05.19.11

Statement Of Senator Patrick Leahy On Cloture On The Nomination Of Goodwin Liu To The Ninth Circuit

Full Statement For The Record

The Senate should confirm the nomination of Professor Goodwin Liu of California to fill a judicial emergency vacancy on the Court of Appeals for the Ninth Circuit.   Certainly, his nomination should not require cloture in order to have an up-or-down vote.

Professor Liu is admired by legal thinkers and academic scholars from across the political spectrum.  He has spent his career in public service, private practice and as a teacher since receiving degrees from Stanford University and Yale Law School.  He is a Rhodes Scholar.  After law school, Professor Liu clerked for D.C. Circuit Judge David Tatel and Supreme Court Justice Ruth Bader Ginsburg.  No one can question this man’s intellect or qualifications.  He should be treated with respect and admired, not maligned and caricatured.  His honest testimony during two hearings before the Judiciary Committee should be credited, rather than ignored.

Professor Liu’s parents, wife, children, friends and community are justifiably proud of him and have looked forward to his confirmation to the Court of Appeals since he was first nominated in February 2010.  We saw his beautiful children at each of his two confirmation hearings—indeed, the first was born only weeks before his first hearing and was nearly a year old at his second.  The son of Taiwanese immigrants, Professor Liu would bring much-needed diversity to the Federal bench.  There is no Asian Pacific American judge on the Ninth Circuit Court of Appeals, which includes California, Hawaii and a number of western states.   

Rather than the debate and up-or-down vote that Republican Senators argued just a few years ago every nominee was entitled to have, the Majority Leader was required to file cloture to overcome an extended Republican filibuster of Professor Liu’s nomination.  I had hoped two weeks ago when 11 Republican Senators joined in voting to end a filibuster against Judge Jack McConnell of Rhode Island that the Senate was moving away from the narrow, partisan attacks on judicial nominations that have slowed us from making progress since President Obama took office. 

Instead, for the sixth time since President Obama took office 28 months ago we have had to seek cloture to overcome a Republican filibuster of one of President Obama’s well-qualified judicial nominations.  Regrettably, the Republican filibuster of Professor Liu’s nomination continues the pattern they set as soon as President Obama first took office.  This is a far cry from when Republican Senators were insisting just a few years ago that such filibusters of judicial nominees were unconstitutional. 

Widespread Support for Liu Nomination

Professor Liu is a nominee with significant support from across the political and ideological spectrum.  Among the many letters of support we received in the Committee was one from Ken Starr, the former Solicitor General during the President George H.W. Bush administration and the Independent Counsel who investigated the President during the Clinton administration.  He and distinguished Professor Akhil Amar wrote:

“[I]t is our privilege to speak to his qualifications and character, and to urge favorable action on his nomination in the discharge of your constitutional duties of advice and consent.  In short, Goodwin is a person of great intellect, accomplishment, and integrity, and he is exceptionally well-qualified to serve on the court of appeals.  The nation is fortunate that he is willing to leave academia to engage in this important form of public service.”

 Clint Bolick, the director of the conservative Goldwater Institute, wrote:

“Having reviewed several of his academic writings, I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty.  He clearly possesses the scholarly credentials and experience to serve with distinction on this important court.”

A bipartisan group of eight chief corporate executives who know Professor Liu from his service on the Stanford University Board of Trustees recently wrote to the Senate in support of Professor Liu’s nomination:

“In short, Goodwin’s strengths are exactly what we expect in a judge: objectivity, independence, collegiality, respect for differing views, sound judgment. Goodwin possesses these qualities on top of the brilliant legal acumen that is well-established by his professional record and the judgment of those most familiar with his scholarly work.”

I ask unanimous consent that these letters appear in the Record at the conclusion of my statement.  I could put in the Record many more from the broad set of preeminent lawyers, organizations, and leaders in the academic world who support this nomination.  Professor Liu’s nomination merits our support, not this filibuster.   

Professor Liu’s Nomination Should Have an Up-or-Down Vote

The Senate should vote on this nomination.  In 2005, when the Republican majority threatened to blow up the Senate to ensure up-or-down votes for each of President Bush’s judicial nominations, Senator McConnell, then the Republican whip, said: “Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.”  Other Republican Senators made similar statements back then.  Many declared that they would never support the filibuster of a judicial nomination.  Some have tried to stay true to that vision and principle.  That is why the filibuster against Judge Hamilton failed and that against Judge McConnell was ended.  This filibuster should also be ended.  

Those Senators who claim to subscribe to a standard that prohibits filibusters of judicial nominees except in “extraordinary circumstances” cannot support this filibuster.  There are no “extraordinary circumstances” here.  The President has nominated an outstanding lawyer and scholar who is supported by his home state Senators and was favorably reported by a majority of the Senate Judiciary Committee.  This is for a vacancy – a judicial emergency – on the Ninth Circuit. 

The 14 Senators who signed the Memorandum of Understanding in 2005, the then “Gang of 14,” wrote about their “responsibilities under the Advice and Consent Clause of the United States Constitution” and that fulfilling their constitutional responsibilities in good faith meant that “[n]ominees should only be filibustered under extraordinary circumstance.”  Here there are none.

They wrote about the need for the President to consult with Senators.  This President has been a model in that regard.  Unlike his predecessor, he has consulted with both Republican and Democratic home state Senators.  And unlike my predecessor, as Chairman of the Judiciary Committee, I have not proceeded with any nominee against the wishes of a home state Senator.  I have protected Republican home state Senators.  In return, I would expect Republican Senators to respect the views of other Senators and to work with the President. 

In 2005 they called for a return to our earlier practices and the reduction of rancor in the confirmation process and a return to the traditions of the Senate.   I have worked very hard to do just that. 

The signers of that 2005 Memorandum of Understanding, and the Senate, demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations.  They Senate invoked cloture on the nomination of Janice Rogers Brown to the D.C. Circuit.  She was a nominee who had argued that Social Security was unconstitutional, saying that “[t]oday's senior citizens blithely cannibalize their grandchildren.”  They agreed to invoke cloture on the nomination of Priscilla Owen to the D.C. Circuit, a nominee whose rulings on the Texas Supreme Court were so extreme they drew the  condemnation of other conservative judges on that court.  Alberto Gonzales, President Bush’s White House counsel and later his Attorney General, went so far as to describe one of her opinions as advocating “an unconscionable act of judicial activism.” 

By the standard utilized in 2005 to end filibusters and vote on President Bush’s controversial nominees, this filibuster should be ended and the Senate should vote on the nomination. 

There were no “extraordinary circumstances” to justify the Republican filibuster of Judge David Hamilton, President Obama’s very first judicial nomination.  David Hamilton of Indiana was a 15-year veteran of the Federal bench.  President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who then strongly supported the nomination.  Rather than welcome the nomination as an attempt by President Obama to step away from the ideological battles of the past, Senate Republicans ignored Senator Lugar’s support, caricatured Judge Hamilton’s record and filibustered his nomination.  After rejecting that filibuster, Judge Hamilton was confirmed.  

The Majority Leader has had to file cloture on four other highly qualified judicial nominations, and now Professor Liu’s nomination is the sixth. 

No Senator could claim the circumstances surrounding the filibusters of President Obama’s other circuit court nominations to be extraordinary.  Republicans filibustered the nomination of Judge Barbara Keenan, a nominee with nearly 30 years of judicial experience, and who had been the first woman to hold a number of important judicial roles in Virginia.  Once the filibuster was ended, she was ultimately confirmed 99-0 as the first woman from Virginia to serve on the Fourth Circuit. 

Senate Republicans filibustered the nomination of Judge Thomas Vanaskie, despite his 16 years of experience as a Federal District Court Judge in Pennsylvania.  That filibuster ended when the  Senate agreed to vitiate the cloture, end the filibuster, and proceed to a vote. There were no extraordinary circumstances.

 Last year Senate Republicans filibustered the nomination of the Judge Denny Chin, an outstanding judge with 16 years experience.  They delayed his Senate consideration without just cause for four months. When that filibuster was ended, the Senate proceeded to vote and confirmed the only active Asian Pacific American judge serving on the Federal appellate courts.  This nominee is likewise deserving of a vote and confirmation not being subjected to a partisan filibuster.

Following the recent filibuster of the nomination of Judge Jack McConnell to the District Court in Rhode Island, this filibuster is the sixth time the Majority Leader has had to seek cloture to bring a judicial nomination to a vote.

Attack’s on Professor Liu’s Record Unfounded

I said when the Committee held its unusual second hearing on this nomination at the request of the Republican members of the Committee that I hoped they would evaluate him fairly and with open minds.  Any Senator who listened to Professor Liu’s answers during his hours of live questioning at two confirmation hearings and considered his responses to hundreds of written follow-up questions should come away understanding that this is an exceptional lawyer and scholar who will make an outstanding judge, a judge who respects the rule of law and reveres the Constitution.  

Professor Liu’s answers under oath and his reputation as a well-respected constitutional law professor paint a very different picture than the caricature created by the attacks from special interest pressure groups.  Republican Senators did not wait for his hearing before declaring their opposition.  

Senator Feinstein noted at Professor Liu’s first hearing over a year ago that he has an extraordinary legal mind and is a person of integrity.  I agree.  No fair-minded person who watched his testimony last Congress, or his testimony earlier this year, can or should question his qualifications, talent or character, all of which are first rate.  Nobody can doubt his temperament.  He answered every question.  He assured the Committee time and time again that he understands the role of a judge and the need for a judge to follow the law and adhere to the rule of law.  He met every test presented to him by the Senators on the Judiciary Committee, Senators from both sides of the aisle.  He exceeds every standard we have used to measure judicial nominees. 

Yet, in the course of the debate on this nomination we have heard troubling and baseless attacks on Professor Liu’s character and integrity.  Incredibly, despite this nominee’s testimony at two confirmation hearings, and his answers to hundreds of written questions, he has been accused of lack of candor.  Professor Liu has not been a stealth nominee.  In fact, his record as a professor, public servant and advocate has been a remarkably open and public one.  Senators have been able to review an unprecedented volume of information provided by this nominee and ask him hundreds of questions about it.  He has been available to meet with Senators and many have taken him up on the opportunity.  So accusations that Professor Liu has been less than candid are misplaced, and a decision to simply ignore his record, his testimony before the Committee, and his assurances under oath that he understands the role of a judge and would follow precedent if confirmed is misguided.

The many letters of strong support we have received from conservatives and Republicans who have reviewed Professor Liu’s record and know the nominee show the hollowness of the partisan attacks on Professor Liu’s character.  In their letter, Ken Starr and Professor Amar describe Professor Liu as, “a person of great intellect, accomplishment and integrity.”  A bipartisan group of eight CEO’s based their support for Professor Liu’s nomination on their observation of “his character and intellect.”  A bipartisan group of 22 leaders in education law, policy and research cited Professor Liu’s “independence and intellectual honesty” as among the many of his exemplary traits leading them to support his nomination.  Senators can in good faith oppose this nomination, though I disagree with them, but the attacks on a fine man’s character have no place in this debate.

Nonetheless, each time the Judiciary Committee considered Professor Liu’s nomination – a total of three times – Republican Senators voted against.  When Senators are not willing to give serious and open-minded consideration to nominations it reduces the hearings and Committee process to a game of delay and partisan points-scoring.  That, too, is wrong.    

Michael McConnell’s Nomination

I urge Senators to reject the special interest pressure groups and to approach this nomination the way I approached a similar nomination of a law professor by President Bush, the nomination of Professor Michael McConnell to the Tenth Circuit.  He was a widely-regarded law professor.  Like Professor Liu, Professor McConnell was nominated to a Federal appeals court without having first served as a judge.  He was one of two dozen such nominations confirmed after being nominated by President Bush. 

Professor McConnell’s own provocative writings included staunch advocacy for reexamining the First Amendment Free Exercise Clause and the Establishment Clause jurisprudence.  He had expressed strong opposition to Roe v. Wade and to the clinic access law, and he had testified before Congress that he believed the Violence Against Women Act was unconstitutional.  Professor McConnell’s writings on the actions of Federal District Court Judge John Sprizzo in acquitting abortion protesters could not be read as anything other than praise for the extra-legal behavior of both the defendants and the judge. 

I had concerns that a conservative activist law professor nominated by President Bush, Professor McConnell, would turn out to be a conservative activist judge on the Tenth Circuit.  I was concerned about his refusal to take responsibility for his harsh criticism of the Supreme Court’s decision in the Bob Jones case.  But I put faith in Professor McConnell’s assurances that he understood the difference between his role as a teacher and advocate, and his future role as a judge.  He assured us that he respected the doctrine of stare decisis, and that as a Federal appeals court judge, he would be bound to follow Supreme Court precedent.  And I valued Senator Hatch’s support as his home state Senator.   

I supported the confirmation of Professor McConnell, as did other Democratic Senators.  He was reported favorably by the Judiciary Committee with my support, and he was confirmed to the Tenth Circuit by the Senate just one day after his nomination was reported.  I urge every Senator to treat Professor Liu with that same fairness. 

Numerous conservative legal scholars have praised Professor Liu’s understanding of constitutional law, stating that it falls well within the mainstream of American legal thought.  Nothing I have read or heard from Professor Liu gives me any reason to doubt his conviction about the critical importance of the rule of law as the guiding principle of judicial decision-making.  As a professor he has done what great professors do—challenge our view of the law.  But he has left no doubt that as a judge he would do what great judges do in applying the law fairly to each case.

I thank Professor Liu’s home state Senators, Senator Feinstein and Senator Boxer, for their staunch advocacy for his nomination.  I also thank the many Senators who have come to the floor to speak in support of Professor Liu’s nomination, including the Majority Leader, Senator Reid, the Assistant Majority Leader, Senator Durbin, and Senators Blumenthal, Coons, Cardin, Franken, and Lieberman.

I hope Senators from both sides of the aisle will join me in ending the filibuster of Professor Liu’s nomination.  He has demonstrated a command of the law and devotion to it.  He has shown that he understands the role of the judge and how it differs from his career as an advocate and an academic.  I hope Republican Senators will give the same weight to Professor Liu’s assurances that we did to Professor McConnell’s identical assurances and that the Senate will finally be able to consider and confirm this extraordinary nominee.

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