that we will do whatever it takes to have the questions asked and answered and i would really beg the forbearance of the four nominees, although i suspect you do not mind being on the hot seat. [applause] centre sessions? >> thank you, so much. words have meaning. we are in a serious location, dealing with serious issues involving the appellate courts of the united states. i remain an easier about some of the -- not so much the answers you get, but how they square with what you have written before and what impact that has on my understanding of the clarity of your thoughts and how you approach a judgment. there is quite a bit of

difference between a theoretical law professor and a -- and the day after day duty of enforcing contracts and disputes and ruling on rules of evidence. with regard to the death penalty, you have written some about that. let me just ask you, do you personally favorite? i would say that this would not impact my view of how you would conduct your office. i think that good judges can differ on whether they believe in the death penalty or not. the critical thing is if you will follow the law. it. . do you favor the death penalty? >> senator, i have not oppositions to the death penalty. i have never written anything questioning its morality or constitutionality. i would have no problem

following the law as written. >> in talking about a report on a panel you moderated called civil rights in the roberts court era as a part every framing the dialogue on race, you made some comments about it. you talked about changes in state courts and said in the part of that movement are changes in the state legislation and supreme courts which is the result of state court decisions that have got rid of some bad practices. some state legislation has gotten rid of some bad practices and then the practices and then the absorption of that cultural federal law through the eighth amendment. it seems to me that what you are saying there is that

legislation in various states can change how we should interpret the eighth amendment. do you mean that? and whether or not that applies to the death penalty? >> senator, i was reporting the way in which the supreme court has instructed that the eighth amendment be interpreted. the supreme court in its opinion looks to the practices of the state's in informing the meeting of the eighth amendment. >> i am not sure about that. it seems to me -- well, i can see that that would be a theory. is that the theory they used when they consistently dissented in every death penalty case asserting that that the death penalty violates the eighth amendment prohibition on cruel and unusual punishment? >> senator, i am naturally not sure what the -- used to arrive at that conclusion.

the, you read attracts more closely the view that the justices have used since the time of brandon and marshall to articulate the standard by which they determine whether something is or is not constitutional under the eighth amendment. >> is it relevant to you that there are six or eight references in the constitution to the death penalty and it would be a stretch, would it not, to say that the constitution prohibits the death penalty and that any phrase like, cruel and unusual punishment, could be construed to eliminate what is positively referred to in six or eight different places? >> senator, i think that is very strong and important textual evidence that the fifth and 14th amendment to the constitution talks about deprivation of life but is followed with the guarantee of due process of law.

it is strong textual evidence. >> do you think action by states can change that? you said it could shift the absorption of that cultural shift, those are your words, a cultural shift can transfer into federal law for the eighth amendment and the implication of your remarks is that it can somehow have the cruel and unusual posh mccaw's constrict the death penalty. >> senator, my understanding is that the court has always said consistently that the imposition of the death penalty is a constitutional punishment within the confines of the guarantees of the constitution. i have not understood those decisions to attempt to outlaw the death penalty, rather than have dealt with much more specific issues related to how the death penalty is administered and to whom.

>> two justices on the supreme court dissented in every single- case, justice brennan and justice marshall, on a clear view that it was cruel and unusual punishment. >> i am not endorsing their view, senator. >> you seem to in this quote. your quote here seems to suggest that you think that if the state's changes some of their views that it will somehow allow the eight amendments and federal judges to alter what i think is plainly a constitutional punishment. gosh, time flies. >> yes, questions are long. >> you have written arguing that the citizenship clause of the 14th amendment creates a positive rights, i would summarize, that whatever

benefits are necessary to fulfill all precipitation -- participation as a citizen and you go on to note that inequality and educational opportunities that the 14th amendment "guarantee of national citizenship" was a generative of substantial rights. i am uneasy to suggest the plan words of the 14th amendment are generating rights. you wrote that citizens have " positive rights to government assistance" as i understand it which are derived from the constitution, as i understand this. these rights can be guaranteed not only against state

abridgment but also as a matter of positive rights. you concluded that such an agenda would "include expanded access to health insurance, child care, transportation subsidies, job training, and a robust and earned income tax credit." do you believe that, yes or no? >> i do believe that, senator, but those are addressed to policy makers and not the courts. >> that is an important distinction and i will review that. that seems to be your view on expanded governmental powers. what think you, senator sessions. >> one thing and i will conclude. as you never did, -- as you

noted, judicial philosophy is important. your writing is the only thing we have to evidence that. i do not think it is sufficient just to say that i will follow a 40 somewhere in the system because many times you will been having a case of first impression being in front of you and your philosophy will face -- will shape the law. >> you cannot sit -- say have not had adequate time. >> i want to get back to the question of the agenda before we had our break. you in a broadcast earlier this year, on jenna every third, on npr were discussing how the obama administration had a new opportunity for the american constitution society. you said that under the obama

administration and i will quote this, "they had an opportunity to get our ideas and the vision of the constitution -- our vision of the constitution in law and practice." what did you mean by "our ideas" and york"progressive views -- your "progressive views?" >> that was referencing the ideas that underpin the american constitution society. the mission statement of that organization braids, it is a dedication to certain basic principles of our constitution genuine equality, libertine, access, and a broad commitment to the rule of law. >> is it described as a progressive? >> i think many people have described it that way. that is fair. the organization.

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

is that -- >> senator, the short answer is yes. look, i think every president has their own views of what vision they would like to enforce as the president. i do not think i was meaning anything more than just that. >> policy of to the appropriate ways of doing so. it is not a proper for a judge to have a policy agenda of that he brings to court to try and get the agenda adopted into law. >> absolutely. it would not be appropriate for any president to appoint a nominee for a judgeship because of that --

>> i will quote from an 18 -- in april 13th article in "politico." there were talking about the citizens united case. i think what people are going to do is say, do you share our concerns about the fact that the court always sides with the big corporate interest. do you think that is an accurate characterization of what the supreme court does? >> i think the supreme court tries as vast as it can to apply the law fairly and equally to all interests of the society whether they are ordinary people or corporate interests. >> do you think if you are on the ninth circuit court of appeals that you would have a bias or a preconceived notion or agenda to try and write a balanced and roll more against big corporate interests? -- and rule were against them?

>> absolutely not, senator. >> do you think that executive power has gone too big and that the courts should try and rein in and rebalance so that the executive power is more limited visa th a vis the other branche? >> courts can only decided cases presented to them based on applicable law. >> excuse me. your view would be that if this your view would be that if this committee tried to that could be an inappropriate basis for us to face a support

for a nominee on. that is bad grammar. forgive me. >> i will not pretend to suggest what standards the committee should use. that is clear the your prerogative. i would simply say that for all judicial nominees, i would hope that the important test is whether the nominees would be faithful to the ball that has been given, especially for a lower court nominee but my supper -- like myself. those would have to be fallen, regardless what the nominee had about the issue. thank you. >> thank you very much. i would really like to recess order in this part of the hearing and move on to the four other judges.

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

nominate. the first was the first 25 miles of a 26 mile marathon. the critical ingredient of the cases is supplied by what is in the judge's heart. do you believe the law only takes a the first 25 miles of the marathon and the last mile has to be decided by what is and that the judge's heart attacks -- judge's heart? >> that is a colorful analogy, but i do not know if that is one i would describe to. -- ascribe to. judges should apply the law all of the way through. i do not think they're hard to have a bearing on what the outcome of a case should be. >> relative to the ledbetter case, you're asked in some cases if it was important to determine -- to consider the

effects of a decision on a person's life. that was a case where, from the supreme court's point of view, they determined it as they saw it. many people believe that the result led to an unfortunate results on her life of. -- results on her life. should the court has considered the effect on her life in making a decision that they did? >> senator, not to my knowledge. it would depend on what the applicable laws are to take into consideration. i do not believe that the effect on her life is the relevant determinant there. >> presumably you would have tried to read the statute and if

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

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

and in light of changing needs, conditions, and understanding of our societies. that is a normative that term -- that is a normative term. what is the legal test for how you decide "should?" >> if i could address the ell ipses. it is how it should be preserved to protect the values. >> i did not have those words in here and that does make it different. >> i only need to say that the should as an however a judge feels it should apply. it is rather how it should apply in order to preserve with the text says and what the principles behind the text mean. >> one of the areas we have gone into in this context is the question of the role of religion or faith in our society.

i know today there is a story out of madison, wisconsin. a federal judge has ruled that the national day of prayer is unconstitutional. obviously, neither you nor i 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 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. we have had some long hearings. this certainly did >> with regard to your comments, it may be valid when the object of the interpretation was one of the concrete and specific commands. you should show fidelity to that. i think you have noted that

revenue bills must arise in the house. what about the second amendment which states that the rights to keep and bear arms should not be infringed? is that a precise commanded? >> the supreme court has clearly said that it is a clear command. what is your view of the second amendment? is it clear on that subject? a revenue bill must rise in the house but the do you hesitate to say the right to keep and bear 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 respectfully treated the views of others. i think if you look at my teaching, and many of my former students are here today, i hope you would find i am a good listener, i did not seek to impose my views on other people. rather what i tried to do is give this at all of the different points of view that could eliminate an issue. i hope that accounts for something that i have one, at least around some, the respect of colleagues that see the temperament, collegiality, and balanced judgment that have enabled me to perform certain leadership positions and be involved with various organizations that require that skill said. although, senator, i cannot hold up for you a judicial resonate -- a judicial resume that

demonstrates the quality of a judge, i hope you'll find analogous evidence in some of the other things i have done. >> thank you very much. i am going to excuse you. i would like to correct the record. there are four of us that are non-lawyers. we believe we see the forest rather than the trees. thank you very much for being here today. >> i offered to the record some letters. i have 10 letters here from judicial action group, judicial watch, liberty counsel, 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

>> she has been at this hearing today covering the goings on. his articles came under close scrutiny by several republican senators. all our they concerned about? they are concerned about his interpretation of the constitution. this always comes up on any nominee site. it is one step below the sea -- but the supreme court. that is why he is getting the kind of scrutiny. conservatives argued that the constitution should not be interpreted for as society changes. they believe it is fixed.

most judges should use it as the base of the ball. -- the law. most senators are not attending these hearings. there are lots republicans that showed up for this john cornyn from texas. there were all very harsh in their questions. >> did you hear any questions that were raised better likely to be reappointed in contention? >> that is a good question.

i believe that some of the same questions of up hemet a nominee is interpreting it always comes up. the majority in this hearing focused on the fact that good when -- goodwin submitted supplemental material to the questions. they thought they were omissions been. everything six speeches in different panel spes. all of these things were something that senators and their staff scour and lead them to figure out where does this nominee's stand. even though judges are supposed

to be non-partisoan, there are interpretations and close decisions recently. the court is so closely divided. interpretation does come up. >> can you tell us how since the committee is likely to vote? >> i think there will be a number of hearings because of the contention. i would expect to take a number of weeks for his vote to get out of the committee. >> susan crabtree covering the hearing today. thank you for taking a timeout with this bur. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> and discussion on potential republican candidates this year.

in the financial-services industry with craig holman. "washington journal" !5w>> sunday 9 q and a, stanley crouch on president obama, healthcare, and parliament. that is that a o'clock a.m. on c-span. >> the first of three british election debates. for the first time, gordon brown, david cameron, and nick clegg will face off in u.s.- style debates. what them in the three

>> now the historical perspective and role of the senate in the u.s. political system. here is the first senate historian and retired after 35 years in 2009. topics include senate history, procedures, and personality. this is about an hour. >> good evening. welcome. i and the senior archivist here at the institute. it is my pleasure to introduce you to our archives visiting fellow, mr. richard baker. he served as the first historian of the u.s. senate beginning with the establishment of the office in 1935. continued until 2009. mr. baker served under nine senate majority beaters, five

democrats, for republicans, one of which was senator bob dole. they share a history to get it that began in 1987 when a partner in on the project. beginning on the first day, he delivered a short historical vignettes written by mr. baker and his staff highlighting the significant people a memorable event associated with the senate. his devotion is apparent. at the first director, he made great strides collecting and maintaining historical records, recording and publishing histories, i have no blogging photographs burda not intend to

preserve history, he worked to make it more accessible to the american public. there were frequent appearances on c-span and a tireless devotion to questions from senators, their staff, historians, and tourists visiting the halls of congress. what many people do not realize is that the records of congress and other files that record how and why legislation came into being are not subject to any overarching legislation regarding the disposition. a center is free to keep or make publicly available those records at his or her discretions. we are lucky that senator dole chose to preserve his archive

and make it available to the public. it is now one of the largest congressional archives in the country. a strong belief in the importance of preserving and making history accessible is something that our guest shares with senator dole. we will hear from richard and some of his great stories about the senate's as he is interviewed by the director of the institute. i am excited to hear what they had to say. [applause] >> let's start tonight talking a little bit about you. give us a little bit about your history. and what you actually did in that job. ki>> because of is the first in the job, very key people knew there was a historical office.

there is not much competition for the position bu. i was hired by the senate. they said center mike mansfield was hugh scott of pennsylvania. they said do what it is that historians do. usually filling a sense of patriotism. -- he was feeling a sense of a patriotism. the senate reasserted some of the constitutional investigative powers. because the resolution and the congressional budget control. mike mansfield said we do not know about.

he had a graduate degree. they were the ideal majority and minority leader to bring something like this into being. i previously worked for the senate for a short time in the late 1960's as the acting curator. my job was to help set of the office. hoff five year later i got a call saying, would you buy to trader had been? -- bring your hat into the ring? i got the job. we staerted out with no files. reporters new thtat we existed. they started asking us how many centers have been convicted of crimes. who knows?

at the together a staff. -- i put together a staff. none of this weapon possible about a terrific staff. we put that together over the years. he was one of the backbones of the operation. we went out and introduced ourselves to other government historians. many people do not know there are many government agency employee historians, military and state department production -- department. we went out to find out what historians were supposed to do. we quickly learn that our responsibility was not so much to keep up on the history of environmental legislation in the senate, but that is what the congressional research service does.

they are there to provide that assistance. our focus was on the institutional history of the senate. as it always been like it is today? what has been the career path? how many had served for 20 or 30 or 40 years? nobody really knew that. the information was scattered. we went to work and began to compile the data base. the one i and the proudest of was a very simple one, namely -- biographical and formation of the people that served in the senate and the house. for years the published the biographical directory of the congress. it fell to our office to update

the senate confirmation there. that only to keep a little ways down the road in terms of finding in formation. how many books have been written about the center? what is the location that senators paipers? that is difficult for researchers to find out. we said to work with an army of interns over 10 or 12 years. we wrote down the titles of books by and about individual centers. -- senators. now that it is been a large data base. anyone can find it out. it is as researchers enormous amount of time.

>> we will start to the couple of specific questions about bob dole and focus on the institution. my next question is, what are some of your favorite memories about senator dole? >> one involves a lunch that he invited me and my staff to in 1 989. we had been working with him on it. we drafted a lot and got a lot of feedback about things that you'd like to do differently. he put his imprint on that book. at the end of the project, he said, "i am so grateful to your help.

if i can ever find any office space -- that is the currency of the time. that should be the ninth since -- that would be the nicest thing he could do. he also invited us all to lunch. it was a very special lunch catered in the republican leaders suite of the capital. there is nothing rushed about it. we had plenty of time to chat with him. that was a high point. then it continued. one of my all-time favorite moment in the senate chamber was in 1996 when he gave his farewell address. i was fortunate enough to be sitting right behind mr. dole in the gallery. i think the plot after his speech probably one done for a good 10 or 12 minutes. people have not quite heard

something like that. it is so filled with quotable observations about the senate from his experience. you had the sense that we are back to the senate of the classical days. >> who resigned in the senate in 1996. what do you think his legacy would be? >> certainly his legacy as a reader of the senate is one of civility. the balanced budget amendment of 1995, he spent a great deal of time rounding up republican votes. some people go to sleep b counting sheep. he goes to sleep by counting centers. does he have 51?

a republican from oregon said, i am going to have to vote against the party's position. senator dole was very upset about that. i tell you what. i will resign from the senate. and i resigned from the senate, then you will have to is the right number to pass it. that to be the 2/3 boat necessary. senator dole said, no, that is extreme. he had great respect for mr. hatch bill. although political it was the worst thing that could happen, he had a great respect for a fellow senator.

>> how did go into the institution, how did the founders define and structured the role? >> leading into the writing of the competition, we have the articles of confederation did they had a one chambered congress pep. that was the tories. it had very little power. they had to have to chambers. -- two chambers. it is werhere the story of the teacup comes from. jefferson was out. we do not know it is a true story. he came back.

he as george washington, why did you create two chambers? washington supposedly said, you just answered your question. you just for your hot tea from a cup into the saucer to cool it. that is why we created a senate provision it is a place for the second and third thought. it is the place for reflection. it is modeled after a two state senate. they were elected by the people but by their legislatures to do the bridge the elected. -- by the legislatures. they were elected. they were meeting behind closed doors.

the big innovation is that they would hold sessions in public. the senate met in secret. then the legislature ers, said had we know you are saying.

>> i would like to welcome everyone to this morning's here in. -- hearing. we have just been joined by the chairman. mr. chairman, -- >> it is your hearing. >> we will hear from professor goodwin liu who has been nominated for a seat on the united states court of appeals for the ninth circuit. professor goodwin liu is a nationally recognized expert on constitutional law and educational policy. he is the associate dean of the university of california berkeley school of law. before i give some brief

remarks, as also the center from california, i will like to just quickly go over the order of this hearing. there'll be five-minute rounds. we will use the early bird rule. we will go from side to side. following my statement, the ranking member will give his opening statement. of course, the chairman of the committee is here and if he wishes to make a statement he will do so. i will recognize senator gramm -- senator 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 historically contingent meaning of social good in our society. he goes on to say that "i argue that the judicial recognition of

welfare rights is best the lead as an act of interpreted shared understanding of particular welfare and good as they are manifested in our institution, law and the ball in faculties." he goes on to say that use the kabul welfare rights represent the collective judgments rather than the tidy logic of instant moral theory. well, i think that is a matter we should talk about and deal with honestly and fairly today. i hope that we will be able to do that. i believe a professor who had been at do -- who had been at duke university made remarks that if you truly respect and -- respect the constitution, you will and forced whether you like

it or not. that is the power of the judge. -- added a column of the judge. they are not empowered to enact what they consider to be social opinions of the day and then redesign the meaning of the constitution. if a judge feels they have that power, and this is a theory that is a foot in america today, judges who feel they have that power i believe of use the constitution, disrespect the constitution and if it is too deeply held it can actually disqualified them from sitting on the bench. i would note that prof. goodwin liu understands, i think, the importance of judicial philosophy in the confirmation policy when he opposed justice

roberts'confirmation, issuing a statement that it is fair and essential to ask how a nominee, judge roberts, would interpret the constitution and its basic value. americans deserve real answers to this question and it should be a sensible focus of the confirmation process. he concluded that his disagreement was so severe that he advocated him not being confirmed in the senate. he testified in this committee to very aggressively oppose the confirmation of justice of the bill. 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 thag@@@ @ @ @ @ @ @ @ @ @ , 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. he has represented at the state of carolina. -- this date of south carolina. he has two sons.

from a lawyer's perspective, he is one of the best lawyers we have in south carolina. he will bring to the bench a very deep practice and background experience which i think we're making a very capable judge. to the administration, thank you for approving this package. to congressman cliburn, thank you for being a good partner on this and other matters. i appreciate any support you could give these two fine individuals. thank you. >> thank you. rep cliburn, welcome to the other side. >> thank you so much for allowing me to appear here today on behalf of michele and richard. i want to begin by thanking my colleague from south carolina. i really wish to associate myself with the remarks that he just made. senator gramm and i are from

different sides of the aisle. we agree on the temperament of these two distinguished nominees. i have known these nominees for years. i could go on for hours of vouching for their character and reputation. i would ask that my full statement be included in the record along with there resonates. president obama has chosen two very qualified individuals. i use the word historic. each of them brings a new level of diversity to the south carolina federal courts. once confirmed, we will have the first jewish judges and michele child to be the second african-american judge in south carolina. she will also be the third woman and the third african- american justice.

in addition to their diverse backgrounds and experiences they have 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@@@@@@@ "r+da@ 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 to you today, my fullest commitment to providing all the information that you need and want in considering my nomination and i would like to do anything i can to earn the trust of the members of the committee in my obligation to be forthcoming, both in my testimony today and with respect to the written

materials. >> thank you very much. you are not the only nominee that has not been able to provide all documents at a given time. in testimony before this committee, you criticized some of the judicial opinions of then judge sam lee tel. particular, four of his opinions on the death penalty. i am one that has supported the death penalty. i have two questions. what was your object if -- objection to then, judge alito, and would you have any problem of holding the death penalty as a circuit court judge. >> the answer to the second question is absolutely not. i would have no difficulty or objection of any sort, personal

or a legal to enforcing the law as written with respect to the death penalty. my riding has never questioned the constitutionality of the death penalty. with respect to judge alito , i submitted to this committee opinions in cases where there were divided panels and thus, the most contentious cases. in all four of those cases, there were dissenting views offered by his third circuit colleagues, including republican-appointed colleagues. i believe my testimony highlighted what i thought were some concerns that were legitimately expressed in those cases. i believe in three of four of those cases, his view did not prevail. in one of those cases is you did prevail.

>> thank you. senator sessions. >> professor goodwin liu, i appreciate your statement about the omissions. you are correct that some of the items might not have been easy to discover or remember. some of them, as you noted, should have been disclosed. the question here calls for all interviews you have given and provide the date for those and so forth. you failed to do that. it comes on the heels of the attorney general having forgotten that he filed a breach with janet reno and two other former leaders. it raises a point to me that this is a serious question. i am going to continue to look at this. i feel like you did not spend

enough time on this, and perhaps some of it was because the hearing was moved so rapidly. and those supplementals that you filed, where as a result of complaints and questions from the staff, things that others have found, and when it was produced after the date of your first scheduled hearing, was it not? >> yes it was, 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@@@@@@@" o 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. . . gretzky harshly criticized the supreme court's decision with

bob jones -- >> he harshly criticized the supreme court decision with bobby jones. that was an 8-1 decision so the irs could revoke universities tax exemption because it violated the anti-discrimination laws. he was enormously critical of that. he was confirmed by voice vote. now, do you believe just because, like michael mcconnell who was supported by every single republican, who have been extraordinarily critical of the supreme court, do you believe any criticism you might have made would make it more difficult? >> no, mr. chairman. there is a clear difference between what things people write as scholars and how one would

approach the role of a judge. those two are very different things. as scholars, we are paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative in ways that it is simply not the role of a judge to be. their role of the judges to faithfully follow the law as it is written and as it is couldn't -- given by the supreme court. and there is no room for a convention or creation of new theories. that is simply not the role of a new judge. >> thank you. i have a letter written to us by kenneth starr written to senator sessions and myself. i will give the last paragraph of it. "in some, you have before you a judicial nominee demonstrating independent, outstanding

character." referring to you, of course. he gave you the highest possible rating they could give a nominee. he said of a we recognize -- and he said, we recognize [unintelligible] in the end, however, the judge is to uphold the constitution. [unintelligible] the ability to discharge faithfully in the ability to afloat -- to uphold the law. because he possesses those abilities to the highest degree, we feel he would serve with great distinction. he goes on to say that your support of the confirmation and puts that in the record. we have letters from 27 former

prosecutors and judges commanding your commitment to the constitution -- commanding your commitment to the constitution. -- commending your commitment to the constitution. and i put in the record that i strongly support this nominee. >> thank you. senator hatch, your next. -- you are next. >> welcome to the committee hearing. your wife and family are beautiful. and there's no question that i believe you are very -- you have a very good intellect with a lot of ability. as i evaluate this, i try to get the kind of picture of the kind of judge they would be.

and i look closely at how much power they think judges should have over the law to decide cases. a lot of -- the law that federal judges to use is written law, such as statues and a written constitution. we can all read what the law says. the purpose of the judges to determine what it means. @@@@ 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. this committee. my question of view is, do you believe that judges can separate out -- my question of view is, do you believe that judges can separate out not only as a scholar, but as an advocate? >> i believe they can and i believe they must. >> very good. we have been focusing on a lot of your past advocacy and a scholarship as we would with any nominee, but as your life story, i see that your parents are sitting in the back and i understand that they emigrated from taiwan. and you did not even speak english until he was 5 years

old and you went on to the auditorium of cure high school class and went on to attend stanford and oxford and yale. --could you talk about your sto, which is half your life? could you talk about how that will influence u.s. a judge? >> certainly, senator. -- will influence you as a judge? >> certainly, senator. i feel in many ways i have lived a very ordinary life. but i have had very extraordinary opportunities along the way. the first of those extraordinary opportunities was to have parents who really cared about education. they came from a society that did not at the time know many of the freedoms that we take for granted in america.

and that has always stuck with me as a very important consideration. i have also had a tremendous educational opportunities at the fine institutions that you mentioned. and i have also had tremendous mentors along the way. i'm very glad that congressman matsui is here today because her husband, bob, who died and untimely death, was one of my early mentors on politics and a lot. the combination of all of these, i think, has made me the person i am and i believe in all of the intangible ways that would influence my perspective, hopefully for the better, as a judge. >> thank you very much. >> thank you senator klobuchar. senator kyl is actually next on the list, but he has very

generously permitted senator coburn to go ahead. >> thank you, senator feinstein. and i thank senator carl. we have a hearing going on with the financial breakdown of investigations. * r a was not here for your opening statement, but -- i am sorry i was not here for your opening statement, but i have read it. i must tell you, based on what i've read i am highly concerned. i think you and i have a completely different philosophy when we look at the u.s. constitution. i want to try to understand where you are to give you a fair opportunity to convince me of how wrong i am. yuko wrote an article on congress, the courts, and because -- you co wrote an article on congress, the courts and the constitution and you criticized the supreme court for

overturning the guns rights of stating, "even more astounding than the common rights -- common sense legislation was that the house passed with only one dissenting vote and the senate passed its by unanimous consent, is its eagerness to do so in a way that deliberately excludes congress, and by extension, the american people, in defining what the constitution requires and permits." your continued in that article, "the recent arguments do not pretend to be debate. instead, they are the sole arbiter of constitutional mean." more and more, congress and the american people are regarded as mere targets of traditional discipline, unable to live and govern themselves within enforceable limits. the court made a final say on constitutional interpretation, but i do not see why it should have the only say. then in a press interview,

concerning a legal challenge to california's proposition 8, which overturned california's supreme court ruling in favor of gay marriage, you said, should the democratic process be allowed to enact a sizable short pants? pants? @@@@@@@@

merican 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 they have chosen to give an argument and it is not in any way a full account of the various cap -- barry's practices throughout the world with respect to their loss. -- the various practices throughout the world with respect to their laws. one of the things i think is very unique and worth cherishing is that we are in many ways a much freer nation than many countries around the world. i think there are many hazards involved in looking at foreign lot as guidance as how we interpret our own principles. -- foreign long as guidance as to how we interpret our own principles. -- bordelli w fahrenkopflaw as s to how we interpret our own principles. there is a very important

difference, senator, and one that i take very seriously between looking for guidance or ideas versus looking for authority. and authority is the basis on which cases are decided, not ideas or other forms of guidance. >> thank you very much. i went way over. i apologize. >> senator kyl, you are next. >> thank you very much. just on that last point, you distinguish between authority and ideas. the -- the role of the judges to decide the case in applying the authorities to the facts of the case. what is the role of ideas that would warrant a citation to foreign authorities? >> the senator, i think that -- >> excuse me, if i can give your exact quotation. the resistance to the practice is difficult for me to grass

since the united states can hardly claim and not -- for me to grasp since the united states can proclaim a monopoly on why solutions to common problems. the crux of the idea that -- >> the idea that judges in their ordinary practice do cite a variety of sources to bolster their reasoning on a particular point, but i go back to what i was trying to say to senator coburn, which is that the role of the judge, to me at least, is to make determinative the applicable precedents and the written law, namely our law. >> then why you write that the resistance to this practice -- and you say "the use of foreign authority." that is what you are talking about you say the resistance to this practice is difficult for me to grass since the united states can hardly claim a monopoly on why is this -- wise

solutions to common problems on the world. there are two problems with this. the first is, fighting wise solutions as to -- as opposed to -- finding wise solutions as opposed to ending the law. and the second is, using foreign governments and solutions, except in treaties and the like. >> i did not mean in policy solutions. i meant the way that judges have to articulate a legal rule in deciding cases. with respect to the use of foreign presidentprecedents, i y that the use of them can in no way be determinative. in reviewing supreme court cases that have actually implemented this process -- this practice, i think it shows quite clearly that the mention of foreign citations in those cases, to my

reading of these, it is not doing any legal work in the analysis. >> if i can respectfully disagree with you. it is used in at least one instance to bolster -- in one instance that i can think of to bolster the judge's opinion. we will talk more about this, this idea of authority sources ideas. i would also like to put into the record events memo national review online wednesday, march 24 piece that response to the mark starr letter that i think senator leahy put in the record, in any event, that someone did. and professor leeland, also to follow up on something one of my colleagues to talk to about -- one of my colleagues talked to you about. to me, this is reminiscent of

senator kennedy posing quite unfair characterization of judge bork's vision of america and famous speech that he made. do you really believe that what you spoke is justice alito's vision of america? " senator, i think the phrase -- >> senator, i think that phrase is perhaps unnecessarily fiery language to make a simple point. i was trying to give examples -- >> so, you do not really believe it represents his vision of america. >> i do not think that it represents his vision of america that he would implement as policy, the practices described in that paragraph. it was only meant to say that as a judge, he believed those practices were permissible in america. >> why did you not say it that way then? this calls into question your

judicial temperament. that is a key consideration for members of this committee. that is not tempered language. you would acknowledge that, i gather. would you a knowledge that is not tempered language? >> perhaps not considered in isolation. but it comes after 14 pages of analysis of judge alito's opinions and i believe it was the penultimate paragraph. >> i see it as vicious and very racially charged, very in temperature -- barry in temperate and, to me, it calls into question -- if very intemperate, and to me, it calls into question your ability to deal in a fair and judicious way. >> thank you, senator. senator cornyn, your next. before you go, i would like to abolish the presence of representative bobby scott -- i

would like to acknowledge a depressants of representative bobby scott. -- acknowledge the presence of representative bobby scott. >> welcome. i do not think there is any doubt in my mind that you are an american success story as the son of immigrants and someone who has taken advantage of the opportunities that unfortunately, we all have here in america -- that fortunately, we all have here in america to get to the very top of the legal profession. in your case, the question i have is, is this the right job for you? it is not just a question of brilliance. it is not just a matter of your academic skill. it really is, is this the right job for you? i know you and senator hatch talked about the role of a a a law professor relative to that of the -- of a judge -- the role of a law professor relative to that of a judge. let me go to some of my

concerns. they may seem relatively mundane, but i think they are important. i note that you say you have not tried any cases in judgment or final decision. >> that is correct. >> having been a state court judge myself for 13 years, i am really very troubled by the fact that senator sessions documented in his questions that the lack of attention and diligence and, frankly, sloppiness in your response to this committee's questionnaire -- there were four occasions when you supplemented your responses not because you discovered they were in complete, but because committee members or staff went on google and found speeches, documents, and press releases that you had previously disclosed. from my experience as a former trial judge, i will tell you if a lawyer came into

and had to be called to task several different times before they finally got the honest and completely truthful answer, that lawyer would find themselves in court or worse. i do not know if it is because of your lack of experience in a court room or what it is, can you offer me any comfort at all that this is not an act of contempt but some other explanation? >> certainly. i want to express again the fullest commit but i can to providing the committee with any information that it wants to evaluate in my candidacy for the bench. >> have you apologized? >> i have. it was in my letter which i

expressed an apology and i am happy to reiterate it here. i am very sorry for the omission that existed in the original questionnaire. i would simply say that the lion's share of items are submitted in the supplement or not items that were brought to my attention by others. 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 thezealousy for the client's interests. i think i learned in respect. i also learned how to build a time. >> i want to thank you for your public service. this is difficult, but the fact that you are willing to do it and the fact that others are willing to do it makes this country function. and i think everyone here knows were willing to -- willing to make the sacrifices that you have, and even more important, your wife is willing to make the sacrifices that she has to. i want to thank you for your service your country. >> thank you.

>> thank you, senator kauffman. because of the importance of this nominee, we will certainly have a second round. i would like to indicate my intent would be to go to 12:30 p.m. take a half-hour break and reconvene at 1:00 p.m. we have before additional nominees to hear. -- four additional nominees to hear. i know this is a long wait for you, but i think is important for members to have the opportunity for asking professor liu all the questions that they have. i must apologize to you, but it is the way of the senate. if there is no objection, we will proceed with a half-hour break in about 45 minutes. and then begin again. >> thank you, your honor, for that. i think the nominee raises a lot of important for the --

philosophical questions about the law and constitution. we do have a number of questions. i thank you for the courtesy of allowing sufficient time. >> thank you very much. to begin the second round, i would like to say a couple of things. i really think that there is a double standard being applied here. i would like to take a look at just a few of president bush's nominees. let me begin with the chief justice. chief justice roberts fail to provide documentation for over 75% of the speeches and remarks listed in his questionnaire. not a single republican objected when the committee received 15,000 supplemental documents just four days before his confirmation hearings were scheduled to begin. in fact, both chief justice roberts and justice alito

supplemented their questionnaire several times after returning them, including with 75,000, and 36,000 pages of documents respectively. judge -- michael mcconnell has been covered, appointed to the 10th circuit. the constitutional law professor from 1985 to 2001. he did not list a single speech or talk on constitutional law or legal policy. he was confirmed. judge jeffrey sutton, appointed by the president to the sixth circuit, submitted a questionnaire that simply stated i have given numerous speeches to local bar associations, ohio judges, through the ohio judicial college, the federalist society, and continuing legal education seminars regarding the ohio state supreme court and the ohio -- the united states supreme court and the ohio supreme court.

he was confirmed. george brett cavanaugh, as has been stated, appointed by@@@@@@ submitted a questionnaire that said the low in a judicial candidate, i have been to hundreds events where each candidate is best to introduce himself or herself. no way to check accurately the dates and locations. she was confirmed. judge diana sikes was appointed the seventh circuit by president bush. she submitted a questionnaire along the same line. same with another judge to the third circuit. i think this, and i must say is remarkably unfair. we have heard the nominee

clearly state that he overlooked some things. he clearly stated that he is prepared to do anything he can to see that the committee is fully informed. 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. . . the article speaks for itself. i have heard comments made suggests views are racist. i find that outrageous.

let's talk about the legal reasoning. we throw a lot -- we throw around these ancillary terms so easily these days. >> 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 judge frank nominated by president reagan at the age of 36 spent seven years in academia. let us talk about reality.

let's leave these complaints out of it. we have so 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. they have the kind of bipartisan support that you have. i think we soon forget that. the american bar association found unanimously well qualified. you have strong support of both of your home state senators.

[unintelligible] telos again the difference between the role of academic commentators as opposed to the role you have to play as a judge. tell us the difference and if you think you have any difficulties in adjusting to a new role as a judge. >> system, mr. chairman. the role of the judge -- certainly, mr. chairman. the role of the judge is to be an arbitrator of the cases that come to him or her. the way that that process works is through absolute fidelity through the applicable precedents and the language of the law, statutes and regulations that are at issue in the case. academics, when they write, are not bound in the same way.

the job of law scholars, when they write, largely, is too pro- criticize, invent, be created -- in other words, many of the qualities that are not the qualities that one expects the judicial process to possess. one thing that i would like to highlight, which i hope comes through upon a review of my record, is that there are some similarities between the legal scholarship and the process of judging, which is that i would hope the record shows an open mindedness and an ability to consider all points of guilt. a record, in respect -- of the review -- a reader, a respect for the law and off forms that make for habits of mind of good listening, that i think, in

other ways, could make a person a good judge kurt >. >> thank you. >> thank you, senator leahy. >> center cairo. -- csenator kyl. >> you are distinguishing between an area where a court can't breathe light -- breathed life into the eligibility of those rights. that is what you described in the substance of what you wrote it at me ask you if you personally, personally believe that the duty of government cannot be reduced to simply providing the basic necessities of life. the main pillars of the agenda would include expanded health insurance, child care, transportation subsidies, and a

robust earned income tax credit, and in fairness, that is exactly what you wrote. that is a direct quotation. also, that we should be thoughtful, not bashful in forcing political solidarity. do you personally believe the statements. >> is that from my article, or which text is that from? >> i am sir. we were quoting from the article. it is the international citizenship from the yao journal in 2006. -- from the yale journal in 2006. >> i stand by my writings. whatever views i have expressed about those matters, however, i would set aside absolutely in my role as a judge. quite frankly, i did not see the role of the judge been involved.

>> i appreciate that you said that. the problem is that colleagues have talked about the need to get judicial nominees, and grant that this was in the context of the supreme court nominees, who would have certain agendas that i did not necessarily share. one of the things that have concerned about an activist judge is whether or not you approach deciding cases with those agendas in mind or you lay them aside. you have expressed, and i did quote accurately from that article, i perceive these to be the -- these to your personal opinions. i also perceive your view of a lot to be that we should find ways to accommodate those opinions, albeit, you do say once the legislature has acted. i will quote directly how you state that. this is an -- on how how welfare

rights might be recognized to constitutional to vacation in a democratic society. >> wants a welfare progra"once m this created, it should be reassessed to satisfy needs of citizenship. you should do that by and delicate in social eligible requirements or strengthening procedural withdraw benefits." that is what you said earlier. that seems to me to be an agenda. you bring an agenda to the court. you have written about how that agenda can be accomplished through the judicial process, not the legislative process. you say "the constitutional guarantee of national citizenship has never realize

its potential to be a generative source of substantive rights." you talk about how it was neutered by previous court decisions. i view this as you having these views, their very liberal views, you believe that once the legislature has opened the door, courts can be used to expand those rights in what you would consider to be an appropriate way. >> i guess i would say that those are my views. they are accurately reflected in the passages you spoke. i guess i would characterize them, not as an agenda, but rather as a my endorsement of precedents of the court that have done precisely those things. as a lower-court judge, i would follow certainly, those precedents and any precedents.

>> i recognize what you're saying is that when the legislature has acted, there is some precedential ability of courts to them, either through restricting qualifications, for example, of expanding those rights. it is very clear from what you have said, not that these are just examples you picked out of thin air, but rather, this is your personal view of what the court should try to do. am i wrong? >> i am not sure i would say that these are things the court should try to do. i think a court would have to simply follow with the supreme court has instructed the courts to do on particular issues. effected put the passages you read in further cutbacks, i would say that my riding in this area and the -- if i could put the passage as you read in further context, i would say

that most of my riding in this area -- right team in this area has been directed at policy- makers and legislatures, not act -- not at judges. most of what i have written is directed at legislatures because i come at this from my perspective of judicial restraint in this area. i hope those articles convey the understanding how but how difficult it is for courts to get involved. we have historical lessons to learn. that is why i think most of my scholarly work has actually been directed at policymaker, not at the urging courts to do more. >> could you see why the passages from this particular article raised a doubt that i have expressed to you? >> i certainly do.

>> that completes our second round. senator coryn has indicated that he will arrive in five minutes. i'll tell you what we will do if that is our right, we will begin a third round and then i will give him some additional time he comes in. we will just go for another 15 minutes and then recess. are you bearing up? >> i am doing just fine. you have amazing cool. congratulations. >> in describing your approach to constitutional fidelity, you have said that the practical consequences of legal rules matter. i happen to agree with this. for example, in a case where a court interpreted title 7 to require a woman to pay -- or

excuse me, to file a pay discrimination case within a 180 days of yuan her employer first paid her a less than her male counterpart, even if she had no way of knowing at that time that she was being paid less. congress has had to pass a new law to overrule that decision and communicate to the court that title 7 was not intended to have this resolved. i think it was the first bill signed by president obama. here is the question -- when do you believe it is appropriate for a judge to consider the practical consequences of legal rules? >> well, i think that is one of the aspects of decision-making that i think properly inform the consideration of most cases that

can't -- that come before the court. lot defects people's lives. it is not a bunch of words on paper. it is not a bunch of cases in the books. these are real things that affect people's lives. decisions made by a judge should not be based on favoritism toward effecting a person puts the life one way or the other. -- purse person's life one way or the other. i do not think anyone can grasp the magnitude without understanding how that plays out in people's mines. >> just so people now, there was no way she could of known -- she did not find out until years later what happened. the question was did she have redress. the cold rolled now.

-- a court ruled know. -- no. the supreme court stated conclusively that state universities have a compelling industry -- interest in attending the educational benefits that flow from a diverse student body. that case and others have also made clear the efforts to maintain diversity must be closely tailored to the true educational benefits and not a racial quota. now, in blog entries you have been accused of favoring racial quotas. i want to ask you plainly, do you favor racial quotas and the believe that our permissible? >> i absolutely do not support racial quotas. i believe they're unconstitutional. >> will you follow supreme court

law as articulated that laid out the court's guideline for when and how it is permissible for a university to seek to retain a river student body? >> i think the question that senator kyle ask you on social worker rights, let me ask this question in another way. in a highly theoretical article in the 2008 stanford law review coming to critique the notions of other scholars of constitutional welfare rights and put forth the theory of your own in which they engage in and a dialectical process of engagement with the political branches and the publi