Remarks in Support for the Nomination of Goodwin Liu

I rise in support of the nomination of Professor Goodwin Liu to serve on the U.S. Circuit Court of Appeals for the Ninth Circuit.


Professor Liu has been nominated to fill a seat that has been vacant since January 2009. This vacancy has been declared a judicial emergency by the non-partisan Administrative Office of the United States Courts.


So no one questions that this seat needs to be filled.


Professor Liu is eminently qualified


And no one can seriously question Professor Liu’s qualifications to fill this seat.


Professor Liu is eminently qualified to serve as a federal appellate judge.


The son of Taiwanese immigrants, he attended Stanford University where he graduated Phi Beta Kappa and won a Rhodes Scholarship.


He then attended Yale Law School, where he was an editor of the Yale Law Review.


He served as a law clerk to Judge David Tatel of the D.C. Circuit and to Supreme Court Justice Ruth Bader Ginsburg.


After finishing his Supreme Court clerkship, he worked for several years at the law firm O’Melveny & Myers in Washington, and then he joined the faculty at the University of California-Berkeley law school.


Professor Liu has won numerous awards for his teaching and academic scholarship, including the highest teaching award given at the Cal-Berkeley law school.


The American Bar Association evaluated Professor Liu and awarded him their highest rating – unanimously well qualified – for this judgeship.


Controversies about Liu’s academic statements


Those who oppose Professor Liu’s nomination don’t question his qualifications. Instead their opposition is ideological. They criticize Professor Liu for a handful of statements he made while serving as an academic.


But there is a key difference between the role of a scholar and the role of a judge, and the Senate has historically recognized this difference.


In 2002, the Senate confirmed by voice vote a nominee for the 10th Circuit Court of Appeals – Michael McConnell – who had previously been a law professor at the University of Utah and the University of Chicago.


At Professor McConnell’s nomination hearing, Senator Hatch 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.”


Professor McConnell had authored many controversial articles and statements. For example:


  • He had called Roe v. Wade “illegitimate.”
  • He had defended Bob Jones University’s racist policies on the grounds they were “church teachings,” even though the Supreme Court rejected that theory in an 8-1 decision.
  • And he had claimed that the Violence Against Women Act was unconstitutional.


Those were considered to be pretty extreme statements. 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 took Professor McConnell at his word, and as a result, he was given an up-or-down vote on the floor and was confirmed.


Even current judges say provocative things in scholarly writings.


I would point out that there are other well-respected federal judges who have also served in an academic role even while serving on the bench.


For example, let’s take Judge Richard Posner of the 7th Circuit Court of Appeals. Judge Posner is a friend of mine. He has long taught at the University of Chicago Law School and is a prolific writer of scholarly articles.


Some of Judge Posner’s scholarly writings have been considered provocative.


For example, in a 2005 debate on civil liberties with his University of Chicago colleague 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.”


Some of my friends of the left may have an ideological disagreement with Judge Posner on this statement.


And some of my friends on the right may strongly disagree with an article Judge Posner wrote about the Supreme Court’s 2008 decision in District of Columbia v. Heller – the case in which the Court stated that the Second Amendment 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 many in this body who would disagree with these two statements that Judge Posner made in an academic context. But I suspect no one in this body questions that Judge Posner is well qualified to continue serving as a federal judge.


We recognize the value of academic freedom, and we respect the ability of people like Judge Posner not to let their academic work affect their judicial responsibilities. Persons of integrity are able to make the shift between the scholarly role and the judicial role.


Professor Liu is a good man who deserves a vote


Professor Liu is a man widely recognized for his integrity and independence. These qualities have led prominent conservative lawyers like Kenneth Starr, Bob Barr, and Goldwater Institute Director Clint Bolick to express support for Professor Liu’s nomination.


For example, Ken Starr and Yale Law professor Akhil Amar wrote this of Professor Liu:


“[I]in 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 those qualities to the highest degree, we are confident that he will serve on the court of appeals not only fairly and competently, but with great distinction. We support and urge his speedy confirmation.”


Like Professor McConnell, Professor Liu knows the difference between the role of a scholar and the role of a judge.


Professor Liu said at his confirmation hearing that


“the 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 the case.”


Professor Liu has committed to respect and follow the judicial role. I am confident that he will fulfill that role admirably.


This is a good man, and an extremely well qualified nominee. His nomination has been lingering before the Senate since February 2010. He has had to put his life on hold in many respects while waiting for the Senate to act.


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