Madam President, I rise today to continue to express my views in support of the nomination of Professor Goodwin Liu, a nominee, as you know, to the Ninth Circuit Court of Appeals. Many different things have been said on the floor here in recent hours, and I rise to offer my comments on some of the concerns that are being debated.
For once, it is great to actually hear debate on the floor of this chamber. I have been here, as you know, Madam President, just six months, and as someone who is new to the Judiciary Committee, new to the debates and dialogue of this chamber, I am struck at the things that I’m hearing about Professor Goodwin Liu and the significant divergence between what I have found in questioning him and looking at his record, in speaking to my colleagues, and in what I have heard here on the floor just today. So I will do my best, if I might, Madam President, in a few moments to try and lay out what I see as the real record of the real professor of Goodwin Liu, our nominee to the Ninth Circuit Court of Appeals.
Some have come to the floor today and argued that Professor Liu lacks the candor or the temperament to serve on a circuit court, and, as someone who clerked for the Third Circuit Court of Appeals for a distinguished judge, I will suggest something that I think is commonplace, which is that candor and an appropriate temperament are critical to service on a circuit court of appeals. A lot of these charges raised against Professor Liu seemed to center on a few comments that Professor Liu made during the nomination hearing for now Justice Alito or some purported deficiencies in his disclosures to the Judiciary Committee. Let me speak briefly to both of those, if I might.
Professor Liu has apologized at length and in detail for the intemperate tone of one brief passage that he wrote as a part of his testimony before the Judiciary Committee during the Alito nomination hearings now some six years ago. I take this apology at face value. I take his expression of regret at the tone at face value. But anyone who has taken the time to meet him, to interview him, to question him I think has to conclude that, despite this one brief episode of the use of intemperate language, he is not an intemperate person. In fact, the American Bar Association – as my colleague, Senator Boxer, pointed out previously today – specifically considered Professor Liu’s temperament when it gave him its highest rating of “unanimously well qualified” in the recommendation for his consideration by this body.
Let me next turn briefly, if I might, to claims about candor before the Committee, which I believe are equally unfounded. He has, in fact, testified before the Judiciary Committee for a total of five hours and answered hundreds of questions and requests for additional information. He has been sharply criticized for missing some documents from his initial response to what is a searching Committee questionnaire, but I will comment for those following this that Professor Liu has been a prolific scholar and speaker. He is someone who has published extensively, he is someone who has spoken extensively, and he is the first controversial circuit court nominee to have his confirmation take place, not just in the Computer Age but in the YouTube Age, when a combination of cell phones and video recorders have literally made a record of every brown bag lunch, every five-minute speech, every off the cuff remark made by this nominee before us. The argument that is needed to supplement the record to include some documents not initially produced, in my view, and that somehow that reflects some lack of candor and that somehow that suggests a lack of truthfulness that should disqualify him, not for a vote but not even for consideration of a vote, I think, is wholly without merit.
As the Chief White House Ethics Counsel under President Bush, Richard Painter, has written, Professor Liu’s “original answers to the questions asked by the Judiciary Committee were a careful and good-faith effort to supply the Senate with the information it needed to assess its nomination.” It means a great deal to me that someone like Mr. Painter concluded that Professor Liu provided a lot more information than most nominees do in similar circumstances, and frankly it seems to me overreaching to try and suggest that, simply because in the YouTube Age this professor – who provided us with hours of testimony, pages of responses – failed to notify the Committee about some brown bag lunches and off-the-cuff comments, does not rise to the standard of justifying a filibuster.
Let me next turn to the suggestion that he is insufficiently qualified to hold the position of circuit judge. An important concern, because we want judges of judicial temperament, of openness and candor and good character and also those who are sufficiently experienced.
As I said a moment ago, the American Bar Association, after a searching, confidential, comprehensive review of his qualifications, concluded he was “unanimously well qualified,” its highest possible rating. In previous nomination debates, senators of this body, senators of the other party, have touted the ABA rating as a comprehensive and exhaustive evaluation that provides valuable insight that ought to be trusted. Several folks, several members of this body, several senators, including some who spoke immediately before me, have made those exact references to the value of the ABA rating process. Reasonable minds may be able to differ on the margins, but it is not credible, in my view, to claim that a candidate with Professor Liu’s remarkable legal education, long record of public service and experience and the ABA’s highest rating is not qualified to serve on a circuit court.
The charges or suggestion that Professor Liu was unqualified because he is young or because he lacks significant courtroom experience are also hollow and one-sided when we look at the real record. Since 1980 fourteen nominees younger than Professor Liu advanced by Republican presidents have all been confirmed. Judges, for example, Neil Gorsuch on the Tenth Circuit, who was thirty-eight when nominated. Judge Brett Kavanaugh, an acquaintance – and I would say friend of mine from law school – now on the DC circuit, was thirty-eight when nominated. Now Justice Samuel Alito was 39 when nominated to the Third Circuit. Republican nominees with similar or lesser practical courtroom experience than Professor Liu have also been nominated and confirmed. Circuit court Judges Frank Easterbrook and J. Harvie Wilkinson were both under forty when nominated, and yet their relative lack of practical experience didn’t prevent either of these judges from becoming among the best respected, most widely-regarded in their respective circuits.
I would ask that my colleagues seriously consider instead looking at the standard that was applied when a similarly controversial professor came before this body. I was not here at the time, but I understand from the record that Democratic senators approached the nomination of Michael McConnell, President George W. Bush’s nominee to the Tenth Circuit, in a way that was generous, that accepted at face value some of his assertions. Like Professor Liu, Professor McConnell was a widely-regarded law professor who was nominated to a federal appeals court without having first served as a judge. Many Democratic senators at the time had concerns about Professor McConnell’s conservative writings, which included strong opposition to Roe v. Wade, Congressional testimony that the Violence Against Women Act was unconstitutional, and harsh criticism of the Supreme Court’s 8-1 decision in the Bob Jones case. Despite these positions, which one could argue are at the outer edge, even the extreme of the legal cannon of the time, Professor McConnell was confirmed not after a filibuster, not after a long series of grinding nomination hearings and public discourse, but Professor McConnell was confirmed by voice vote of this chamber just one day after his nomination was confirmed by the Judiciary Committee.
In supporting Professor McConnell’s nomination, Democratic senators at the time credited his assurances that he understood the difference between the role of law professor and judge, that he respected and would follow precedent. In my view, the senators of this body should credit similar assurances that Professor Liu has provided during his confirmation hearings and that Professor Liu has provided to me in an individual interview, in answers to hundreds of written questions from members of the Committee, as well in answer to challenges presented here.
Let me next turn, if I might, to some challenges or concerns that have been raised about Professor Liu’s view on education. A bipartisan group of twenty-two leaders in education law, policy, and research have written to support Professor Liu’s nomination and to highlight his scholarship and reputation in the field of education law and policy. They wrote: “based on his record, we believe Professor Liu is a careful, balanced and intellectually honest scholar with an outstanding set of academic qualifications and the proper temperament to be a fair and disciplined judge.” Later, they wrote in this letter that his work is nuanced and balanced, not dogmatic or ideological, and I ask unanimous consent, Madam President, that this letter be included in the record.
During his confirmation hearings, Professor Liu testified to the Judiciary Committee: “I absolutely do not support racial quotas, and my writings, I think, have made very clear that I believe them to be unconstitutional.” Professor Liu also stated to the Committee that “I think affirmative action, as it was originally conceived, was a time-limited remedy for past wrongs, and I think that is the appropriate way to understand what affirmative action is.” These two statements, which reflect Professor Liu’s testimony to the Committee, are well within the mainstream. Professor Liu has written and spoken about his support for diversity in public schools, and in my view, there is nothing extreme in this view.
Ever since Brown v. Board of Education was decided by a unanimous Supreme Court in 1954, the Supreme Court of the United States has recognized the legitimacy of state action to desegregate schools. In fact, the Supreme Court upheld the use of race as one factor in admissions decisions in the 2003 case Grutter v. Bollinger. Although some on the far right of the Supreme Court have argued that both Brown and Grutter should be disregarded to the extent they recognize the permissibility of efforts to achieve diversity in public institutions, it is, I would argue, those justices out of step with the mainstream of federal jurisprudence and of the constitutional tradition of this country. Even in its most recent case on point, the 2007 Supreme Court decision, Parents Involved v. Seattle School District, which struck down a specific desegregation program, five of the nine justices that made up the majority opinion agreed with Liu that achieving diversity remains a compelling governmental interest.
The notion that, somehow, Professor Liu is an ideologue on these issues is belied by his actual record. As a scholar, Professor Liu has supported market-based reforms to promote schoolhouse diversity, reforms that are often labeled conservative. Professor Liu believes and his written in support of school choice and school vouchers, stating that they have a role to play in improving educational students for disadvantaged children. He has publicly advocated for these programs on a nationwide scale, earning praise from conservatives in the process.
Clint Bolick, Director of the conservative Goldwater Institute, referred to by my colleague, Senator Boxer, previously has written: “I have known Professor Liu and, since reading an influential law review article that he co-authored supporting school choice as a crisis of inner city public education, I believe it took a great deal of courage for him to take such a strong public position, and I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty.” He closes his letter by saying, “Professor Liu clearly possesses the scholarly credentials and experience to serve with distinction on this important Circuit Court.”
Professor Liu has, in my view, made very clear that he understands the difference between being a law professor, a scholar, an advocate ,and a judge and has assured us during his nomination hearings before the Committee and again in personal conversations with me that he would follow the court’s precedent if confirmed. During his confirmation hearings, Professor Liu testified to our Committee: “if I were fortunate enough to be confirmed in this process, it would not be my role to bring any particular theory of constitutional interpretation to the job of an intermediate appellate judge. The duty of a circuit judge is to faithfully follow the Supreme Court’s instructions on matters of constitutional interpretation not any particular theory, and so that is exactly what I would do. I would apply the applicable precedence to the facts of each case.” As I said before and I will say again, this quote, I know, from Professor Liu deserves exactly the same weight and deference and confidence as similar assertions by then-Professor McConnell, now Circuit Court Judge McConnell when he was confirmed by voice vote of this chamber. To speak otherwise I think is to do violence to the tradition of deference to those who give sworn testimony to hearings and to the deliberations of this body.
Last, let me turn to some points that were raised just recently about whether or not Professor Liu believes that Americans have a constitutional right to welfare benefits like education, shelter, or health care, and, if confirmed, would somehow declare those constitutional rights from the bench. Professor Liu has authored, as I’ve said, many different law review articles and in one, the 2008 Stanford Law Review article entitled “Rethinking Constitutional Welfare Rights,” he, in fact, criticizes another scholar’s assertion from a 1969 article that courts should recognize constitutional welfare rights on the basis of a so-called comprehensive moral theory. Professor Liu rejected that.
In 2006, he penned a Yale Law Review article that argued that the 14th Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity. His record is replete with sources that make it clear that Professor Liu respects and recognizes the role of this body, of Congress, and the role of the Supreme Court in establishing, interpreting, and applying both precedent and constitutional theory and that he accepts, acknowledges, and will respect the very real limits on a circuit court judge in innovating in any way.
Madam President, in closing, allow me to simply share with you and with the members of this body that new to this body, new to the fights that have divided this chamber that have so, I think, deflected real deliberation on nominees to circuit courts to the Supreme Court, I have taken the time to review his writings, to interview him individually, to attend a nomination hearing, and have come to the conclusion that candidate, nominee, Professor Goodwin Liu is a qualified, capable, competent, in fact, exceptional legal scholar who understands and will respect the differences between advocacy and scholarship and serving as a member of the Circuit Court in the judiciary of the United States.
I urge the members of this body, I urge my colleagues to take a fresh look at the record and to allow this body to vote. Why on Earth this record of this exceptionally qualified man would justify a filibuster is utterly beyond me and suggests that, unfortunately, we’ve been mired in partisanship rather than allowing debate and votes on this floor, which, in my view, if we follow the best traditions of this body, would lead to the confirmation of Goodwin Liu to the Ninth Circuit.
Thank you, Madam President, and I yield the floor.