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Statement On The Nomination Of Goodwin Liu

Thursday, May 19, 2011

(As Prepared for Delivery)

I rise today to speak in support of the confirmation of Professor Goodwin Liu to the United States Court of Appeals for the Ninth Circuit.

As a member of the Judiciary Committee for the past two years, I've had the opportunity to meet with Professor Liu and vote on his nomination on several occasions. He is a singularly talented individual. And I want to associate myself with the remarks that all of my colleagues have made in support of his confirmation.

But the strongest arguments I've heard in support of Professor Liu haven't come from my colleagues. In fact, they haven't even come from a Democrat.

No, the most persuasive arguments I've heard for confirming Professor Liu have come from the former chief ethics lawyer for the administration of President George W. Bush, a gentleman named Richard Painter. Professor Painter-a Republican-is now a prominent law professor at the University of Minnesota.

Earlier this year, Professor Painter wrote a lengthy article that systematically catalogued Professor Liu's strengths and systematically answered his critics. This is his conclusion, and I quote, "In sum, Liu is eminently qualified. He has support from prominent conservatives. [...] He is pragmatic and open-minded, not dogmatic or ideological [...] Many, though by no means all, of his scholarly views do not align with conservative ideology or with the policy positions of many elected officials in the Republican Party. [...] Nevertheless, his views are part of the American legal mainstream. The independence, rigor, and fair-mindedness of his writings support a confident prediction that he will be a dutiful and impartial judge."

Now, when I circulated Professor Painter's article to the members of the Judiciary Committee, my Republican colleagues sent me a series of articles critiquing Professor Liu. I would like to take a few moments to rebut the criticisms in these articles-because they simply don't hold water.

The first and most common criticism of Goodwin Liu is that he somehow believes in a so-called living Constitution. His opponents are especially worried about his suggestion that in interpreting the Constitution, judges should consider the, quote "evolving norms and traditions of our society."

Professor Liu has written an entire book about his theory of constitutional interpretation. On page 2 of that book, he writes that we need to consider a lot of different things when we interpret the Constitution.

We need to consider the original understanding of the framers. We need to consider the purpose and structure of the Constitution. We need to consider precedent. We need to consider the practical consequences of our laws. And, lastly, we need to consider the evolving norms and traditions of our society. So this is just one thing-one thing-that we should take into account.

But even more importantly, this idea that we should merely consider the evolving standards of our society in interpreting the Constitution is not a radical idea. In fact, it isn't even a new idea.

This issue frequently comes up in Fourth Amendment cases. Over 40 years ago, in a 1967 case called U.S. v. Katz, the Supreme Court was asked to determine whether a wiretap constituted a search under the Fourth Amendment. If it did, law enforcement would have to get a warrant to get a wiretap.

The problem was that the Founders never anticipated the telephone, let alone the wire to the telephone. So this was a new question for the Court. But the Court voted 7 to 1 to find that a wiretap was in fact a search under the Fourth Amendment. And one of the main reasons they cited was that people in modern society had come to expect and assume that their phone calls were private. Two years later in a separate case called Smith v. Maryland, the Court formally adopted the rule that the Fourth Amendment will protect people where our society recognizes a reasonable expectation of privacy. So for forty years, it has been the law of this land that you have to look at social norms when interpreting the Fourth Amendment.

 Here's another example-one that Senator Feinstein cited but bears repeating. This is what Chief Justice Marshall said about the Necessary and Proper Clause in McCulloch v. Maryland: "[t]his provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

McCulloch v. Maryland was decided in 1819. So the idea that we should merely consider the state of our society when we interpret the Constitution isn't new. It's old. It's really old. In fact, it's arguably older than the Senate chamber that we're standing in today, which first opened in 1859.

Professor Liu's detractors have also accused him of believing that judges may, quote, "legitimately invent constitutional rights to a broad range of social ‘welfare' goods, including education, shelter, subsistence, and health care." This argument is based on an article Professor Liu wrote in 2008.

But if you actually read the article, you'll find this statement right in the introduction: "[B]ecause the existence of any welfare right depends on democratic instantiation of our shared understandings, the judiciary is generally limited to an interstitial role within the context of a legislated program. Courts do not act as ‘first movers' in establishing welfare rights [...]"

In other words, Professor Liu is being accused of saying that judges can invent welfare rights because of an article he wrote where he said that judges cannot invent welfare rights.

The final thing I want to address is the idea that Professor Liu somehow supports, quote, "using foreign law to redefine the Constitution." Professor Liu's critics cite an obscure speech that he gave at a Japanese law school five years ago. According to his critics he said in this speech that it is, quote "difficult for him to grasp how anyone could resist the use of foreign authority in American constitutional law."
Well, I went and got a copy of the speech. And if you read it, you'll see that Professor Liu was referring to a series of Supreme Court decisions written by Justice Anthony Kennedy where Justice Kennedy reviewed the laws of foreign countries on certain issues.

Justice Kennedy didn't use the laws of foreign countries to decide the case before him. He used them to get a sense of how other countries were resolving the legal issues before him.

Professor Liu was basically saying that he found it difficult to grasp how people could disagree with Justice Kennedy. He has repeatedly said in testimony, under oath, that he does not believe that foreign law should be binding, in any way, on federal law.

There are other critiques against Professor Liu. I won't go into them further here. But I urge my colleagues to dig behind these blanket statements. To paraphrase Gertrude Stein, I think you will find that there is no there there. I think what my colleagues will find is an extraordinary intellect. A fundamentally decent man. And someone who will be a strong and impartial jurist. I urge my colleagues to vote for cloture and vote to support his nomination, and I yield the floor.


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