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.

Constitutional Philosophy

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.