Executive Session

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Mr. McCAIN. Madam President, as a member of the Gang of 14 in 2005, I agreed that ``Nominees should be filibustered only under extraordinary circumstances.'' The nomination of Mr. Liu rises to a level of ``extraordinary circumstances'' due to his clear belief that judges have vast powers to shape and even rewrite the law--a contention I deeply oppose as an elected representative of the people who believes it is the duty of the Congress to shape and write the laws and not that of the judiciary.

With no litigation or judicial experience to examine, the Senate can only consider Mr. Liu's academic writings and public comments. These writings and his testimony before the Senate Judiciary Committee show Mr. Liu believes that the Constitution is a living, breathing document that must change to accommodate new progressive ideas. Specifically, Mr. Liu has said, ``The Framers deliberately chose broad words so they would be adaptable over time.''

Additionally, in a November 2008 article published in the Stanford Law Review, Mr. Liu wrote,

The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus.

Mr. Liu's remarks show that he does not subscribe to the philosophy that Federal judges should respect the limited nature of judicial power under our Constitution. Judges who stray beyond their constitutional role believe that judges somehow have a greater insight into the meaning of the broad principles of our Constitution than representatives who are elected by the people. These activist judges assume that the judiciary is a superlegislature of moral philosophers.

Despite this difference in judicial philosophy, I believe Mr. Liu has had a remarkable career in academics and has an inspiring life story as the child of immigrants from Taiwan. However, an excellent resume and an inspiring life story are not enough to qualify one for a lifetime of service on the Federal bench. Those who suggest otherwise need only to be reminded of Miguel Estrada who was filibustered by the Democrats seven times because many Democrats disagreed with Mr. Estrada's judicial philosophy. This was the first filibuster ever to be successfully used against a court of appeals nominee.

I supported Mr. Estrada's nomination to the DC Circuit Court of Appeals, not because of his inspiring life story or impeccable qualifications, but because his judicial philosophy was one of restraint. He was explicit in his writings and responses to the Senate Judiciary Committee that he would not seek to legislate from the bench.

Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And, as I stated earlier, regardless of one's success in academics and in government service, an individual who does not appreciate the commonsense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the Federal bench. For this reason, and no other, I am unable to support Mr. Liu's nomination.

Shaping the judiciary through the appointment power is one of the most important and solemn responsibilities a President has and certainly one that has a profound and lasting impact. The President is entitled to nominate those whom he sees fit to serve on the Federal bench, and unless the nominee rises to ``extraordinary circumstances,'' I have provided my constitutional duty of ``consent'' for most nominees.

I regret I am unable to do so for Mr. Liu, but I believe his inability to respect the limited nature of the judicial power under our Constitution should preclude him from a lifetime appointment to the Ninth Circuit Court of Appeals.

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