Senate Proceeding on May 18th, 2011 :: 6:16:30 to 6:40:30
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6:16:12 to 6:16:33( Edit History Discussion )

Chuck Grassley: in the short time that we have been in session this year, we've confirmed 24 judges. that's a rate almost of one judge every other day. this year the committee has favorably reported 51% of president obama's nominees. yet, it seems that the more we work with the majority on filling vacancies, the more

6:16:30 to 6:40:30( Edit History Discussion )
Speech By: Chuck Grassley

6:16:34 to 6:16:56( Edit History Discussion )

Chuck Grassley: complaints that we hear. furthermore, as we work together to confirm consensus nominees, we're met with the majority's insistence that we turn to controversial nominees like the one before us today, goodwin liu. because this seems to be the

6:16:57 to 6:17:18( Edit History Discussion )

Chuck Grassley: most controversial of the president obama nominees we've had to this point. i have pledged and indeed i have demonstrated cooperation in moving forward on consensus nominations. there is no doubt that mr. liu does not fall into that category of being a consensus nominee.

6:17:19 to 6:17:40( Edit History Discussion )

Chuck Grassley: my objections to this nominee can be summarized in five areas of concern: his controversial writings and speeches and actist judicial philosophy, his lack of judicial temperament, his troublesome testimony and lack

6:17:41 to 6:18:01( Edit History Discussion )

Chuck Grassley: of candor before the committee. and, five, his limited experience. mr. liu describes his writings as critical, infective and provocative, and that's really what they are. he states that he is simply a commentator, and his role is

6:18:02 to 6:18:22( Edit History Discussion )

Chuck Grassley: merely to poke, prod, and critique. the problem i have with this is that his legal scholarship goes well beyond simple commentary. the nominee argues that the 14th amendment creates a constitutional right to some minimal level of public welfare benefits.

6:18:23 to 6:18:44( Edit History Discussion )

Chuck Grassley: that's a real reach. he has said that -- quote -- "the duty of government cannot be reduced to simply providing the basic necessities of life, the main pillars of the agenda would include expanded health insurance, child care, transportation subsidies, job

6:18:45 to 6:19:05( Edit History Discussion )

Chuck Grassley: training, and robust earned-income tax credit. there is no doubt that those may be policy issues congress ought to deal with, but it's a real stretch to say that there are constitutionally protected right. mr. liu is a strong proponent of

6:19:06 to 6:19:28( Edit History Discussion )

Chuck Grassley: affirmative action and the constutionality of affirmative action. celebrating the supreme court's decision in grutter versus bollinger, he says -- quote -- "achieving racial diversity throughout our leading educational institutions is not merely constitutionally permissible, but morally required."

6:19:29 to 6:19:50( Edit History Discussion )

Chuck Grassley: he believes ban on gay marriages are unconstitutional. the nominee was one of several law professors who filed a brief with the california supreme court in a suit seek to have the california same-sex marriage prohibition declared unconstitutional. these statements, just a sample

6:19:51 to 6:20:12( Edit History Discussion )

Chuck Grassley: of his works, are not merely scholarly reflection on the state of law. instead they are a prescription for change, big change. he stated following president obama's election in an interview with npr's "weekend edition," -- quote -- whereas i think in the

6:20:13 to 6:20:34( Edit History Discussion )

Chuck Grassley: last seven or eight years we had mostly been playing defense in the sense we had been trying to prevent as many, in our view, bad things from happening; now we have the opportunity to actually get our ideas and the progressive vision of the constitution and laws and policies into practice." end of quote.

6:20:35 to 6:20:55( Edit History Discussion )

Chuck Grassley: mr. liu holds a view of the constitution that can only be described as an activist judicial philosophy. the centerpiece of his judicial philosophy, a theory that he describes as constitutional fidelity, sounds nice until you learn what it actually means.

6:20:56 to 6:21:16( Edit History Discussion )

Chuck Grassley: what he means by fidelity is -- quote -- "the constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every single generation." continuing, he states "on this

6:21:17 to 6:21:39( Edit History Discussion )

Chuck Grassley: approach, the constitution is understood to grow and evolve over time as the conditions and needs and values of our society changes." that's not a far cry from the unwritten constitution of the great britain where the

6:21:40 to 6:22:00( Edit History Discussion )

Chuck Grassley: supremacy of parliament makes a determination from time to time what the policies are as opposed in this country where the natural law or the laws that are -- the rights that we have given to us by our creator, not by government, are the basis of our law. when i questioned the nominee at

6:22:01 to 6:22:21( Edit History Discussion )

Chuck Grassley: his hearing regarding his position, he stated that his book respects the notion that the text of the constitution and the principles that it expresses are totally fixed and enduring. i must admit some confusion with this contradiction. either the text and the principles are fixed and

6:22:22 to 6:22:43( Edit History Discussion )

Chuck Grassley: enduring, or they're adaptable, something that grows and evolves like it happens with the constitution of great britain. mr. liu is apparently comfortable with this contradiction. i'm not. it's a pattern that i find throughout his testimony. i'm concerned about his appreciation of the proper role

6:22:44 to 6:23:04( Edit History Discussion )

Chuck Grassley: of a judge in our system of checks and balances. his philosophy leads to an inevitable expansion of the power of the judiciary. for example, according to mr. liu, courts should play a role in creating and expanding constitutional welfare rights. he argues that once a legislative body creates a

6:23:05 to 6:23:26( Edit History Discussion )

Chuck Grassley: welfare program, it is the proper role of the courts to grasp the meaning and the purpose for that welfare benefit. he states that the courts can recognize welfare rights by -- quote -- "invalidating statutory eligibility requirements or strengthening procedural protections against the

6:23:27 to 6:23:48( Edit History Discussion )

Chuck Grassley: withdrawal of benefits." forthrightly, an attack on the legislative branch of government of its power to make statute and law, whereas the courts are supposed to be interpreting, not making, law. the nominee also seems to favor a social needs space view of

6:23:49 to 6:24:11( Edit History Discussion )

Chuck Grassley: living constitutionalism. his scholarly works that judicial decision making should be shaped by contemporary social needs and norms rather than the certainty of the constitution. notably, he has said that -- quote -- "the problem for our courts is to determine at the moment of decision whether our

6:24:12 to 6:24:35( Edit History Discussion )

Chuck Grassley: collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly observed into legal doctrine." end of quote. just as if what the constitution writers in 1787, what they thought ought to be the basic

6:24:36 to 6:24:57( Edit History Discussion )

Chuck Grassley: law of this land means nothing today. so as you know, i think that this is very troublesome. our constitutional framer puts the legislative function in the congress, not the courts. it is the legislative function through the political process where the people rule that determine when a particular value is to become part of our law.

6:24:58 to 6:25:18( Edit History Discussion )

Chuck Grassley: this is not the duty of judges. the judiciary is limited to deciding cases and controversy, not establishing public policy. i would note further that this view of constitutional interpretation does not rely on the acts of the legislative or on the precedents established by higher courts.

6:25:19 to 6:25:41( Edit History Discussion )

Chuck Grassley: rather, it is based on a concept of what he prefers to call -- quote, unquote -- evolving norms. furthermore, as he testified before the committee, it is those evolving norms to which inform the supreme court's elaboration of constitutional doctrine.

6:25:42 to 6:26:04( Edit History Discussion )

Chuck Grassley: mr. liu tried to sound like a mainstream skwraoufrt when he -- jurist when he stated the duty of a circuit judge was to faithfully follow the supreme court's instructions on matter of constitutional interpretation. now who's going to argue with that? but again, that sounds nice, doesn't it, but what does it mean? if we accept his premise that the supreme court's instructions

6:26:05 to 6:26:27( Edit History Discussion )

Chuck Grassley: are based upon evolving norms, it follows that such evolving norms will shape the circuit court's decision as well. this activist theory leads to a judicial system substituting the whims of individual judges over the text and the original meaning of the u.s. constitution.

6:26:28 to 6:26:52( Edit History Discussion )

Chuck Grassley: this is not the duty of any circuit judge. mr. liu's legal views and judicial philosophy are clearly out of the mainstream. just a small example illustrates this points. i questioned four of president obama's judicial nominees who followed mr. liu on the day of his hearing. i asked each of them concerning

6:26:53 to 6:27:13( Edit History Discussion )

Chuck Grassley: a specific point about mr. liu's philosophy. each and every one of them flatly rejected there liu's position. this included his views on judges' collective values when interpreting the constitution, on using foreign law when interpreting our constitution,

6:27:14 to 6:27:34( Edit History Discussion )

Chuck Grassley: and on interpreting the constitution, ways it adopts its principles and its text and on considering -- quote, unquote -- public values and social understanding when interpreting the constitution. based on his kwrouft mainstream -- on his out-of-the

6:27:35 to 6:27:56( Edit History Discussion )

Chuck Grassley: mainstream view, it is no surprise that his nomination is opposed by so many. included in that opposition are 42 district attorneys serving the state of california. they are concerned, among other things, about his view on criminal law, capital punishment and the role of the federal

6:27:57 to 6:28:18( Edit History Discussion )

Chuck Grassley: courts in second-guessing state decisions. my third area of concern is that this nominee has made a number of critical statements which indicate a lack of judicial temperament. he has been very openly critical of the current supreme court. in one article, he said that the

6:28:19 to 6:28:41( Edit History Discussion )

Chuck Grassley: holding in bush v. gore was, quote, unquote, utterly lacking in any legal principle. he claimed the current court as the whole is unprincipled saying that -- quote -- "if you look across the entire run of cases, you see a fairly consistent pattern where the respect for president goes by the wayside when it gets in the way of result."

6:28:42 to 6:29:03( Edit History Discussion )

Chuck Grassley: end of quote.mr. . mr. lugar: was highly critical. nomination of justice roberts. he published an article on bloomberg.com entitled "roberts would swing the supreme court to the right." this that article he acknowledged that roberts was qualified, saying, "there's no doubt roberts has a brilliant

6:29:04 to 6:29:25( Edit History Discussion )

Chuck Grassley: legal mind, but a supreme court nominee must be evaluated on more than legal intellect." he then voiced concerns with -- quote -- "with remarkable consistence throughout his career, roberts had applied his legal talent to further the causes of the far right."

6:29:26 to 6:29:46( Edit History Discussion )

Chuck Grassley: he also spoke very disparagingly of judge robert's conserve beliefs. "before becoming a judge, he belonged to the republican national lawyers association and the national legal center for public interest, whose mission is to promote, among other things, free enterprise, private

6:29:47 to 6:30:08( Edit History Discussion )

Chuck Grassley: property values, and limited government. these are code word for an ideological agenda hostile to vierntle workplace, and consumer protection." now, let's think about what he just said there about judge roberts, now chief justice roberts.

6:30:09 to 6:30:29( Edit History Discussion )

Chuck Grassley: private ownership of property, limited government, free enterprise, code words for an ideological agenda hostile to the environment, workplace, and consumer protection? does he think we're the communist-run klein, that the government runs everything, that its he a better place when they

6:30:30 to 6:30:51( Edit History Discussion )

Chuck Grassley: put online every week a coal-fired plant to pollute the air, put more carbon dioxide in the air than we do in the united states, and where children are dying because food is poissonned and consumers aren't protected minner in the china coal mines is in jeopardy of

6:30:52 to 6:31:14( Edit History Discussion )

Chuck Grassley: losing their lives? that's how out of place this guy is, when he talks about free enterprise, private ownership of property, and limited government being something -- somehow bad. but if you get government more involved, like dhow in china, -- like they do in china, it's somehow a better place. this nominee has been critical

6:31:15 to 6:31:37( Edit History Discussion )

Chuck Grassley: of another jus justice, justice alito in particular. he believes it is a valid criticism of justice alito to say that -- quote -- "he approaches flaw a formalistic, mechanical way, abstracted from human experience. " and we -- and we are all familiar with mr. . mr. lugar:'s scathing attack

6:31:38 to 6:31:58( Edit History Discussion )

Chuck Grassley: on justice -- with mr. liu's scathing attack on justice alito's testimony. mr. liu admitted the language was unduly harsh, provocative, unnerks and was a case of poor judgment. mr. grassley: now, that's one statement of mr. liu's with wick agreement. i can appreciate that mr. liu

6:31:59 to 6:32:19( Edit History Discussion )

Chuck Grassley: now understands the unfortunate language he uses. the trouble i have with this, however, is that it shows that even when stepping out of the academic world, the nominee promotes extreme views and intemperate language. even if i accept his rationale for the tone of his work in the academic world, that does not

6:32:20 to 6:32:40( Edit History Discussion )

Chuck Grassley: explain his congressional testimony. that was one opportunity where he could demonstrate a reasoned, tempered approach, yet he failed the test. i think it may also indicate that we may expect from judge liewrks should he be confirmed, the same thing.

6:32:41 to 6:33:01( Edit History Discussion )

Chuck Grassley: to me, that's an unacceptable yowlt come. the fadge major area of concern is mr. liu's testimony and candor before the committee, which was troubling at times and lacked credibility. even before he appeared before the committee, the nominee had difficulty providing the committee with materials

6:33:02 to 6:33:22( Edit History Discussion )

Chuck Grassley: required by his questionnaire. as senator sessions said at the time, "at best, the nominee's extraordinary disregard for the committee's constitutional role demonstrates incompetence. at worse, it creates an impression that he knowingly attempted to hide his most controversial work from the committee." during his testimony, the nominee said in reference to his

6:33:23 to 6:33:43( Edit History Discussion )

Chuck Grassley: past legal wrieltings, "whatever i have written in the books and articles that have no bearing -- should have no bearing on my actions as a judge." oh,? trying to paint him satisfies judicial conservative, the nominee attempted to walk away from his previous position. he tried to distance himself on the proper role after jurnlings

6:33:44 to 6:34:04( Edit History Discussion )

Chuck Grassley: on of use of foreign larks on the a. ppropriateness of racial quotas frandz his previous views on free enterprise and private ownership of property. even "the washington post" found his testimony a bit hard to believe. the "post" editorial stated

6:34:05 to 6:34:26( Edit History Discussion )

Chuck Grassley: "mr. liu is unlikely to shun aside the views but the real problem is not that he add hears to a particular judicial philosophy that he, like so many others before him, feels he needs to pretend not to have one."

6:34:27 to 6:34:47( Edit History Discussion )

Chuck Grassley: we have often heard the term "confirmation conversion" applied to nominees who appear to have a change of legal philosophy when they're nominated to the federal judgeship. as i review the record, i think this nominee has taken that concept a step further, and i would use the phrase "confirmation chameleon."

6:34:48 to 6:35:09( Edit History Discussion )

Chuck Grassley: it seems to me that mr. . --it seems to me that mr. liu let me give you a clear example. senator cornyn of texas asked him about his troubling record contained in his work product that expressed opinions on issues such as the death

6:35:10 to 6:35:33( Edit History Discussion )

Chuck Grassley: penalty, same-sex marriages and welfare rights. senator cornyn then stated, "you're now saying wipe the slate clean because none of that has any reflts whatsoever to how i would conduct myself as a judge if confirmed by the senate; is that correct?

6:35:34 to 6:35:55( Edit History Discussion )

Chuck Grassley: end of groat senator cornyn. and mr. lou liu responded, "that is correct, senator." a few minutes lairkts i asked him if he were -- quote -- "-- this is my quote -- "if we were to let us just say wipe the slate clean, as to your academic writings and career, what is

6:35:56 to 6:36:17( Edit History Discussion )

Chuck Grassley: left to justify your confirmation?" the nominee respond, "i would hope that you would not wipe my slate clean, as it were, you know, i am what i am." end of quote. mr. liu cannot have it both ways. either his record stays with him or we wipe the slate clean.

6:36:18 to 6:36:40( Edit History Discussion )

Chuck Grassley: perhaps in the long run it doesn't matter, because either way it leaves us with an individual who should not be given a lifetime appointment. if you include his record as a law professor, then we're left with evidence of left-leaning judicial actiism. if you do not include it, then we're left with a two-year

6:36:41 to 6:37:02( Edit History Discussion )

Chuck Grassley: associate with law clerk experience and little else. that leads me to my final point: i am concerned about the nominee's lack of experience. after graduating from law school in 1998 he clerked for judge david s. tatel on the u.s. court of appeals d.c.

6:37:03 to 6:37:23( Edit History Discussion )

Chuck Grassley: when his clerkship ended, mr. liu became deputy assistant for education. in 2000 he worked as contract attorney for a law firm, nixon peabody, l.l.p., where he -- quote -- "assisted with legal writings." he clerked for justice ruth

6:37:24 to 6:37:44( Edit History Discussion )

Chuck Grassley: bader ginsburg on the supreme court. after that clerkship, he became an associate at o'medical have en knee and my,where he remained for less than two years according this his question yairks he appeared in court only occasionally. he also reported that his other work as an attorney has not

6:37:45 to 6:38:05( Edit History Discussion )

Chuck Grassley: involved court appearances. he has not tried any cases to verdict, jurntle or final decision. since 2003, the nominee has been a full-time law professor at u.c. berkly school of law and in 2008 he became associate dean. after his nomination last year the a.b.a. standing committee of

6:38:06 to 6:38:26( Edit History Discussion )

Chuck Grassley: the federal judiciary gave mr. l hivment u the rating of "unanimous, we will-qualified." i am somewhat perplexed by this rating according to the standing committee's explanation of the standard for rating judicial nominees -- quote -- "a perspective nominee to the federal bench ordinarily should have at least 12 years experience in the practice of

6:38:27 to 6:38:47( Edit History Discussion )

Chuck Grassley: law." further, "the committee recognizes that substantial courtroom and trial experience as a lawyer and trial judge is important." at the time of his nomination and rating the nominee had graduated from law school less than 12 years prior. he has been a member of the state bar only since may 1999. as noted above, he has no trial

6:38:48 to 6:39:10( Edit History Discussion )

Chuck Grassley: experience, has never been a judge. so, i want to conclude with this thought. given his record and testimony, i do not believe the nominee has anding and appreciation of the proper petroleum of a judge. i believe, if confidence, he will bring a personal agenda and political ideology into the courtroom.

6:39:11 to 6:39:31( Edit History Discussion )

Chuck Grassley: it is ironic that in comment on robert's nomination, mr.ly. u said "the nomination is seismic event that threatens to deepen the nation's red-blue divide. instead of choosing a census caned, the president has opted for a conservative thoroughbred who, if confirmed, will likely swing the court sharply to the

6:39:32 to 6:39:52( Edit History Discussion )

Chuck Grassley: right on many crit caicials." if confirmed, i'm concerned that mr. liu will deeply divide the ninth circuit and move the court even further to the left. if that's possible. if confidence, his activist ideology and judicial philosophy will seep well beyond the berkeley campus. that seems like that's difficult.

6:39:53 to 6:40:13( Edit History Discussion )

Chuck Grassley: signature on the ninth circuit, his opinion and rulings would have far-reaching effect on individuals and businesses throughout the ninth state circuit, including places like boozman, montana and anchorage, alaska. hiss for the reasons i've articulated, his wrights and

6:40:14 to 6:40:31( Edit History Discussion )

Chuck Grassley: speeches, two, an activist judicial philosophy, three, his lack of judicial temperament, four, his lack of candor before committee, and, five, his limited experience as well as many other concerns, which have not expressed today, i shall oppose this nomination and i