what's sauce for the goose is sauce for the gander. professor liu, like professor mcconnell, is a brilliant legal mind. he has written extensively. he has been absolutely clear that if confirmed, he would follow not any academic theory or writing but the law as it is written and handed down by the united states supreme court. we took professor mcconnell at

his word. professor liu deserves the same treatment. and what's interesting to me, how much things have changed on this committee, and we have a new presiding officer who is also on the committee. since before you, mr. president, came on when we would really look at a person's personal record, what they have said, what they think the kind of judge they will be and make a decision. so i don't understand, if we can confirm professor mcconnell by unanimous consent, why can't we grant cloture to a man that is -- that has distinguished himself as one of the great legal scholars of our country? let me address one particular criticism that has been made of professor liu's writings, and that's the writing on constitutional interpretation

and fidelity to the constitution. some in the senate have harshly criticized his book "keeping faith with the constitution" because he says at one point that the supreme court has taken social practices -- this is a quote -- "social practices, evolving norms and practical consequences into account when interpreting the constitution." this, some colleagues say, means he will be an activist. first, liu has said this book was written as a professor, as an academic, that it is in no way a road map for how he would decide cases as a judge. he said in his own words the duty -- and this is a quote -- "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 attach -- i would apply the applicable precedence to the facts of each case." end quote. but i think that some are using this nomination to try to set a new standard, to say that the only valid theory of constitutional interpretation is originalism. so i want to point out that liu's comments about constitutional interpretation are hardly exceptional. in fact, they echo statements made by some of our very best jurists across the span of american history. chief justice john marshall, justice oliver wendell holmes and justice sandra day o'connor to name a few. the most famous example, chief justice john marshall, wrote in 1819 in the case of mccullochv. maryland, and i

quote -- "we must never forget that it is a constitution we are expounding. this provision is made in a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." end quote. chief justice john marshall. we're not all originalists here, and originalism does not define the legal mainstream. in an interview published in the california lawyer in january, justice scalia made the shocking statement that he does not believe the united states constitution guarantees women equal protection of the law. this came out this january. this is a sitting supreme court justice, saying the constitution does not guarantee women equal protection under the law.

now, the text of the 14th amendment says no person shall be denying of equal protection of the law, and after decades of precedent, unanimous consent supreme court decisions agree that women are protected. but regardless of text and precedence, justice scalia says it can't be so because that's not what the drafters of the 14th amendment intended. this is not the american mainstream. following this line of reasoning, the minimum wage would be unconstitutional, schools could still be legally segregated, states could prohibit married couples from using birth control, and i as a woman could be prohibited from standing here today as an elected member of the united states senate. that kind of thinking cannot be a criterion for acceptance onto our federal courts. so some may disagree with liu's

statement about constitutional interpretation, but it is hardly a field of the legal mainstream today. let me just tell you what others who were familiar with liu's full record, full record have said about his work. richard painter, the chief ethics officer for president george w. bush relayed similar thoughts after reading -- excuse me -- after reviewing shiew's record. here's a quote -- quote -- "liu's views are part of the legal mainstream, and i attendant independence, rigor and fair-mindedness of his writings support a confident prediction that he will be a dutiful and impartial judge. liu respects the law, which is what we should begin to expect of a judge, and yet the united states senate may well not give

him cloture even to come to a vote on his confirmation. mr. president, that is unfair. jessie chocum, who reviewed all of liu's writings as the chair of his tenure committee, has similarly said -- quote -- "in addressing a wide range of issues, liu demonstrates rigor, independence, fair-mindedness and most importantly for present purposes sincere respect for the proper role of courts in a constitutional democracy." one thing is clear, he says." liu's interpretive approach is part of mainstream legal thought ." end quote. and finally, someone who has been quoted often here today, kenneth starr. a prominent conservative, former reagan appointment to the d.c. court of appeals, has written to us together with professor akeil omar to say -- "goodwin liu is a

person of great accomplishment, integrity, and he is exceptionally well qualified to serve on the court of appeals. 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 these qualities to the highest degree, we are confident that he will serve on the court of appeals not only fairly and competently but with great distinction." i have a very hard time understanding why people would do this, where we listened to and read which were

antithetical to many of us on this side but believed he would be a fair and good judge, and he was unanimously confirmed. and someone who has the finest education america has to offer is supported by scholars on both sides of the political aisle, who is truly scholastically exceptional, who could quote case after case after case in his hearings, may well be denied cloture. if he is, this is not the senate of the united states of which i am most proud. i hope i'm wrong. i hope he will be granted cloture because he deserves a vote, up or down, majority. that's america, majority vote on his confirmation. we'll see what happens. i thank the chair. i yield the floor.

energy future. and we need those jobs to be here. the estimate is that 190,000 barrels would be down in 2012 because we've not been pursuing the drilling practices -- it's possible that 2011 could be the possible that 2011 could be the california. the he some of the democrats say as an american story where he is in ti sin front of immigrants. he grew up and went to schools d from a country.than we went to yale law and was a rhodes scholar before going on to work at the supreme courtr which is not something many no, lawyers get to do. he's considered controversial he would be among thloe mosthave liberal judges on the federal appeals court if he were confirmed, and he might be future supreme court nomineethe himself for democratic president down the line.

so the stakes are pretty high ak for his nomination. leases >> when he was first nominate how far did his nomination get? did it make it to the senate floor last time? >> it did but it did not get a vote on the senate floor. fo the he was first nominated back in february of 2010 so he's been waiting a little on her than a n year, which is a long time for h nominee, for most nominees. he went to the judiciary committee w several times.ositin the committee is controlled by democrats, of course. but he never came up fo for a ve n the senate floor last year. democrats were busy with health care legislation, among otherads priorities and almost broughtng hi the yesar.this act and that the last minute did not. >> you mention his republican opponents say they think you dot it among the most liberal judges appointed. how do his supporters view that? >> they think that he is within

the mainstream, that he's written some of his writings have, for example, pointed out the benefits of school vouchers, which is not an issue that is le dear to the heart of most liberals. and they say that, they point to some of this does one at his confirmation hearing where he ad talked about following the lawsk anda putting aside some of hisp academic writingsoi that republicans have seized on. sals part of the issue is not just sd his academic writings but hi advocacy work. he was on the board of the american constitution society, which is sort of a networking group for liberal lawyers. e he was chairman of the board, and that had put them in a position to be sort of a gulf. spokesman for the legal wing ofw democratic party. >> take a look ahead of what may may comede up in senator first f

all, why did harry reid consider bring it up again, a procedural vote in the senate? permits about tathe last time through.oo he's been waiting since february 2010. has anything changed that he may get approved at this time around? the >> there was a vote two weeks ago on another judge who republicans also wanted to filibuster. and that judge was a district court judge in rhode island whor made it through, he survived the filibuster. so there's some thinking that te the votes are there for goodwin su to urvive this test. he needs 60 votes. energy but it's going to -- ago and says it will be close, that injt there are some republicans who certainly will not filibuster him even if they don't support his nomination. and the question is are there enough of those republicans whoe while they may not support goodwinct liu, will not vote to block him in a way that some knw democrats blocked nominees of

george w. bush.xpired. > david ingram who writes for the legal times and the "national law journal," thank you for that update. >> you're welcome. >> we'll have procedural test vote on the nomination of goodwin liu to the ninth circuit court of appeals is scheduled for 2 p.m. eastern. the next professor lose testimony before the judiciary the house present in the transportation during the ford administration bill coleman, represented the bobby scott and representative doris matsui. for coming. thank you very much. think he has gotten a fair

been nominated. on the republican side i regret to say that only one member has sat down with him. there was substantial legal discussion, and what i found was a very interesting and very he is a highly regarded expert in the field of constitutional policy. well-regarded teacher of

law at the university california. he is a proud husband and father. isú9 a scholar of formidable intellect who cares deeply about the law and takes great share in 20 his thoughts and ideas. and he is a person with an commitment to public service. what also comes through when talking with professor liu is his deep appreciation for the opportunities our country affords. he is the son of taiwanese immigrants. his parents came to this country as part of a program that recruited primary care physicians to work in rural areas throughout america. he spent his childhood in augusta, georgia, florida and sacramento, california. he attended public schools where, far from having an easy time, he struggled first to

read, and later to master the english vocabulary. he went on, however, to become elected copresident of the president. he was a rhodes scholar at from yale law school. journal. he served as a law clerk on the united states supreme court justice ruth bader ginsburg, and on the united states court of appeals to judge. official who served as a legal and policy adviser in the department of education. experience at the prestigious law firm. and he is now a tenured constitutional law professor and

the associate dean of the boalt hall school of law. among other accolades he has received the university of california at berkeley's highest award for teaching. it's been a legal consultant to the san francisco unified school district. law association award for scholarship. is an elected member of the american law institute, and he is on the board of trustees of stanford university. as a professor he has written extensively. such as the "stanford law review," the california law review, and the iowa law review. there's no question that some of thought-provoking. as professor liu himself said in his last hearing, the job of law creative.

the role of the judge is quite different from that. again, in liu's own words, and i quote, the role of the judge is neutral arbiter of specific cases and controversies that absolute fidelity to the language of the law, statutes, regulations that are at issue in the case, end quote. he clearly recognizes that these are very different roles. the question is, can he make the transition? and i have every confidence that he can. i was also point out that the committee has previously confirmed republican appointees such as michael mcconnell for the 10th circuit. circuit, frank easterbrook on circuit, and kimberly moore on the federal

more and wilkinson were younger at the confirmation that liu is now. and had quite comparable mcconnell's writings were at view. i had one situation, and i'm a nominee for the 10th name of95:i southwick.ñlñú>@ democrats were not going to vote for him.ñ) i was implored not to vote for him. trent lott came to me on the down with him and listen to i did, for a long time, more than once. were, and i talked with him about them, and i

decided i was going to vote for him. and i did vote for him, and he is now sitting on the 10th very polarized. tragedy. continues, nobody can break away approve another parties person. and that would be a real tragedy for those who would question it one of the conservatives who has written to the committee in by ken starr. as many here will know, kenneth starr is currently the president of baylor university, and has

positions by republican presidents. akhil amar wrote about professor liu. and i quote, we recognize that that goodwin has expressed in his writings and speeches. in the end, however, a judge defend the constitution. does in our view, the traits that should weigh most heavily in the evaluation of an extraordinarily gifted nominee, such as goodwin liu, our professional integrity and the law. because goodwin possesses those we are confident that he will

but with great distinction. confirmation. now, professor liu was a great university of california, and i really believe he will be a superb judge on the ninth circuit. it is my hope that for those on this committee who don't know him, that yo you would take the backs on a brilliant young man. so now, i'd like to ask the nominees to come forward, and we will begin the hearing.

it's just goodwin liu for the first panel, and it's my understanding that you'd like to introduce her family. please proceed. >> thank you so much, senator feinstein and thank you for the very generous introduction. i do have some family members with me here today. let me begin with my parents who are seated to my right. my parents get all the way from sacramento, california, to be with me here again. see behind me is my wife, who has made her share of sacrifices to support me in this process. in her arms are our baby boy, emmett, who the last time you remember, he slipped through the whole thing. hopefully we'll have the same luck. [laughter] and then seated next to them is my daughter, violet, who turns for any couple of weeks. she said she likes coming to

these hearings. i said good for you, violet. [laughter] >> so i apologize if there's some sort of back and forth going on but i think it is now time for the kids. i'm also very fortunate that my wife's parents are also here. pamela and charles right behind my right shoulder. they came all the way from me and would have lived for over 40 years. and i'm also joined by a cousin of mine, who hails from salt lake city, utah, and another cousin who grew up in the chicago area. i would also like to recognizeña and thank the many friends and former students that i have her today in the hearing room, and also i want to give special recognition and thanks to the members of congress were here, judy chu, bobby scott, dorothy matsui, and secretary cohen has joined us. i've often thought a lot about bill in this process and he's

been a steady guide and mentor to me. here. >> excellent. would you stand and affirm the that the testimony you're about to give before the committee will be the truth, th" whole truth and nothing but the truth so help you god? >> i do. >> thanks very much. i want to ask you right off the bat about an issue that has caused considerable consternation among committee members. in 2006, you submitted testimony testimony to this committee regarding the nomination of now justice alito. in your testimony you criticize a series of his decisions, but the real concern has been with the lengthy hypothetical at the end of your comments. i'd like to give you another chance to explain this so that the members hear your response. >> certainly i would be happy to address the. thanks for the opportunity.

as you can imagine, senator feinstein, i thought a lot about that testimony in this process. and i would like to acknowledge to you today, into the members of this committee, what i acknowledged last year in the written response to a question from senator kyl. and that is that i think that the last paragraph of that testimony was not an appropriate way to describe justice alito as a person or his legal views. i think the language that i used was unduly harsh. it was provocative, and it was unnecessary because what it was, was a summary in shorthand of those few cases from the legal analysis in the pages that preceded that paragraph. and it also seemed to suggest that justice alito endorsed certain government practices of a policy matter when, in fact, he is the was only that those practices didn't violate the constitution. so, i think that i should have omitted that paragraph, and

quite frankly, senator, i understand now much better than i did then that strong language like that usually not helpful in this process. if i had to do it over again i would have deleted it. and i just hope, senator, that you and other members of the committee can't read that state in the context of the other parts of my record and hope that the other parts of my recordññ show that i'm a more measured and thoughtful person and that single statement and isolation might suggest. >> thank you. some have criticized your theory of constitutional fidelity for considering evolving norms and social understandings, alongç- with the text, principle and precedent in interpreting the constitution. to me those views are well within our constitutionalñ= mainstream.=ñç i think, for example, it chiefñ justice john marshall who] famously said in 1819 we must never forget that it's aç=ñ[ constitution we are expounding.

this provision is made in a constitution, and he did tozm÷ñç endure for ages to come and consequently, towyws be adopted] is to become an adapter to the various crises of human affairs. or oliver wendell holmes who wrote in 1920 that the constitution must be considered in the light of our whole experience and not merely in for sandra day o'connor who wrote in her book majesty of law, the bill of rights was drafted intentionally in broad sweeping terms allowing meaning to be developed in response to the changing times and current so, can you explain to us your theory of constitutional fidelity and how it is similar or different from the point these justice are making? >> certainly, senator. let me answer your question by first making very clear that if i were fortunate enough to be confirmed in this process, it would not be my role to bring

any particular theory of constitutional interpretation to the job. 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 that's exactly what i would do is i would apply the applicable precedents to the fact of each case. but more drug addresses your spirit i would say this. the notion of evolving norms is simply a reference, it's a way to describe how the supreme court has applied some of the text and principal of the constitution to specific cases and controversies. so in some instances the constitutional text is very clear. for example, article iii says you need two witnesses to convict someone of treason, not one. so that's pretty clear. but in other parts of the constitution is not as precise, and so for example, in 1961 the court confronted the question of

whether a telephone wiretap falls within the fourth amendment's definition of unreasonable searches or seizures. and the court grappled with this because after that point a physical trespass had the necessary to make out a search under the fourth amendment, but the court in 1961 cents will abandon the requirement because there is now a societal expectation of privacy in telephone calls. and this was not just a matter of sort of recognizing the new technology. it was a matter of recognizing the social norms that had grown up around using telephones. and so, when the book makes reference to evolving norms it's just a way of describing how references to practices like that, how they inform the supreme court's elaboration of constitutional doctrine. >> thanks very much. senator grassley. >> professor liu, i will take off from where the chairman just

left off. you said during your last hearing, and i quote, whatever i may have written in books and the articles would have no bearing on my role as a judge, end quote. i want to focus on that, as it relates to the book he co-authored, "keeping faith with the constitution." as you say in the book itself, your entire purpose is to propose and defend the theory of constitutional interpretation. so it is a bit difficult for me to understand how you can now say that they would have no bearing on how you would rule as a judge. so, my first question should be fairly easy, yes or no. today, do you still stand by your book "keeping faith with the constitution"? >> senator, i do stand by that book as an expression of my views as a scholar. but i recognize at the same time that the role of the scholar is very different than the role of the judge.

and so when i confronted the ninth circuit i be a dropping the role of the judge which as i was trying to express not to follow any particular theory that i might have, but rather i follow the instruction of the state supreme court on matters of constitutional interpretation. >> are there any arguments in the book that today you would disavow? >> senator, i haven't read through the book again. you know, scholars to consider and reconsider their views, but off the top of my head i can't think of any. >> in the book "keeping faith with the constitution" you turned your judicial philosophy as the chairman just said, one of constitutional fidelity. that phrase sounds nice but, of course, sounds nice until you learn what you mean by it. in the end gave to the american constitution society about the book, you explained it more detail your judicial philosophy come you citgo, our basic is

that the way the constitution is into her is through an ongoing process of interpretation, and why that interpretation has succeeded it is because of, not in spite of the delegate to our written constitution. continuing to quote, and what we mean by fidelity is that the constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every single generation, end quote. it seems to me that all you are doing is taking a judicial philosophy that has been largely rejected by the american people and rebranding it into a new label. in your book you defined a living constitution. this way, quote, this approach the constitution is understood to grow and evolve over time as conditions need and values of our society changed, end quote. so my question is, how is your

definition of a living constitution different from your theory of constitution of fidelity which you described as interpreting the constitution in ways that, quote, adapt its principles and its text to the challenges and conditions of our society in every single generation, end quote? >> senator, what we tried to do in the book is actually to reject the notion of the living constitution insofar as that label has come to stand for the idea that the constitution itself can sort of grow and evolve and morph into whatever a judge might want it to say. and that is simply wrong. the constitution provides in article five the only process by which the text of the constitution can change, and we respected. furthermore, i think the book fully respects the notion that the text of the constitution, of the principles it expresses, are totally fixed and enduring. those things don't change it. the challenge i think records

when they confront cases, new cases and new conditions is how to apply sometimes broad principles to the specific facts of the case. in terms of this notion of adapting let me just offer one more example. lash of the supreme court considered a course to it was an interesting case about whether or not a public employee has a result expectation of privacy in text messages that are sent from a government issued cell phone. and the court interestingly declined to decide that issue because it observed that the dynamics of fumigation are changing, not just because we have new technology, but rather because society's expectations of privacy with respect to new technologies have not fully settled. and so the court said that workplace norms are evolving and that it's not clear yet what kind of expectations of privacy and society are prepared to recognize as readable. and so this is just another example of how it is that you can call it evolving norms or you can call it social conditions, informed the court's

approach to the interpretation of certain constitutional provisions. >> my time is up, madam chair and. i'm going to have to be in and out today, but i intend to return to ask more questions than it all right, fine. thank you. here's the early bird order. it is franken, lee, coburn, blumenthal, sessions and cornyn. so senator franken, you are up next. >> thank you, madam chair. mr. luke, i had the opportunity speak to you in my office and read your writings. and i really believe you're one of the finest minds of your generation, and i hope that we as a nation can be lucky enough to have you as a jurist and a public servant. what i think is remarkable about your nomination is not its strength but its diversity of support. a lot of people mentioned ken

starr -- ken starr's letter supporting your nomination, and i will get to that in a moment. but the one that caught my eye was a lengthy blog post that went up today from the university of minnesota professor, richard painter. this guy is a great law professor, and he is no liberal. he works to support the confirmation of john roberts and samuel alito, and served as president george w. bush's chief ethics officer. and anyone who has any doubt about your nomination should i think read this article. so, madam chair, with your permission, madam chair? with your permission i ask that article be entered into the record. [inaudible] >> i would ask that richard

painter, professor richard painter from the university of minnesota, his blog post today be entered into the record. >> so ordered. >> ninety. and let me just read one little thing from it. liu's opponents have sought to demonize him as a radical extremist and worse. however for anyone was actually red liu's writings, or watched his testimony, it is clear that the attacks fill with caricature and hyperbole reveal very little about this exceptionally qualified measured in mainstream nominee. i want a boy to think about that. -- i want everyone to think about that. this is a guy who participate in samuel alito's and chief justice roberts nomination for the bush administration, and please, i would ask anyone who is considering voting against this

nominee to read this blog post. please, i asked my colleagues to do that. let's talk about the letter from kenneth starr and from akhil amar. they write, 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 of all the facts and the law to their logical conclusion, whatever its political balance may be. professor amar and kenneth starr cite two examples to support their conclusion. when having to do with proposition eight with respect to that episode, they write goodwin knows the difference between what the law is and what he might wish it to be, and is fully capable and unafraid of discharging the duties to say what the law is. can you tell us about the events that led to kenneth starr, professor amar, what they were

referring to? >> certainly. thank you for the generous remarks. so, as i understand it, the letter from president starr was referring to testimony that i gave before the state assembly and senate judiciary committee, california state committees your what had happened in california was that the california supreme court had issued a ruling that it had and validated laws that restricted marriage to men and women. and thereafter, the voters of california enacted and initiative, proposition eight, which sought to to constitutionalize and it constitutionalize marriage between a man and a woman as the sole definition of marriage in california. anticipating a legal challenge to that initiative under state law, the assembly and senate judiciary committee held a hearing in which they invited me

to testify as a neutral legal expert to assess the merits of the claims that many proponents of invalidating prop eight was making that it was an improper amendment of the constitution under the procedures prescribed by the constitution. and i testified that prop it should be upheld under the applicable precedents that were in existence at the time. i did also right that the supreme court, california's supreme court might have some reasons for revisiting that precedents, but under the optical president it was a straightforward case. straightforward in the sense that property should be upheld and that this was a as was a popular position with some of the applicants, and it was i think a correct reading of the law. and the california supreme court ultimately agreed. >> thank you, and my time is up. thank you, madam chair,. >> senator lee, you are up the next. >> thank you, and thank you,

professor liu, for coming in a bring your family to join us today. i like to start by talking about the commerce clause. on page 72 of your book, "keeping faith with the constitution" you wrote as follows, the court has declared certain subject off limits of federal regulation by attempting to draw a line between economic and noneconomic activity, referring presumably to the lopez and morrison line of cases. a line that looks much more like the oldest issue between what directly affects congress and what touches it only indirectly. in its incoherent and in advocacy in advancing federalism values. if the distinction drawn by the lopez and morrison cases, and the standard established by those cases, it is ineffective and incoherent, is this something that you quote and would employ as a judge? >> senator, as with all of the supreme court precedents, absolutely. i would faithfully applied that

standard under the guidance and instructions of the supreme court. >> but what if it is incoherent, then what do you do? >> senator, i think the court grappled with that very issue in a subsequent case, gonzales case where they were -- a similar characterization issue as to whether or not marijuana grown and used for medicinal purposes purely within local boundaries qualified as a kind of activity that could be reached under the commerce clause. in their i think the court made an accommodation that said that though this is not economic activity, it belongs to a class of economic activity. and so i'm not sure exactly where that leads us, but the rule that emerges from a race into th the noneconomic antiepileptic class of economic activity is reachable under the commerce clause. and so, i think that the only point of the book was to suggest that definitionally these

things, like all distinctions in the law when you press very hard on them, there are great edges on the distinctions. but in the main i think these are workable in the role that i would be feeling if i were confirmed. >> in the wake of gonzales, and setting aside for a moment the exceptions identified in lopez and morrison can you identify limits on federal authority at identified outside? >> senator, would be difficult for me to present a hypothetical given that one never knows when issue will actually be litigated. but let me try to answer your question by saying that my own understanding of this area begins with one basic supposition which is that the federal government is a government of limited power. the very enumerations of congress' powers in article one presupposes that there is that limit and the tenth amendment to the constitution makes that

explicit. it says that all powers not delegated to deny states by the constitution nor prohibited to it by the states are reserved to the states respectively or to the people. and from madison to hamilton to the presence of the court that follow, every one of these sources confirmed that basic proposition. and so any judge that approach the commerce clause question would have to yield an answer to a problem that was consistent with that fundamental bedrock proposition of her system so, getting back to your statement that the decision to economic and noneconomic is drawn and lopez and morrison and is ineffective, and inefficient, is there some other way you could have reached the same result in those cases without drawing the economic, noneconomic distinction? >> either as to -- acts of violence? >> well, i think actually the

opinions themselves provide some guy to that. as i recall, the lopez case was just simply did not indulge what is said was sort of piling inference upon inference in applying the substantial effects test of the doctor. so, one way to read lopez i suppose is to say that the court is simply unwilling to, you know, develop a chain of reasoning from mere possession of an article of commerce to be sure, but the mere possession itself is not economic, to the economic effects are posited by the dissent. and that was simply too distant in the chain of, you know, linkages to get a substantial fact. >> in a 2008 "stanford law review" article you wrote quote the problem for courts is to determine the moment of decision whether our collective eyes on a

given issue have converged to a degree, that they can be persuasively crystallized, and credibly absorbed into the legal doctrine. can you tell me how a judge discerned wind, weather, to what extent particular value has been persuasively crystallized so as to become part of our long? >> senator, i think that in some sense i think that's a kind of, what i wrote there is an unremarkable observation about the way the supreme court elaborate doctrines. so just go back to the fourth amendment examples i was providing order to senator feinstein, what constitutions passionate privacy, the court undertakes i think an objective analysis. it doesn't ask what they themselves think is a reasonable expectation. they ask what society thinks. i think the