Executive Session

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Mr. DURBIN. Madam President, at 2 o'clock we will have a vote on the Senate floor. A man is seeking a judgeship. There is no question in anybody's mind that this is a judgeship that should be filled. Professor Goodwin Liu wants to serve in the U.S. Circuit Court of Appeals for the Ninth Circuit. He was nominated in February of 2010. Here we are in May of 2011. The significance of that delay is the fact that this is a vacancy that causes a problem. The Administrative Office of the U.S. Courts--no political office but the court's office--declared a judicial emergency in this circuit and said they need this vacancy filled. So nobody questions that there is at least a sense of urgency in filling the seat.

So you ask yourself, if the President nominated someone back in February of 2010, why in May of 2011 are we just getting around to it? I think that question needs to be directed to the other side of the aisle. They have found reasons to delay this and to raise questions which have brought us to this moment.

So how about this professor? Is he qualified to serve at the second highest level of courts in America on the Ninth Circuit? The American Bar Association did not waste any time evaluating Professor Goodwin Liu. They awarded him their highest possible rating--``unanimously well-qualified.'' If we look at his background, it is no surprise.

The son of immigrants, he attended Stanford University, where he graduated Phi Beta Kappa. He won a Rhodes Scholarship, attended Yale Law School, where he was editor of the Yale Law Review. He served as a law clerk to Judge Tatel of the DC Circuit and to Supreme Court Justice Ruth Bader Ginsburg.

After finishing his second clerkship, the one at the Supreme Court, he worked for years at the law firm of O'Melveny & Myers in Washington. Then he joined the faculty at the University of California-Berkeley Law School. He has won numerous awards for his teaching and academic scholarship, including the highest teaching award given at the Cal-Berkeley Law School.

What is the point of this debate? We know he is well qualified. We know there is a judicial emergency that requires us to fill this seat--and we should have done it a long time ago. When we look at his resume, it would put every lawyer, including myself, to shame, when we consider all that he has done leading up to this moment in his career.

It turns out those who oppose him do not oppose his qualifications. They think he has the wrong philosophy, the wrong values. They criticize him for a handful of statements he made while he served as a professor. Isn't it interesting, the double standard that is being applied?

I was here in 2002 when a Tenth Circuit Court of Appeals nominee by the name of Michael McConnell was up to be considered. He had been a law professor at the University of Utah and the University of Chicago. At his nomination hearings, Senator Orrin Hatch, who strongly supported his nomination, said:

I think we should praise and encourage the prolific exchange of honest and principled scholarly writing, assuming such scholars know the proper role of a judge to interpret the law as written and to follow precedent.

What was Senator Hatch defending in Professor McConnell's background? It was the fact that he had called Roe v. Wade, a landmark Supreme Court decision, ``illegitimate.'' Professor McConnell had defended Bob Jones University's racist policies on the grounds that they were ``church teachings,'' even though the Supreme Court rejected his argument in an 8-to-1 decision, and he claimed the Violence Against Women Act was unconstitutional.

That was fodder for a lot of questions that should have been asked and were asked. He had made some very extreme statements as a professor. But Professor McConnell assured the Senate that when he left the classroom and entered the courtroom he would put his views aside and follow the law. The Senate did not stop him with a filibuster. The Senate took Professor McConnell at his word and gave him an up-or-down vote on the Senate floor, and he was confirmed. That is all we are asking for when it comes to Professor Liu. I point out that other well-respected Federal judges have also served in academic roles before coming to the bench.

Richard Posner of the Seventh Circuit in Chicago is a friend of mine. Every once in a while we get together for an amazing lunch. He is such a brilliant guy. We disagree on so many things, but I can't help but sit there in awe of this man's knowledge of the law and of the world and his prolific authorship of books on so many subjects.

I think most would agree he has taken some pretty controversial views himself. In a 2005 debate on civil liberties with Geoffrey Stone, Judge Posner said:

Life without the self-incrimination clause, without the Miranda warnings, without the Fourth Amendment's exclusionary rule, with an unamended USA PATRIOT Act, with a depiction of the Ten Commandments on the ceiling of the Supreme Court, even life without Roe v. Wade would still, in my opinion anyway, be eminently worth living.

Is there any fodder there for political commentators? He was a sitting judge when he said that. Some of my friends on the left would have had a field day with that quote.

Some of my friends on the right might have disagreed strongly with Judge Posner when he wrote an article about the 2008 Supreme Court decision in DC v. Heller, a case where the court stated the Second Amendment right to bear arms confers an individual right. Judge Posner wrote that the Court's decision in Heller ``is questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.''

I suspect there are a lot of Senators on the other side of the aisle who disagree with that quote.

So let's get down to the bottom line. We recognize the value of academic freedom and discourse. We understand a professor has a different role in America than someone sitting on a bench judging a case. We trust them. We give them basic credit for integrity when they say they can separate the two lives. They understand the two responsibilities.

Professor Liu is a man widely recognized for his integrity and independence. That is why he has the support of prominent conservative lawyers. Kenneth Starr--no hero on the Democratic side of the aisle--has said he would be a great judge. Bob Barr, former Republican Congressman, and Goldwater Institute Director Clint Bolick express support for Liu's nomination. In fact, Ken Starr and Yale law Professor Akhil Amar wrote:

[I]n our view, the traits that should weigh most heavily in the evaluation of an extraordinarily qualified nominee such as Goodwin are professional integrity and the ability to discharge faithfully an abiding duty to follow the law. Because Goodwin possesses these qualities to the highest degree, we are confident he will serve on the Court of Appeals not only fairly and competently, but with great distinction. We support and urge his speedy confirmation.

Well, we are not going to grant their wishes with a speedy confirmation; the question is whether 60 Senators will decide that Professor Goodwin Liu is entitled to a vote--a vote--an up-or-down vote--in the Senate.

Professor Liu said at his confirmation hearing:

[T]he role of a 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 this case.

Professor Liu is committed to respect and follow the judicial role. I am confident he will fulfill that role with distinction.

This is a good man, a great lawyer, an extremely well-qualified nominee. His nomination has been languishing before this Senate since February of last year. He has had to put his life on hold in many respects waiting for the Senate to act.

We will have a cloture vote in about an hour. I think we know what is going on here. For many on the other side of the aisle, they are guided by advisers who tell them: Keep as many critical judicial posts open for as long as possible. Help is on the way in the next election. We don't want to allow this President to fill these vacancies, and particularly when it comes to the circuit courts because of the tremendous responsibility and opportunity there is for important and historic decisions.

So Professor Liu has been caught in this maelstrom. He is now going to be subjected to this filibuster vote. I sincerely hope my colleagues will be fair and honest in their vote. I hope they will look at the obvious record of this man to fill an important vacancy, a man found unanimously ``well qualified'' by the American Bar Association, a person with a legal resume that is peerless, someone who has stated purely and unequivocally that he will follow the law. To dwell on statements he has made as a professor is to do a great disservice to academic freedom and to ignore the obvious. When Republican nominees came before us, we have used our discretion to separate out their academic lives with their promise that as judges they will look at the world in a very sober, honest way.

I intend to vote in support of cloture and in support of this nomination. I urge my colleagues to do the same.

Madam President, I yield the floor.

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