the navy has made the decision already to build a ship to fit the missile. have there been any analysis of alternatives to that decision? 2020 is not that far away when it comes to ships. we have to start budgeting even before that. >> thank you. it is important for them to be recognized for the great it duty that they do for this country. i am sure that they appreciate your visit. from a requirements perspective, with the navy and the as the program, the office responsible for developing the designs for the submarine fleet, although the follow-on will be able to carry the d-5, it will also be

able to anticipate a life of 40 years and do something else other than just carry the d-5. part of the initial thought when the ohio class was billebilled,d it was to carry -- was built, it was to carry a much larger missile. there will be room for growth and increase performance beyond the d-5 or alternative missions that may be put into that platform if they should be required. >> to restate my question, is the decision to stick with the goody-five written in stone? -- stick with the d-5 written in stone? >> to make it to the initial missile that would be deployed

on the follow on, there is the view that we need to design into that a capability for some unknown future growth very key debility in the future as we did with the ohio >> . my understanding of the plans is that the d-5 would not be the weapon that would be filled with first. >> going back to my question -- can you provide for me any sort of analysis of alternatives as to whether or not it made more economic and national-security sense to build a ship that sends a missile as opposed to building a missile that might fit in virginia class, which has been very successful program or some variant of a virginia class? >> with regard to studies, we can show you everything that we have done and s andp has done as

-- and what sp has done as well. i will take that back to the navy and talk to them about it. >> ok. thank you very much. >> mr. sullenberger. >> i appreciate you all being with us today. i'm sure that everybody agrees that the start and the nuclear posture review and our allies is making sure that we have a strong credible deterrent and a modern, agile infrastructure. with their infrastructure, i mean people, too. without those things, the rest falls apart. i want to pose to questions. the first question is this. every declared nuclear power in the world is making new weapons all the time except us.

probably the undeclareds ones are doing it as well. france, for example, in 1995- 1996, decided that they wanted to solve thisxd non-testing rege coming on. the convicted a series of tests for designs that would be more -- they conducted a series of tests for designs that would be more robust. i know that we have a lot of fancy people and a lot of fancy tools. x we ae met that much smarter than any other nuclear power in the world. this nuclear posture review says no new nuclear weapons, a strong preference for refurbishment, and we will only replace nuclear component as a last resort. is this putting a political agenda ahead of the science with a certain degree of arrogance

that we can do something indefinitely that nobody else can do? my second question is this. paragraph after paragraph in the nuclear posture review talks about what the administration is going to do for the nuclear weapons complex. there is no doubt that funding is significantly yet, particularly as opposed to the last administration. a big chunk of it goes to non- proliferation, but even in the complex, the spending is up. yet, in this year's budget, 2012 is underfunded and they're talking about layoffs this year. cuts in the test site budget have occurred. when should we believe that this increase -- why should we believe that this increased commitment to the nuclear complex should last any longer than the start ratification? >> i will start with your first

question and go to the second question. the nuclear posture review provides the flexibility we need to maintain our deterrent. that is the commitment, to have a safe and secure an effective deterrent. the nuclear posture review also provides for allowing all options -- i just want to reinforce that -- all options to be studied, including replacement options. the key is to go back and focus on what congress authorized last year, the stockholm mention program. it is to make sure that we can maintain our deterrence and drive as much safety and as much security and is much reliability into the warheads themselves. that is very challenging technical work, frankly. it is also the kind of work that our scientists and engineers relish. they want the flexibility. the directors describe that

capability. it is a challenge and it is hard work to do this. our scientists feel that this is npr gives them the flexibility to maintain that in the future. this is that it's worth of work that we have identified in the npr. -- this is a decades worth of work that we have identified in the npr. the administration cares about the work and knows that it is important and is sustainable over multiple congresses. our focus is moving forward consistent with the principles of the program. on your question about the funding, what we typically do for a budget year, where we know for sure where our allocations need to go on a site-by-site basis, we allocate those in the budget. we have the last remaining

category, the headquarters account, which are resources that will be spent out in the field. because we are waiting for final adjustments, we have not allocated them to a specific site. the general is aware of the adjustments that he needs to make, the moving of resources into these accounts, to make sure that the sites are properly maintained and he is working with the sights on that. we have a key element of the budget. we submit our program and budget in the five-year increments. >> if you're really going to convey a commitment to scientists and others, playing these games of holding some money back so that they can be allocated for the last minute does not provide that message. i heard what you said. they support the full range of options. i appreciate the nuclear posture review has a political balancing act. but you cannot read these words

of no nuclear warheads, no new nuclear components, strong preference for refurbishment and believe that the full range of options is really there. it looks to me more like words than reelection. but i appreciate your response. >> if i could just please reply -- i want to assure you that we do not play games with the budget. we take it very seriously. the headquarters is to make sure that, when we allocate to those resources, they go to the right spots that result with changes. our key focus is to focus on the 2010 authorization act which clearly outlines the principles of maintaining safety security -- sit become a secure, and reliability, no new warheads, no underground testing, and the ability to put in place

confidence in the stockpile that the country can actually start reducing the total numbers of the stockpile. that is our focus and that is our plan. >> mr. sanchez. >> thank you, mr. chairman. thank you for being before us again today. it is nice to see my friend back on the successful negotiation on the start treaty. in russia right -- congratulations to you and to all. are you confident that the limitations on the russians in the new start treaty can be verified and that the verification procedure imposed on the u.s. will not interfere or jeopardize its operations of our nuclear forces? is there any inspection or verification challenge that are not addressed in this tree that would concern you? >> verification is an important part of this treaty. it is one of the key elements that i supported for having a

treaty, that we would sustain some verification capability. part of the government that really paid most attention to whether or not the verifications' were adequate or not in support of the negotiations was the intelligence committee. the consistently brought into the team those questions. in listening to the discussion along the way, i think it will be adequate through the life of the treaty. >> the nuclear posture review concluded that the threat of nuclear war what had become more remote, but the risk of nuclear attack has actually increased, especially in today's immediate and extreme danger, which is nuclear terrorism.

we can see al qaeda and others trying to gain access to nuclear weapons. how will the npr strengthen the president's ability to combat the threat of nuclear terrorism and the effects of rogue states in particular, such as iran or north korea, from obtaining them end proliferating this nuclear technology? >> thank you. the president relies on a number of tools to persuade countries from not acquiring nuclear weapons and four countries to a year to the non-proliferation treaty's guidelines in the most strict way. the review begins in the first week of may. as we stated in the nuclear posture review and as the presidents have stated in the

start treaty, with of the nuclear posture review end with a stronger security assurance and the declaratory policy and the diminished role of the -- that the president has called for, up what the president is saying is that the nuclear non- proliferation treaty is the most important opportunity that we have to galvanize the world community. for those countries that find themselves in a noncompliance of the non-proliferation treaty, they come under the negative security assurance in the most non-positive way. >> the concern by praying at is that -- the concern i bring up today is that there was an article about hezbollah.

our inability to really stop some of this from going on and the fact that iran has already declared that it wants to proliferate -- obliterate israel from the earth, what real tools do we have? >> the non-proliferation treaty. for countries like syria, where we have asked the iaea to confirm the rumors about syria, that is an important element where you need a strong verification regime and a strong inspection regime. that is why we have advocated for better funding and better management of the iaea. we have a new director general there, a secretary general. there are a number of things that the president relies on.

once again, we have to stand at the very clearly for what we want to use nuclear weapons for, make it clear that we have the strongest deterrent than we have ever had, that we are investing in the modernization of our stockpile that is not lead others to believe that we are outside of the non-proliferation treaty. the non-proliferation austerittt calls for all states to disarm. >> i was going to rescue all the same question, what do we really you? what tools do we really have? you have different ones that which you mentioned. i will submit that question for the record. i would look to get an answer back from you all. thank you. >> mr. turner.

>> thank you, mr. chairman. i want to thank all of you for being here. i have a great deal of respect for each of you. it is great to see you back again. i am glad that you are visiting our committee. mr. miller, the president said last may, "i do not take options of the table when it comes to u.s. security period." the administration's npr clearly takes options of the table. it provides assurances that the u.s. will not use nuclear weapons defensively, even if we are attacked by an npt complied state and even if it is biological or chemical weapons. so options are clearly being taken off the table. when you were asked about why did metrician did not adopt the sole purpose doctrine, which

signaled that maybe the administration would like to go purpose being to deter nuclear, you answered that we did not know all the way to slow purpose because nuclear weapons play an important role in deterring non- nuclear attacks. how do you reconcile that? as your current statement, the important role in deterring non- nuclear attacks, with this policy -- because i agree with you. they play an important role. by taking them off the table, you are eliminating that as a deterrent. how do you reconcile those fact? >> there are different cases. the first is the state of a -- the first is of a state canno

threatening nuclear weapons. this includes nuclear weapons states and iran and north korea. mr. turner, if you look at an assessment of the states with significant wmd capabilities, you will see an overlap in those chemical and biological weapons. an assessment of our npr and of their leadership was that, where things stand today, the u.s. conventional capabilities, including a very clear statement that any use of weapons of mass destruction would result in individuals, including leaders and commanders, being held individually accountable, and including the statement that any use of wmd by non-nuclear

weapons state would be devastating -- would receive a devastating conventional military response, this response is about the conventional capabilities were more than acrobat -- more than adequate [unintelligible] it involve an assessment of where things stand today with respect to the threat and projecting forward and considered the future trends and chemical weapons and in biological weapons. the conclusion was that we should have a greater concern about the future potential biological weapons because of trends in biotechnology. that is the reason for the caveat. >> i appreciate your answer. i think there are a number of people who disagree with you. there is still a role for the

deterrence of that nuclear weapons provide. i had the opportunity to travel with you to nato to pull in the czech republic. i know of your commitment to missile defense that was stated clearly in hearings in this committee with our nato allies. as we look to the start agreement, there is language in the preamble that indicates that there is a relationship between missile defense and the subject matter of the start agreement. the russian leaders have signaled that their view of that relationship may be more direct than our view and maybe more significant. they have gone as far as to indicate that they may withdraw from the treaty depending on what the u.s. does on the deployment of missile defense. congress has received the complete information of the administration's plans for the approach of missile defense which includes europe in defense of the homeland.

it is my expectation that the administration has not shared that with russia yet. the question that we have is what is being done currently to determine whether or not, as we are proceeding to start ratification, if the administration is pursuing currently with that approach a policy that the russians might u.s. terminal to start? >> first and foremost, it in the preamble of the start treaty, there is an interrelationship acknowledge between strategic offensive and strategic defense weapons. there is further conversation about that interrelationships that is similar to the original start agreement. when i went to treaty school before went to geneva recently, what is interesting about a treaty is what is it? it is the estimate of what two parties agree. whether the unilateral stance? the things that people do not agree on.

the interesting thing is that it was the russian statement was similar to what they're saying now. if there are things that we do, either conventionally or honor should he decide, to interfere with their strategic balance, they will withdraw from the treaty. but we also said something similar about what we're what to do whatever we are going to do to protect ourselves, which is similar to what we said this time could we abrogated the -- this time. we abrogated the amb treaty and the russians did not leave the treaty. i think history shows us that everyone is going to have statements which are sometimes political and sometimes meant to indicate a red line. on missile defense, there are no constraints to our missile defense system. the basic approaches what has

been up since september. i am happy to come back and refresh it did i need to point it is a system that will start in 2011 in the maturation with ships and then in 2012 in romania. they have been briefed like anyone else. there are elements in each country that are more conservative than others and have specific issues. we have done everything that we can to convince the russians that our missile defense system is limited and regional in scope. the most important piece of this is that many of the good things that have happened in the start negotiations and the resetting that president barack obama and secretary clinton have embarked with the russians, we have a

missile defense cooperation. there are many opportunities to move forward. we have made clear what the approaches. it is not targeted against russia and it does not threaten the russian strategic balance right now. >> mr. marshall. >> thank you, mr. chairman. thank you all for your service. i've understand that npr and start both take off the table, basically, any additional research by the united states in the development of either technical or strategic nuclear weapons. is that correct understanding? >> let me answer briefly and then turn it to my colleague. it says that the united states will not develop new nuclear warheads. that means that any warheads going forward will be based on previously tested designs.

within the range of life expectancy programs that are considered -- which include refurbishment and potential replacement, all options will be studied. that is more than adequate to ensure that we have a very strong technology and engineering base to support our stockpile over time. >> is that reflected in the start treaty, that we will not be doing research on additional nuclear-weapons? >> it is not addressed in the start treaty. >> so it is just the npr. the reliable replacement warhead is something that we have been discussing for a long time. we were interested in moving forward with research and development. do i understand you to be saying, mr. miller, that that is a possibility in the future,

depending upon what? at the moment, we're not going to continue research in a replacement or head, but we might in the future. >> the reliable replacement warhead determined by congress is not coming back. what we do propose is the systemic of the stockpile overtime and consider the life extension programs in which replacement of nuclear components is one of the options. it is proposed that all the options being studied and preference be given to refurbishment or reuse. >> it leaves the possibility that is advisable for us to replace existing nuclear weapons. it will consider -- we will continue to consider that and we will maintain the engineering and intellectual capital that we need in order to execute that if we conclude that that is necessary.

>> if i could add to that -- the npr allows us to study the full range of options, which is vitally important to extend the life of the stockpiles. there are key differences between what was proposed in previous administrations and what we have right now. the rw program was canceled by congress. in its place, we have the stockpile management program. in the context of the npr the time, which was done in 2001, the rw program sought total transformation of the stockpile program. >> i think i have -- the star treatment of the decide to move forward with replacing nuclear weapons, this would not be tourists from that. >> no.

>> bunker busters', the it's sort of things that we talked about in nearly -- bunker busters, the sort of things that we talk about earlier in this decade, is that so? >> in the security and reliability -- >> i got that. in the npr, are we prohibited from -- hopefully this does not happen -- are we prohibited in the future by treaty or by the npr from investing in a specific nuclear weapon designed to accomplish a specific objective? >> this does not limit what we need to do. >> the npr? >> it says that the unites states will not develop new capabilities for new nuclear

weapons. >> if we assess that we have a need for a new capability, npr could change? >> the intellectual capital would be in place. >> ok, thank you. >> thank you, mr. chairman. thank you, gentlemen, for being here. i would identify with the remarks of mr. mckeon and mr. turner about concerns about taking options off the table and deterrence. i am tempted to beat on that course some more, but i am not going to do that. i want to take advantage of the assembled presence here. principally, secretary d'agostino would address another issue.

the secretary of energy and the administration had taken steps to terminate the yucca policy program and put itn funds. would you address the plans for the committee for the short and long term disposal and storage of spent fuel? .

we are looking at this. this is very frustrating for many of us. nuclear waste was back. i have an island colocate with the entire community. after all this money, it was

terminated. now we have a another blue ribbon committee. i express my frustration. i hope this commission comes forward and we stockpiling this stuff up. i yield back. >> thank you. i apologize but th. wanted to go back to the issue of the budget. you spoke to modernization and the need to upgrade. i have constituents that are outraged by the increase at a time when so many other domestic programs are subject to a spending freeze. we have a number of letters like this. there are a little confused

right now because of what we are doing. could you -- what exactly does that modernization in tail that we are spending the additional money for the research placement? what does that do for our country. >> i would be happy to take that question. the key thing that i did thaloot says is a structure that we are looking at. that is the same expertise that we need in order to do our proliferation work. at any given point, we are operating in 100 countries. these are people that are from the department of energy produced these are experts in

how to handle nuclear material people -- nuclear material. they are collecting u.s. materials. these two facilities are the only places in the country where we will be able to work with those materials to characterize them and make sure they are locked up tight. they are working to make the country or world safer. at the same time, this 10% increase provides the core infrastructure that addresses nuclear non-proliferation and nuclear forensics. of course, we are also spending some of that to take care of our stockpile. the stockpile was designed in the '60s and 1970's. it is getting older and older. we have a commitment.

i have an obligation to the president to make sure that the stockpile that we have is safe and secure as possible. it requires some work to do that. >> i could add to that. as to benefits to non perforation, improvements to the infrastructure would support a strategy that could lead to the reduction of the total number of nuclear weapons that were maintained. it is another important point. we are at an appropriately characterized tipping point with regard to sustaining our nuclear stockpile deterrent for the future. although it is reliable today, we have to be thinking about what investments we need to make to ensure that it will be

safe secure and reliable in 22 it will be required. it requires the safety americans in the safety of others. >> i think that people are looking to understand if there are not some savings as well that we are going to be incurring said that while these are very important facilities, and the people that we need to keep focused on these issues, are there not some significant savings that we should be incurring as well? >> i would be happy to jump in real quick. this is part of our overall plan. it to take a number of plans to get in place. we have been a cold war complex for many years. we want to be in a nuclear 6

purity enterprise. it is much smaller and much more focused. getting yourself out of plutonium facilities. making sure the material that we have is in one place where we know it can work. >> we had systematically under vested. in order to sustain the stockpile that they have talked about. we really do need to increase the investment levels for the coming years. >> thank you.

>> thank you. thank you all for being here. before i ask my question, i would like to make a statement. i am very concerned about some of the issues involved in the nuclear posture review. i have five major problems with it. it is based on the belief that our example will influence the actions of bad actors in a positive way. i think this has been refuted by history. the opposite will occur, because our actions will be viewed as weakness. writing of nuclear retaliation in case of a biological or chemical attack will invite bad actors to put resources into these areas and to contemplate exactly these kinds of attacks. making decisions about what kind of retaliation to take based on compliance or not of the non- proliferation treaty will put undue importance on the goal

hair splitting. swearing off all testing of existing nuclear weapons and development of nuclear weapons even if the capabilities only existed in the undeveloped form within the context of calculated ambiguity, weakens the nuclear umbrella. this will invite development and proliferation of nuclear weapons by our allies reduction of delivery vehicles to the level specified by the npr will allow no margin for error such as a recall of equipment or platforms based on technological problems. we should not put ourselves in this precarious position. it is hard for me to conclude the president obama post both views are dangerous and 19th. that is where i come down on this. i am concerned.

i would like to start with general shelton. number one, is there any way that missile defense interceptors could be limited by the proposed new start treaty? >> it is good to see you again. i'm happy to take your question. no. there is no restrictions in start with regard to our missile defense capability. >> are there any other missile defense systems either currently deployed or planned or related that could be limited by the new start? >> from this offense, no. there are none, sir. if i could just one of your questions in my will house. you are concerned about reduction of vehicles, we look very carefully in support of the negotiations as far as the limitation. i can tell you that we are very

comfortable with the limits that have been set. we would be able to adequately care and of the mission we have been given today with the limits of 800 total deployed and then deployed in 700 deployed. >> along the line, i am glad to hear your reassurances on that. along the line, it is true that what the president said we will -- are the russians required to do so? >> they are not required to do so. we of like to do that. i think it is the right thing to do. i think dinner being its will have a better warhead limitations. a single warhead still

complicates the ad series decision calculations. >> isn't this another example of where we are taking options off the table for ourselves? >> not in the emerging. we will still retain the capability. that is an important capability to retain, to protect against technological failures in a submarine weapon or a geopolitical change that would require us to have more weapons. it is absolutely important and retain the ability to re-emerge. >> thank you for that. for anyone secretary, the npr suggests that increase missile defenses and conventional forces will strengthen u.s. deterrence as nuclear forces decrease. the russians believe that as

nuclear forces decrease, a missile defense becomes more of a concern. if i could finish that question. does this seem to be contradictory? how do we resolve it? >> i do not think it is contradictory. the russians have made clear that they are very concerned about their strategic balance and about their ability to rely on weapons. they have a different orientation. some might say there is a dependent on it. what we have made clear is that there are no constraints against it. we made clear it that our forces are not targeting the russians.

we have made that clear. we will consistently make that clear. i'm happy to have the conversation as to why we are not relying on our own good example only to persuade people. we are not try to persuade people that cannot be persuaded. we are trying to persuade all the other countries that have not had nuclear weapons. you do not have to nuclear -- you do not have to have nuclear weapons to be safe. it is not legal to rely on the treaty. it is important for us to have a non-proliferation treaty that has kept as at a limited number for decades. >> thank you. i want to thank the witnesses for the historic work that you are engaged in. listening to some of the questions about how the document weakens our defense systems or take options away or reduced its vehicles, the fact

of the matter is that the commitments that are being suggested in this document are going to create huge budget challenges for future congresses. coming from connecticut, submarines are a big deal. the commitment in the future is a perfect example of that. the language could not be more adamant about the fact that our country should maintain a presence for the long term. the united states must continue development of a follow on the ohio class submarine. that is strong language. i do not know if you want to elaborate on why the document is so forceful in making that recommendation. >> throughout the process, i think the requirement for sustaining an adequate deterrent for today and for the foreseeable future were looked

at. as a result, it was a real validation of the need for the forces that we have today. some marines are a key element of that. ohio will time out that out. there is a commitment to sustain the minimum range through 2030 and look at all of options and a commitment to the long-range bomber. i think they are very strong. they are there because they are needed. 6)ó>> i did second what he said strategic submarines of the most survivable element. we intend to make the investments to ensure that it is true for the indefinite future. >> given the fact that these are big price tags that are carried with the construction of these vessels, which at this time the

estimate was about 6 billion a copy. pressure it will put on other shipbuilding programs is going to be pretty daunting in the future. i am just during that out. i've not really expecting a response. i know the secretary has had experience with that. there is an interest level about not allowing unnecessary investment to really end of damaging the overall fleet. the other question -- the pr is

just the arsenal remains smaller than russia and the united states of lack of transparency raises questions about china's future strategic intentions. i do not know if you want to comment in terms of the conversations have not been the same with china that they have been with russia. how'd you see that given the npr post of editorial comment? >> we engage with our chinese counterparts. i have selected by chinese counterpart this morning on many issues. i was impressed that the president came to the summit yesterday. he and president obama have a private meeting. i think what is important is that the weapon was declared that the united states and russia still have 90% of the world's nuclear weapons. the success of the treaty is a very important one. we certainly cannot stop here.

we do have to work with our allies. each of them have a different strategic vision. they have a different set of rules and policies for their nuclear weapons. these are issues that we have worked very strongly, including with our military counter pipepa rts. what we want to do -- and the case where we made the statements about china is one where we are making clear that we want more transparency. we want more of their viability and we want to have more engagement as to the confidence measures that will reassure the nuclear powers and the region. >> mr. bishop? >> thank you. specifically to mr. miller and general chyilton, everyone has talked about the broader

picture, specifically about the lyceum of force. page 23 says the dod will continue the extension program with keeping the fleet through 2030, all the decisions is not needed for several years. the program was concluded last year. last year the air force recognize that there needs to be a sustainment for a dose -- for those. that is why i have some concerns within the budget. there has the money set aside for booster sets. they say 6 is the minimum they need. a one to ask you four question.

i would like i did you to elaborate what you would mean by the phrase "life extension program." that is a confusing terminology. does that mean that the replacement program will exist and that a warm line will remain? especially in view of the numbers i mentioned earlier. i talked about the booster concept. is there any kind of recommendation or program they get a specific number for those booster sets to make sure that it is viable? the third one relates to it as well. the president and nasa has suggested that it be discontinued. there are dire impact both on the space and defense side that

were to go through. the augustine commission on space recommended that it was a serious issue and needed to be addressed ahead of time. nasa failed to do that. the question i have is how we are planning for the future. general taylor said in an article that he was not comfortable with the direction we were going. on page 23, you said you will not have the capability of considering future options that are involved. i would like to know where you are moving in conjunction with what nasa may do. this is the broader picture. in our nuclear umbrella that we have, there are 30 countries that are depending on our

systems to provide deterrence. as we wrap our deterrent down, what impact does it have on theirs? mr. miller, if you could go to the issues first. i've been very much appreciated. >> the language for investment and by extension is a commitment to the congressional direction to make sure the minimum increase is sustainable. it has addressed that there were other things that needed to be addressed including test equipment to make sure the system is viable. that is my understanding of what the language speaks to. there are two different philosophies of producing missiles. the air force concept was to build them all at once. the navy's was to continue a

warm production line. that has not really been brought up as far as sustaining technology until the realization that it was going to go away. now questions are starting to be asked. do we have enough investment in the industrial base to sustain that critical capability to make rocket motors solid rocket missiles? it is a unique capability. the u.s. knows how to do today but we want to preserve it for the future. it is critical to our defense. i think you are asking some excellent questions about what is the right amount we invest in sustaining that industrial base. secretary carter is looking at that. i would expect him to bring forward answers to that. >> i appreciate your indentation of what the issue is. i was hoping to be answered. we still have to go forward.

>> i want to thank the panel for any work if you have all done. i thank you for the periodic updates. it is being done effectively. in my opinion, the nuclear posture is a clear plan for focusing on nuclear policy. there is a risk of nuclear weapons might go to other countries. npr i believe will help create better u.s. relations. at the same time, the npr

endorses the plan for managing the security and reliability or effectiveness of our nuclear weapons. we seek to establish a consistent -- a consensus. vice president biden wants to reverse the decline. it establishes a legally binding process that allows us to track russia's nuclear activities. they are fine -- verifying their treaty obligations. it will support u.s. intelligence and insight into russian of their capabilities. it also establishes the believe binding verifiable limits. this reduction increases

stability and transparency. i just want to say that i applaud all of this work. thank you for your commitment to safeguarding the commitment. i know we talked about some of these issues today already. my first question is for secretary d'agostino. as you know, there is much confusion about what constitutes a new nuclear weapons impotent could we -- weapon. could you provide the committee with your review of this issue? general shelton could do discuss the perspective of military capabilities, specifically how we could be sure that the stockpile work will not result

in military capabilities? do you need military capabilities? >> thank you, sir. i would be glad to state my -- a new nuclear weapon is a nuclear warhead that is not based on previously tested designs. it is a warhead that does not have a test pedigree, that takes into an area of technical regime that drives us into some unknown areas. we may have some good theoretical reasons of why it may work but is not based on previously tested designs. or it is a warhead that addresses a new military capability. right now, the management plan provides guidance of not having the military capability. it was consistent with what congress asked for.

an example may be enhanced emp device. it adds to it. in this discussion about new nuclear weapons, we are very consistent with the 2003 national defense authorization act which specifically excludes it and his life extension does not fall under this category. we are trying to extend the life and maintain the capabilities that we have using that all test phase that we have. it does not fall under that category. >> very good. but i would echo secretary d'agostino's point. a new capability would be like a new emp bomb. none of these we need to meet our deterrencurrent capabilitie.

the word "new" has been debated a lot. someone called a new bomb one that we paid it a new color. that is not -- painted a new color. that is not what we are talking about. i am encouraged by the language that allows refurbishment, reviews, and replacement to be studied by our best and brightest scientists and engineers. they are being put options on the table for considerations to do one important thing, to ensure the safety and reliability of the stockpiles for future generations. that is what is really important. i think it would be a mistake to say they you cannot think about the solutions. we want to have all the solutions on the table to be examined. those to decisions about how we go forward. each will be voted on by the president and by this body who controls the funding. i believe it will be adequate

oversight. one final point on previously design components are pretty important. we have a great storage of test data from previous designed nuclear components. those in need to be the ones that we but that as we look at replacement options, because we do not want to go off into areas where we might argue for a test. that is an important point. we will make sure that the nuclear components are based on previous components. >> thank you. >> thank you. thank you for being here. it is always good to see you. i extend my appreciation to the of the two gentlemen.

secretary miller, in earlier testimony you spoke of the strategic ambiguity and it occurs to me that the time honored purpose for strategic ambiguity was really of a cautionary note to our enemies. it was to suggest that we might do something more than they realize if they proceed to test an attack as. -- us. it appears that your new policy is really one of for closing certain options and going in the opposite direction. the concern i have is that there is some type of encouragement where an enemy might be a little more aggressive than usual. it includes the possibility of that escalating and even increasing a larger conflict.

could you speak to that? >> yes, with respect to calculated ambiguity, there is a reduction in that with this nuclear review, specifically with respect to non-nuclear weapon states. the united states has said since 1978 that we would not use the threat to use nuclear weapons against non-nuclear weapon states. what this posture review does is moves that ambiguity. it also severely reduces ambiguity about the nature of our response. that is that it would be devastating conventional military response to use biological or chemical response by non-nuclear states and that the leadership would be held responsible. with respect to nuclear weapons states, it is essentially the same. the ambiguity is present today as it was prior to this.

with respect to those states, iran and north korea in particular that are not in compliance, i believe the ambiguity has been reduced. secretary gate said the we have made clear that all options are on the table. >> related to iran, it occurs to me that we are missing probably the major road elephant. the fact is if iran gains in their capability, all efforts to keep nuclear proliferation are dead. the iranian president himself has said that they would gain this capability and its apply this to other islamic nations of an " according to their need." it occurs to me that so much of their focus needs to be there. i have two little children. it did not want to see them face nuclear terrorism. i'm convinced a nuclear iran means exactly that. nuclear terrorism will be listed

on the world. it astonishes me that this administration does not seem to be focusing on that to the degree that they should. you mentioned earlier that deterrents was a combination of capability and credibility. if you are at the iranian president nbc as reducing our capability, you cannot cut the equation any other way. if we ayou look at our posture toward number three, the president has made some strong statements in the past. the son of resulted in any demonstrable action on our part. it occurs of our credibility has been diminished as well. let me ask you. water be doing now demonstrably and specifically -- what are we doing now demonstrably and specifically to prevent this? >> but to answer in three parts.

first, it did could nuclear bomb conon-proliferation at the top of the agenda. that is why you see some of the policy changes. but it ignores the most dangerous terrorist state in the world. >> with respect to the-security, iran is the subject because they are not in compliance with the number of ration obligations. as secretary gate says, that means that all options are on the table. it the wish to position themselves so they are subject, and the need to make significant steps to terminate their nuclear activities in a verifiable way. the third t hat we could spend some time on is that the us is working hard to get strong

sanctinos in place in iran and pressure the community to encourage them in a clear way to agree to strong sanctions on iran in order to push it to shift th e policy. >> thank you. my time is up. >> if i could just make clear that this administration is using every one of it's eras and quivers to deter them from acquiring nuclear weapons. it is just as frustrated as the previous administration. we have had tremendous success recently in persuading members of the p-5 and other countries to work with us to deter iran. it is not something we will

sustain. it is a difficulty situation because of the isoliation. i believe this administration has worked very hard to make sure the nuclear ambitions are them. >> thank you. as difficult as it is to deal with ian, it to be more difficult if we did that succeed. >> as i understand, there are two more members of wish to ask questions. but as the same question i asked of the general. does the nuclear posture review make us any safer? >> i believe it does. the nuclear posture review c

makes clear to non-nuclear weapons state that they are not threatened by our nuclear forces. it makes clear to countries that are not in compliance with their obligations like north korea and iran that we would use nuclear weapons against them but the i think it generally put in balance what is a very strong nuclear and conventional threat that the united states has had for many years. keep in mind. we have not use nuclear weapons and over 65 years. there is a very high bar that every commander and chief would have to consider to use nuclear weapons. we have conventional weapons and military force second to none. it has kept us in relative peace and security. other than the asymmetrical threats that we faced after september 11. it has kept as in relative peace and security for many decades. i think that the administration

has moved forward with the nuclear posture review. it is much more clarifying, much more significant. i think it does have a very strong operation, which in the and the president lee's summit is all safer. >> thank you very much. welcome. ii want to start by commending the administration by moving as beyond the cold war mentality that has gripped our deterrent for a long time. where two decades beyond that in terms of the reality on the ground. this begins to create a situation that is much more in line with the threats that we face today. i also want to commend the demonstration on really walking the walk purse is the kind of a service we have received in the past when it comes to investing in our infrastructure and more

importantly our personnel. i really appreciate that shift. i want to get there they specific. i wanted to ask you, what are the implications for our national security of not having the life extension program completed by 2017? how confident are you that the b61 extension program will be ready to deliver finished systems with the arrival of the new f-35? >> the b61 bomb is one of our oldest warheads. it is in need of attention. it has got systems that need specific attention. it needs specific work.

i'd prefer not to get into the details in an open session. it is important for us to get started on that war had itself. all aspects of the need a significant amount of attention. the other important thing, the year 2017 is the date you heard me mentin. that date is importqant. we want to time in the studies that typically happen at labr ortories. it allows us to lay in the work we are currently doing with the work on that work when it tapers off in 2017.

it coincides nicely with the requirement for the defense department as well. >> if i could add to that. dlthere seems -- a lot of folks are leaking 2017 to f-35. we need these b-61 in 2017 regardless of the f-35. it is an important weapon. it is a dual capable aircraft strategy. any slip in the f-35 program shall not say that we can take risk in the b-61 program. we need to get the program going. then we can move on to our next element of the stockpile that need to be addressed. i will close by saying i'm so

encouraged by the strategy and latitude given. it to be the spokesmodel to give reliability to the stockpile. there is no added reliability. b-61 will be an opportunity for it to be put in place. it to be carried on throughout the rest of it. but thank you. i cannot agree more. i appreciate clarifying especially aircraft issue. i'm still getting used to being down there. we heard earlier about moral leadership. that is the only outcome of the

kind of leadership we have seen from the administration with respect to the new start. i want to ask you more about chromatic back -- chromatic outcomes. it seems to be having an impact on how russia and china to issues like sanctions, which some countries said are out better not compliant. >> thank you. i think when president obama came into office, he had a different point of view on engagement to be tough but to reach out your hands. he comes out with a this, we will not respond nicely. and both the case of russia specifically, we have the inconvenience of the start treaty that was going to aspire no matter what we did -- expire in a matter what we did.

the effort by secretary of president clinton to restart the relationship with the russians was fundamentally important. to get the atmosphere right, the president made clear that even though we have this inconvenience, but he did not want any treaty after december 5. he wanted us to take the time to get the treaty that would not only create more stability and relationship, but one that would serve the american people and the people of the russian federation. it would help us make our case and our narrative for the dangers of nuclear weapons.

>> is still have a strong of weaponry in the world. the bar to use them is extremely high. we may not have a circumstance where that test is satisfied by the time we think we have to make some decisions. it is partly to have the moral leadership to have a very strong nonproliferation treaty which the president is committed to to make sure that countries that in the past have not had a clear weapons, because the either extended the deterrents of because we decided not to. >> thank you. >> thank you. >> thank you. i listened with great interest in your earlier remarks vaughan it received a connection between

missile defense and the new start treaty. i understand there is no such intention on our part. average comment in the press very carefully. i accept and believe that is our intention. i have no question about that. i am reassured about that. my question and concern is what is going on in the minds of the russians. let me read you a quote from an official statement. it can operate in the bible only in the united states of america if they refrain from the missile defense capabilities quantitatively or qualitatively. there does seem to be a connection. that is my concern. i accept that.

missile defense is defensive and not offensive. it is so critical that it should not be negotiable. it to parties to a treaty seemed to have differing views on a matter like that, doesn't that potentially set up a possible failure of understanding and their for implementation? if you could just that, please, i would appreciate it. >> i appreciate your comments. there is nothing in the treaty that constrained any of our deployment or planned missile defense systems. i do not know when that statement was made. i do not know if it was made weeks and months ago or in the last 20 minutes. i will tell you that the russians not only understand what the approach is because it is on the internet. anyone can understand what it

is. every country has inside its infrastructure folks that for their own reasons to not like what their allies and friends and treaty partners are doing. everybody has a domestic audience they have to play to at times. politics is a part of everything. president obama has made clear this treaty was never going to constrain as in any way when it came to protect the american people. this is specifically about missile defense. when i was in geneva, part of my job was making sure that is what the president got in the end of the deal. what the russians say is that is attributed to anyone. we have every reason to believe that the russians are serious about maintaining the light of the treaty and their commitments. improv out is very proud to sit and watch the president sign the

treaty. it is very clear that our relationship, what we do not agree repression from everything, we have a much improved relationship. this relationship is workig with us. we are working to make sure the stability is accruing to our friends and allies at the same time. i am glad that you are reassured. that is certainly our position but there once again, i do not know who this russian is that was quoted. it is not after the did. i can assure you they know what our fiscal defense systems are. they know their constituted to do. they are not constituted against them. we will have a good relationship going forward. >> if i could add quickly that

the russians know what is in our unilateral statement which is put out a few days ago. it said the united states intends to improve the missile defense system in order to defend itself against limited attacks. both for home and defense and regional missile defense, it made clear that we will improve our capabilities. >> i think the gentleman. i wish the members to note that tomorrow we will begin having the junior members of the committee that we worked into our procedural order. i hope the junior members will arrive on time before the gavel starts. >> thank you. the challenges in serving is that when you are dealing with this is to get all your

questions in five minutes. it is next to impossible. one question i wanted to do come it is great to have you back before the committee again. thank you four years of work on all of these issues. yet today i the privilege of attending the new security summit. many positive things have come out of that. i notice the news of the chinese. the pledge to work more closely with us on the iran issue. we saw over 47 countries come together.

from my work both on this committee and on the intelligence committee, and i share the president's concern about the dangers from rhode proliferators. i'm glad to see the state promised. i'm going to give obama high marks for being in the summit, which is probably long overdue. it is such an important topic. can you elaborate on some of the commitments from other nations came here? what progress needs to be made before we reconvene into nt -- 2012? but it is my pleasure to see you again. congratulations on your work. monday and tuesday, the president convened 47 heads of state to talk about an issue that animates, which is nuclear terrorism. he gave very clear that nothing

much has changed and they ended the cold war and that it is less likely that the united states or our allies would be subject to a nuclear attack from a big power. and for steadily, countries that are looking to acquire nuclear weapons and terrorist organizations that are looking to find material have increased. that is increase significantly are dangers in the united states. he brought these 47 heads of state to get there. there was not only a communique that that thing was very positive but there were a number of house guests that some of these had the state brought around, countries like chile and mexico have agreed to eliminate all of their htu and

send it to the united states and russia for disposal. the united states and russia will soon be signing agreements on the plutonium agreement which tom knows about. it was 10 years in the ma king. this eliminates polonium -- pope look -- plutonium that could make 17,000 a clear weapons. there were a number of other initiatives going on there. probably one of the antidote to the whole conference was that what you have 47 heads of state milling around and their ambassadors and members of their cabinets that deal with nuclear non-proliferation issues, there were many side meetings that were going on. there is a lot of good work done. while president obama presided over this for a day and a half,

this was an issue that the heads of state believed was important. it took the united states and president obama to put this issue in the forefront of their mind and convene in together. the good news is that the sherpas that manage the process of doing the communique and work products will continue minting -- meeting over the next few years. the work product will be reviewed. the efforts will continue. there were billions of dollars committed by nuclear powers to help to clean up. overall, it is not only a success in the material things but this is an issue that the president believes that public

and parliament and the american peoplemim need to know more abo. for too long these issues have stayed in the background. they are very opaque and complicated. sometimes people say that is hard to understand because they did not take physics. every american and every person in the world needs to know these issues, because this the biggest threat we have. it is alive changing events. their political will is important. they need to tell their congress or their parliament or their head of state that this is important, that they want them to fix these issues. they want strong international regimes to be protected. thank you. i was so glad to see you there yesterday. we all worked hard on it. i am glad that it had hit a good outcome. >> thank you. >> thank you for that answer. thank you for the outstanding

work that you have done on the npr as well. thank you, mr. chairman. i yield back. >> i appreciate the gentleman. we are certainly grateful for your testimony and hard work. with that, we adjourn. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> tonight on c-span, president obama's remarks on the financial regulation bill. following that, the senate judiciary hearing on the nomination of law professor good when -- goowdin liu. . .

>> i made year-to-year is forecast for the next month. -- i am eager to hear your forecast for the next few months. i am going to be focused on hearing from you how we can increase exports in the years to come. we know that if we are selling products overseas, not just purchasing products and services, that is going to directly benefit the growth of our economy. i want to say a few words quickly about the issue of wall street's. i know some of you have been

advocates of reform for some time and have been active in this area. as i have said before, we need a strong and healthy financial sector to grow jobs in our economy. it is exactly because of the importance of the financial sector that we have to act. the devastating recession that we just went through offered a painful lesson in what happens when we do not have adequate accountability and transparency in consumer protection. we cannot allow history to repeat itself. never again should american taxpayers be forced to step in and pay the price for the irresponsibility of speculators on wall street who made risky bets on the expectation that taxpayers would be there to break the fall. we cannot leave in place a set

of rules that would allow another crisis to develop without the tools to deal with it. that is why we are going to have a strong reform proposal that demands new accountability for wall street and provides protection for consumers. this will force banks and financial institutions to pay for bad decisions they make and not have the taxpayers paid those best decisions. that means no more bailouts. this reform would also bring new transparency and accountability to the derivatives market. this is something paul volcker spoke public about the other week. there are literally trillions of dollars sloshing around this market that basically changes hands under the cover of darkness. when things go wrong, as they did with aig, they can bring down the entire economy. we have to bring them into a framework in which everybody

knows exactly what is going on, because we cannot afford another aig. let's be honest. some in industry are not happy with the prospect of these reforms. we have seen the usual army of lobbyists dispatched on capitol hill. they have found some willing allies on the other side of the aisle in capitol hill so that folks on wall street can keep making these risky bets without any oversight. i hope we can pass a bipartisan bill, but by partisanship can not mean simply allowing lobbyists and driven loopholes to put american taxpayers at risk. that would not be real reform. in the coming weeks, every member of congress will have to make a decision. are they going to side with the special interests and the status quo, or with the american people? anyone who opposes this reform will have to -- will be leaving taxpayers on the hook if the

crisis like the one we have just seen ever happens again. i consider that unacceptable. my hope is that all of us will be able to find some common ground on this issue. moving forward, it is too important to become bogged down in the same partisan gridlock we have seen. it is time we demanded accountability from wall street so we do not find ourselves in the same mess again. with that, we will officially convened the meeting which will be light streamed. >> more about the financial regulations overhaul bill with the reporter from dow jones news wire. >> senate majority leader harry reid says he wants to bring a financial regulations overhaul bill to the senate floor as early as next week. joining us to talk about it is michael crittenden. is this legislation ready to go?

>> for the most part. lawmakers are working behind the scenes on a number of issues still. it is not over until every little piece is perfect. you do see an inclination of democrats to move this forward as soon as possible. >> what is the bill designed to do, and who are its key supporters? >> the biggest overhaul of regulation of of financial market since the great depression. it will have new oversight of products for consumers, of exotic products such as derivatives. what the obama administration has called new rules for the road. everything that was laid bare by the financial crisis, the lax oversight, the terrible incentives for folks to really follow the rules and assess risk properly. it is supposed to address all that. >> what is the republican sentiment about this bill?

or they calling it a bipartisan product? >> no, especially on the senate side where senate republicans have been given a number of opportunities to take part in the process. a number of their ideas are incorporated into the bill, but according to them, right out is not a bipartisan bill. they are trying to slow progress to prevent it from coming to the floor. it is a difficult political position for them, especially in an election year. it is a bill that so easily is framed as you are going for wall street or for main street. they are trying to figure out how they can have both sides. >> what are some of the areas of disagreement that still have to be worked out before the bill is brought to the floor? >> the creation of a new consumer agency has long been an issue. the obama administration insists

that new consumer protections be part of the bill. republicans have sought to limit that or restrict that in ways so that it would be less onerous. there is a lot of debate over how you deal with a large failing financial firms such as we saw with lehman brothers so that it happens in an orderly process without causing marcus -- without causing market disruptions. there are a number of these pieces that have yet to be resolved. whether or not they will be, i think democrats -- you cannot just negotiate and negotiate. the hope is that it will spur some more action. >> you mentioned derivatives. the president says he will not sign a bill that does not address that issue. >> the issue is that trillions and trillions of dollars in this market has little or no oversight at this point.

there is little government oversight, little regulation of them. what the administration has said is, they want over-the-counter derivatives and some of these exotic products to see the light of day, to trade through a very standardized process so that regulators know where the potential flashpoints are in the market so they can identify them early. >> michael crittenden from dow jones newswires. we thank you for your time. >> happy to be here. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> coming up, the senate judiciary committee on the nomination of law professor goodwin liu to the u.s. court of appeals. >> c-span, or public affairs content is available on television, radio, an online.

you can also connect with us on twitter, facebook, and youtube, and sign up for schedule alert e-mail's at c-span.org. >> today, the senate judiciary committee took up the nomination of goodwin liu to the ninth circuit court of appeals. he faced tough questions for senate republicans on his past criticism of past justices. this portion is two hours. >> welcome, everyone to this morning's hearing of the senate judiciary committee. this morning we will hear from five nominees for the federal court. two of whom hailed from the

state of california. we have just been joined by the chairman. we will hear from five nominees for the federal courts, two of whom hailed from the state of california. on the first panel, >> we will hear from professor goodwin liu who has been nominated for a seat on the united states court of appeals for the ninth circuit. professor goodwin liu is a nationally recognized expert on constitutional law and educational policy. he is the associate dean of the university of california berkeley school of law. before i give some brief remarks, as also the center from california, i will like to just quickly go over the order of this hearing. there'll be five-minute rounds. we will use the early bird rule. we will go from side to side.

following my statement, the ranking member will give his opening statement. of course, the chairman of the committee is here and if he wishes to make a statement he will do so. i will recognize senator gramm -- senator graham to introduce. [applause] [laughter] >> we are glad to have you here. >> you do not regard that as a promotion? then, i will introduce a series of letters into the record. then, we will call professor goodwin liu.

four other candidates are magistrate judge, and nominated from california, nominative from south carolina, and nominated from north carolina. welcome all of you and your families. i was privileged to have an opportunity to meet some of you briefly. let me say a few words about professor goodwin liu. he was born in agusta, georgia. he was raised by his parents who were taiwanese doctors. they had been recruited to the united states to provide medical care in under-served areas. his parents left taiwan when the country was still under

martial law. they in viewed in him a deep respect for the opportunities afforded in the united states. professor goodwin liu did not learn to speak english until kindergarten because his parents did not want to speak with an accent. from that early age on, he has excelled again and again. he was co-valedictorian of his high school. he graduated from stanford university, where he was told- president of the student body and received the university's highest award for service as an undergraduate. i have never before received a letter about a judge which was signed by three different presidents of the university and i want to read some of it to you because i think it is important. goodwin liu attended stanford while donald kennedy was

present. he was the recipient of numerous awards for his academic excellence, leadership and contribution to the university. it includes an award for outstanding service to undergraduate education. it includes the dean's award for service. the ruth prize for excellence in writing. the university's president," award for academic excellence. dr. kennedy worked with goodwin liu when he was one of the early student volunteers and leaders for the senator for public service at stanford. also, while he was co-president of the student body in his senior year. in 1990, donald kennedy wrote a personal letter recommending him for a rhodes scholarship. he used it and gained a degree.

a former provost of the universe in chicago is not a scholar at stanford. he has come to know goodwin liu as a stanford alumnus and a colleague. he considers him as a measured stored of the constitution. he fully appreciates the commitment of the framers and fidelity to the constitution. goodwin liu is currently a member of the board of trustees at stanford university, the governing body. john hennessy has worked closely with him since his

appointment as a trustee in 2008. he is an invaluable member of the board. he has served on the committee for audit and compliance, economic policy, planning and management and alumni and external affairs. in a group of highly accomplished trusties, he is widely regarded as insightful, hard-working, collegial and of the highest ethical standards. in summary, goodwin liu as a student, scholar and trusty has economize 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 has thrived by the in valuable rights of man to life, liberty, and the pursuit of happiness.

we highly recommend goodwin liu for the honor and responsibility of serving on the united states court of appeals for the ninth circuit. the letter is signed john hennessy and donald kennedy. additionally, he began his legal career as a law clerk to two highly accomplished jurists. yuan jurist was on the united states court of appeal and the other was justice ruth bader ginsberg. it is also worked as a special assistance in the special education. he has represented companies at a law firm of o'melveny and myers. he became professor at the school of law.

his colleague work has been published in the nation from the top journals. in 2009, he received the university's highest honor given for teaching. throughout his career, he is the vote a particular care and attention to improving education opportunities for students in the united states. he is a supporter of voucher programs and charter schools. he served as a consultant for the severance as a unified school district. -- san francisco school district. he has been awarded an award for distinguished scholarship. he has an exceptional legal mind and a deep devotion to excellence in public service. so, now, before i mention the other individuals, i would like to turn to the ranking member for his remarks and any remarks he would care to make about this nominee. >> thank you madame chairwoman.

we appreciate being with you. i am glad senator leahy can join us. i look for to this nominee today. i see my congressional colleagues. i do want to say a few things. i love this constitution. i love the great republic that we have been given. it is something that we should cherish and pass on to our children. in this nominee, we have someone that i know you have recently spent a number of hours again. others who know him speak highly of him. professor goodwin liu has written broadly and many of the important issues concerning lot today. many people respect his riding. many people disagree with his writing. they represent the very vanguard of what i would call

intellectual judicial activism, a theory of interpretation of our constitution and laws that empowers a judge to expand government and to find rights there that often have never been found before. i think this will provide an interesting discussion for us today. the president, out of all the fine lawyers and professors in the country and in the ninth circuit has chosen prof. goodwin liu. i think it says something about his approach to the law, his philosophy of the law and we will be looking into that today. i will be asking questions about a number of things. there are many, many things that the professor has written. one in his stanford law review

article of november of 2008 "rethinking constitutional welfare rights," he states that my thesis is the welfare rights depends on socially situated modes of reasoning that appear not to transcendent moral principles of an ideal society, but to the culturally and historically contingent meaning of social good in our society. he goes on to say that "i argue that the judicial recognition of welfare rights is best the lead as an act of interpreted shared understanding of particular welfare and good as they are manifested in our institution, law and the ball in faculties." he goes on to say that use the

kabul welfare rights represent the collective judgments rather than the tidy logic of instant moral theory. well, i think that is a matter we should talk about and deal with honestly and fairly today. i hope that we will be able to do that. i believe a professor who had been at duke university made remarks that if you truly respect the constitution, you will and forced whether you like it or not. that is the power of the judge. -- added a column of the judge. they are not empowered to enact what they consider to be social opinions of the day and then

redesign the meaning of the constitution. if a judge feels they have that power, and this is a theory that is a foot in america today, judges who feel they have that power i believe of use the constitution, disrespect the constitution and if it is too deeply held it can actually disqualified them from sitting on the bench. i would note that prof. goodwin liu understands, i think, the importance of judicial philosophy in the confirmation policy when he opposed justice roberts'confirmation, issuing a statement that it is fair and essential to ask how a nominee, judge roberts, would interpret the constitution and its basic value. americans deserve real answers to this question and it should

be a sensible focus of the confirmation process. he concluded that his disagreement was so severe that he advocated him not being confirmed in the senate. he testified in this committee to very aggressively oppose the confirmation of justice of the bill. -- justice alito. madam chairman, we have a number of issues we want to talk about. i want to give the nominee a chance to respond fairly to the concerns of his failure to produce certain documents and records and so forth. he is entitled to that. i do believe that he did not spend nearly enough time in evaluating the questionnaire and promptly responded to it to a degree that i have not seen

since i have been in the senate. i will also note that the nominee has not been in court, trying cases, he has never tried a case, where argued a case for appeal and therefore lacks the normal experience that we look for. he has an academic record and that is all we have to judge his judicial philosophy on. we intend to pursue that and hope to have a good hearing and a nice discussion about the future of law in america. >> thank you, very much center. we will have a good hearing and appreciate all members having an open mind. i would like to ask the chairman of the committee he has any comment to make before we proceed further. >> i will put my full statement in the record. i thank you for doing this hearing. this is the third time we have had its schedule. this time there was a parliamentary roadblock.

i saw one of the fox news commentators -- i hate to suggest a double standard, but i will. i think of another widely regarded law professor as professor michael mcconnell, who was also supported by a senior member of this committee, senator orrin hatch, prof. mcconnell was nominated by him president bush. he expressed strong opposition

to roe vs. wade. he had testified before congress that he believes the violence against women act was unconstitutional. that is what we had worked on and had been passed by a bipartisan majority. he had a number of other areas where he is strongly critical of the supreme court. but, he says that he felt he believed in the doctrine that he would be bound to follow supreme court precedent. i supported, even though i disagree with just about everything he had written about, i believe him when he said that he would follow supreme court precedent. i supported his nomination and on like now, when even people come out of here unanimously

and are held up month after month, week after week, he was reported favorably by this committee was confirmed in the 10th circuit by voice vote, and he was reported within a day what of his nomination being reported. within one day. we have people now in the lower court and you have to file to get them through. i put my full statement in the record. >> if i could respond since my name was mentioned, i would note that this nominee, professor goodwin liu was set for a hearing in 28 days, when the average court of appeals nominee for the obama

administration so far was 48 days and during the time when president bush was in office, the average time wait between nomination and a hearing when senator leahy was chairman was 247 days. i think we are moving of the to more rapidly than all of the members on our side felt we should, cents as late as tuesday night we were still receiving documents that should have been produced earlier. i think this nomination is moving very fast. we will do our best to be prepared, although it is difficult to with a sort time frame to evaluate large numbers of documents, 117 that have been produced since the first hearing was set. >> thank you. >> we did not have to go back and forth, but within three weeks of the time i became chairman of this committee i scheduled and held hearings on president bush's court of

appeal on nominees. that is not quite 280 days. >> i hope we do not get into a discussion of this, but i feel that i should point out that this hearing has already been delayed twice. chairman leahy originally intended to hold a hearing on march 10. that was 37 days ago. after ranking member's request, he delayed it to march 24. the minority then used a procedural tactic on the floor to block the hearing. in the meantime, prof. goodwin liu has been attacked and never really given a chance to speak. it is simply not fair and it is certainly not the american way. i will not go into a lot of the judicial confirmation statistics, but i will say that in the first 15 months of the

obama administration, only 18 judicial nominees have been confirmed. by the same time in the bush administration, 42 nominees had been confirmed. so, now, i would like to recognize senator wednesday gramm and rep cliburn's. >> i am wondering if i could be recognized for just a minute. i have to catch a train. >> you certainly can. is that agreeable with everyone? >> i will be very brief. i wanted to stop by today to urge my colleagues to move with dispatch on the nomination of goodwin liu. it is my hope that we will confide one day soon an opportunity to break the gridlock which has engulfed the

senate floor for some time now on the judicial issues. we have the filibuster on the other side of 2005 and we finally worked through it with the so-called gang of 14 where we solved the problem. no filibuster's except under unusual circumstances. i have reviewed mr. goodwin liu's record. i see he is a yale law school graduate. with some personal experience on those credentials, that is an extraordinary background. >> you leave out stanford. [laughter] >> he has a good supplemental record, too. we really need the best and brightest in these positions. the business about the

filibuster is being carried to just a ridiculous extreme. senator casey and i have a district court judge that is extraordinary, but would have to file a petition. so many petitions have been filed and then been confirmed unanimously or virtually unanimously. there really has to be some break point where we stop the retaliation. if it takes another gang of 14, or perhaps, more happily, a gain of 100 to get it done, i urge my colleagues. i wanted to come by for a few moments. i appreciate you taking me out of order. >> thank you, center. if we might proceed for senator wednesday gramm and rep cliburn -- if you like to proceed. >> thank you. i hope this is something we can all agree on.

i am honored to be here to make a recommendation to the committee about these two fine individuals. we have two republican senators with a democratic president. i think some of you have been in that situation in a reverse roe. when it comes to judges, congressman cliburn, and myself, along with the administration have been able to put together a package of four district court judges. i'm very proud of our work. i want to recognize what congressman cliburn has done. he has been a great partner for dealing with this issue and an administration that has been

very flexible. i want to congratulate the demonstration for nominating these two fine individuals. when i get through speaking, you will realize why we are proud. the first judge, michelle child's is the first administrative judge. she was registered as well qualified. she was the first african- american partner for one of the biggest firms in south carolina. if she was the deputy,. she is a graduate of the universe itself carolina school of business. she is married and has one daughter. i would just like to say this. every lawyer that i know of that has appeared before her, regardless of their political persuasion or philosophy has nothing but great things to say about judge child's as being fair. say about judge child's as being fair. those that are paring before her those that are paring before her feel like they're getting

those that are paring before her feel like they're getting a rewarding experience she would do a great job as a district court judge. they're very proud of her. richard is an outstanding member of our bar. he was joe lieberman's campaign manager. that did not work out too well. joe is my favorite democrat and he is my favorite republican. [laughter] i have a warm spot in my heart for him. he has represented the state of carolina. he has two sons. from a lawyer's perspective, he is one of the best lawyers we have in south carolina. he will bring to the bench a very deep practice and background experience which i think we're making a very capable judge. to the administration, thank you for approving this package. to congressman cliburn, thank

you for being a good partner on this and other matters. i appreciate any support you could give these two fine individuals. thank you. >> thank you. rep cliburn, welcome to the other side. >> thank you so much for allowing me to appear here today on behalf of michele and richard. i want to begin by thanking my colleague from south carolina. i really wish to associate myself with the remarks that he just made. senator gramm and i are from different sides of the aisle. we agree on the temperament of these two distinguished nominees. i have known these nominees for years. i could go on for hours of vouching for their character and reputation.

i would ask that my full statement be included in the record along with there resonates. president obama has chosen two very qualified individuals. i use the word historic. each of them brings a new level of diversity to the south carolina federal courts. once confirmed, we will have the first jewish judges and michele child to be the second african-american judge in south carolina. she will also be the third woman and the third african- american justice. in addition to their diverse backgrounds and experiences they have displayed exceptional integrity and an unwavering commitment to justice madam chair, as center lense gramm has indicated, judge child's

currently sits on the court of general jurisdictions. she served for the criminal court. she served as chief administrative judge for the state business court. according to the chief justice, she has the day when she is demonstrated a dedication to the job and work ethic that is unmatched by others. she tells a story that i believe demonstrates the kind of judge she is and the commitment she has to the law. late one friday afternoon, she called the county courthouse. she was able to solve the issue with intelligence and

compassion. just two days later, she delivered her first child. in the words of the chief justice, commitment is her yuan watchword. i hate to lose her. prior to taking the bench, she was a commissioner for the worker compensation commission from 2002 until 2006. she is a former president of the south carolina bar young lawyers division she currently serves on house of delegates. madame chairwoman, i also have the pleasure of introducing richard gergel. i've known him since he was in high school. he has the ability and

experience to serve well. his extensive experience as a trial lawyer. his a principal partner where he has specialized in personal injury litigation and discrimination matters since 1983. i have known him in my capacity as state and affairs commissioner for almost 18 years. i find him to be a good guy to work with on issues and even a good guy when we are on opposite sides of the issue i want to conclude by urging the committee and the senate as a whole to move expeditiously to confirm these two candidates. currently, 30% of the seats on the federal bench in south carolina are vacant. expeditious confirmation of the

steps below a standing nominees would do the legal profession proud and would be a good thing for the state of south carolina and the united states of america. i think the committee so much for allowing me to be here today. >> we thank you you representative clyde burn. senator lynch gramm, i know you have other things to do. if you wish to be excused, it is your option. thank you, a very much. we have received letters from both senator byrd and senator hayden. they regret the they could not be here today. they have asked that i submit their support for judge catherine the goals. >> i would just announced that senator byrd also gave me that statement and did express his regret and his strong support for the nominee and the person that is fair and has the

intellect and integrity to be a fine judge. >> i appreciate that. i would also added that judge eagles has presided and been unanimously rated as well qualified the american bar association. we look for it to her testimony. i would also submit at this time at center of boxer's statement. she regrets she is unable to be here. she is asked me to submit her statement in support of profs goodwin liu. i would also like to recognize members of the house of representatives. representative mike honda is here today.

also, we very much welcome you. thank you very much. now, mr. goodwin liu, would you please come forward and if you would introduce your parents and your family at this time, and then i will administer the oath. >> thank you, so much, madame chair. i am delighted to be able to introduce my family. with me, from california sitting in green behind me is my wife, anne o'leary. she is a native of maine. her parents could not be here with us. i looked into this them as well. in her arms is my four-week old son, emmitt, who i hope you will give us special dispensation to sleep through this hearing. i think we will all be better off for it.

sitting next to my wife is the apple of our allies. that is my daughter of violent. -- violet. she is three-years old. it turns out that she and my son share the same birthday. we have been tried to explain to her that i am the nominee to be a judge. about three days after my nomination she ask me if i was a judge yet. i said, well, that is not the way this works. she became so interested in the constitutional process the she decided to join us here today. sitting in the row right behind are my parents. they go by there are initials, wp and yc. they came to support me. i have a brother who also lives in the bay area. he is a doctor and could not get a day off to be here. i also wanted to introduce him.

behind me is a large number of my former students and friends. i would just like to recognize them and the special efforts they made to support me. i do not have any further statements. i have to answer. >> thank you, very much. if you would stand and raise your right hand. do you a from the testimony you're about to give before this committee is the truth, the whole truth, and nothing but the truth so help you god? >> i do. >> thank you very much. >> madam chair. >> mr. chairman. >> professor goodwin liu, you should note that people on this committee are constantly inundated with having to see pictures of my grandchildren. i am delighted to see your children.

they're beautiful children. >> thank you, very much. >> professor goodwin liu, if you would please proceed and make a brief statement. >> i have no opening statement. i would have to proceed with answering the committee plenty rich in the committee's questions. >> that is very unusual. let me begin. in a letter yesterday, ranking member sessions wrote the following and i quote "there is now a serious question as to whether professor goodwin liu has approached this process with the degree of candor and respect required of nominees who come before the committee. we can no longer extend him the benefit of the doubt that a substantial admissions in which several of these extreme

statements appear where a mere oversight." i would like you to tell the committee, if you will, what process did you used to provide materials to the committee and how were these supplemental materials overlooked and were they provided? >> thank you for the question. i am happy to have an opportunity to address that issue. first, let me acknowledge the frustration of members of the committee with the way i have handled the questionnaire. i want to make absolutely clear my assurance to this committee today in the most sincere and unambiguous way possible that i take very seriously my obligations to the committee and i want to try to be as forthcoming and complete in the information that i provide to you.

i think it is fair to say at this point, madam chair, that if i had an an opportunity to do things differently, i would have done things differently. when i prepared my questionnaire, i made a good- faith effort to provide materials to the questions. it became evident to me very quickly that the submission was incomplete. so, i redoubled my efforts to search for anything that could be responsive to the questionnaire. the result was a supplemental submission that the committee has, i believe dated april 5. some of the items are things that i should have found. things i should have found the first time. other items where things that i did disclose in the original

commission, and where i was able to find a web page or a web link, and i included that as well. still, other items were things like brown-bag lunches and faculty seminars and alumni events that i had not thought to look for the first time because they were of the sort of thing that i do day-to-day as a professor and not things i prepared remarks for or even keep careful track of. i submitted all of these items to the committee in the interest of providing the fullest possible information for your consideration. i am sorry that the list is long and i am sorry that i missed things the first time. for better or for worse, madam chair, i have lived most of my professional life in public. my record is an open book.

i i absolutely have no intention, and frankly no ability, to conceal things i have said, written or done. i want to express to you today, my fullest commitment to providing all the information that you need and want in considering my nomination and i would like to do anything i can to earn the trust of the members of the committee in my obligation to be forthcoming, both in my testimony today and with respect to the written materials. >> thank you very much. you are not the only nominee that has not been able to provide all documents at a given time. bñein testimony before this committee, you criticized some of the judicial opinions of then judge sam lee tel.

-- judge alito. particular, four of his opinions on the death penalty. i am one that has supported the death penalty. i have two questions. what was your objection to then, judge alito, and would you have any problem of holding the death penalty as a circuit court judge. >> the answer to the second question is absolutely not. i would have no difficulty or objection of any sort, personal or a legal to enforcing the law as written with respect to the death penalty. my riding has never questioned the constitutionality of the death penalty. with respect to judge alito , i submitted to this committee

opinions in cases where there were divided panels and thus, the most contentious cases. in all four of those cases, there were dissenting views offered by his third circuit colleagues, including republican-appointed colleagues. i believe my testimony highlighted what i thought were some concerns that were legitimately expressed in those cases. i believe in three of four of those cases, his view did not prevail. in one of those cases is you did prevail. >> thank you. senator sessions. >> professor goodwin liu, i appreciate your statement about the omissions. you are correct that some of the items might not have been easy to discover or remember. some of them, as you noted, should have been disclosed.

the question here calls for all interviews you have given and provide the date for those and so forth. you failed to do that. it comes on the heels of the attorney general having forgotten that he filed a breach with janet reno and two other former leaders. it raises a point to me that this is a serious question. i am going to continue to look at this. i feel like you did not spend enough time on this, and perhaps some of it was because the hearing was moved so rapidly. and those supplementals that you filed, where as a result of complaints and questions from

the staff, things that others have found, and when it was produced after the date of your first scheduled hearing, was it not? >> yes it was, senator. >> we want to be sure we have a complete and fair hearing. it is fair to ask what standards we should use yen evaluations of the nominee. you, in 2005 were highly critical of chief justice roberts nominations. you wrote, "there is no doubt he had a brilliant legal mind, but a supreme court nominee must be evaluated on more than legal and collect." i think that is correct.

then, you criticized his work for a group called the national legal senator for the public interest, stating that "its mission is to promote among other things, free enterprise, private ownership of property and limited government." these are code words for any ideological agenda high style to the environmental workplace and consumer protection. by the time he was nominated to this court, in addition to his clerkship, he had served as a top lawyer at the department of justice, the same office you have. he was nominated, and in the white house compel office, he was solicitor general, have led the appellate practice and a prominent law firm, had argued 39 cases before the supreme court, more than i believe

anyone in the country at that time, certainly of his generation, as well as cases before every federal court of appeals in the country. i understand you're criticizing his nomination, but how you compare your experience to move to the court that is one step below the u.s. supreme court. how you compare your experience to that of chief justice john roberts? >> >> he has an extraordinarily distinguished record both as a lawyer and a judge. i believe almost any nominee would be fearful of comparing their record to that of the chief justice. i suppose, senator, that i would leave the comparison to others. i have had some of the

experiences that chief john roberts had. i would like to think that i have had other experiences that might be valuable. >> likewise, you are highly critical of justice alito's nomination. you testified that intellect is a necessary, but not essential credentials. we care about a nominee's judicial philosophy. i agree with you on that. likewise, i think you would acknowledge that justice alito had an extraordinary record. he served for three years as a solicitor general, the office of legal counsel in the department of justice, a united

states attorney for new jersey, had argued 12 cases before the supreme court, at least two dozen cases before the federal court of appeals. have you argued any cases before the supreme court or any case before the federal court of appeals? >> i have not argued any before the supreme court, but i have argued yuan for the federal court of appeals for the d.c. circuit. >> i want to be fair about this. i know senator feinstein believes that we should not personally attacked nominees, but you and your testimony in the alito nomination use said "did judge's envisions an america where the police may shoot an unarmed boy to stop him to run away with a purse, where the fbi may install a camera where you sleep on the

promise that they will not turn it on unless an informant is in the room, where a black man might be sentenced to death by an all-white jury, and where police may search for a warrant. . death by an all-white jersey -- jerry, and where police may search for a warrant. this is not the america we know, nor the america we aspire to be." the thing that is a fair analysis of his record? these think it need -- do you think it is a fair analysis of this record? if it meets the standards we would normally hope to achieve? >> -- do you think it meets the

standards we would normally achieved? >> the passenger rest is perhaps >> the passenger rest is perhaps colorful language i used to describe opinions. let me, if i may, back up and simply say that as with chief justice roberts, i have the highest regard for his intellect and work as a lawyer. in many ways, my regard for justice alito goes even further because him and i share an immigrant family background. he came from humble origins, attended public school, and the best of his opportunities to accomplish all did he has accomplished today. have the highest regard for those accomplishments and his trajectories. my criticisms and the concerns

that i expressed were limited to one area, and that was the area individual's rights come up against assertions of governmental power. in that area, i have some specific concerns about his opinions on the third circuit. it did not come by testimony about him, extend further extend to other areas. >> thank you. i would like to say that it is unfair to him. he is a mainstream justice and it raises questions to me about where your philosophy of judging is. >> thank you. senator leahy. i am extremely expressed with your background. i know that richard painter had

worked with a number of president bush's nominees. he has no problem to your responses to the questionnaire. he said that a lot of the items left off were relatively unimportant, and redundant of what had already been exposed. i agree with the former official of the bush administration. i also recall, on these questions of what might be said when president bush nominated michael mcconnell, as i noted earlier, his provocative writings, yuan is to reexamine the first amendment -- yuan is to reexamine the first amendment, opposition to roe vs. wade, opposition to the violence against women act which was

passed here at unanimously, but, but, i agree with the doctrine. i supported his nomination. he was confirmed the next day. i would love to see that same standard applied to you -- the standard that republicans and democrats applied. let me ask you this question. would you recuse yourself from litigation issues that you have been involved with? >> mr. chairman, i would yeah, in all matters that would come before me if i were lucky enough to be confirmed as a judge, who applied they principles of refusal letter contained in the united states code and i think those standards require judges to avoid the appearance or reality of any conflict of

interest or appearance of bias. i would apply those with great fidelity in consultation with my colleagues on the bench to have had experience with those standards. >> i know any time i argued cases before the circuit court of appeals, i was mindful of the fact that the judge's normally follow their own president, but would fall of the supreme court precedents. if you go on to the court, would you follow the ninth circuit precedent and the precedents of the supreme court? >> absolutely. >> would you be bound to those precedents? >> absolutely, i would. >> would you keep an open mind to those cases coming before you? >> i would approach every case with an open mind, mr. chairman. . .

>> i am reminded of what was said recently. he thinks that people should still feel free to criticize what we do. i thank all of us feel that way. michael mcconnell, outspoken law professor that was nominated to the 10th circuit harshly criticized the supreme court decision that was an 8-1 decision. that was an 8-1 decision that the irs could revoke the that because it violated anti- discrimination laws irs could revoke universities tax exemption because it violated the anti-discrimination laws. he was enormously critical of

that. he was confirmed by voice vote. now, do you believe just because, like michael mcconnell who was supported by every single republican, who have been extraordinarily critical of the supreme court, do you believe any criticism you might have made would make it more difficult? >> no, mr. chairman. there is a clear difference between what things people write as scholars and how one would approach the role of a judge. those two are very different things. as scholars, we are paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative in ways that it is simply not the role of a judge to be.

their role of the judges to faithfully follow the law as it is written and as it is couldn't -- given by the supreme court. and there is no room for a convention or creation of new theories. that is simply not the role of a new judge. >> thank you. i have a letter written to us by kenneth starr written to senator sessions and myself. i will give the last paragraph of it. "in some, you have before you a judicial nominee demonstrating independent, outstanding character." referring to you, of course. he gave you the highest possible rating they could give a nominee. he said of a we recognize -- and he said, we recognize [unintelligible]

in the end, however, the judge is to uphold the constitution. [unintelligible] the ability to discharge faithfully in the ability to afloat -- to uphold the law. because he possesses those abilities to the highest degree, we feel he would serve with great distinction. he goes on to say that your support of the confirmation and puts that in the record. we have letters from 27 former prosecutors and judges commanding your commitment to the constitution -- commanding your commitment to the constitution. -- commending your commitment

to the constitution. and i put in the record that i strongly support this nominee. >> thank you. senator hatch, your next. -- you are next. >> welcome to the committee hearing. your wife and family are beautiful. and there's no question that i believe you are very -- you have a very good intellect with a lot of ability. as i evaluate this, i try to get the kind of picture of the kind of judge they would be. and i look closely at how much power they think judges should have over the law to decide cases. a lot of -- the law that federal judges to use is written law, such as statues and a written constitution. we can all read what the law says.

the purpose of the judges to determine what it means. judges have more places to look for the meaning of what and the more powerful they become an art. the more power judges have over what the law means, the last hour the people and their elected representatives have. -- the u.s. power the people and their elected representatives have. -- the less power the people and their elected representatives have. in your book you write "social practices and evolving norms" give meaning to the constitution. in an interview about the abuse at "the constitution should be interpreted in ways that adapt -- you said "of the constitution should be interpreted in ways that adapt to the conditions of our society in every single generation ago in a set -- stanford law article, you grow -- in every single generation."

in a stanford law article you wrote, that they can be crystallized into legal doctrine. it seems to me that this type of approach gives all the power to judges. id and let -- unless judges decide -- it lets judges decide what they want a constitution to mean, not necessarily what it says. after all, judges and pick what practices to consider. judges decide how this or that norm is evolving. judges pick what social challenges or conditions are relevant, which values our collective, how they have converged, crystallized, or been absorbed. if your philosophy is correct, well, you wrote in the book but this is the ability to the

constitution. to me, it sounds more like philip -- fidelity to judges rather than the constitution. let me ask you this, do you stand by these approaches that you have written and spoken about? and do you really think that judges should have this much power over the law? and what can be identified as the constitution after judges have finished adapting it generation after generation with changing conditions and judges, what will be left of the constitution if that is your approach? these are things that bother me and these are things that say to me -- well, good question marks in mind as to whether or not you in mind as to whether or not you would probably act as a jud -- we are very grateful to good

law professors like you. do you still stand by these approaches? >> i know you cannot mean that, but what do you think? >> thank you for extending the welcome to me and to my family. it means a lot to them and it is an honor for them to be here. thank you. i think that the -- what ever i may have written in the books and in the articles would have no bearing on my role as a judge. i think it would clearly follow the pathway -- >> is that your core philosophy? >> that is my understanding of the duties of an appellate judge. if i may, let me say that i can certainly understand how it is

that the phrases that you have read lead to the concerns that you have. one of the things that we try to articulate is that our constitution is very special because it is a written constitution. -- explain. our constitution is very special because it is a written constitution. it is a text. as a text, it is a permanent and bottom end of the core principles and structures of government that -- embodiment of the core principles and structures of government that we have chosen as a nation. in that text is very special and the principles that are embodied in that text and you're over the ages. those things do not change and the text of the constitution does not change except in article 5 of the constitution. what we argue in the book is that in order to preserve the meaning of that text, in order

to preserve the power of that text, it is necessary for judges in some areas of the law to give those phrases and words meaning in taught -- in light of the current conditions of society. not all phrases, mind you. there are many parts of the constitution that are clear-cut. and you need to witnesses to convict someone of treason, not one. that is a clear interpretation. but where the constitution says, for example, unreasonable searches and seizures that are prohibited under the fourth amendment, the court has instructed that in applying that phrase what we are looking at -- what we are to look to are the legitimate expectations of privacy that people have in a society. to close my answer, one example that we offer in the book, in 1961 the court decided a case called cats vs the u.s. which considers the issue of whether the requirement of physical trespass was necessary to make

out an unreasonable search and seizure under the fourth amendment. that was a case of telephone wire taps. the court said, in this day and age, the answer to that is, no, a physical trespass is not necessary because people have becomcome to legitimately expect privacy in their telephone calls. that is not new technology applied to old principles. and rather, i think it is for the court to discern what the societal expectations we have around phone calls, as opposed to other challenges and around other things like e-mail and internet. those things are still being litigated and perhaps the privacy principles are not as clear-cut. but with respect to phones in 1961, the court said the fourth amendment applies. and that is the kind of approach that these passages are meant to illustrate. >> my time is up. i will probably have to wait for the second round.

expects thank you, senator hatch. -- >> thank you senator hatch. senator klobuchar? >> i was going to follow up on senator hatch pose a question and you explained what is constitutional -- on senator hatch's question. can you explain what constitutional the ability is to you? and my question is, is there any particular way for the judge to interpret the constitution? >> no, i do not think there is any one specific way. in fact, i think the court in a variety of cases has said there is not a formula, a mechanical process. the art of judging involves more than just a formula. >> the defenders of our regionalism, like justice scalia concurre, are the last originals -- the defenders of regionalism,

like justice scalia, would you say that they are less legitimate than other judges? >> i would never say justice olli of 11 -- less legitimate judge. i would like to be careful in my answer to the question. if or regionalism is taken to mean that the original understanding -- originalism is taken to mean that the original understanding of the constitution is the sole touch- tone -- touchstone, i would say that the court has never and here to the methodology. if the original meaning is taken to mean instead at the original meaning and the text are very consideration -- very important considerations that any judge must look to, absolutely. i believe that is absolutely true, and in many cases that could be determinative, but it is not in some sense the soul, or the ultimate touch-tone

against which all other considerations must yield. rex you would agree that judges could come at this with a different constitutional -- >> you would agree that judges could come at this with a different constitutional interpretation when looking at a specific case. i am getting at your answers to senator leahy between the difference between a scholar and a judge. i was thinking back to my days in chicago where professor is robert was my judge -- professor easterbrook is now a judge. they had a clear view of economics and a lot. it is a of view that not everyone would agree with. by the way, i think easterbrook was the younger than you, 36 years old, when he came before this committee.

my question of view is, do you believe that judges can separate out -- my question of view is, do you believe that judges can separate out not only as a scholar, but as an advocate? >> i believe they can and i believe they must. >> very good. we have been focusing on a lot of your past advocacy and a scholarship as we would with any nominee, but as your life story, i see that your parents are sitting in the back and i understand that they emigrated from taiwan. and you did not even speak english until he was 5 years old and you went on to the auditorium of cure high school class and went on to attend stanford and oxford and yale. --could you talk about your sto,

which is half your life? could you talk about how that will influence u.s. a judge? >> certainly, senator. -- will influence you as a judge? >> certainly, senator. i feel in many ways i have lived a very ordinary life. but i have had very extraordinary opportunities along the way. the first of those extraordinary opportunities was to have parents who really cared about education. they came from a society that did not at the time know many of the freedoms that we take for granted in america. and that has always stuck with me as a very important consideration. i have also had a tremendous educational opportunities at the

fine institutions that you mentioned. and i have also had tremendous mentors along the way. i'm very glad that congressman matsui is here today because her husband, bob, who died and untimely death, was one of my early mentors on politics and a lot. the combination of all of these, i think, has made me the person i am and i believe in all of the intangible ways that would influence my perspective, hopefully for the better, as a judge. >> thank you very much. >> thank you senator klobuchar. senator kyl is actually next on the list, but he has very generously permitted senator coburn to go ahead. >> thank you, senator feinstein. and i thank senator carl. we have a hearing going on with the financial breakdown of

investigations. * r a was not here for your opening statement, but -- i am sorry i was not here for your opening statement, but i have read it. i must tell you, based on what i've read i am highly concerned. i think you and i have a completely different philosophy when we look at the u.s. constitution. i want to try to understand where you are to give you a fair opportunity to convince me of how wrong i am. yuko wrote an article on congress, the courts, and because -- you co wrote an article on congress, the courts and the constitution and you criticized the supreme court for overturning the guns rights of stating, "even more astounding than the common rights -- common sense legislation was that the house passed with only one dissenting vote and the senate passed its by unanimous consent,

is its eagerness to do so in a way that deliberately excludes congress, and by extension, the american people, in defining what the constitution requires and permits." your continued in that article, "the recent arguments do not pretend to be debate. instead, they are the sole arbiter of constitutional mean." more and more, congress and the american people are regarded as mere targets of traditional discipline, unable to live and govern themselves within enforceable limits. the court made a final say on constitutional interpretation, but i do not see why it should have the only say. then in a press interview, concerning a legal challenge to california's proposition 8, which overturned california's supreme court ruling in favor of gay marriage, you said, should the democratic process be allowed to enact a sizable short

pants? or is a more legislative process required? -- by a show of hands? or is in our legislative process required? you wrote, talked -- proposition 8 targets an historic week vulnerable group. indeed, as early as the nation's founders, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding minority rights. i am a physician. i'm not a lawyer. along with senator feinstein ran out on this committee, we're the only two that are not. and i understand in one instance you are discussing the commerce clause. and in another, you're commenting on the 14th amendment. but it seems to me that the one case in which the american people should have a say in the constitution through the democratic process and in another, they should not.

this distinction based on these two episodes would appear based on what you personally think which right is important or is that issue. can you please explain why a court should consider the milk -- the will of the majority as expressed through the legislative processo you read about proposition 8, i actually testified before the california assembly and senate judiciary committees in october implications of proposition 8, in particular the anticipated state constitutional challenge to the process by which that amendment to the state constitution was adopted. the testimony i gave was very

clear, senator, that i believe that proposition 8 should be upheld. , not struck down. but -- not struck down, but upheld by the california supreme court. i was asked to testify in my role as an unusual legal expert, and despite what other rules i may have had to my personal rules, whatever, and even my legal rules in the past, i testified before the committee that the california supreme court should uphold that in deference to the democratic process. >> if i can correct your testimony, what you said is that you thought that they would, not that you should -- not that they should. i believe that was your testimony. you said that they would. my question remains the same. how on one hand can you say the court -- in other words, how are you going to pick out?

if your an appellate judge, how will you pick which time you say you get the choice or we get the choice? the fact is, that is a whole the fact is, that is a whole new >> i see this book and i like it. sometimes it goes against me. we will be picking which way we are going to do this. i think it is a marked inconsistency. let me go on if i may. in a recent supreme court decision, justice scalia stated that the basic premise of the court's argument that america law to conform to the laws of

the rest of the world should be out of hand. dissent that the american laws are to be rejected out of hand. he continued that what these foreign sources a firmer than repudiate is the justices notion of how the world ought to be -- a firm rather than repudiate is that the justices notion of how the world ought to be ought to be henceforth in america. i happen to agree with that philosophy and i'm sure you knew that before you came in here. and for that reason, some of your statements about for a lot deeply concerned me. in an article that you published in a university law school in japan, you say the use of foreign authority in american constitutional law is a traditional practice that has been controversial in recent years. the resistance for -- to this practice is difficult for me to grasp since the u.s. can hardly claim to have a monopoly on why solutions deface our democracies around the world. the only problem with that is that when you are sworn in, you

will swear and how slow growth and the allegiance to this document. -- an absolute oath and allegiance to this document. it is not about having an mdot -- having a monopoly on being accurate. it is about having a monopoly on the ruble. -- the rule book. >> i do not believe for law should control the interpretation of the u.s. law, whether it is the u.s. constitution or a statute. i believe the use of foreign law contains within it many potential pitfalls. in other words, what i've observed these justices doing in some of these cases is that they have chosen to give an argument and it is not in any way a full account of the various cap -- barry's practices throughout the

world with respect to their loss. -- the various practices throughout the world with respect to their laws. one of the things i think is very unique and worth cherishing is that we are in many ways a much freer nation than many countries around the world. i think there are many hazards involved in looking at foreign lot as guidance as how we interpret our own principles. -- foreign long as guidance as to how we interpret our own principles. -- bordelli w fahrenkopflaw as s to how we interpret our own principles. there is a very important difference, senator, and one that i take very seriously between looking for guidance or ideas versus looking for authority. and authority is the basis on which cases are decided, not ideas or other forms of guidance. >> thank you very much. i went way over.

i apologize. >> senator kyl, you are next. >> thank you very much. just on that last point, you distinguish between authority and ideas. the -- the role of the judges to decide the case in applying the authorities to the facts of the case. what is the role of ideas that would warrant a citation to foreign authorities? >> the senator, i think that -- >> excuse me, if i can give your exact quotation. the resistance to the practice is difficult for me to grass since the united states can hardly claim and not -- for me to grasp since the united states can proclaim a monopoly on why solutions to common problems. the crux of the idea that -- >> the idea that judges in their

ordinary practice do cite a variety of sources to bolster their reasoning on a particular point, but i go back to what i was trying to say to senator coburn, which is that the role of the judge, to me at least, is to make determinative the applicable precedents and the written law, namely our law. >> then why you write that the resistance to this practice -- and you say "the use of foreign authority." that is what you are talking about you say the resistance to this practice is difficult for me to grass since the united states can hardly claim a monopoly on why is this -- wise solutions to common problems on the world. there are two problems with this. the first is, fighting wise solutions as to -- as opposed to -- finding wise solutions as opposed to ending the law. and the second is, using foreign

governments and solutions, except in treaties and the like. >> i did not mean in policy solutions. i meant the way that judges have to articulate a legal rule in deciding cases. with respect to the use of foreign presidentprecedents, i y that the use of them can in no way be determinative. in reviewing supreme court cases that have actually implemented this process -- this practice, i think it shows quite clearly that the mention of foreign citations in those cases, to my reading of these, it is not doing any legal work in the analysis. >> if i can respectfully disagree with you. it is used in at least one instance to bolster -- in one instance that i can think of to bolster the judge's opinion.

we will talk more about this, this idea of authority sources ideas. i would also like to put into the record events memo national review online wednesday, march 24 piece that response to the mark starr letter that i think senator leahy put in the record, in any event, that someone did. and professor leeland, also to follow up on something one of my colleagues to talk to about -- one of my colleagues talked to you about. to me, this is reminiscent of senator kennedy posing quite unfair characterization of judge bork's vision of america and famous speech that he made. do you really believe that what you spoke is justice alito's vision of america?

" senator, i think the phrase -- >> senator, i think that phrase is perhaps unnecessarily fiery language to make a simple point. i was trying to give examples -- >> so, you do not really believe it represents his vision of america. >> i do not think that it represents his vision of america that he would implement as policy, the practices described in that paragraph. it was only meant to say that as a judge, he believed those practices were permissible in america. >> why did you not say it that way then? this calls into question your judicial temperament. that is a key consideration for members of this committee. that is not tempered language. you would acknowledge that, i gather. would you a knowledge that is not tempered language? >> perhaps not considered in

isolation. but it comes after 14 pages of analysis of judge alito's opinions and i believe it was the penultimate paragraph. >> i see it as vicious and very racially charged, very in temperature -- barry in temperate and, to me, it calls into question -- if very intemperate, and to me, it calls into question your ability to deal in a fair and judicious way. >> thank you, senator. senator cornyn, your next. before you go, i would like to abolish the presence of representative bobby scott -- i would like to acknowledge a depressants of representative bobby scott. -- acknowledge the presence of representative bobby scott. >> welcome. i do not think there is any doubt in my mind that you are an american success story as the

son of immigrants and someone who has taken advantage of the opportunities that unfortunately, we all have here in america -- that fortunately, we all have here in america to get to the very top of the legal profession. in your case, the question i have is, is this the right job for you? it is not just a question of brilliance. it is not just a matter of your academic skill. it really is, is this the right job for you? i know you and senator hatch talked about the role of a a a law professor relative to that of the -- of a judge -- the role of a law professor relative to that of a judge. let me go to some of my concerns. they may seem relatively mundane, but i think they are important. i note that you say you have not tried any cases in judgment or final decision. >> that is correct. >> having been a state court judge myself for 13 years, i am

really very troubled by the fact that senator sessions documented in his questions that the lack of attention and diligence and, frankly, sloppiness in your response to this committee's questionnaire -- there were four occasions when you supplemented your responses not because you discovered they were in complete, but because committee members or staff went on google and found speeches, documents, and press releases that you had previously disclosed. from my experience as a former trial judge, i will tell you if a lawyer came into my courtroom and failed to respond completely and accurately to a request from the other side for information and had to be called to task for different times the -- four

different times before they got the complete and honest answer, that order will -- would find himself in contempt of court, -- that lawyer would find himself in contempt of court, or worse. i do not know if it is your lack of experience in a courtroom, what is, but can you offer me any comfort at all that this is not just an act of contempt but there is some other explanation? >> certainly, senator. i want to express again the fullest commitment that i possibly can to providing this committee with any information that it wants or needs in $% candidacy for the bench. >> have you actually apologized? >> i have, senator. in my transmittal letter of the april 5lq express an apology 'm happy to reiterate it here. i'm very sorry for the omissions in the original questionnaire.

i would simply say that the lion's share of items that i submitted in a supplement or not items brought to my attention by others, but items that upon more diligent searching i was able to provide to the committee, including all of the various instances in which i moderated a panel or accepted an award, or introduce a speaker or spoke at a brown bag. i tried my best to comb through the internet sites and all the places that one could look for such things. i understand committees frustration with my handling of the questionnaire. i would have done things differently if i had the opportunity. >> can you assure us that you have made a complete and accurate response to the committee's questionnaire at this point, will there be other items that we will discover that have not been revealed? >> in the revised submission of

april 5, i detail in the beginning of the answer all the search is the idea -- that i conducted. and if the committee or any member would desire that i do any more searching, i would be happy to do that with dispassion and turn over any other material i may find. >> let me turn over to you and -- to part of your response earlier in response to senator kyle posing questions. you characterized some of your criticism of justice alito as not tracking the park -- proper balance between governmental rights and power. i would like to ask you in a straightforward way, what you think the 10th amendment of the constitution means and how should it be applied? it -- are reserved to the states or to the people. do you recognize any limit on federal power to do whatever congress decides to do?

do you think that the 10th amendment is a dead letter? >> absolutely not. the 10th amendment stands for the fundamental principles of federalism. i would apply those faithfully. >> yet, you criticized the opinion of justice rehnquist. is that correct? >> i.t. expressed concerns about the decision, yes. >> i would tell you that the american people, i hear it from my constituents in texas and all across the country that they are very concerned about the aggressive growth of the federal government. this is one reason why 16 attorney general's have filed a suit challenging the individual

mandate in the health care reform bill as an unprecedented expansion of federal power into. the health care reform bill as an unprecedented expansion of federal power into their lives. i'm not going to ask you for a legal opinion about that since it may come before you if you are confirmed, but derecognize our government is not a national government, but a federal government and that is individuals and states that preserve significant power to make decisions affecting their lives that the federal government cannot and should not touch? >> absolutely, senator. i think that from the founding of our country we have always had a constitution that defines the powers of the federal government as a set of enumerated powers only. in other words, the congress of the united states, the president, the political branches are not -- it is not a legislature of general powers

that, as the states are. the states are general legislatures of powers. but the federal government is not. the whole notion of the enumeration presupposes the idea that is a government of limited powers. >> madam chairman, i know my time is up. i would like to knonote that i w that professor liu has been rated qualified and even though he has not tried any cases or rendered direct verdict. i would note a few years ago when judge frank easterbrook was nominated to the seventh circuit, it appears a different standard was applied by the american bar association when they gave him a majority qualified, minority not qualified because they said he lacked experience as a practitioner. maybe the aba, when they come --

and i assume they will at some point come to testify -- can explain that point. it appears to be a double standard. >> thank you very much, senator cornyn. senator kauffman? >> welcome to the judiciary committee and the supreme court nomination process. [laughter] as you can see, there are some basic differences about the constitution on this committee. senator cornyn, why hold in very high regard, and center sessions and senator kyl -- who i hold in very high regard, and senator sessions and senator kyl, may have a different opinion about the role of the government on which we battle at every single judiciary committee, but in a very collegial way. if i think we have all agreed to disagree on some of these issues. you clerked both in the district of columbia court of appeals and the supreme court. can you tell me what you learned about role and function of appellate judges during your experience? >> certainly, thank you, senator

kauffman. i have the enormous privilege to clerk for two outstanding judges. one of the things i learned as a law clerk on the u.s. court of appeals for the d.c. circuit is applicable to the point that senator cornyn raised. it is true i have not tried cases to verdict, and i would not claim expertise in that way. but one of the things that the judge for whom i clerked routinely did was he instilled in his law clerks and appreciation for the role of the district judge, and the role of the district judge in understanding how litigants' bring cases and how cases get framed, and thus, in virtually all the cases i can remember he always sent us down to the first floor of the courthouse to go read the record of what happened in the court below.

and those determinations and that record was into an amount of difference because a judge had already -- was due and amount of deference because a judge had already rendered a verdict ones. although we have a system of hierarchy in our courts, all of the members of the courts serve as article 3 appointees, in some sense, azko as co-equals and i would pay very careful attention to the standards of review that apply to the case at hand because many of those standards of review caution against making new determinations or as if they were riding on its banks -- blank slate when, in fact -- riding on a blank slate, when, in fact, there has been an opinion rendered.

>> your opinions do not matter that much if you're a court of appeals judge. >> not at all, the senator. on many issues, virtually everything that comes to the door, it has around a set of applicable precedents there really is no room in cases that come up for judges to create a new theory or doctrine. they are applying the law as it has been interrupted by the supreme court and has been written by congress in the cases of statutes. >> you do not have real flexibility in terms of personal beliefs. >> personal beliefs, i believe, never have a role in the act of judging. gregg's in your experience and education, what you think -- >> in your experience and education, what you think came out of that that will serve you on the supreme court? >> i have the opportunity to work and serve with extremely talented leaders in that department. i think what it gave me is some perspective on how agencies make

decisions, and to the extent that the courts of appeals do hear cases that concern administrative law, i think it does help to have some appreciation of the way regulatory decision making and other forms of guidance get made in federal agencies. >> and how about your experience in private practice? >> i feel enormously grateful that i have the time that i had at the law firm, a collection of outstanding an extremely talented saand smart lawyers who showed me in many ways how businesses approach problems and how low role of a lawyer is absolute loyalty to his or her client. and the vigorous bazell c4 the client's interest. i think i learned in respect -- vigorous thezealousy for

the client's interests. i think i learned in respect. i also learned how to build a time. >> i want to thank you for your public service. this is difficult, but the fact that you are willing to do it and the fact that others are willing to do it makes this country function. and i think everyone here knows were willing to -- willing to make the sacrifices that you have, and even more important, your wife is willing to make the sacrifices that she has to. i want to thank you for your service your country. >> thank you. >> thank you, senator kauffman. because of the importance of this nominee, we will certainly have a second round. i would like to indicate my intent would be to go to 12:30 p.m. take a half-hour break and reconvene at 1:00 p.m.

we have before additional nominees to hear. -- four additional nominees to hear. i know this is a long wait for you, but i think is important for members to have the opportunity for asking professor liu all the questions that they have. i must apologize to you, but it is the way of the senate. if there is no objection, we will proceed with a half-hour break in about 45 minutes. and then begin again. >> thank you, your honor, for that. i think the nominee raises a lot of important for the -- philosophical questions about the law and constitution. we do have a number of questions. i thank you for the courtesy of allowing sufficient time. >> thank you very much. to begin the second round, i would like to say a couple of things.

i really think that there is a double standard being applied here. i would like to take a look at just a few of president bush's nominees. let me begin with the chief justice. chief justice roberts fail to provide documentation for over 75% of the speeches and remarks listed in his questionnaire. not a single republican objected when the committee received 15,000 supplemental documents just four days before his confirmation hearings were scheduled to begin. in fact, both chief justice roberts and justice alito supplemented their questionnaire several times after returning them, including with 75,000, and 36,000 pages of documents respectively. judge -- michael mcconnell has been covered, appointed to the

10th circuit. the constitutional law professor from 1985 to 2001. he did not list a single speech or talk on constitutional law or legal policy. he was confirmed. judge jeffrey sutton, appointed by the president to the sixth circuit, submitted a questionnaire that simply stated i have given numerous speeches to local bar associations, ohio judges, through the ohio judicial college, the federalist society, and continuing legal education seminars regarding the ohio state supreme court and the ohio -- the united states supreme court and the ohio supreme court. he was confirmed. george brett cavanaugh, as has been stated, appointed by -- a judge brian cavanagh, as has been city, appointed by president bush to the d.c. circuit, said, i have given

remarks on occasions, etc.. he was concerned. the judge katherine hay is appointed by president bush to the fifth circuit -- s. fifth circuit, submitted a questionnaire that said i have been to dozens, maybe hundreds of events where each candidate is asked to introduce his or herself. i have no way to track accurately the dates and locations. she was confirmed. judge diana sites, appointed by president bush to the second circuit, submitted a questionnaire along the same lines. same thing for judge ken jordan to the third circuit. i think this -- and i must say, it is remarkably unfair. we have heard a nominee clearly state that he overlooked some things, clearly state that he is prepared to do anything he can to see that the committee is fully informed of his writings.

i do not know what more in nominee can do. -- a nominee can do. to rise this to the level that he should be denied confirmation, and this being one of the major reasons, seems very unfair to me. i would like to ask one question on the commerce clause, however. in recent years, the commerce clause, as we all know, it's a very important clause of the constitution which essentially allows the congress to legislate in a number of different areas as long as they relate to interstate commerce. in recent years, the supreme court has used in much more constraining view of the commerce clause. to strike laws such as the gun free laschools act of 1995 and e violence of women act of 1994. what is your understanding of

the scope of congressional power under article one of the constitution, particularly the commerce clause? >> senator, in those two cases, as well as other cases that have followed on, in particular, i'm thinking of the medicinal marijuana case, the gonzález vs reich case. the court has the hoarticulateda doctor and the business is there are three ways that congress can -- articulate a document that says that there are three ways that congress can legislate. it is senseless as the congress can legislate on matters that have an effect upon congress. a lot of it has turned on what is a constitutional effect. -- the court said that the

activity being regulated has to be economic in nature. it stopped short in saying that that is an absolute requirement before the analysis can get going in the mud -- is going. we have to look at the activity as a class of activities, not just an individual instance. in the case of the marijuana case, they desire mr. bill -- medicinal marijuana. that is where the state of the law is right now. the court has put a focus on the economic nature of the activity. it has forced the courts to look at that as a class, and that is the law as i understand it and i would use that as a judge. >> to thank you, very much.

-- thank you very much. >> this is a troubling document to me. you say that your thesis is that the legitimacy of welfare rights depends on socially situated modes of reaching an appeal, not to transcend moral principles of an ideal society, but to culturally and historically contingent meanings of social goods in our own society. . . of social goods in our society. i presume that as a stand-up you think judges should apply -- a stand that you think judges should apply. you think that we should move to culturally and historically

contingent means of social goods in our own society? what kind of legal standard is that? doesn't that allowed a judge to do anything they want to do? >> senator sessions, the supreme court has, i think, pretty clearly said that judges cannot create classification. >> wait, let me just say -- i am going to allow him to answer, but i just want to say we do but i just want to say we do have a time problem asking a specific question. if you can do the best you can to be sustained, i would appreciate it. >> certainly, senator. i simply mention what this said because in the article i expressed agreement with what the supreme court has said on this. in the article i say very clearly that the judges have no role in inventing welfare rights out of whole cloth and doing it on their own. instead, i think the passages that you are reading are perhaps

overly academic language for a simple point, which is that if there are going to be welfare rights in this society, they must come from the legislature. they must come from congress. and i use the term "legislative supremacy" to capture that idea. >> can i ask, you say, " justifiable welfare rights for contingent character. are you talking about a judge's welfare rights? >> the role that the judge lays out is only the role that the supreme court's own president has held up in the past -- precedents have upheld in the past. there are various determinations and processes and the jordan -- and the court has seen them as just as the bowl -- justic

eable arguments. i believe i used the term "no role for courts federal industry legislative judgments of that sort." and i used the example of congress's 1996 welfare law that ended in thailand. i said that the courts have no role at all in questioning -- in ending entitlements. i said that the courts have no role at all in questioning that. >> you do say there is a danger in taking over the legislative process, but you say it can be avoided when "courts employ constitutional doctrine in a biological process with the legislature to ensure the scope of welfare provision democratically reflects our social understanding." that seems to mean that you are saying a judge has a right to use the power of the court, a

lifetime appointment, to ensure that welfare -- welfare provisions democratically reflects our social understanding. to me, that is an end -- and unintelligible standard, and you are giving virtually unlimited power of courts to review welfare or health care type legislation. >> senator, i think that, once again, if i can try to in some sense cut through the academic jargon they'rethere -- >> on the point, i agree. >> [laughter] thank you. i was a deterrent to say that the way that the court has in the fast approaching -- i was simply trying to say that the with the court has approached past -- one thing to notice that the -- this area of doctor has

not in some sense spiral out of control. in fact, it is a very limited role, and that is the only role i envisioned in the paper. >> in your statement, it was not originally produced, but later produced, commenting on your book "keeping faith with the constitution" you define what fidelity to the constitution is. you express what i believe, which is davon this is what is followed even if you do not like it -- faithfulness is what is followed even if you do not like it. bayh you save up the constitution -- but you say even when the constitution is adapted to the challenges and conditions of our society in every single generation. it seems to me, you are saying that a judge can ignore the proper way to amend the

constitution and adapt not only its principles, but its text to meet whatever challenged the divine at a given time. correct me if i am wrong. greg senator, that is not what i believe. -- >>, senator, that is not what i believe. if i may, i think the interpretation of the constitution always has to be on the basis of legal principle and not on the basis of what the majority of society thinks or what the judge in question things. and across any generation, in any generation, the interpretation of the constitution has to be guided by not what makes people happy. rather, but the faithful application of the text, the underlying principles and precedents that have occurred. . .

>> i think his testimony explicitly projects the idea and respects the role of the legislator. the article speaks for itself. , would hope we keep on the facts on the legal abilities. i had heard comments made suggesting that you are racist. i find that outrageous and and let's talk about the vigor or reasoning. we throw around these ancillary charges so easily these days, i'd do not know what has happened in this country to do it. i remember when i said i opposed

justice toledo's nomination -- justice alito's nomination and i was accused of being anti @. when my grandparents emigrated from italy. my italian-american mother and her siblings were growing up knowing how much i respect my uncles and aunts and cousins in italy and visit them often, i remember sitting on my italian- grandparents and knees and speaking in italian with them but i think it is kind of a stretch. the same stretch that you heard with senator kennedy when i was

called an anti-catholic. i remember talking to my pastor leading mass the next day and he said where does this sort of thing come from? i would hope that we can talk about law and not things that belong to another time in our c. time, an unhappy time in our country. we have heard you criticized that you have not had a lot of courtroom experience. i cannot recall a single republican saying a thing when judge kimberly and the more was nominated by president george h. w. bush for the federal circuit. she had had years as a federal

clerk. no one felt this disqualify her. or, when judge j. harvey wilkinson was nominated by president reagan to the fourth circuit. he had had one year as a clerk, five years as they newspaper editor, two years in the government, five years in academia. he was confirmed. judge frank westbrook, nominated at the age of 36, he spent one year as a clerk, five years in the government, seven years in academia. he was confirmed. let's talk about reality. let's leave these straw men complaints out of it. we have some many people sitting

on our courts of appeals, nominated by a republican president, supported by both republicans and democrats who do not begin to have the kind of background that you do, nor began to have the kind of bipartisan support that you have. i think we should not forget that. the american bar association, the standing committee of federal judiciary, found you unanimously well qualified. that is the highest possible rating. strong support of both your home state senators. conservatives have commented that your qualifications are unassailable.

tell us the difference between the role you have to play as a judge and any difficulty adjusting to a new role as a judge. >> system, mr. chairman. the role of the judge -- certainly, mr. chairman. the role of the judge is to be an arbitrator of the cases that come to him or her. the way that that process works is through absolute fidelity through the applicable precedents and the language of the law, statutes and regulations that are at issue in the case. academics, when they write, are not bound in the same way. the job of law scholars, when they write, largely, is too pro- criticize, invent, be created -- in other words, many of the qualities that are not the

qualities that one expects the judicial process to possess. one thing that i would like to highlight, which i hope comes through upon a review of my record, is that there are some similarities between the legal scholarship and the process of judging, which is that i would hope the record shows an open mindedness and an ability to consider all points of guilt. a record, in respect -- of the review -- a reader, a respect for the law and off forms that make for habits of mind of good listening, that i think, in other ways, could make a person a good judge kurt >. >> thank you. >> thank you, senator leahy. >> center cairo. -- csenator kyl.

>> you are distinguishing between an area where a court can't breathe light -- breathed life into the eligibility of those rights. that is what you described in the substance of what you wrote it at me ask you if you personally, personally believe that 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, and a robust earned income tax credit, and in fairness, that is exactly what you wrote. that is a direct quotation. also, that we should be thoughtful, not bashful in forcing political solidarity.

do you personally believe the statements. >> is that from my article, or which text is that from? >> i am sir. we were quoting from the article. it is the international citizenship from the yao journal in 2006. -- from the yale journal in 2006. >> i stand by my writings. whatever views i have expressed about those matters, however, i would set aside absolutely in my role as a judge. quite frankly, i did not see the role of the judge been involved. >> i appreciate that you said that. the problem is that colleagues have talked about the need to get judicial nominees, and grant that this was in the context of the supreme court nominees, who would have certain agendas that

i did not necessarily share. one of the things that have concerned about an activist judge is whether or not you approach deciding cases with those agendas in mind or you lay them aside. you have expressed, and i did quote accurately from that article, i perceive these to be the -- these to your personal opinions. i also perceive your view of a lot to be that we should find ways to accommodate those opinions, albeit, you do say once the legislature has acted. i will quote directly how you state that. this is an -- on how how welfare rights might be recognized to constitutional to vacation in a democratic society. >> wants a welfare progra"once m

this created, it should be reassessed to satisfy needs of citizenship. you should do that by and delicate in social eligible requirements or strengthening procedural withdraw benefits." that is what you said earlier. that seems to me to be an agenda. you bring an agenda to the court. you have written about how that agenda can be accomplished through the judicial process, not the legislative process. you say "the constitutional guarantee of national citizenship has never realize its potential to be a generative source of substantive rights." you talk about how it was neutered by previous court decisions. i view this as you having these views, their very liberal

views, you believe that once the legislature has opened the door, courts can be used to expand those rights in what you would consider to be an appropriate way. >> i guess i would say that those are my views. they are accurately reflected in the passages you spoke. i guess i would characterize them, not as an agenda, but rather as a my endorsement of precedents of the court that have done precisely those things. as a lower-court judge, i would follow certainly, those precedents and any precedents. >> i recognize what you're saying is that when the legislature has acted, there is some precedential ability of courts to them, either through restricting qualifications, for example, of expanding those

rights. it is very clear from what you have said, not that these are just examples you picked out of thin air, but rather, this is your personal view of what the court should try to do. am i wrong? >> i am not sure i would say that these are things the court should try to do. i think a court would have to simply follow with the supreme court has instructed the courts to do on particular issues. effected put the passages you read in further cutbacks, i would say that my riding in this area and the -- if i could put the passage as you read in further context, i would say that most of my riding in this area -- right team in this area has been directed at policy- makers and legislatures, not act -- not at judges.

most of what i have written is directed at legislatures because i come at this from my perspective of judicial restraint in this area. i hope those articles convey the understanding how but how difficult it is for courts to get involved. we have historical lessons to learn. that is why i think most of my scholarly work has actually been directed at policymaker, not at the urging courts to do more. >> could you see why the passages from this particular article raised a doubt that i have expressed to you? >> i certainly do. >> that completes our second round. senator coryn has indicated that he will arrive in five minutes. i'll tell you what we will do if

that is our right, we will begin a third round and then i will give him some additional time he comes in. we will just go for another 15 minutes and then recess. are you bearing up? >> i am doing just fine. you have amazing cool. congratulations. >> in describing your approach to constitutional fidelity, you have said that the practical consequences of legal rules matter. i happen to agree with this. for example, in a case where a court interpreted title 7 to require a woman to pay -- or excuse me, to file a pay discrimination case within a 180 days of yuan her employer first paid her a less than her male counterpart, even if she had no way of knowing at that time that she was being paid less.

congress has had to pass a new law to overrule that decision and communicate to the court that title 7 was not intended to have this resolved. i think it was the first bill signed by president obama. here is the question -- when do you believe it is appropriate for a judge to consider the practical consequences of legal rules? >> well, i think that is one of the aspects of decision-making that i think properly inform the consideration of most cases that can't -- that come before the court. lot defects people's lives. it is not a bunch of words on paper. it is not a bunch of cases in the books. these are real things that affect people's lives.

decisions made by a judge should not be based on favoritism toward effecting a person puts the life one way or the other. -- purse person's life one way or the other. i do not think anyone can grasp the magnitude without understanding how that plays out in people's mines. >> just so people now, there was no way she could of known -- she did not find out until years later what happened. the question was did she have redress. the cold rolled now. -- a court ruled know. -- no. the supreme court stated conclusively that state universities have a compelling industry -- interest in

attending the educational benefits that flow from a diverse student body. that case and others have also made clear the efforts to maintain diversity must be closely tailored to the true educational benefits and not a racial quota. now, in blog entries you have been accused of favoring racial quotas. i want to ask you plainly, do you favor racial quotas and the believe that our permissible? >> i absolutely do not support racial quotas. i believe they're unconstitutional. >> will you follow supreme court law as articulated that laid out the court's guideline for when and how it is permissible for a university to seek to retain a

river student body? >> i think my writings head written approval plea of the standards set forth in those cases -- approvingly of the standards set forth in the case. >> the question that senator kyl asked you -- let me ask this question and another way, in a highly theoretical particle, you critique two other scholars notion of constitutional welfare rights, and put forth the theory of your own, in which courts engaged in de "dialectical engagement with the public represent." i would like to hear you explain this in plain english. you are obviously very smart. you have been gifted with a great mind. how much is genetic and how much is learned, i do not know.

you have an unusual mind. you're also, -- you are also very young. sometimes, one can get so fancied in the riding, that the plain-spoken person attributes a lot of things to it that may not be there. could you take a crack at what the dialectical process of engagement with the political process and the public actually means? >> certainly. let me preface my answer by saying that if i was ever conferred as a judge, i would not write opinions that sound like that. [applause] [laughter] -- [laughter] all i mean to say in that article is that it is a characterization of the process in which the courts have gone

back and forth with the exercise of a legislative power to define the scope of welfare rights. in that process, occasionally, " scott occasionally way yuan -- courts occasionally way in. what are our yuan that peace retains the final word with the -- what i wrote in that piece retains the final word belonging to the legislature. i hope that what comes through in the article is a posture of judicial deference because what i am arguing against in the first half of the article is a strain of thinking that this popular in the 1960's and 1970's that judges should wholesale invent these things and come up

with their own views of what the constitution requires. high wholesale reject that point of view. that is what the first half of the article is devoted to, a rejection of that point of view. >> could i defer to senator cornyn. >> effective just excuse myself right now -- if i could just excuse myself right now. >> sure. let me give you your second round now, so that you would that have missed it. >> thank you, madam chairman. i assume you are familiar with the work of judge stephen reinhardt on the ninth circuit. >> i would not say i am familiar with his work, but i know a little bit about him and his reputation. >> did you recall having

disagreed with a decision by judge reinhardt? >> center, i cannot even think of an opinion from him off of the top of my head. >> fair enough. is your theory of constitutional fidelity, substantively different than the living constitutional view endorsed by other levels dollars? >> i think the term living constitution has been used by all lot of people to mean a lot of things. i do not like the term. in the book, we reject the term. it suggests that the constitution is a malleable document that can be read to have words in that that really are not in it. we take the position that the constitution is a written text for a special reason. the text was meant to be the

enduring thing that judges would have to apply in deciding cases and not something that is outside of the text, and not something they would invent on the fly. >> on the issue of foreign law, a professor who is now at the state department has described the debate between a transnational lists and nationalists when it comes to the application of foreign law and its use, i believe he thinks that transnationalists have a critical role to play, yuan nationalists' claim that only the political branches are authorized to domesticate the legal norms. did you agree with this distinction, and if you do,

which are you, a transnational ist or a nationalist? >> frankly, i'm not familiar with this debate in the law. i would say that i think in the decision of what the american -- of the meaning of the american statutes are and the meaning of the american constitution, american presidents and american law are the things that control. >> changing subject again. in your article, "rethinking constitutional welfare rights" you write that legislation might give rise to a constitutional well fell right if it has sufficient condition and durability reflecting the outcome of vigorous public contestation and the considered judgment of a highly engaged citizenry.

i do not know if that would pass the standard for plain speaking. reflecting on the recent debate on health care reform, which passed after the vigorous public contestation, does that give rise to passing a law like that, i give rise to new constitutional rights? >> that is a good question. i do not have a view on that, because like many americans, i have not actually read the health-care legislation beyond that, -- legislation. beyond that, the durability of it is something that is remain ing to be seen because i understand it is being challenged in the courts. members of congress may wish to revisit elements of it in the future. i think my initial take on your question, although i have not

thought about it very much is that it is too early to tell. >> so, you would add least hold out the possibility that an act of congress could confer welfare rights or benefits that would somehow become constitutional in nature, which then could not be repealed by a subsequent conference. >> it could always be repealed. my theory does not suggest that it cannot be repealed. the term "constitutional" as i have used it is perhaps misleading. it only means to say that according to the court's precedents, the court has recognized in the application of, say people to process principle, a recognition of the rights created by congress. in making decisions, it has given them new weight in the

consideration of, say, eligibility restrictions or termination policies. those are the cases i have endorsed in that article as confirming that judicially cognizable rights. that is the only sense in which i mean those terms. >> in that same article, you cite the supreme court decision of 1973 it is an example of how a court may recognize a welfare right. you called it a plausibly appropriate case. could you list exceptional cases in which it would be appropriate for the court to engage in substantive policy judgments and would you feel authorized to engage in such? >> i do not think i would feel

authorized. i think it the loss of democratic process. in the article, if i recall correctly, i was critical of the marie decision because it went further in that regard then my theory would permit. >> thank you, professor. >> the hour of 12:30 has arrived. i would like to place some letters ofáá;çññç#ç#ç#ç#ç# if i

>> the hearing will resume. we will begin with senator sessions. if i might say something, pr really to do two rounds for an appellate judge. i want everyone to have an opportunity to ask questions. i suggest to the nominee that we will do just whatever it takes to have the questions asked and answered. i would beg the forbearance of the other four nominees although

i suspect you do not mind not being in the hot seat. senator? >> thank you so much. we are in a serious location dealing with serious issues involving the appellate courts of the united states. it is a lifetime appointment. i remain an easy -- uneasy about some of the answers you get and how they square with what you have written before and what impact that has on my understanding of the clarity of your thought and how you approach judgment. there is quite a bit of difference between a theoretical law professor and the practicality of day after day duty as enforcing contracts, disputes, and ruling on evidence.

i have to say that. with regard to the death penalty, you have written a song about that. let me just ask you -- you have written some about that. let me ask you if he personally favored it. this would not impact my view of how you would conduct your office. i think judges can differ. i think the critical thing is will you follow the law? do you favor the death penalty? >> senator, i have not oppositions to the death penalty. i have never written anything questioning its morality or constitutionality. i would have no problem following the law as written. >> in talking about a report on

a panel you moderated called civil rights in the roberts court era as a part every framing the dialogue on race, you made some comments about it. you talked about changes in state courts and said in the part of that movement are changes in the state legislation and supreme courts which is the result of state court decisions that have got rid of some bad practices. some state legislation has gotten rid of some bad practices and then the absorption of that cultural shift into federal law through the eighth amendment. it seems to me that what you are saying there is that legislation in various states can change how we should interpret the eighth amendment. do you mean that? and whether or not that applies to the death penalty? >> senator, i was reporting the

way in which the supreme court has instructed that the eighth amendment be interpreted. the supreme court in its opinion looks to the practices of the state's in informing the meeting of the eighth amendment. >> i am not sure about that. it seems to me -- well, i can see that that would be a theory. is that the theory they used when they consistently dissented in every death penalty case asserting that that the death penalty violates the eighth amendment prohibition on cruel and unusual punishment? >> senator, i am naturally not sure what the -- used to arrive at that conclusion. the, you read attracts more closely the view that the justices have used since the time of brandon and marshall to articulate the standard by which they determine whether something

is or is not constitutional under the eighth amendment. >> is it relevant to you that there are six or eight references in the constitution to the death penalty and it would be a stretch, would it not, to say that the constitution prohibits the death penalty and that any phrase like, cruel and unusual punishment, could be construed to eliminate what is positively referred to in six or eight different places? >> senator, i think that is very strong and important textual evidence that the fifth and 14th amendment to the constitution talks about deprivation of life but is followed with the guarantee of due process of law. it is strong textual evidence. >> do you think action by states can change that? you said it could shift the absorption of that cultural

shift, those are your words, a cultural shift can transfer into federal law for the eighth amendment and the implication of your remarks is that it can somehow have the cruel and unusual posh mccaw's constrict the death penalty. >> senator, my understanding is that the court has always said consistently that the imposition of the death penalty is a constitutional punishment within the confines of the guarantees of the constitution. i have not understood those decisions to attempt to outlaw the death penalty, rather than have dealt with much more specific issues related to how the death penalty is administered and to whom. >> two justices on the supreme court dissented in every single- case, justice brennan and justice marshall, on a clear view that it was cruel and

unusual punishment. >> i am not endorsing their view, senator. >> you seem to in this quote. your quote here seems to suggest that you think that if the state's changes some of their views that it will somehow allow the eight amendments and federal judges to alter what i think is plainly a constitutional punishment. gosh, time flies. >> yes, questions are long. >> you have written arguing that the citizenship clause of the 14th amendment creates a positive rights, i would summarize, that whatever benefits are necessary to fulfill all precipitation -- participation as a citizen and you go on to note that inequality and educational opportunities that the 14th

amendment "guarantee of national citizenship" was a generative of substantial rights. i am uneasy to suggest the plan words of the 14th amendment are generating rights. you wrote that citizens have " positive rights to government assistance" as i understand it which are derived from the constitution, as i understand this. these rights can be guaranteed not only against state abridgment but also as a matter of positive rights. you concluded that such an agenda would "include expanded

access to health insurance, child care, transportation subsidies, job training, and a robust and earned income tax credit." do you believe that, yes or no? >> i do believe that, senator, but those are addressed to policy makers and not the courts. >> that is an important distinction and i will review that. that seems to be your view on expanded governmental powers. what think you, senator sessions. >> one thing and i will conclude. as you never did, -- as you noted, judicial philosophy is important. your writing is the only thing we have to evidence that. i do not think it is sufficient just to say that i will follow a

40 somewhere in the system because many times you will been having a case of first impression being in front of you and your philosophy will face -- will shape the law. >> you cannot sit -- say have not had adequate time. >> i want to get back to the question of the agenda before we had our break. you in a broadcast earlier this year, on jenna every third, on npr were discussing how the obama administration had a new opportunity for the american constitution society. you said that under the obama administration and i will quote this, "they had an opportunity to get our ideas and the vision of the constitution -- our

vision of the constitution in law and practice." what did you mean by "our ideas" and york"progressive views -- your "progressive views?" >> that was referencing the ideas that underpin the american constitution society. the mission statement of that organization braids, it is a dedication to certain basic principles of our constitution genuine equality, libertine, access, and a broad commitment to the rule of law. >> is it described as a progressive? >> i think many people have described it that way. that is fair. the organization. the values are those of the constitution. i would not say they are progressive or conservative. those are the values in the constitution. >> you describe the opportunity

to get our ideas and the progressive vision of policy into practice. i assume you subscribe to these views. when you talk about our ideas. >> the record shows, senator, i have been deeply involved in the american constitution society. i have sat on the board and chaired the board. >> there is nothing wrong with having views that are wrong. that is what you meant by the opportunity to get our views and to practice. -- into practice. the follow-up question is, i guess you would say you were speaking in a policy way not through the judicial process. is that -- >> senator, the short answer is yes.

look, i think every president has their own views of what vision they would like to enforce as the president. i do not think i was meaning anything more than just that. >> policy of to the appropriate ways of doing so. it is not a proper for a judge to have a policy agenda of that he brings to court to try and get the agenda adopted into law. >> absolutely. it would not be appropriate for any president to appoint a nominee for a judgeship because of that -- >> i will quote from an 18 -- in april 13th article in "politico." there were talking about the citizens united case.

i think what people are going to do is say, do you share our concerns about the fact that the court always sides with the big corporate interest. do you think that is an accurate characterization of what the supreme court does? >> i think the supreme court tries as vast as it can to apply the law fairly and equally to all interests of the society whether they are ordinary people or corporate interests. >> do you think if you are on the ninth circuit court of appeals that you would have a bias or a preconceived notion or agenda to try and write a balanced and roll more against big corporate interests? -- and rule were against them? >> absolutely not, senator. >> do you think that executive power has gone too big and that

the courts should try and rein in and rebalance so that the executive power is more limited visa th a vis the other branche? >> courts can only decided cases presented to them based on applicable law. >> excuse me. your view would be that if this committee tried to promote the nominee because of our belief that that nominee would rule against big corporate interests or would rule against executive powers that it would be an inappropriate basis for us to base support for a nominee on. that is bad grammar, but forgive me. >> obviously, senator, i will not pretend to suggest what standards this committee should use it in valuing a judicial nominee.

that is your prerogative and not mine. i would say that for all judicial nominees, i think that the important test is whether the nominee would be faithful to the law that has been given. especially for a lower court nominee, like myself, in virtually all these areas the supreme court has said things and handed down precedence. this would have to be followed regardless of whatever theory the nominee had about the issue and whatever they may have written previously. >> thank you. >> think you very much, senator. the hour is now 1:30. i would like to rehearse or adjourn this part of the hearing and move on to the four other judges. i know you are going to meet with liu separately. >> whenever you would like to do, obviously we can do. i can probably in about no more

than 10 minutes and may be less than that conclude the questions that i have if that would better fit into the schedule. i and is going to try and truncate of this. [laughter] how about that for a test? we do not want to approach cases with a preconceived notion, do we? whatever you want to do, but i think i can fairly quickly gets through this. >> no more than 10 minutes and then we move on. >> that is acceptable. let me ask a question that i asked a previous nominee. the president had talked about using two different analogies about judging, talking about the type of nominee he would nominate. the first was the first 25 miles of a 26 mile marathon. the critical ingredient of the

cases is supplied by what is in the judge's heart. do you believe the law only takes a the first 25 miles of the marathon and the last mile has to be decided by what is and that the judge's heart attacks -- judge's heart? >> that is a colorful analogy, but i do not know if that is one i would describe to. -- ascribe to. judges should apply the law all of the way through. i do not think they're hard to have a bearing on what the outcome of a case should be. >> relative to the ledbetter case, you're asked in some cases if it was important to determine -- to consider the effects of a decision on a person's life. that was a case where, from the supreme court's point of view,

they determined it as they saw it. many people believe that the result led to an unfortunate results on her life of. -- results on her life. should the court has considered the effect on her life in making a decision that they did? >> senator, not to my knowledge. it would depend on what the applicable laws are to take into consideration. i do not believe that the effect on her life is the relevant determinant there. >> presumably you would have tried to read the statute and if she lost than it was something to be corrected by the legislature if they decided to? >> i would look to the way the statute of limitations had been

applied in the precedents. i would look at the relevant statutes that govern that issue. i would try to apply it safely. >> my question was a little different. it was not how it affected her life. it was the practical consequences of a legal wall. in other words, the consequence of the law was so convoluted because she could not possibly have known then she should have been paid on a different pace scale. -- pay scale. >> i stand corrected. with that change your answer? >> just to bring the two things closer together, i think it is important to consider the kinds of practical consequences the senator speaks of about the statute of limitations doctrine, if it has with annette -- but i do not know off the top of my head, but if it has something

about notice, they need to know when their rights are being violated for the statue to start. then one would have to inquire how the mob plays out. >> as you know, statute of the limitations law should have known. if the person should have known and still loses on benefits, the courses that is the way it is. is that correct? >> yes. >> one of the things he said in the keeping faith with the constitution was that the constitution requires adaptation of its broad principles to conditions we face today. you said the question is not how the constitution would have been applied at the founding but rather how it should be applied today. i want to focus on the word should. and in light of changing needs, conditions, and understanding of our societies. that is a normative that term -- that is a normative term.

what is the legal test for how you decide "should?" >> if i could address the ell ipses. it is how it should be preserved to protect the values. >> i did not have those words in here and that does make it different. >> i only need to say that the should as an however a judge feels it should apply. it is rather how it should apply in order to preserve with the text says and what the principles behind the text mean. >> one of the areas we have gone into in this context is the question of the role of religion or faith in our society. i know today there is a story out of madison, wisconsin. a federal judge has ruled that the national day of prayer is unconstitutional.