have read this decision, but can you think of any determinative issues that would support that ruling? >> i will confess that i have is that hardly any time of my career studying the religious clauses of the constitution so i am not familiar with the relevant precedents in that area. >> all right. let me conclude with this. he had been pretty outspoken in your criticism of the current supreme court. in fact, you have suggested that it lacks principle and legitimacy. i specifically remember you said the bush vs. gore decision was pretty lacking.

in another, you claimed that if you look across the entire brunt of the cases that you see a fairly consistent pattern where respect for precedent goes by the wayside when it gets in the way ever a result. but they obviously have a problem with -- you obviously have a problem with their decisions. these to the presidency would be asked to apply. you have not been bashful in expressing your series of -- serious opposition. you're telling us that not withstanding that they are utterly lacking legal principle, he would have to apply the he would have to apply the principle -- you would have to apply that principle. >> senator, the reason that i perhaps said those words is that the opinion itself stated that it was only to apply in that case. i am not sure i would apply that because it instructed in its terms -- >> that is a distinction with a difference. utterly lacking in legal

principle is different than it would not apply to a future case. are you saying the court had no legal principle basis for the decision that it made in bush vs. gore? >> senator, i guess the only import of the phrase i chose their vote was that it was my thinking that a legal principle should be something that applies to more than one case because it is a principle. >> you do not think they used a principle but said they used some kind of pragmatic decision making in that case. >> senator, i will not try to characterize this, but i haven't written but i have written and said what i have said. >> you have said judge alito -- your very critical of that. -- you are very critical of that. would you like to create a fourth element of a tort? that is a fairly mechanical way

of deciding how particular case gets decided. >> i think this goes back to your earlier question, senator kyl. the application of a tort or contract, there is a human aspect to judging. is not white -- is why we do not put this through a formula. >> what is the human aspect? i can understand that with sentencing, but i am not sure i can understand it in the case of defendant verses plaintiff. >> i think they must surely apply the law as it is given and followed it to the logical consequence the matter with the result is. i think in the application of legal principle that judges are called on to exercise judgment with respect to the particular case. judges are human beings and there is often disagreement

about the application of law and facts. the task for all judges remains the same which is applying lot to the facts of a specific case. >> that is a fair statement of the way it should be. we come to our positions with our preconceived notions, political ideologies, our notions and personal experiences can certainly shape how we view certain issues. the job of a judge is to try and remove as much of that from their decision making process as possible. would you not agree? >> i would absolutely agree. >> would you also agree that when someone has written as extensively as you have in very colorful language, you have not been bashful in expressing very specific and strong ale views about things. this can give way to some question as to whether or not the views having been held that strongly with as much riding as

you have done and with as much explicit criticism to people with a contrary point of view whether it is possible for you to lay aside his ideas or ideologies and approach cases from a purely objective, unbiased point of view. >> if i could offer one thought on that. i hope that my writings demonstrate that i am someone who is -- obviously, i have my views and i enables the take into account opposing views of others. frankly, i appreciate the opportunity to have this dialogue with you, senator sessions, and others about very important and controversial issues of law about which there is very reasonable disagreement in america. in fact, one of the great things to think about this country and its legal tradition is that there is room for the disagreement. as much as i like my own views, i confess to you that i would be

a little afraid if i was the only voice speaking and that everything went my way. that is not the kind of certainty that i have about my own views. i hope my writing reflects the more thoughtful writings reflect that discipline and restraint. >> madam chairman, thank you. if there is an opportunity for us to visit privately i would welcome that. i suspect there may be questions for the record falling out. goes without saying that you can add or elaborate on your answers. >> i would like to close this off with a few words. questions? [laughter] >> i would note that sutton is here and he was a skilled

attonrey -- attorney and that went on for 12 hours. we have had some long hearings. this certainly did not exceed the normal. with regards to your comments about constitutional fidelity that "it may be valid when the object of the interpretation is one of the constitution's concrete and specific commands." you should show fidelity to that. for example, i think you have noted that revenue bills must rise in the house. what about the second amendment which states that the rights to keep and bear arms shall not be infringed? is that a precise command that

cannot be abridged by unelected judges? >> senator, the supreme court has clearly said it is a command that projects an individual's right to bear arms. >> there is some uncertainty about it all and whether or not it applies to cities and states. what is your view on the second amendment? is it clear on that subject? you do not hesitate to say that new revenue bill must go in the house. do you hesitate to say the right to bear and keep arms shall not be infringed. >> senator, i confess i have not fought about or written about the second amendment in any great detail. the book discusses the second amendment as an example of where judges have applied a basic approach to debt -- to constitutional interpretation that takes into effect the original meaning and the text

but also the practical consequences of precedent. that is the extent of any view that i have about the second amendment. i really could not go further. >> you said you felt that quotas were unconstitutional. that is your personal analysis on that are based on the supreme court? >> that is my view, senator. >> i am troubled. i am troubled that you have written that it should be consigned to the dustbin of history. they give preference to one person or another as a result of the color of their skin or ancestry. i ask you if that is inconsistent. how can you dismiss so firmly this decision when it seems to be based on similar theories as

quotas? >> it is a precedent of the court and of course i would have to follow it as a judge. i think my disagreement with that case does not have anything to do with its central holding which was that all racial classifications by current be by government are held to suspicion by the court. i have held to that principle and in my writings and i have not urged the court to revisit it in any way. the only disagreement i have is its extension of the principles of the case that the with the obligations of states rather than the federal government with respect to the latitude given to affirmative action programs. i took a broader view than the court did on that particular issue and that is the on the point of disagreement i have with that case. >> one final thing. i am curious about the american constitution society.

so many members of the obama administration talk about a progressive agenda. as i understand it, the progressive movement started in the early 1900's. one of their doctrines was that in the people knew best and that the constitution was an impediment for them to do what is best for those on educated people out there in the country. is that in any way the constitution society -- the american constitution society's view? >> senator, i think your question rightly exposes the hazard of using labels of that sort. i guess i will put this in plain terms which is that the american people have always, i think, demonstrated great reverence for our constitution because they think of it as a set of principals in a document that they can embrace as their own.

i do not think it is a question of whether policymakers, judges, or others are wiser than the people. there's no greater wisdom than that resides in the the american people. that has sustained the country throughout its many years as a nation dedicated to the rule of law under our own constitution. >> thank you, senator. i would like to conclude this now. i would like to say that i have been very impressed with you. you can to my home and we spent a few hours. you join my family and i with the dinner. my daughter happens to be a judge and we had a good conversation. i cannot in my time on this committee remember anyone quite so young who has done so much. i have great respect for that. i think the thing that all this

needs to remember is that this is a very diverse country and the law is equal for everyone. within that law, there are certain tensions and there is dialogue, discussion, and cases in point and not in point. it takes a mature mind and someone, i think, that is willing to waive the scales -- weigh the scales. judge chin who was an advocate is pending for a district court. he spent eight years as a magistrate judge and has been able to demonstrate that. you are being appointed to a circuit court and have not had an opportunity to demonstrate that for a period of time. i have asked about this before. you did not make an opening

statement. i would ask you to make a very brief concluding statements just on that point. >> certainly, senator. i think it is a fair point. many nominees come before this committee with backgrounds different than mine. i guess i would say as you look across my entire record, there are many things relevant to the kind of judge i would be. in my scholarship, i hope that the record shows that i am a rigorous and disciplined person who makes arguments carefully in 8 nuanced way taking into account all of the other possible ways of looking at an issue and where i have decided to lay down my view, i have to lay down my view, i have respectf -- if you look at my teaching, many of my former students are here today. you will find that i am a good

listener. i do not impose my views on other people. rather, what i tried to do is a list of all the different points of view that could eliminate an issue. i hope that that accounts for something that i have one the respect of colleagues who see, in may, the temperament and the integrity and the qualities of collegiality and balanced judgment that have been able need to perform certain leadership positions and to be involved in organizations that require that skill set. although i cannot hold up for you a judicial reza may come not one that demonstrates the qualities of a judge, i hope you'll find analogous evidence in some of the things that i have done. >> thank you very much. i would like to correct the record where the senator said

that there are four of those that are not lawyers on this committee and we believe that we see the forest rather than just the trees. thank you very much. >> make you very much. >> thank you for being here today. >> i have 10 letters from judicial action groups. 42 california district attorneys who say for many years our ability to enforce the law and protect the citizens of our jurisdiction has been hampered by erroneous decisions of the united states court of appeals from the ninth circuit. this court has been far out of the judicial mainstream. they say that under no circumstances should any nominee be confirmed to the ninth circuit who would take that court further in the wrong direction. regrettably, the president has sent such a nominee.

the concerned women of america, crime victims united of america, the american conservative union. >> well, thank you. the letters will go on the record. i would like to submit to the record a list of the 24 court nominees confirmed under the bush administration who had no prior experience as a judge. those documents will go into the record. we will call up -- it thank you very much, professor liu, to those wonderfully well-behave his articles came under close scrutiny early on. what were they concerned about?

>> they were concerned about his interpretation of the constitution. -- hearing as a practice run. did it feel like that?

guest: it certainly did. even though it is a friday, and that means that most senators are not attending these hearings, there were a lot of republicans that showed up for this one. since may, the ranking member, jeffrey sessions, they all were very harsh in their questioning. host: did you hear any issues raise by senators today that are also likely to be real points of contention in the summer to the supreme court nominee hearing? -- summer's supreme court nominee hearing? guest: that is a good question. i expect questions about how much a nominee is interpreted the constitution to always come up. the majority of the lead up to this hearing focused on the fact that goodwin liu had submitted additional material to

the original senate questionnaire and they thought that there were omissions. these are things like speeches, different panels that he has sat on, writing a book on the constitution, all of these things are something that senators and their staff scourer yuan lead up to figure out where this nominee -- scour in their lead up to figure out where this nominee stands. even though they are supposed to be non-partisan and weigh each individual case on its merits, a lot of times there are

interpretations, and as we can tell there have been close decisions recently, the court is so closely divided that interpretation sentiment comes up. host: on professor liu's nomination, can you tell us how like how -- how soon the committee is likely to vote? it will be contentious. i would expect it to take a number of weeks. host: susan crabtree, thank you for taking the time out with us. guest: thank you for having me. >> a saturday, on washington journal, a discussion on potential candidates and the tea party movement with the washington post. a look at the financial-services industry with a group and then we will chat with a law professor, ruth wedgwood. washington journal, live at 7:00 a.m. eastern europe and c-span. >> all this month, see the

winners of c-span's documentary series. what's the top winning videos every morning on c-span at 6:50 a.m. eastern. at 8:30 p.m. -- 8:30 a.m., you will meet the winner. sunday, on "q&a," author stanley crouch on president obama, health care and political parties. that is at 8:00 p.m. eastern on c-span. >> president obama said the financial regulations bill making its way through congress would prevent the kind of taxpayer funded bailout. those remarks came just before a meeting with the president's

economic recovery advisory board at the white house. this is about five minutes. >> thank you all for coming. we had a few topics to discuss today and i am eager to hear from all of you about how the economy looks from your perspective. we are interested in the initial hiring and how to put americans back to work. we know that if we are selling products overseas, and then that is going to benefit the growth of our economy. i do want to say a few words about wall street reform. i know that some of you have worked in the financial industry and have been leading financial

regulators. many of you have worked for reform. you have been active in this area for more years than you probably care to remember. as i said before, we need a help the financial sector to grow jobs. this 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 very painful lesson in what happens when we do not have accountability and transparency. we cannot allow history to repeat itself. never again should american taxpayers be forced to step in and pay the price for the responsibility of spectators on wall street that taxpayers would have to break their fall. we cannot place a set of rules that would allow another crisis to develop without the tools to

deal with it. that is why i expect that we will have a strong proposal. it will provide new protections for consumers. this is reform that will force banks and financial institutions to pay for bad decisions that they make and not have the taxpayers pay for those bad decisions. that means no more bailouts. this would also bring new transparency to the derivatives market. this is something that has been spoken about publicly. a lot of the big, risky financial bets took place here. literally trillions of dollars have been sloshing around this market and it basically changes hands under the cover of darkness. when things go wrong, they can bring down the entire economy. this will bring it into a framework where everybody knows what is going on because we

cannot afford another aig. let's be honest. some in the industry are not happy with the prospect of these reforms. we have seen the usual army of lobbyists on capitol hill. they have found some willing allies on the other side of the aisle that have been trying to carve out special loopholes. i hope that we can pass a bipartisan bill. this cannot mean allowing loopholes to put american taxpayers at risk. in the coming weeks, every member of congress will have to make a decision. will they decide -- will the side with the special interests or will they side with the american people? anyone who opposes this reform will leave taxpayers on the hook.

i consider that unacceptable. my hope and belief is that all this are going to be able to find some common ground. it is too important to become bogged down in the same politics that we have seen. it is time that we demand accountability on wall street so that we do not find ourselves in the same mess again. with that, we are going to officially convened the meeting. let's clear up the room a little bit. >> senate majority leader harry reid says that he wants to bring a financial regulations overhaul bill to the floor as early as next week. is this legislation ready to go? >> for the most part. lawmakers are working behind the scenes on a number of issues. as they like to say, it is not

over until every little piece i. this is the greatest overhaul since the great depression to rid of there will be oversight for consumers. what the obama administration has called new rules for the road. there are various problems with lax oversight. there are terrible incentives to follow the rules and to assess rules properly. >> what is the republican sentiment about this? are they calling it a bipartisan product? no. >> no. republicans have taken part in

the process. a number of ideas are incorporated into the bill. according to them, it is not a bipartisan bill. there are trying to slow progress to prevented from coming to the floor. it is a difficult position in an election year. six or seven months ahead of midterm elections, it is a bill -- you are voting for wall street or main street and they are trying to figure out how they can help both sides on that. >> what are some of the areas of disagreement that have to be worked out before the bill was brought to the floor? >> the creation of a new consumer agency has long been an issue. the obama at administration insists that a new consumer protection should be part of the bill. republicans have sought to limit that and restrict that in ways that it be less onerous. there is a lot of debate about

how you deal with a large, failing financial firm like we saw with lehman brothers. derivatives legislation is still up in the air. there is a number of these pieces that still have yet to be resolved. whether or not they will be, as the have learned, you cannot just negotiate. you eventually have to move forward. hopefully the, that will spur more action did -- spur more action >> what is the issue? >> the issue are the trillions of dollars. they have little oversight at this point. this is little regulation. what looks -- and the administration wants these

exotic products to see the light of day. they want a standardized process so that regulators know where these potential flashpoints are in the market. they need to identify them early. >> michael, we think you for your time. >> saturday, on washington journal, a discussion on a potential candidates this year in the republican party. and a look at the financial services industry with craig holman and we will chat with ruth wedgwood on the history of diplomatic immunity and how it works. washington journal, live at 7:00 a.m. eastern here on c-span. >> sunday, on "q&a," stanley crouch on president obama, health care and political parties.

that is at 8:00 p.m. eastern here on c-span. >> of this weekend, the first of three british election debates. for the first time, prime minister gordon brown, david cameron and ethnic clegg will face off will face off. what's been in their entirety. the first is sunday at 9:00 p.m. eastern here on c-span. >> today, the senate judiciary committee took up the nomination of university of caliphate going in berkeley law professor goodwin liu. this portion is three hours.

this morning, we will hear from five nominees to the federal court. two hail from the state of california. we have just been joined by the chairman. we will hear from five nominees from the federal courts. we will hear from prof. 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 grasaham to introduce. [applause] [laughter]

>> we are glad to have you here. you did not are not -- >> 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. thus for -- a four other candidates are magistrate judge , now dead from california, nominated from south carolina -- 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 i want to -- and i want to read some of it to you because i think it is important. goodwin new attended -- 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 yuan and used it to maintain a degree -- 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 no good the new as a stanford alumnus and a colleague -- goodwin liu as a stanford alumnus and a colleague. he continues -- considers him as a measured stored of the constitution. he fully appreciates the commitment of the framers

infidelity to the -- 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 represented ct 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. 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 but to the culturally and historically contingent meaning -- he goes on to say that, "i

argued that welfare rights are conceived as an act of interpreting the understandings of particular welfare goods as they are manifested. it goes on to say that welfare rights reflect the contingent character of our society's collective judgment rather than in the tidy logic of comprehensive moral theory. i think that is a matter of which we should talk about. i hope that we will be able to do that. i think he is somewhere else, now. the remarks were made that if you truly respect the constitution and, you will enforce it as written, whether

you like it or not. i think that that is the calling of a judge. they are not empowered to rectify -- 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. 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 robot. -- road blocked. i saw one of the fox news, enters called his -- 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, president 0, -- prof. of 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 the ad had been passed by a bipartisan majority. -- 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 pursued -- 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. 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. for him. -- he is a duke university law school graduate. he has been married and has two

sons. he is one of the best lawyers we have in south carolina and he will bring to the bench a very deep practice in background experience. thank you for approving this package. thank you for being a good partner in other matters. i would appreciate any support you could give these two fine individuals. >> thank you, senator gramm. centre cliburn, welcome to the other side. >> senator leahy, rep sessions, members of the committee, thank you so much. thank you for allowing me to be here on behalf of michelle child. i will begin by thanking my colleague from south carolina. i want to disassociate myself with the remarks that he just

made. . . 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. 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 explained -- displayed exceptional and tried 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 tells a -- that i believe it?

-- demonstrates the kind of judge she is no value add commitment she has to the law. late one friday afternoon, she called the county court horse. she found -- the 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 use -- 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 a high school -- in high school. he has to 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 as -- 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. 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 as -- show here 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, he should not that folks on this commit -- 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 pretty -- 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 high -- 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 need a good- faith effort to respond -- to provide materials to the questions. it became evident to me very quickly that the submission was incomplete. so, i read-doubled my efforts to -- i redouble 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 browned -- 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 my fullest commitment to providing all the information that you need and want. i would like to do anything i can to earn the trust of the members of the committee and my obligation to be forthcoming, but 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. in testimony before this committee, he criticized some of the judicial opinions of then inject a veto. -- judge olito. i have supported the death penalty. i have two questions. the first is this. what was your objection to his decisions in this area? when you have any problem upholding the death penalty as a circuit court judge? >> i would be happy to address this. i will take them in reverse order. i would have no difficulty or rejection of any sort, personal

or illegal, to enforcing the law as written. 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, center. -- 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 not have some of the -- had some of the experiences that chief john roberts had. i would like to think that i have had other respect -- expenses 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 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 unnecessarily 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 but just roberts said recently. he said people should feel free to criticize what we do. i think all of this feel that way. mcconnell is outspoken. but some bush nominated to the circuit. he harshly criticized the supreme court's decision of the bob jones.

that was an 8-1 decision. it violated anti-discrimination laws. he was enormously critical of that. he was confirmed by a vote. do you believe just because like michael mcconnell who was supported by republican has been extraordinarily critical? do you believe that any criticism you might have made will make it more difficult? no, i think that there is a clear difference between what things people write and how one would approach the role of a judge.

those to a very different. as scholars, we are paid to question the boundaries of the law and to be provocative in ways that is simply not the role of a judge. 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 would probably act as a judge. it is one thing to be a law professor and make a lot of hypotheticals and things. we are very grateful to the law professors like you, but what about that? do you still stand by these approaches a as though you can make a lot anything you want to? and you cannot mean that, but tell me what you think. >> first, thank you for extending the welcome to me and to my family. it is an honor to be here. it means a lot to me and to them. secondly, i think that whatever i may have written in the books and articles would have no bearing on my role as a judge.

my role as a judge, i think, is clearly to follow the path laid for me -- >> how can you say that? isn't that your core philosophy, what you have written? >> it is my core understanding of the duties of an appellate judge. if i may specifically raised -- to address the concerns you raised. and i can certainly understand how the freeze is your red lead to the concerns that you have, and i appreciate -- how the phrases you have read lead to the concerns that you have, and i appreciate the opportunity to 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

been he went on to the valedictorian of his public high school class. could you talk about how your parents story and your life growing up, one would focus on individual things, how that will influence he let a judge? >> certainly. i guess the way i would put it is that i feel i have lived a very ordinary life but gii've hd extraordinary opportunities along the way. the first of those was to have parents that really cared about education. they came from a society that didn't at the time know many the prudent that we take for granted.

that has always sat with me. it is an important consideration. i also had a tremendous educational opportunities. i've also had tremendous mentors along the way. i am very glad you are here today. her husband of who died and untimely death was one of my early mentors in politics and law. 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 clarify,v s 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 new intervention in judicial philosophy for me, when an old guy from the sticks in a coma. when i see this book and i kind of like -- from the sticks in oklahoma. when i see this book and a kind of like it and we're going to be picking which way we're going to do it. it is a market in consistency. -- a marked inconsistency. let me go on, if i may.

in a recent supreme court decision, robert verses summons, justice scalia stated in his dissent that the basis -- the basic position of 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 chot 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. the comment that you made -- to me this is reminiscent of

-- do you believe the word you spoke, what you said, was his vision of america? >> i think that phrase is perhaps unnecessarily flour a language to make the simple point. but trying to give a series of examples. >> you do not believe it represent his vision of america? >> i do not think it represents his vision that he would implement the policy. it was only meant to say that as a dutch, he believes that the practices were permissible in america. >> why did he say it that way then? this calls into question your judicial temperament that is a

key consideration. that is thought tempered language. would you acknowledge that that is not tampered language? >> perhaps not considered in isolation. it comes after 14 pages of legal analysis. . . 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. bobby scott. . . 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 read, the powers not delegated by the constitution nor prohibited to the states are reserves to the states respectively or the people. do you recognize any limit on federal power to do whatever congress decides it wants to do, or do you think that is -- in other words, do you think the 10th amendment is a dead letter? >> absolutely not. the supreme court has made amply clear thatçr the 10th amendment stands for the federal principle of federalism that and use our structure of government. i respect those principles and would apply them faithfully. >> and yet you criticize justice rehnquist's decision in the lopez case, which was the application of that same doctrine of federalism. is that correct? >> i expressed concerns about that decision, yes.

>> and i would tell you that the american people -- i hear from my constituents in texas and people all across the country. their concern about the aggressive growth of the federal government and the intrusion of the federal government in their lives. that is why at least 16 attorney-general have filed suit challenging, for example, the individual mandate and 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 the >> i also learned what it is like to bill a lot of hours. that is part of the zealous advocacy that is expected of any lawyer that takes on a client. >> i want to thank you for your public service. this is difficult. the fact that you are willing to do this and the fact that others are willing to do this allows this government to function. you are willing to make the sacrifices that you have an even more important, your wife is willing to make the sacrifice she will have to make for you to go through this. thank you for your service to your country. >> the key, very much, senator kaufman.

because of the importance of this nominee, we will certainly have a second round. i would like to indicate my intent to go to 12:30 p.m. and take a half-hour break and reconvene at 1 pm. we have four additional nominees to hear. i know that this is a long wait for you. i hope you'll understand that is very important that members have an opportunity to ask the professor of the questions that they want to ask. -- all the questions that they want to ask. i must apologize to you, but this 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 we will begin again. >> thank you. i think that the nominee raises a lot of questions. , 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. in the gun free zone case and the violence of women case, which no both are important to you, senator, the court said that the regulated activity has to be economic in nature, but stops short of saying it is an absolute requirement before the substantial effects and analysis can get going because in the medicinal marijuana case just a few years after words the court said, well, we have to look at the activity as a class of activities, not just the individual instance of an individual possessing a gun, or in the case of the marijuana case, the individual desire in the medicinal marijuana. rather, we have to look at it as a class. i think that is where the state of the lot is right now, that

the court has put a focus on the economic nature of the activity, but has instructed the lower courts to look at that issue not simply as an individual instance, but as a class. that is a doctrine as i understand it, and i will faithfully applied that as a judge. thank you very much. my time is up. senator sessions? >> your article that i quoted earlier, rethinking constitutional welfare rights, is a troubling document to me. you say that your thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcend -- appear not to trends and moral ideals -- that appear not to transcend moral ideals, but to the meaning 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 have a time problem and on 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 was attacked as being anti- italian. when my grandparents emigrated to the united states in vermont from italy, with my italian mother and her siblings 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 knees and speaking of italian with them. i think it is kind of a stretch. sort of the same stretch that you heard when i opposed the nomination and senator kennedy, senator biden, senator durbin and i were called anti-catholic. i remember talking to my pastor the next day. he said "where does this sort of thing to come from?" i would hope we could talk about a lot and not things that belong to another 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. congratulations. -- you have said that the practical consequence of legal rules matter. i happen to agree with this. for example, in one case, the court interpreted title 7 to require a woman to pay -- to

file a pay discrimination case within 180 days of when her employer first paid her less than her male counterparts. that is even if she had no way of knowing if she was being paid less. congress had to pass a new law to overrule the decision and to communicate to the course to the court that cottle 7 was not intended to have this result. attend this was the first bill signed by president obama. here is the question. when do you believe that it is appropriate for a judge to consider the practical consequences of legal rules? >> senator, i think that that is one of the aspects of decision making back i think properly informed consideration -- law

affects people's lives. it is not a bunch of words on paper. it is not a bench of cases in books. it is a real things. decisions made by a judge should not be based on favoritism. 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

-- the community -- the committee will be in recess until 1 pm. >> i know, the time goes by so fast. >> the hearing will resume. as i indicated, we will begin with the ranking member, -- with the ranking members. -- with the ranking members. if i might say som the procedure is to just do two rounds. i want everyone to have an opportunity to ask questions and