May 19 2011
Several of my colleagues have expressed a number of concerns about the nomination of Goodwin Liu. I share many of those concerns and do not wish to belabor the points they have already made. I will limit my comments to two fundamental reasons why I find myself unable to support the nomination of Professor Liu to serve as a Judge on the U.S. Court of Appeals for the Ninth Circuit.
Attack on Justice Alito
First, I am truly dismayed by the lack of judgment displayed in Professor Liu’s 2006 testimony regarding the confirmation of Samuel Alito as an Associate Justice of the Supreme Court. Throughout extensive written testimony and during an appearance before the Senate Judiciary Committee, Professor Liu unfairly criticized then-Judge Alito’s long judicial record as, among other things, having “shown a uniform pattern of excusing errors and eroding norms of basic fairness.” In particular, the final paragraph of Professor Liu’s written testimony—which served as a summary of his analysis—was nothing short of inflammatory. He wrote:
“Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man . . . .”
Professor Liu’s unseemly attack on Justice Alito generated considerable attention at the time—as well as understandable concern about Professor Liu’s temperament, judgment, and ability to be fair.
So far as I know, it was only after he was nominated to become a judge that Professor Liu offered any apology for his testimony about Justice Alito. Just a few weeks ago, Professor Liu told members of the Judiciary Committee that he had learned from the outrage his remarks caused “that strong language like that is really not helpful in this process.” Professor Liu’s observation is true, but it misses the central point. His comments about Justice Alito were offensive not simply because they were unhelpful in his confirmation process, but because they were a misleading and unwarranted personal attack on a dedicated public servant.
Professor Liu’s treatment of Justice Alito, and his last minute and incomplete handling of the concerns raised by his remarks, lead me to believe that he lacks the judgment and discretion to be confirmed to a life-tenured position in the judiciary.
The second reason I am bound to oppose this nomination has to do with the integrity of our nation’s system of constitutional government. In my careful and considered judgment, the judicial philosophy espoused by Professor Liu is fundamentally inconsistent with the judicial mandate to be a neutral arbiter of the Constitution and to uphold the rule of law.
I do not base this conclusion on the fact that his approach to the law is in many respects different from my own. Most of the judges nominated by President Obama do not share my textualist and originalist commitments. Yet in my short time as a member of the Senate I have voted to confirm many nominees with whom I fundamentally disagree.
Professor Liu, by contrast, is not simply a progressive nominee with a somewhat more expansive view of constitutional interpretation than is common among many sitting judges. Nor is he a nominee whose few controversial remarks can be overlooked given a long history of mainstream legal practice.
Throughout the course of numerous speeches, articles, and books, Professor Liu has championed a philosophy that in my judgment is incompatible with faithfully discharging the duties of a federal appellate judge in our constitutional republic. His approach advocates that judges go far beyond the written Constitution, statutes, and decisional law to ascertain and incorporate into constitutional law—in Professor Liu’s own words—“shared understandings,” “evolving understandings,” “social movements,” and “collective values.”
In a 2008 Stanford Law Review article describing the judicial role, Professor Liu wrote: “[T]he 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.” In so framing the process of judicial decision making, he advocated a conception of the judiciary as a “culturally situated interpreter of social meaning.”
In a 2009 book entitled Keeping Faith with the Constitution, he wrote that constitutional interpretation rightly “incorporates the evolving understandings of the Constitution forged through social movements, legislation, and historical practice.”
In an interview later that year, Professor Liu suggested that the judicial role is an individual process that includes “lessons learned from experience, and an awareness of the evolving norms and social understandings of our country.”
These are just a few brief examples of a clear, consistent, and extreme approach to judging that Professor Liu has championed in many settings and over the course of many years. His approach necessarily requires a judge to violate separation of powers principles, making law based on the judge’s subjective understanding of public opinion, communal values, historical trends, or personal preferences, rather than faithfully interpreting and applying the laws made by the legislative and executive branches.
A noted judge who faithfully served in the role to which Professor Liu has been nominated, and who as a result was intimately familiar with the very real dangers of legislating from the bench, shared this vital insight: “It is as important to freedom to confine the judiciary’s power to its proper scope as it is to confine that of the President, Congress, or state and local governments. Indeed, it is probably more important, for only courts may not be called to account by the public.”
I rise today in defense of our nation’s constitutional separation of powers and, ultimately, in defense of the essential liberty that it protects.
Professor Liu’s appalling treatment of Justice Alito leaves grave doubt in my mind as to whether he possesses the requisite judgment to serve as a life-tenured judge. And I have come to the conclusion that Professor Liu’s extreme judicial philosophy is simply incompatible with the proper role of a judge in our constitutional republic.
For these reasons, as well as those articulated by many of my colleagues, I am compelled to oppose this nomination.