May 18, 2011

ON THE NOMINATION OF GOODWIN LIU TO BE UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT

  Mr. President, I rise in strong support of the nomination of Goodwin Liu to be U.S. Circuit Judge for the U.S. Circuit Court of Appeals for the Ninth Circuit. I urge my colleagues to invoke cloture on this nomination.

  I am disappointed we had to file a cloture motion. I hope my colleagues would want to vote up or down on this nomination, and I hope they would vote for his confirmation.

  As we begin the debate on the nomination of Mr. Liu, let me start by telling my colleagues how thoroughly his nomination has been vetted by the Judiciary Committee under the leadership of Chairman Leahy.

   President Obama first nominated Goodwin Liu for this position in February of last year. That was over 1 year ago. The Judiciary Committee has held two separate hearings on this nomination. Mr. Liu's latest set of questions and answers, for the record, spanned over 130 pages. The Judiciary Committee has favorably reported his nomination on three separate occasions: in May of 2010, September of 2010, and April of 2011.

   So I am disappointed my Republican colleagues have refused to allow this nomination to come to a vote without the necessity of filing a cloture motion. As we know, the majority leader has filed cloture on this nomination. Senators have had ample information on the background, experience and qualifications of this nominee and it is time for the Senators to perform their constitutional duty to debate the nomination and to vote up or down on this nominee.

   I was privileged to serve on the Judiciary Committee in the 111th Congress and participated in a debate of the Goodwin Liu nomination on several occasions. I was pleased to cast my vote in favor of Mr. Liu's nomination in committee, and I look forward to supporting his nomination on the floor.

   When I examine judicial nominations that are submitted by the President, I use several criteria.

   First, I believe judicial nominees must have an appreciation for the Constitution and the protections it provides to each and every American.

   Second, a nominee must embrace a judicial philosophy that reflects mainstream American values, not narrow ideological interests.

   Third, a judicial nominee must respect the role and responsibilities of each branch of government, including a healthy respect for the precedents of the court.

   Fourth, I look for nominees with a strong commitment and passion for the continued forward progress of civil rights protections.

   Finally, I want a judge who has the necessary experience, temperament, and commitment to public service.

   I wish to share with my colleagues a little background on Mr. Liu, his qualifications, and why I intend to support his nomination.

   Goodwin Liu, in many ways, embodies the American dream. He is the son of immigrants to this country. His parents were doctors who came to the United States from Taiwan in the late 1960s, when foreign doctors were being recruited to work in underserved areas.

   Goodwin Liu did not speak English until kindergarten. During high school, Goodwin Liu had the opportunity to serve as a page in the House of Representatives, after being sponsored by late Congressman Bob Matsui of California, whom I had the privilege of serving with in the House of Representatives.

   Professor Liu has a sterling academic record. He earned his B.S., Phi Beta Kappa, from Stanford University, where he was elected copresident of the student body. A Rhodes Scholar, he earned his M.A. from Oxford University. He received his J.D. from Yale Law School, where he was an editor of the Yale Law Journal. He then went on to clerk for DC Circuit Court Judge David Tatel and Supreme Court Justice Ruth Bader Ginsburg.

   Professor Liu has a track record of working on public policy issues in public service. He worked for 2 years at the Corporation for National Service. He served as a special assistant to the Deputy Secretary of Education, where he worked on numerous legal and policy issues.

   Professor Liu has worked in private practice. After his clerkships, he served as an associate in the Washington, DC, law firm of O'Melveny & Myers, working on a wide range of business matters. About half his practice consisted of appellate litigation, preparing him well to serve on a court of appeals. He has also maintained an active pro bono practice at that firm, which also tells me of his commitment to equal justice under the law.

   Professor Liu then went on to his current occupation, joining the faculty of the University of California Berkeley School of Law and helping to teach our next generation of lawyers. He serves as a professor at the law school, was promoted to an associate dean of the law school, and was elected to the American Law Institute.

   Professor Liu has received the law school's Distinguished Teaching Award. Professor Liu is considered an expert on constitutional law and education law and policy, with a particular focus on the needs of America's most disadvantaged students. He is the author of numerous law review articles and the coauthor of an influential book on constitutional law interpretation entitled ``Keeping Faith with the Constitution.''

   I heard my colleague talk about Goodwin Liu. But I would just urge my colleagues not to penalize an individual because he is active or expresses his own opinions. We should judge the nominees based upon their qualifications and their commitments to interpret the law as required on the court.

   Professor Liu answered numerous questions about his approach to constitutional interpretation during his two confirmation hearings. He testified:

   “The role of the judge is to be an impartial, objective and neutral arbiter of specific cases and controversies that come before him or her, and the way that process works is through absolute fidelity to the applicable precedents and the language of the laws, statutes, or regulations that are at issue in the case.”

   I do not know who would disagree with that. That is what many of us have been calling for on both sides of the aisle.

   He has also answered questions about his ideology as a judge. He testified:

   “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. So that is exactly what I would do. I would apply the applicable precedents to the facts of each case.”

   Once again, I could not agree with that statement more. In written responses to Senators' questions, he also stated:

   “I do not believe it is ever appropriate for judges to indulge their own values or policy preferences in determining what the Constitution and laws mean.”

   Professor Liu certainly has written a number of thought-provoking articles on controversial public policy issues of the day, but this should not disqualify him from being a judge. I am confident Professor Liu understands the difference between being an advocate and being a judge and I hope we can draw that distinction and will respect the difference if he is confirmed and puts on the judicial robe.

   Specific questions concerning affirmative action were asked during his confirmation hearings. So let me quote from Professor Liu's testimony to the Judiciary Committee:

   “I absolutely do not support racial quotas, and my writings, I think, have made very clear that I believe they are unconstitutional.”

   He then said:

   “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.”

   I think we should take a look at his record on this, and I think it is unfair to judge him based upon certain innuendoes.

   Professor Liu also has broad support from distinguished legal scholars from both parties. The former Solicitor General and White House prosecutor, Ken Starr, praised Professor Liu's ``strong intellect, demonstrated independence, and outstanding character''--qualifications we all want to see on the court. We want to see intellect, we want to see independence, and we want to see character. Ken Starr summed that up fairly well.

   In a March 19, 2010, letter to the Senate Judiciary Committee, Mr. Starr joined with another professor, stating:

   “Goodwin is a person of great intellect, accomplishment, and integrity, and he is exceptionally well qualified to serve on the court of appeals. ..... What we wish to highlight, beyond his on obvious intellect and legal talents, is his independence and openness to diverse viewpoints, as well as his ability to follow the facts and the law to their logical conclusion. ..... These are qualities we expect in a judge. And Goodwin clearly possesses them ..... [A] judge takes an oath to uphold and defend the Constitution, and in the case of a circuit judge, fidelity to the law entails adherence to Supreme Court precedent and ..... adherence to circuit precedence as well. ..... Goodwin knows the difference between what the law is and what he might wish it to be, and he is fully capable and unafraid of discharging the duty to say what the law is.”

   That is what Ken Starr said about a person he knows very well, Goodwin Liu, and he strongly recommends his confirmation to our colleagues. I also want to discuss the importance of improving diversity on our courts. If confirmed, Professor Liu would be only the second Asian American currently serving on a Federal appeals court, and the only Asian American in active service in the Ninth Circuit.

   The Ninth Circuit is home to over 40 percent of the Asian American population in the United States. Finally, Professor Liu has received the highest possible judicial rating, ``unanimously well qualified'' from the American Bar Association's Standing Committee on the Federal Judiciary.

   With this distinguished record and recommendations that we have received, we have an excellent nominee to serve on the court of appeals. I urge my colleagues to vote for his confirmation.