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Public Statements

Executive Session

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Location: Washington, DC

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Mr. COONS. 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. Much has been said on the Senate floor 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 6 months. As someone who is new to the Judiciary Committee, new to the debates and dialog of this Chamber, I am struck at the things I am hearing about Professor Goodwin Liu and the significant divergence between what I have found in questioning him, looking at his record, and speaking with my colleagues and what I have heard on the floor just today.

I will do my best to try and lay out what I see as the real record of the real Professor Goodwin Liu, a 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. 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 seem 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 may.

Professor Liu has apologized at length and in detail for the intemperate tone of one brief passage that he wrote as part of his testimony before the Judiciary Committee during the Alito nomination hearings now some 6 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 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 5 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.

I will comment for those following this debate that Professor Liu has been a prolific scholar and speaker. He is someone who has published extensively. He is someone who has spoken extensively. He is the first controversial circuit court nominee to have his nomination 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 bag lunch, every 5-minute speech, every off-the-cuff remark made by this nominee before us.

The argument that his need to supplement the record with some documents not initially produced and that somehow that reflects some lack of candor, and somehow that suggests a lack of truthfulness that should disqualify him not for a vote but not even for a consideration of a vote is wholly without merit.

As the White House Chief Ethics Counsel under President Bush, Richard Painter, has written: Professor Liu's ``original answers to the questions''--asked by the Judiciary Committee--``was a careful and good-faith effort to supply the Senate with the information it needed to assess his nomination.''

It means a great deal to me that someone such as Mr. Painter concluded that Professor Liu provided a lot more information than most nominees do in similar circumstances.

Frankly, it seems to me overreaching to try to suggest that simply because in the YouTube age this professor, who provided us with hours of testimony, pages of responses, failed to notice the committee about some brown bag lunches and off-the-cuff comments rises 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 conducting a confidential and 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 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 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 suggestions that Professor Liu is 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, 14 nominees younger than Professor Liu--advanced by Republican Presidents--have all been confirmed. For example, Judge Neil Gorsuch, on the Tenth Circuit, was 38 when nominated; Judge Brett Kavanaugh, an acquaintance and, I would say, friend of mine from law school--now on the DC Circuit--was 38 when nominated; and 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 Judge Frank Easterbrook and J. Harvie Wilkinson were both under 40 when nominated without any practicing legal experience at all. Yet this lack of practical experience didn't prevent either of these judges from becoming the most well respected and widely regarded in their circuits.

I would ask my colleagues to seriously consider looking instead 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 and 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-to-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 canon at 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 1 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 and 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 answer to hundreds of written questions from members of the committee as well as in answer to challenges presented here.

Let me next turn to some challenges or concerns that have been raised about Professor Liu's view on education. A bipartisan group of 22 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 outstanding academic qualifications and the proper temperament to be a fair and disciplined judge.

Later, they wrote in this letter:

His work is nuanced and balanced, not dogmatic or ideological.

Madam President, I ask unanimous consent to have printed in the Record the letter to which I just referred.

There being no objection, the material was ordered to be printed in the Record, as follows:

March 23, 2010.
Re Federal Judicial Nomination of Goodwin H. Liu, U.S. Court of Appeals for the Ninth Circuit.

Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Committee on the Judiciary, U.S. Senate, Washington, DC.

Dear Chairman Leahy and Ranking Member Sessions: We are a bipartisan group of 22 leaders in education law, policy, and research who support the nomination of Professor Goodwin Liu to be a judge on the U.S. Court of Appeals for the Ninth Circuit. Your committee will undoubtedly receive much commentary about Professor Liu's scholarly work in constitutional law. We write to highlight his scholarship and reputation in the field of education law and policy. Collectively, we have read his work in this area; we have seen him speak at many panels and conferences; and some of us have worked closely with him on research projects or on policy issues when he served in the U.S. Department of Education. Based on his record, we believe Professor Liu is a careful, balanced, and intellectually honest scholar with outstanding academic qualifications and the proper temperament to be a fair and disciplined judge.

Professor Liu is one of the nation's leading experts on educational equity. His scholarly work on topics such as school choice, school finance, desegregation, and affirmative action is unified by a deep and abiding concern for the needs of America's most disadvantaged students. In analyzing problems and proposing solutions, Professor Liu's writings are thorough, pragmatic, and scrupulously attentive to facts and evidence. His work is nuanced and balanced, not dogmatic or ideological. For example:

He has argued for more resources for low-performing schools while also advocating greater opportunities, including school vouchers, to enable disadvantaged students to choose better schools.

He has argued for greater equity in school finance while also urging reforms that would loosen regulations and increase local control over spending decisions.

He has praised the No Child Left Behind Act for focusing education policy on achievement outcomes and inequities while also urging reforms to ameliorate the Act's unintended negative consequences.

He has argued that the Fourteenth Amendment guarantee of national citizenship encompasses a duty to provide adequate education while emphasizing that the responsibility for enforcement belongs to Congress, not the judiciary.

He has written in support of affirmative action while also emphasizing that affirmative action primarily benefits middle- and high-income minorities and does not do enough to promote socioeconomic diversity.

We do not necessarily agree with all of Professor Liu's views. But we do agree that his record demonstrates the habits of rigorous inquiry, open-mindedness, independence, and intellectual honesty that we want and expect our judges to have. His writings are meticulously researched and carefully argued, and they reflect a willingness to consider ideas on their substantive merits no matter where they lie on the political spectrum. Moreover, we are confident in Professor Liu's ability to decide cases based on the facts and the law, regardless of his policy views. His scholarship amply demonstrates that kind of intellectual discipline, and our high regard for his work is widely shared. Indeed, the Education Law Association selected Professor Liu in 2007 to be the first-ever recipient of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law.

In short, Professor Liu is exceptionally qualified to serve on the federal bench. He would make an outstanding judge, and we urge his speedy confirmation.

Sincerely,

Cynthia G. Brown, Vice President for Education Policy, Center for American Progress Action Fund.

Michael Cohen, President, Achieve, Inc.; Assistant Secretary for Elementary and Secondary Education, U.S. Department of Education, 1999-2001.

Christopher T. Cross, Chairman, Cross & Joftus LLC; Assistant Secretary for Educational Research and Improvement, U.S. Department of Education, 1989-91.

Linda Darling-Hammond, Charles E. Ducommun Professor of Education, Stanford University.

James Forman Jr., Professor of Law, Georgetown University Law Center; Co-Founder and Board Chair, Maya Angelou Public Charter School.*

Patricia Gándara, Professor of Education and Co-Director of The Civil Rights Project/Proyecto Derechos Civiles, UCLA.

James W. Guthrie, Senior Fellow and Director of Education Policy Studies, George W. Bush Institute.

Eric A. Hanushek, Paul and Jean Hanna Senior Fellow, Hoover Institution, Stanford University.

Frederick M. Hess, Director of Education Policy Studies American Enterprise Institute.

Paul Hill, John and Marguerite Corbally Professor and Director of the Center on Reinventing Public Education, University of Washington.

Richard D. Kahlenberg, Senior Fellow, The Century Foundation.*

Joel I. Klein, Chancellor, New York City Department of Education; Assistant Attorney General, Antitrust Division, U.S. Department of Justice, 1997-2001.

Ted Mitchell, President and Chief Executive Officer, NewSchools Venture Fund.

Gary Orfield, Professor of Education, Law, Political Science, and Urban Planning and Co-Director of The Civil Rights Project/Proyecto Derechos Civiles, UCLA.

Michael J. Petrilli, Vice President for National Programs and Policy, Thomas B. Fordham Institute; Research Fellow, Hoover Institution, Stanford University; Associate Assistant Deputy Secretary, Office of Innovation and Improvement, U.S. Department of Education, 2001-05.

Richard W. Riley, Partner, Nelson Mullins Riley & Scarborough LLP; U.S. Secretary of Education, 1993-2001; Governor of South Carolina, 1979-87.

Andrew J. Rotherham, Co-Founder and Publisher, Education Sector.

James E. Ryan, William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law.

William L. Taylor, Chairman, Citizens' Commission on Civil Rights.

Martin R. West, Assistant Professor of Education, Harvard University.

Judith A. Winston, Principal, Winston Withers & Associates, 2002-2009; General Counsel, U.S. Department of Education, 1999-2001, 1993-97.

Bob Wise, President, Alliance for Excellent Education; Governor of West Virginia, 2001-2005; Member, U.S. House of Representatives, 1983-2001.

(* affiliation listed for identification purposes only)

Mr. COONS. Madam President, during his confirmation hearings, Professor Liu said this, in testifying before 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.

Professor Liu also stated to the committee:

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 of 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 who are 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 decision in Parents Involved v. Seattle School District, which struck down a specific desegregation program, five of the nine Justices who made up the majority agreed with Liu that achieving diversity remains a compelling governmental interest.

The notion that somehow Professor Liu is an idealog 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 has written in support of, school choice and school vouchers, stating they have a role to play in improving educational opportunities 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 previously by my colleague, Senator Boxer--has written:

I have known Professor Liu ..... since reading an influential law review article he coauthored ..... supporting school choice as a solution to the crisis of inner-city public education. It took a great deal of courage for [him] to take such a strong public position ..... I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty.

He closes his letter by saying:

He clearly possesses the scholarly credentials and experience to serve with distinction on this important court.

Professor Liu has, in my view, made very clear that he understands the difference between being a law professor, a scholar and advocate, and a judge. He has assured us during his nomination hearings before the committee and again in personal conversations with me 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 precedents to the facts of each case.

As I said before, and I will say again, I believe this quote 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 in this Chamber. To speak otherwise 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 recently about whether Professor Liu believes Americans have a constitutional right to welfare benefits, such as education, shelter, or health care; and, if confirmed, would somehow declare those constitutional rights from the bench.

Professor Liu has authored, as I have said, many different Law Review articles, and in one, the 2008 Stanford Review Article, entitled, ``Rethinking Constitutional Welfare Rights,'' he, in fact, criticized 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 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 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 the Members of this body that--new to this body, new to the fights that have divided this Chamber and have deflected real deliberation on nominees to circuit courts and the Supreme Court--I have taken the time to review his writings, to interview him individually, to attend the 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 have become mired in partisanship rather than allowing debate and votes on this floor, which, in my view, if we followed the best traditions of this body, would lead to the confirmation of Goodwin Liu to the Ninth Circuit.

Madam President, I yield the floor.

BREAK IN TRANSCRIPT


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