S. HRG. 111–927 

NOMINATIONS HEARING OF U.S. CIRCUIT AND 

U.S. DISTRICT JUDGES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 16, 2010 

Serial No. J–111–117 

Printed for the use of the Committee on the Judiciary 

( 

NOMINATIONS HEARING OF U.S. CIRCUIT AND U.S. DISTRICT JUDGES 

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65–346 PDF 2011

S. HRG. 111–927 

NOMINATIONS HEARING OF U.S. CIRCUIT AND 

U.S. DISTRICT JUDGES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 16, 2010 

Serial No. J–111–117 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATTHEW S. MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 496 

PRESENTERS 

Clyburn Hon. James E., a U.S. Respresentative from the State of South 

Carolina, presenting J. Michelle Childs, Nominee to be U.S. District Judge 

for the District of South Carolina, and Richard Mark Gergel, Nominee 

to be U.S. District Judge for the District of South Carolina ............................ 9 

Graham, Hon. Lindsey, a U.S. Senator from the State of South Carolina, 

presenting J. Michelle Childs, Nominee to be U.S. District Judge for the 

District of South Carolina, and Richard Mark Gergel, Nominee to be U.S. 

District Judge for the District of South Carolina .............................................. 8 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, presenting 

Goodwin Liu, Nominee to be U.S. Circuit Judge for the Ninth Circuit .......... 5 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, presenting 

Goodwin Liu, Nominee to be U.S. Circuit Judge for the Ninth Circuit .......... 4 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, presenting Goodwin Liu, Nominee to be U.S. Circuit Judge for the Ninth 

Circuit ................................................................................................................... 7 

STATEMENT OF THE NOMINEES 

Childs, J. Michelle, Nominee to be U.S. District Judge for the U.S. South 

Carolina ................................................................................................................ 192 

Questionnaire .................................................................................................... 193 

Eagles, Catherine C., Nominee to be U.S. District Judge for the Middle 

District of North Carolina ................................................................................... 250 

Questionnaire .................................................................................................... 251 

Gergel, Richard Mark, Nominee to be U.S. District Judge for the U.S. South 

Carolina ................................................................................................................ 152 

Questionnaire .................................................................................................... 153 

Liu, Goodwin, Nominee to be U.S. Circuit Judge for the Ninth Circuit ............. 11 

Questionnaire .................................................................................................... 13 

Mueller, Kimberly J., Nominee to be U.S. District Judge for the Eastern 

District of California ............................................................................................ 101 

Questionnaire .................................................................................................... 103 

QUESTIONS AND ANSWERS 

Responses of J. Michelle Childs to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 302 

Responses of Catherine C. Eagles to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 308 

Responses of Richard Mark Gergel to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 313 

Responses of Goodwin Liu to questions submitted by Senators Coburn, Cornyn, Grassley, Hatch, Kyl and Sessions ............................................................. 318 

Responses of Kimberly J. Mueller to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 426 

Page

IV 

SUBMISSIONS FOR THE RECORD 

Amar, Akhil Reed, Sterling Professor of Law and Political Science, Yale 

Law School, and Kenneth W. Starr, Duane and Kelly Roberts Dean and 

Professor of Law, Pepperdine University School of Law, March 19, 2010, 

joint letter ............................................................................................................. 432 

American Center for Law & Justice, Jay A. Sekulow, Chief Counsel, and 

Colby M. May, Senior Counsel, Director of Washington Office, Washington, 

DC, April 1, 2010, joint letter ............................................................................. 434 

Arizona Asian American Bar Association, Melissa Ho, President, Phoenix, 

Arizona, April 14, 2010, letter ............................................................................ 439 

Asian Pacific American Labor Alliance, AFL–CIO, John Delloro, National 

President, Washington, DC, March 18, 2010, letter ......................................... 442 

Bolick, Clint, Director, Goldwater Institute, Phoenix, Arizona: 

For Senator Hatch, January 20, 2010, letter ................................................. 444 

For Senator Kyl, January 20, 2010, letter ..................................................... 445 

Boxer, Hon. Barbara, a U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 446 

Brown, Cynthia G., Vice President for Education Policy, Center for American 

Progress Action Fund; Michael Cohen, President, Achieve, Inc., Assistant 

Secretary for Elementary and Secondary Education, U.S. Department of 

Education; Christopher T. Cross, Chairman Cross & Joftus LLC, Assistant 

Secretary for Educational Research and Improvement, U.S. Department 

of Education; Linda Darling-Hammond, Charles E. Ducommun Professor 

of Education, Stanford University; James Forman, Jr., Professor of Law, 

Georgetown University Law Center; Co-Founder and Board Chair, Maya 

Angelou Public Charter School; Patricia Ga ́ndara, Professor of Education 

and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles, 

UCLA; James W. Guthrie, Senior Fellow and Director of Education Policy 

Studies, George W. Bush Institute; Eric A. Hanushek, Paul and Jean 

Hanna Senior Fellow, Hoover Institution, Stanford University; Frederick 

M. Hess, Director of Education Policy Studies, American Enterprise Institute; Paul Hill, John and Marguerite Corbally, Professor and Director of 

the Center of Reinventing Public Education, University of Washington; 

Richard K. Kahlenberg, Senior Fellow, The Century Foundation; Joel I. 

Klein, Chancellor, New York City Department of Education, Assistant Attorney General, Antitrust Division, U.S. Department of Justice; Ted Mitchell, President and Chief Executive Officer, New Schools Venture Fund; 

Gary Orfield, Professor of Education, Law, Political Science, and Urban 

Planning and Co-Director of the Civil Rights Project/Proyecto Derechos 

Civiles, UCLA; Michael J. Petrilli, Vice President for National Programs 

and Policy, Thomas B. Fordham Institute; Research Fellow, Hoover Institution, Stanford University; Associate Assistant Deputy Secretary, Office of 

Innovation and Improvement, U.S. Department of Education; Richard W. 

Riley, Partner, Nelson Mullins Riley & Scarborough LLP; U.S. Secretary 

of Education, Governor of South Carolina; Andre J. Rotherham, Co-Founder 

and Publisher, Education Sector; James E. Ryan, William L. Matheson 

& Robert M. Morgenthau Distinguished Professor of Law, University of 

Virginia School of Law; William L. Taylor, Chairman, Citizens’ Commission 

on Civil Rights; Martin R. West, Assistant Professor of Education, Harvard 

University; Judith A. Winston, Principal, Winston Withers & Associates, 

General Counsel, U.S. Department of Education; Bob Wise, President, Alliance for Excellent Education; Governor of West Virginia, Member, U.S. 

House of Representatives, March 23, 2010, joint letter .................................... 450 

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina, prepared statement ................................................................................................... 455 

California Correctional Peace Officers’ Association, Mike Jimenez, President, 

West Sacramento, California, March 17, 2010, letter ....................................... 456 

Page

V 

California District Attorneys, Will Richmond, District Attorney, Alpine County; Todd D. Riebe, District Attorney, Amador County; John R. Poyner, 

District Attorney, Colusa County; Michael D. Riese, District Attorney, Del 

Norte County; Vernon Pierson, District Attorney, El Dorado County; Elizabeth Egan, District Attorney, Fresno County; Robert Holzapfel, District 

Attorney, Glenn County, Arthur Maillet, District Attorney, Inyo County; 

Edward R. Jagels, District Attorney, Kern County; Ronald L. Calhoun, 

District Attorney, Kings County; Jon Hopkins, District Attorney, Lake 

County; Robert M. Burns, District Attorney, Lassen County; Steve Cooley, 

District Attorney, Los Angeles County; Michael Keitz, District Attorney, 

Madera County; Ed Berberian, District Attorney, Marin County; Robert 

H. Brown, District Attorney, Mariposa County; Gary Woolverton, District 

Attorney, Modoc County; George Booth, District Attorney, Mono County; 

Dean Flippo, District Attorney, Monterey County; Clifford Newell, District 

Attorney, Nevada County; Tony Rackaucks, District Attorney, Orange 

County; Bradford R. Fenocchio, District Attorney, Placer County; Rod 

Pacheco, District Attorney, Riverside County; Jan Scully, District Attorney, 

Sacramento County; Candice Hooper, District Attorney, San Bernardino 

County; Bonnie Dumanis, District Attorney, San Diego County; James 

Willett, District Attorney, San Joaquin County; Gerald T. Shea, District 

Attorney, San Luis Obispo County; Ann Bramsen, Acting District Attorney, 

Santa Barbara County; Lawrence R. Allen, District Attorney, Sierra County; J. Kirk Andrus, District Attorney, Siskiyou County; Gerald Benito, 

District Attorney, Shasta County; David W. Paulson District Attorney, Solano County; Birgit Fladager, District Attorney, Stanislaus County; Carl 

V. Adams, District Attorney, Sutter County; Gregg Cohen, District Attorney, Tehama County; Michael B. Harper, District Attorney, Trinity County; 

Phillip J. Cline, District Attorney, Tulare County; Gregory D. Totten, District Attorney, Ventura County; Jeffery W. Reisig, District Attorney, Yolo 

County; Patrick J. McGrath, District Attorney, Yuba County, March 26, 

2010, joint letter ................................................................................................... 458 

Circuit Court Nominees that were Confirmed under President Bush without 

prior judicial experience, list of nomination ...................................................... 460 

Congressional Asian Pacific American Caucus, Michael M. Honda, Washington, DC, March 23, 2010, letter ..................................................................... 466 

Clyburn, Hon. James E., a U.S. Representative from the State of South 

Carolina, prepared statement ............................................................................. 468 

Concerned Women for America Legislative Action Committee, Penny Nance, 

Chief Executive Officer, Washington, DC, March 24, 2010, letter .................. 471 

80–20 Initiative, S.B. Woo, Founding President, Osprey, Florida, April 23, 

2010, letter ............................................................................................................ 473 

Page

VI 

Former Judges and Prosecutors, Rebecca A. Betts, U.S. Attorney, Southern 

District of West Virginia; Robert C. Bundy, U.S. Attorney, District of Alaska; J. Joseph Curran Attorney General, State of Maryland; Michael H. 

Dettmer, U.S. Attorney, Western District of Michigan; Robert DelTufo, 

Attorney General, State of New Jersey, U.S. Attorney, for New Jersey; 

W. Thomas Dillard, U.S. Attorney, Northern District of Florida, U.S. Attorney, Eastern District of Tennessee; Bruce J. Einhorn, U.S. Immigration 

Judge, Special Prosecutor and Chief of Litigation, U.S. Department of Justice Office of Special Investigations; Bennett L. Gershman, Prosecutor, 

Manhattan District Attorney’s Office; John J. Gibbons, U.S. Circuit Judge, 

U.S. Court of Appeals for the Third Circuit, Chief Judge; Daniel F. Goldstein, Assistant U.S. Attorney, District of Maryland; Isabel Gomez, Judge, 

Fourth Judicial District of Minnesota; Joseph Grodin, Associate Justice 

California Supreme Court, Chief Justice California Court of Appeals, Associate Justice California Court of Appeals; Shirley M. Hufstedler, U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, U.S. Secretary 

of Education, Associate Justice California Court of Appeals, Judge Los 

Angeles County Superior Court; Bruce R. Jacob, Former Assistant Attorney 

General, State of Florida; Nathaniel R. Jones, U.S. Circuit Judge, U.S. 

Court of Appeals for the Sixth Circuit, Assistant U.S. Attorney, Northern 

District of Ohio; Miriam Krinsky, Assistant U.S. Attorney, Central District 

of California, Chief, Criminal Appellate Section, Chief, General Crimes 

Section, Chair, Solicitor General’s Appellate Working Group; Kenneth J. 

Mighell, U.S. Attorney, Northern District of Texas; Sam D. Millsap, District 

Attorney, Bexar County, San Antonio, Texas; Thomas Campbell Morrow, 

Assistant State’s Attorney, Dade County, Florida, Assistant Attorney General, Maryland Criminal Investigations Division, Assistant State’s Attorney, 

Baltimore County; William A. Norris, U.S. Circuit Judge, Ninth Circuit 

Court of Appeals; Stephen M. Orlofsky, U.S. District Judge, District of 

New Jersey, U.S. Magistrate Judge, District of New Jersey; A. John 

Pappalardo, U.S. Attorney, District of Massachusetts; James H. Reynolds, 

U.S. Attorney, Northern District of Iowa, U.S. Attorney, District of South 

Dakota by Special Appointment of Attorney General; Jame K. Robinson, 

U.S. Attorney, Eastern District of Michigan, Assistant Attorney general, 

Criminal Division, U.S. Department of Justice; Thomas P. Sullivan, U.S. 

Attorney, Northern District of Illinois, Co-Chair, Illinois Governor’s Commission on Capital Punishment; Joseph D. Tydings, U.S. Senator, U.S. 

Attorney, District of Maryland; James J. West, U.S. Attorney, Middle District of Pennsylvania, First Assistant U.S. Attorney, Middle District of 

Pennsylvania, Assistant U.S. Attorney, Western District of Pennsylvania, 

April 13, 2010, joint letter ................................................................................... 475 

Friedman, Donald M., University of California, Berkeley, California, March 

5, 2010, letter ....................................................................................................... 482 

Hagan, Hon. Kay R. a U.S. Senator from the State of North Carolina, prepared statement ................................................................................................... 483 

Hart, Larry, Director of Government Relations, on behalf of The American 

Conservative Union, Alexandria, Virginia, letter .............................................. 484 

Hennessy, John L., President, Stanford University, Gerhard Casper, President, Emeritus, and Donald Kennedy, President Emeritus, Stanford, California, March 18, 2010, joint letter ..................................................................... 485 

Jauregui, Phillip L., Judicial Action Group (JAG), Washington, DC, March 

22, 2010, letter ..................................................................................................... 487 

Judicial Watch, Thomas Fitton, President, Washington, DC, March 24, 2010, 

letter ...................................................................................................................... 492 

Leadership Conference on Civil and Human Rights, Wade Henderson, President & CEO and Nancy Zirkin, Executive Vice President, Washington, 

DC, May 13, 2010, joint letter ............................................................................. 494 

Liberty Counsel, Mathew D. Staver, Washington, DC, March 16, 2010, letter . 500 

National Asian Pacific American Bar Association, Joseph J. Centeno, President, Washington, DC, April 15, 2010, letter .................................................... 502 

North Carolina Bar Association, Allan B. Head, Executive Director, Gary, 

North Carolina, June 23, 2010, letter ................................................................ 506 

Pulaski, Art, Executive Secretary-Treasurer, California Labor Federation, Los 

Angeles, California, March 19, 2010, letter ....................................................... 507 

Republican National Lawyers Association, David Norcross, Chairman, Cleta 

Mitchell, Co-Chair and Charles H. Bell, Jr., President, Washington, DC, 

April 13, 2010, joint letter ................................................................................... 509 

Page

VII 

Salarno, Harriet, Chair, Crime Victims United of California, Auburn, California, March 25, 2010, letter ............................................................................. 511 

Scheidegger, Kent S., Legal Director & General Counsel, Criminal Justice 

Legal Foundation, Sacramento, California, March 23, 2010, letter ................. 512 

Spratt, Hon. John M., Jr., a U.S. House Representative from the State of 

South Carolina: 

J. Michelle Childs, April 14, 2010, letter ........................................................ 519 

Richard Mark Gergel, April 14, 2010, letter .................................................. 521 

Wu, Frank H., Chancellor and Dean Designate, University of California Hastings College of the Law, on behalf of the Board of Directors of the Conference of Asian Pacific American Law Faculty, March 4, 2010, letter ........... 523 

(1) 

NOMINATIONS OF GOODWIN LIU, NOMINEE 

TO BE U.S. CIRCUIT JUDGE FOR THE NINTH 

CIRCUIT; KIMBERLY J. MUELLER, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF CALIFORNIA; RICHARD MARK GERGEL, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF 

SOUTH CAROLINA; J. MICHELLE CHILDS, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE DISTRICT OF SOUTH CAROLINA; AND 

CATHERINE C. EAGLES, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE MIDDLE 

DISTRICT OF NORTH CAROLINA 

FRIDAY, APRIL 16, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Dianne Feinstein presiding. 

Present: Senators Leahy, Klobuchar, Kaufman, Specter, Sessions, 

Hatch, Kyl, Cornyn, and Coburn. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Welcome, everyone, to this morning’s hearing 

of the Senate Judiciary Committee. 

This morning we will hear from five nominees for the Federal 

courts, two of whom hail from the State of California. 

We’ve just been joined by the Chairman. Mr. Chairman, do you 

want to—— 

Chairman LEAHY. No, no. Please go ahead and chair the hearing. 

Senator FEINSTEIN. Okay. 

We will hear from five nominees for the Federal courts, two of 

whom hail from the State of California. 

On the first panel, we will hear from Professor Goodwin Liu, who 

has been nominated for a seat on the U.S. Court of Appeals for the 

Ninth Circuit. Professor Liu is a nationally recognized expert on 

constitutional law and education policy and he is the Associate 

2 

Dean of the University of California, Berkeley, Bolt Hall School of 

Law. 

Before I give some brief remarks as also the Senator from California about Professor Liu, I would like to just quickly go over the 

order of this hearing. There will be 5-minute rounds. We will use 

the early bird rule and we will go from side to side. 

Following my statement, the Ranking Member will give his opening statement. Of course, the Chairman of the Committee is here 

and if he wishes to make a statement he will do so. I will recognize 

Senator Graham, Senator Clyburn to introduce the nominees from 

the District Court. 

Chairman LEAHY. Representative Clyburn. 

Senator FEINSTEIN. I promoted him. 

[Laughter.] 

Senator SESSIONS. He doesn’t think so. 

[Laughter.] 

Chairman LEAHY. I think Leader Clyburn maybe thought it was 

a—Mr. Leader, we’re glad to have you here. 

Senator FEINSTEIN. You don’t regard that as a promotion? 

[Laughter.] 

Senator FEINSTEIN. Then I will introduce a series of letters into 

the record, and then we will call up Professor Liu. 

The four other candidates are: Magistrate Judge Kimberly 

Mueller, nominated from the Eastern District of California; Richard Gergel, nominated from the District of South Carolina; J. 

Michelle Childs, nominated for the District of South Carolina; and 

Catherine Eagles, nominated for the Middle District of North Carolina. So we welcome all of you and your families. I was privileged 

to have an opportunity to meet some of you briefly. 

So let me say a few words about Professor Liu now. He was born 

in Augusta, Georgia, raised by his parents, who were here, who 

were Taiwanese doctors that had been recruited to the United 

States to provide medical care in under-served areas. Professor 

Liu’s parents left Taiwan when the country was still under martial 

law, and they imbued in him a deep respect and appreciation for 

the opportunities afforded in the United States. 

Professor Liu did not learn to speak English until kindergarten 

because his parents did not want him to speak with an accent, and 

from that early age on he has excelled again and again: he was covaledictorian of his high school; he graduated Phi Beta Kappa from 

Stanford University, where he was co-president of the student body 

and received the university’s highest award for service as an undergraduate. 

I have never before received a letter about a judge which was 

signed by three different presidents of a university. I want to read 

some of it to you because I think it’s important. 

Goodwin Liu attended Stanford while Donald Kennedy was 

president. He graduated Phi Beta Kappa in 1991. He was the recipient of numerous awards for his academic excellence, leadership, 

and contributions to the university, including the Lloyd W. 

Dinkelspiel Award for Outstanding Service to Undergraduate Education, the James W. Lyons Dean’s Award for Service, the Booth 

prize for Excellence in Writing, the Walter Vincenti prize, a David 

3 

Starr Jordan Scholar, and the university’s President’s Award for 

Academic Excellence. 

Dr. Kennedy worked with Goodwin Liu when he was one of the 

early student volunteers and leaders for the Haas Center for Public 

Service at Stanford while he was co-president of the student body 

his senior year. In 1990, Donald Kennedy wrote a personal letter, 

recommending Mr. Liu for the Rhodes scholarship, which he won 

and used to obtain a master’s degree at Oxford University. 

Gerhart Casper, president emeritus of Stanford and former dean 

of the Law School and provost at the University of Chicago, is now 

a constitutional law scholar at Stanford. Dr. Casper has come to 

know Mr. Liu as a Stanford alumnus, and then as a colleague in 

constitutional law. He considers Mr. Liu as a measured interpreter 

of the Constitution. 

‘‘In expounding the Constitution, Mr. Liu fully appreciates the 

commitments of the framers, who were decisive in fidelity to the 

Constitution and its interpretation by the Supreme Court. Mr. Liu 

will be a distinguished and faithful addition to the appellate 

branch.’’ 

Goodwin Liu is currently a member of the board of trustees of 

Stanford University, the governing body for the university. John 

Hennessy has worked closely with him since his appointment as a 

trustee in 2008. ‘‘Mr. Liu is an invaluable member of the board, 

serving on the Committees on Audit and Compliance, Academic 

Policy, Planning and Management, and Alumni and External Affairs. In a group of highly accomplished trustees, he is widely regarded as insightful, hardworking, collegial, and of the highest ethical standards. 

In summary, Goodwin Liu, as a student, scholar and trustee, has 

epitomized the goal of Stanford’s founders, which was to promote 

the public welfare by exercising an influence on behalf of humanity 

and civilization, teaching the blessings of liberty, regulated by law, 

and inculcating love and reverence for the great principles of government as derived from the inalienable rights of man to life, liberty, and the pursuit of happiness. We highly recommend Goodwin 

Liu for the honor and responsibility of serving on the U.S. Court 

of Appeals for the Ninth Circuit.’’ 

The letter is signed, ‘‘John L. Hennessy, President, Gearhart 

Casper, President Emeritus, and Donald Kennedy, President Emeritus. 

Additionally, Professor Liu began his legal career as a law clerk 

to two highly accomplished jurists. One jurist on the U.S. Court of 

Appeals for the D.C. Circuit, and Justice Ruth Bader Ginsburg, on 

the U.S. Supreme Court. He has also worked as a special assistant 

in the Department of Education. He has represented business clients in antitrust and insurance cases as a private litigator at the 

law firm of O’Melveny & Myers. 

In 2003, he became professor at Boalt Hall School of Law. His 

scholarly work has been published in the Nation’s top journals. In 

2009, he received the university’s Distinguished Teaching Award, 

the highest honor given for teaching at the University of California 

at Berkeley. 

Throughout his career, he has devoted particular care and attention to improving educational opportunities for students in the 

4 

United States. He is a supporter of voucher programs and charter 

schools. He serves as a consultant to the San Francisco unified 

school district, and he has been awarded the Education Law Association’s award for Distinguished Scholarship. He has an exceptional legal mind and a deep devotion to excellence in public service. 

So now, before I mention the other individuals, I would like to 

turn to the Ranking Member for his remarks and any remarks he’d 

care to make about this nominee, and then we will proceed. 

PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Madam Chairwoman. We appreciate being with you. I’m glad Senator Leahy can join us. I look forward to the nominees today. I see my Congressional colleagues. I 

know they’re ready to say something. They’ve got things they need 

to do today. 

But I do want to say a few things. I love this Constitution, the 

great republic that we’ve been given. It is something that we 

should cherish and pass on to our children. In the nomination of 

Professor Liu, we have someone that I know you have recently 

spent a number of hours with and have a high opinion of. Others 

who know him speak highly of him. 

Professor Liu has written broadly on many of the important 

issues concerning law today. Many people respect his writings, and 

many people disagree with his writings. They represent, I think, 

the very vanguard of what I would call intellectual judicial activism, a theory of interpretation of our Constitution and laws that 

empowers a judge to expand government and to find rights there 

that often have never been found before. 

So I think this is going to provide an interesting discussion for 

us today. The President, out of all the fine lawyers and professors 

in the country and in the Ninth Circuit, has chosen Professor Liu. 

I think that says something about his approach to the law, his philosophy of the law, and we’ll be looking into that today. I’ll be asking questions about a number of things. 

There are many, many things that the Professor has written, but 

one in his Stanford Law Review article of November, 2008, ‘‘Rethinking Constitutional Welfare Rights’’ states this: ‘‘My thesis is 

that the legitimacy of judicial recognition of welfare rights depends 

on socially situated modes of reasoning that appeal not to transcendent moral principles of an ideal society, but to the culturally 

and historically contingent meanings of social goods in our own society.’’ 

He goes on to say, ‘‘I argue that the judicial recognition of welfare rights is best conceived as an act of interpreting the shared 

understanding of particular welfare goods as they are manifested 

in our institution, laws, and evolving practices’’, and goes on to 

state, ‘‘so conceived, justiciable welfare rights reflect the contingent 

character of our society’s collective judgments rather than the tidy 

logic of comprehensive moral theory.’’ 

Well, I think that’s a matter that we should talk about and to 

deal with honestly and fairly today, and I hope that we will be able 

5 

to do that. I believe Professor Van Alsteen, then at Duke—I think 

he’s at the Eleventh Circuit Conference, made remarks one time 

that ‘‘if you truly respect the Constitution you will enforce it as 

written, whether you like it or not.’’ I think that’s the calling of a 

judge. They’re not empowered to identify somehow in the atmosphere what they consider to be socially altered opinions of the day 

and then redefine the meaning of the Constitution. 

If you feel, and if a judge feels they have that power, and this 

is a theory that is afoot in America today, judges who feel they 

have that power, I think, abuse the Constitution, disrespect the 

Constitution, and if it’s too deeply held, can actually disqualify 

them for sitting on the bench. 

I would note that Professor Liu understands, I think, the importance of judicial philosophy in the confirmation process when he opposed Justice Roberts’ confirmation. He issued a statement that 

said, ‘‘It’s fair and essential to ask how a nominee’’—Judge Roberts—‘‘would interpret the Constitution and its basic values. Americans deserve real answers to this question and it should be a central focus of the confirmation process.’’ 

He concluded that I guess his disagreements with Justice Roberts on that issue was so severe, that he advocated him not being 

confirmed in the Senate, as well as he testified in this Committee 

to very aggressively—too aggressively, I think—oppose the confirmation of Justice Alito. 

So, Madam Chairman, we’ve got a number of issues we want to 

talk about. I want to give the nominee a chance to respond fairly 

to the concerns of his failure to produce certain documents and 

records and so forth. He’s entitled to that. I do believe that he did 

not spend nearly enough time in evaluating the questionnaire and 

properly responding to it to a degree that I’ve not seen, I think, 

since I’ve been in the Senate. 

And I’ll also note that the nominee has not been in court and 

tried cases. He’s never tried a case, never argued a case on appeal, 

and therefore lacks the normal experience we look for. He has an 

academic record, and that’s all we have to judge his judicial philosophy on. We intend to pursue that, and I hope we’ll have a good 

hearing and a nice discussion about the future of law in America. 

Senator FEINSTEIN. Thank you very much, Senator. We will have 

a good hearing, and appreciate all members having an open mind. 

I’d like to ask the Chairman of the Committee if he has any comment to make before we proceed further. 

Senator. 

PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT BY HON. PATRICK J. 

LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I’ll put my full statement in the record. I 

thank you for doing this hearing. I know this is the third time 

we’ve had it scheduled, and I’m glad this time the parliamentary— 

there wasn’t a parliamentary road block up to prevent hearing 

from him. Professor Liu is a widely respected constitutional law 

professor. I noticed one of the Fox News commentators said his 

qualifications for the appellate bench are unassailable. 

6 

When I listened to some of the concerns expressed by them, I 

hate to suggest a double standard here, but I will. I think of when 

another widely regarded law professor appeared before this Committee as a nominee, the University of Utah professor, Michael 

McConnell, who was also supported by a senior member of this 

Committee, Senator Hatch. 

Professor McConnell was nominated by President Bush. He had 

had provocative writings. They included staunch advocacy for reexamining the First Amendment free exercise clause and the establishment clause jurisprudence. He expressed strong opposition to 

Roe v. Wade. He had testified before Congress that he believed the 

Violence Against Women Act was unconstitutional, an act that both 

you, Madam Chair, and I had worked on and helped write, and had 

been passed by a bipartisan majority. 

He had a number of other areas where he was strongly critical 

of the Supreme Court. But he said that he felt that he believed in 

the doctrine of stare decisis, he’d be bound to follow Supreme Court 

precedent. I supported, even though I disagreed with just about everything that he had written about. I believed it when he said that 

he would follow Supreme Court precedent. 

I supported his nomination, and unlike now when even people 

come out of here unanimously and are held up month after month, 

week after week, he was reported favorably by this Committee and 

was confirmed to the Tenth Circuit by a voice vote. I’d just note 

this for Senator Sessions, if I might: he was reported by voice vote 

in the Senate within a day of his nomination being reported. Within a day. We now have people, even for the lower courts, who get 

unanimous and we have to file cloture to even get them through. 

So I’ll put my full statement in the record, Madam Chair, and 

I thank you. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator SESSIONS. If I could just respond, since my name was 

mentioned. I would note that this nominee, Professor Liu, was set 

for a hearing in 28 days, when the average Court of Appeals nominee for the Obama administration so far was 48 days, and during 

the time when President Bush was in office the average time wait 

between nomination and a hearing when Senator Leahy was Chairman was 247 days. 

So, I think we’re moving rapidly, a little more rapidly than all 

the members on our side felt we should. Since as late as Tuesday 

night at 10:30, we’re still receiving documents that should have 

been produced earlier that are just now being produced. So I think 

that this nomination is moving very fast, and we’ll do our best to 

be prepared, although it’s difficult, with a short timeframe, to 

evaluate the large numbers of documents, 117, that have been produced since the first hearing was set. 

Senator FEINSTEIN. Thank you. Thank you. 

Chairman LEAHY. I would note on that, having been mentioned— 

we don’t have to go back and forth on this—but within about 3 

weeks of the time I became Chairman of this Committee I scheduled and held hearings on one of President Bush’s Court of Appeals 

nominees. I think it was within two or 3 weeks of becoming Chairman. That’s not quite 280 days. Thank you. 

7 

Senator FEINSTEIN. Yes. I hope we don’t get into a discussion of 

this. 

[Laughter.] 

Senator FEINSTEIN. But I feel I should point out that this hearing 

has already been delayed twice. Chairman Leahy originally intended to hold the hearing on March 10. That was 37 days ago. At 

the Ranking Member’s request, he delayed it to March 24, but the 

minority then used a procedural tactic on the floor to block the 

hearing. 

In the meantime, Professor Liu has been attacked and really 

never given a chance to speak. That’s simply not fair and it’s certainly not the American way. I won’t go into a lot of judicial confirmation statistics, but I will say that in the first 15 months of the 

Obama administration, only 18 judicial nominees have been confirmed. By the same time in the Bush administration, 42 nominees 

had been confirmed. 

So now I’d like to recognize Senator Graham and Representative 

Clyburn to introduce the nominees for the District Court of South 

Carolina. 

Senator SPECTER. Madam Chair. 

Senator FEINSTEIN. Senator. 

Senator SPECTER. I wonder if I might be recognized for just a 

minute. I have to catch a train, but I wanted to make a very brief 

comment. 

Senator FEINSTEIN. You certainly may. And I assume—I know 

Representative Clyburn had said he had a problem with time. Is 

that agreeable with everybody? Fine. Please go ahead. 

PRESENTATION OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT BY HON. ARLEN 

SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. I will be very brief. I wanted to stop by today 

to urge my colleagues to move with dispatch on the nomination of 

Goodwin Liu. It is my hope that we will find one day soon an opportunity to break the gridlock which has engulfed the Senate for 

some time now on the judicial issues. We had the filibuster on the 

other side in 2005, and we finally worked through it with the socalled Gang of 14, where we solved the problem: no filibusters except under unusual circumstances. 

I have reviewed Mr. Liu’s record and I see that he’s a Yale Law 

School graduate, was on the Yale Law Journal. With some personal 

experience on those credentials, that’s an extraordinary background, plus all the rest of—— 

Senator FEINSTEIN. You leave out Stanford. 

[Laughter.] 

Senator FEINSTEIN. Never mind. 

Senator SPECTER. Plus all the rest. Well, he’s got a good supplemental record to draw distinction. 

But we really need the best and the brightest in these positions. 

The business about the filibusters is being carried to just ridiculous 

extremes. 

Senator Casey and I have Judge Vanaskie, a District Court 

judge, who is extraordinary. We had to file a petition for cloture, 

8 

it takes 30 hours of the Senate’s time. So many cloture petitions 

have been filed and they have then been confirmed unanimously, 

or virtually unanimously. 

So I think there really has to be some break point where we stop 

the retaliation. If it takes another Gang of 14, or perhaps more 

happily a Gang of 100, to get it done, I would urge my colleagues 

to move ahead here. 

But I wanted to come by for a few moments. I appreciate you 

taking me out of order, Madam Chair, and I appreciate the indulgence of my colleagues. 

Senator FEINSTEIN. Thank you very much, Senator. 

Now if we might proceed for Senator Graham and Representative 

Clyburn to introduce the South Carolina nominees. 

Senator Graham, would you like to proceed? 

PRESENTATION OF J. MICHELLE CHILDS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, 

AND RICHARD MARK GERGEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA BY 

HON. LINDSEY GRAHAM, A U.S. SENATOR FROM THE STATE 

OF SOUTH CAROLINA 

Senator GRAHAM. Thank you, Madam Chairman. I don’t think, 

Jim, if he had any desire of running for the Senate, it’s probably 

lost. 

[Laughter.] 

Senator GRAHAM. But thank you all. This is something I hope we 

all can agree upon. I am honored to be here to make my recommendations to the Committee about these two fine individuals. 

We have two Republican Senators with a Democratic President, 

and I think some of you have been in that situation, maybe in the 

reverse role. When it comes to judges, Congressman Clyburn, 

Spratt, and myself, and Senator DeMint, along with the administration, have been able to put together a package of four District 

Court judges and one Fourth Circuit judge. 

I’m very proud of our work and I want to recognize what Congressman Clyburn has done. He’s been a great partner in dealing 

with this issue and the administration has been very flexible. We 

appreciate their assistance. I want to congratulate the administration for nominating these two fine individuals. I think when I get 

through talking you’ll understand why we’re proud of them. 

First, Judge Michelle Childs has served as a Circuit Court judge 

in Columbia, South Carolina since 2006. She’s the Chief Administrative Judge for our General Sessions and Business Courts. The 

ABA unanimously rated her as ‘‘Well Qualified.’’ She was the first 

African-American woman partner for Nexsen & Pruet, one of the 

biggest firms in South Carolina. As the Deputy Director of the 

South Carolina Department of Labor, she was also a Worker’s 

Compensation Commissioner. 

She’s a graduate of the University of South Carolina School of 

Business, School of Law, and she’s married to Dr. Floyd Angus, 

with one daughter, Julianne. 

I would just like to say this, because time is short: every lawyer 

that I know of who’s appeared before her, regardless of their political persuasion or philosophy, has nothing but great things to say 

9 

about Judge Childs as being fair, smart, courteous to lawyers, and 

those who appear before her feel like they’re getting not only a fair 

experience, but it’s been a rewarding experience. She will do a 

great job for the people of South Carolina as a District Court judge 

and we’re just very proud of her. 

Richard Gergel is an outstanding member of our Bar. He was Joe 

Lieberman’s campaign manager. That didn’t work out too well 

when Joe ran for President. Joe’s my favorite Democrat and he’s 

my favorite Republican. 

[Laughter.] 

Senator GRAHAM. So I have a warm spot in my heart for him. 

But Richard was rated unanimously ‘‘Well Qualified’’ by the 

ABA. He’s represented the State of South Carolina, the city of Columbia, as their attorney. He’s a Duke University Law School graduate and he’s been married to Belinda Gergel, and they have two 

sons, Robert and Joseph. From a lawyer’s perspective, he is one of 

the best lawyers we have in South Carolina and he will bring to 

the bench a very deep practice and background experience which 

I think will make him a very capable judge. 

To the administration, thank you for approving this package. To 

Congressman Clyburn, thank you for being a good partner on this 

and other matters. To the Committee, I’d appreciate any support 

you could give these two fine individuals. 

Thank you. 

Senator FEINSTEIN. Thank you, Senator Graham. 

Representative Clyburn, welcome to the other side. 

PRESENTATION OF J. MICHELLE CHILDS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, 

AND RICHARD MARK GERGEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA BY 

HON. JAMES E. CLYBURN, A U.S. REPRESENTATIVE FROM 

THE STATE OF SOUTH CAROLINA 

Representative CLYBURN. Thank you, Madam Chair, Chairman 

Leahy, Ranking Member Sessions, and members of the Committee. 

Thank you so much for allowing me to appear here today on behalf 

of Michelle Childs and Richard Gergel. 

I want to begin by thanking my colleague from South Carolina, 

Senator Graham, and really wish to associate myself with the remarks he just made. Senator Graham and I are from different 

sides of the aisle, but we agree on the fitness and judicial temperament of these two distinguished nominees. I have known these two 

outstanding nominees for years and could go on for hours vouching 

for their character and reputations. However, in the interest of 

time, I will ask that my full statement be included in the record, 

along with their resumes. 

[The prepared statement of Representative Clyburn appears as a 

submission for the record.] 

Representative CLYBURN. President Obama has chosen two very 

well-qualified individuals whose nominations are very historic. I 

use the word ‘‘historic’’ because each of them brings a new level of 

diversity to the South Carolina Federal courts. Once confirmed, 

Richard Gergel will be the first Jewish justice, and Michelle Childs 

will be the second African-American female justice to sit on the 

10 

Federal bench in South Carolina. In fact, Judge Childs will also be 

the third woman and the third African-American justice. 

In addition to their diverse backgrounds and experiences as public servants throughout their careers, Michelle Childs and Richard 

Gergel have displayed exceptional integrity and an unwavering 

commitment to justice. 

Madam Chair, as Senator Graham has indicated, Judge Childs 

currently sits on the South Carolina Circuit Court, the State’s trial 

court of general jurisdictions. She serves as the Chief Administrative Judge for General Sessions, the State’s criminal court, and as 

Chief Administrative Judge for the State’s Business Court. 

According to the Chief Justice of South Carolina’s Supreme 

Court, Jean Toal, Judge Childs has demonstrated a dedication to 

the job and a work ethic unmatched by other judges. Chief Justice 

Toal tells a story that I think demonstrates the kind of judge 

Michelle Childs is, and shows the value system and commitment 

that she has to the law. 

Late one Friday afternoon before Christmas, the chief justice had 

a difficult emergency that needed to be resolved rather quickly, so 

she called the Richland County Courthouse and found that 

Michelle Childs was still on the bench and able to solve the issue 

with intelligence and compassion. A few days later, Judge Childs 

delivered her first child. In the words of Chief Justice Toal, ‘‘commitment is Judge Childs’ watchword, and I hate to lose her.’’ 

Judge Childs has served as an acting justice for the South Carolina Supreme Court. Prior to taking the bench in 2006, she was a 

commissioner with the South Carolina Worker’s Compensation 

Commission from 2002 to 2006. She is a former president of South 

Carolina Bar’s Young Lawyers Division, and currently serves on 

the South Carolina Bar’s House of Delegates. 

Madam Chairwoman, I also have the pleasure of introducing 

Richard Gergel. I have known Richard Gergel since he was the first 

student body president at the newly integrated Keenan High 

School in Columbia, South Carolina, the high school from which my 

three daughters graduated. 

Richard Gergel has the ability and experience to serve well on 

the trial bench. He has extensive experience as a trial lawyer and 

as a principal and senior partner with Gergel, Nichols & Solomon 

in Columbia, South Carolina, where he has specialized in personal 

injury litigation, employment discrimination matters, and complex 

government litigation since 1983. 

I have known him in my capacity as State Human Affairs Commissioner for almost 18 years. I found him to be a very good guy 

to work with on issues, and even a good guy when we are on opposites side of the issue. 

I want to conclude by urging the Committee, and the Senate as 

a whole, to move expeditiously to confirm these two candidates. 

Currently, 30 percent of the seats on the Federal bench in South 

Carolina are vacant and expeditious confirmation of these two outstanding nominees will do the legal profession proud and be a good 

thing for the State of South Carolina and the United States of 

America. 

I thank the Committee so much for allowing me to be here today. 

11 

Senator FEINSTEIN. And we thank you. Representative Clyburn, 

Senator Graham, I know you have other things to do, so if you 

wish to be excused or remain, it is really your option. Thank you 

very much. 

We have received letters from both Senators Burr and Hagen. 

They regret that they cannot be here today, but they have asked 

that I submit the records in support of Judge Catherine Eagles for 

the record. So ordered. 

[The information appears as a submission for the record.] 

Senator SESSIONS. Madam Chairwoman, I would just note that 

Senator Burr also gave me that statement and did express his regret that he couldn’t be here, but expressed his strong support for 

the nominee as a person that is scrupulously fair and has the intellect and integrity to be a fine judge. 

Senator FEINSTEIN. I appreciate that. Thank you very much, Senator. 

I would also add that Judge Eagles has presided over at least 

500 trials, has heard hundreds of civil and criminal motions, and 

has been unanimously rated ‘‘Well Qualified’’ by the American Bar 

Association. So, we look forward to her testimony. 

I would also submit at this time Senator Boxer’s statement. She 

regrets she is unable to be here and has asked me to submit her 

statement for the record in support of California nominees, Professor Goodwin Liu and Magistrate Judge Kimberly Mueller. 

I’d also like to recognize members of the House of Representatives here today, Representative Mike Honda, Representative Doris 

Matsui, and Representative David Wu, who are here today. Also, 

Representative Gregorio Sablan, we very much welcome you. So, 

thank you very much. 

Now, Mr. Liu, would you please come forward? If you would introduce your parents and your family at this time, then I’ll administer the oath. 

STATEMENT OF GOODWIN LIU, NOMINEE TO BE U.S. CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT 

Professor LIU. Thank you so much, Madam Chair. 

I’m delighted to be able to introduce my family today. With me 

from California, sitting in green behind me, is my wife, Ann 

O’Leary. She’s a native of Orono, Maine. Her parents, Pam and 

Charlie, couldn’t be here with us, but I’d like to introduce them as 

well. 

In Ann’s arms is my 4-week-old son Emmett, who I hope, Madam 

Chair, you will give special dispensation to sleep through this hearing. 

[Laughter.] 

Senator FEINSTEIN. Better asleep than the other end of the spectrum. 

Professor LIU. I think we’ll all be better off for it. 

Senator FEINSTEIN. Yes. 

Professor LIU. And then sitting next to my wife is the apple of 

our eye, that’s my daughter Violet. She’s 3 years old. It turns out 

that she and Emmett share the same birthday. My wife and I have 

been trying to explain to her that I’ve been nominated to be a 

12 

judge, and about 3 days after my nomination she said to me, 

‘‘Daddy, are you a judge yet? ’’ 

[Laughter.] 

Professor LIU. I said, ‘‘Well, that’s not the way this works.’’ But 

she became so interested in the constitutional process of advice and 

consent that she decided to join us here today. 

Senator FEINSTEIN. Right. 

[Laughter.] 

Professor LIU. Sitting in the row right behind are my parents, 

Wen-Pen and Yang-Ching Liu. They go by their initials, WP and 

YC. They came here all the way from Sacramento, California, 

where they live, to support me. 

I have a brother as well, Kingsway Liu, who also lives in the Bay 

area. He’s a doctor and couldn’t get a day off today to be here, but 

I also wanted to introduce him for the record. 

And behind me is a large number of my former students and 

friends, and I would just like to recognize them and the special efforts that they made to be here to support me. 

I don’t have any further statement, Senator. I’m happy to answer 

the Committee’s questions. 

Senator FEINSTEIN. Well, thank you very much. 

If you would stand and raise your right hand, please. 

[Whereupon, the witness was duly sworn.] 

Senator FEINSTEIN. Thank you very much. 

[The biographical information follows.] 

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58 

Chairman LEAHY. Madam Chair, if I could just interject. 

Senator FEINSTEIN. Mr. Chairman. 

Chairman LEAHY. Seeing the children there, Professor Liu, you 

should know, the folks on this Committee are constantly inundated 

and having to see pictures of my grandchildren, so I’m delighted to 

see your children, one of whom is roughly the age of one of our 

grandchildren. They’re beautiful children. 

Professor LIU. Thank you very much, Senator. 

Senator FEINSTEIN. Professor Liu, if you would please proceed 

and make a brief statement to the Committee, and then we will 

open the dias for questions. 

Professor LIU. Madam Chair, I have no opening statement. I 

would be happy to proceed with answering the Committee’s questions. 

Senator FEINSTEIN. My goodness. That’s very unusual. All right. 

Well, let me begin then. In a letter yesterday, Ranking Member 

Sessions wrote the following about your supplemental responses to 

your questionnaire: ‘‘There is now a serious question as to whether 

Professor Liu has approached this process with the degree of candor and respect required of nominees who come before the Committee. We can no longer extend him the benefit of the doubt that 

these substantial omissions, in which several of his more extreme 

statements appear, were a mere oversight.’’ 

I would like you to tell the Committee, if you will, what process 

did you use to provide materials to the Committee, and how were 

these supplemental materials overlooked, and were they provided? 

Professor LIU. Thank you, Madam Chair, for the question. I’m 

happy to have an opportunity to address that issue. 

First, let me acknowledge the frustration of members of the Committee with the way that I’ve handled the questionnaire. I want to 

make absolutely clear my assurance to this Committee today, in 

the most sincere and unambiguous way possible, that I take very 

seriously my obligations to the Committee and I want to try to be 

as forthcoming and complete in the information that I provide to 

you. I think it’s fair to say at this point, Madam Chair, that if I 

had had an opportunity to do things differently, I would certainly 

have done things differently. 

When I prepared my original submission to the Committee, I 

made a good-faith effort to find responsive materials to the questions. It became evident to me quickly that the submission was incomplete, so I redoubled my efforts to search for anything that 

could possibly be responsive to the questionnaire. The result was 

the supplemental submission that the Committee has, I believe 

dated April 5th. 

Some of the items in the supplement are things I should have 

found the first time. Other items in the supplement were things 

that I did disclose in the original submission, and where I was able 

to find a web page or a web link that described or announced that 

event, I included that as well. 

Still other items were things like brown bag lunches and faculty 

seminars and alumni events that I hadn’t thought to look for the 

first time because they were of the sort of thing that I do day-today as a professor and not things that I prepare remarks for, or 

even keep careful track of. 

59 

I submitted all of these items to the Committee in the interest 

of providing the fullest possible information for your consideration 

and I’m sorry that the list is long, and I’m sorry that I missed 

things the first time. 

For better or for worse, Madam Chair, I have lived most of my 

professional life in public. My record is an open book. I absolutely 

have no intention—and frankly, Madam Chair, I have no ability— 

to conceal things that I have said, written, or done. So I want to 

express to you today and to all the members of the Committee my 

fullest commitment to providing all the information that you need 

and want in considering my nomination, and I would like to do 

anything I can to earn the trust of the members of the Committee 

in my obligation to be forthcoming, both in my testimony today and 

with respect to the written materials. 

Senator FEINSTEIN. Well, thank you very much. I mean, you’re 

not the only nominee that hasn’t been able to provide all documents at a given time. 

In testimony before this Committee, you criticized some of the judicial opinions of then-Judge Alito, and particularly four of his 

opinions on the death penalty. Now, I’m one that has supported the 

death penalty, so I have two questions. The first is this: what was 

your objection to then-Judge Alito’s decisions in this area? The second is: will you have any problem upholding the death penalty as 

a Circuit Court judge? 

Professor LIU. I’m happy to address this, Senator. If I may, I’ll 

just take them in reverse order. The answer to the second question 

is absolutely not. I would have no difficulty or objection of any sort, 

personal or legal, to enforcing the law as written with respect to 

the death penalty. My writings have never questioned the morality 

or constitutionality of the death penalty, and I would enforce the 

law as written. 

With respect to then-Judge Alito, I believe I submitted for this 

Committee’s consideration my analysis in a few of the death penalty cases on which he sat as a Third Circuit judge, and those were 

cases in which there were divided panels, and thus the most contentious cases. 

I think in all four of those cases there were dissenting views offered by Judge Alito’s Third Circuit colleagues, including in each 

case Republican-appointed colleagues on the bench. And I believe 

my testimony, as well as written materials, highlighted what I 

thought were some concerns that were legitimately expressed in 

those cases. I believe in three of the four of those cases, his view 

did not prevail and in one of those cases his view did prevail. 

Senator FEINSTEIN. Thank you. 

Senator Sessions. 

Senator SESSIONS. Thank you. 

Professor Liu, I appreciate your statement about the omissions. 

I think you are correct that some of the items may not have been 

easy to discover or remember. Some of them, as you noted, should 

have been disclosed. The questionnaire calls for all interviews 

you’ve given to newspapers, magazines, radio, television stations, 

provide the dates of those, and so forth, and you failed to do that. 

It sort of comes on the heels of the Attorney General having forgotVerDate Nov 24 2008 10:00 Mar 30, 2011 Jkt 065346 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\65346.TXT SJUD1 PsN: CMORC
60 

ten that he filed a brief with Janet Reno and two other former government leaders in the Padilla case prior to his confirmation. 

So it just raises a point to me that this is a serious question. I’m 

going to continue to look at this, but I feel like you did not spend 

enough time on this. Perhaps some of it was because the hearing 

was moved so rapidly. But those supplementals that you filed were 

as a result of complaints and questions from the staff, things that 

bloggers had found and others had found that was produced after 

the date of the first setting of your hearing, was it not? 

Professor LIU. Yes, it was, Senator. 

Senator SESSIONS. We want to be sure that we have a complete 

and fair hearing. I think it’s fair to ask what standards we should 

use in evaluation of a nominee. You, in 2005, were highly critical 

of Chief Justice Roberts’ nomination. I consider him to be one of 

the finest nominees ever received by the court. You wrote, ‘‘There 

is no doubt Roberts had a brilliant legal mind, but a Supreme 

Court nominee must be evaluated on more than legal intellect.’’ I 

think that’s correct and I agree with you on that. 

Then you criticized Chief Justice Roberts’ work for a group called 

The National Legal Center for the Public Interest, stating that ‘‘its 

mission is to promote, among other things, free enterprise, private 

ownership of property, and limited government. These are code 

words for an ideological agenda hostile to the environmental, workplace, and consumer protections.’’ 

By the time Chief Justice Roberts was nominated to the District 

Court in 2001, in addition to his clerkships, he had served as a top 

lawyer at the Department of Justice. For the same office you have, 

he was nominated. 

In the White House Counsel’s Office, he was Principal Deputy 

Solicitor General. He led the appellate practice at a prominent law 

firm, had argued 39 cases before the Supreme Court, more than I 

think anybody in the country at that time, and certainly of his generation, as well as cases before every Federal Court of Appeals in 

the country. 

I understand that you were criticizing his nomination to the Supreme Court, but how do you compare your experience to move to 

the court that is one step below the U.S. Supreme Court? How do 

you compare your experience to that of now-Chief Justice John 

Roberts? 

Professor LIU. Well, Senator, I’d be the first to acknowledge that 

the Chief Justice has an extraordinarily distinguished record, both 

as a lawyer and as a judge. I believe most any nominee would be 

fearful of comparing their records to that of the Chief Justice. 

I suppose, Senator, that I would leave the comparison to others. 

I haven’t had some of the experiences that Chief Justice John Roberts had when he was nominated to the bench, but I’d like to think 

that, Senator, I’ve had other experiences that might be valuable as 

contributions to the bench. 

Senator SESSIONS. Well, likewise, you were highly critical of Justice Alito’s nomination and testified against his confirmation. You 

testified that, ‘‘Intellect is a necessary, but not sufficient credential. 

Equally important are the subtle qualities of judging that give the 

law its legitimacy, humanity, and semblance of justice. We care 

61 

about nominees’ judicial philosophy.’’ So do I. I agree with you on 

that. 

Likewise, I think you would acknowledge that Justice Alito had 

an extraordinary record. He served for 3 years as Assistant U.S. 

Attorney in the Appellate Division, Assistant Solicitor General at 

Department of Justice, the Office of Legal Counsel in Department 

of Justice, U.S. Attorney for New Jersey, had argued 12 cases before the Supreme Court, at least two dozen cases before the Federal Courts of Appeals. So have you argued any cases before the 

Supreme Court or any cases before the Federal Courts of Appeals? 

Professor LIU. Senator, I have not argued any cases before the 

U.S. Supreme Court. I have argued one case before the U.S. Court 

of Appeals for the DC Circuit. 

Senator SESSIONS. Now, I want to be fair about this. I know Senator Feinstein believes, and I do, that we shouldn’t personally attack nominees. But in your testimony, in the Alito nomination, I 

had not recalled the intensity of your remarks. 

You said at that time, ‘‘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 allwhite jury for killing a white man, absent, say, multiple regression 

analysis showing discrimination; and where police may search 

what a warrant permits, and then some. Mr. Chairman, I humbly 

submit, this is not the America we know, nor is it the America we 

aspire to be.’’ 

Do you think that’s a fair analysis of his record? Do you think 

it meets the standards of civility that we would normally seek to 

achieve in this Senate confirmation process? 

Professor LIU. Well, Senator, if I may explain, I think that the 

passage you read is perhaps unnecessarily colorful language that 

I used to describe a set of holdings or opinions that then-Judge 

Alito had expressed that are analyzed in the testimony that I gave 

to the Committee. 

Let me, if I may, back up and simply say that, as with Chief Justice Roberts, I have the highest regard for Justice Alito’s intellect 

and his career as a lawyer, and I think in many ways my regard 

for Justice Alito goes even further because he and I share an immigrant family background. 

He, too, I think, came from humble origins and attended public 

school and made the most of all of his opportunities to accomplish 

all that he has accomplished today, so I have the highest regard 

for those accomplishments and his trajectory. My criticisms and the 

concerns that I expressed were limited to one area, and that was 

the area in which individual rights come up against assertions of 

government power. 

In that area, I had some specific concerns about then-Judge 

Alito’s opinions on the Third Circuit and it did not—my testimony 

about him did not extend further into other areas of his jurisprudence on which he has written as a justice and as a judge. 

62 

Senator SESSIONS. Well, thank you. Time is up. I would just say, 

I do think that’s unfair to him. I think he’s a mainstream justice 

and it raises questions to me about where your philosophy of judging is. 

Senator FEINSTEIN. Thank you, Senator Sessions. 

Senator Leahy. 

Chairman LEAHY. Thank you. 

Professor Liu, I am extremely impressed with your background. 

I note where Richard Painter, who was the Chief White House ethics lawyer under President George Bush and worked during the 

Roberts and Alito nominations, he had worked with a number of 

President Bush’s nominees on their questionnaires. He has no 

problem with your responses to the questionnaire. He said that a 

lot of the items left off the original disclosure were relatively unimportant or redundant of what had already been disclosed. He went 

on to say that he doubted if we’d learn anything new from it. I 

agree with the former official in the Bush administration. 

I also recall, on these questions of what might be said when 

President Bush nominated University of Utah Professor Michael 

McConnell. I noted earlier his provocative writings. He wanted us 

to reexamine the First Amendment free exercise clause, the establishment clause, opposition to Roe v. Wade, opposition to the Violence Against Women Act which had passed here nearly unanimously. 

But—but—when we asked him, he said, ‘‘I agree with the doctrine of stare decisis.’’ Now, I supported his nomination. He went 

out of here and was confirmed the next day. I’d love to see that 

same standard applied to you. The standards of Republican and 

Democrats applied. Professor, I’d like to see the same standard applied to you. 

So let me ask you these questions: would you recuse yourself 

from litigation on issues that you’ve been involved with? 

Professor LIU. Mr. Chairman, I would, in all models that would 

come before me, if I were lucky enough to be confirmed as a judge, 

apply the principles of recusal that are contained in the U.S. Code, 

as well as the Canon of Judicial Conduct. I think those standards 

require judges to avoid the appearance or reality of any conflict of 

interest or any appearance of bias, and I would apply those with 

great fidelity and in consultation with my colleagues on the bench 

who have had experience with those standards. 

Chairman LEAHY. I know anytime that I argued cases before the 

Circuit Court of Appeals I was mindful of the fact that the Circuit—the judges would normally follow their own precedent, but 

absolutely would follow Supreme Court precedent. If you go on the 

Ninth Circuit, as I hope you do, will you follow the precedents of 

the Ninth Circuit, but especially the precedents of the Supreme 

Court? 

Professor LIU. Absolutely, I would. 

Chairman LEAHY. Would you feel bound by the precedents of the 

Supreme Court as a member of a Court of Appeals? 

Professor LIU. Absolutely, I would. 

Chairman LEAHY. And would you keep an open mind in cases 

coming before you? 

63 

Professor LIU. I would approach every case with an open mind, 

Mr. Chairman. 

Chairman LEAHY. Now, many of your academic writings have set 

forth your view of how to remain faithful to the values enshrined 

in the Constitution. There have been questions raised here that 

you have criticized some in the past in the Supreme Court. I am 

reminded what Chief Justice Roberts said recently. He thinks people should feel free to criticize what we do. I think all of us feel 

that way, the same as they are free to criticize those of us here. 

Michael McConnell. Outspoken, but a brilliant law professor that 

President Bush nominated to the Tenth Circuit. He harshly criticized the Supreme Court’s decision in Bob Jones. That was an 8:1 

decision, an 8:1 decision, saying the IRS could revoke the university’s tax exemption because it violated anti-discrimination laws. 

Now, he was enormously critical of that. He was confirmed by a 

voice vote. 

Now, do you believe, just because, like Michael McConnell, who 

was supported by every single Republican, who had been extraordinarily critical of the Supreme Court—do you believe that any 

criticism you might have made would make it more difficult for you 

to follow precedent? 

Professor LIU. No, Mr. Chairman. I think that there’s a clear difference between what things people write as scholars and how one 

would approach the role of a judge, and those two are very different things. As scholars, we are paid, in a sense, to question the 

boundaries of the law, to raise new theories, to be provocative in 

ways that is simply not the role of a judge to be. The role of the 

judge is to faithfully follow the law as it is written and as it is 

given by the Supreme Court. There is no room for invention or creation of new theories. That’s simply not the role of a judge. 

Chairman LEAHY. Thank you. 

I would note a letter written to us by Kenneth Starr and Akhil 

Amar from Yale Law School, written to Senator Sessions and myself. I’ll give the last paragraph of it: ‘‘In sum, you have before you 

a judicial nominee with strong intellect, demonstrating an independent and outstanding character,’’ referring to you. Of course, as 

you know, the nonpartisan ABA gave you the highest possible rating they could give a nominee. 

He said, ‘‘We recognize that commentators on all sides will be 

drawn to debate the views that Goodwin has expressed in his 

writings and speeches. In the end, however, a judge takes an oath 

to uphold and defend the Constitution. Thus, in our views, the 

traits that should weigh most heavily in the evaluation of an extraordinarily qualified nominee such as Goodwin Liu are professional integrity, the ability to discharge faithfully any abiding duty 

to uphold the law. Because he possesses those qualities to the highest degree, we are confident that he will serve in the Court of Appeals fairly and confidently and with great distinction.’’ Then Kenneth Starr and Professor Amar go on to say, ‘‘We support and urge 

a speedy confirmation.’’ I’ll put that in the record. 

[The letter appears as a submission for the record.] 

Chairman LEAHY. And we have letters from 27 former prosecutors and judges, commending your commitment to the Constitution. 

64 

These are judges and prosecutors who have supported the death 

penalty, for example. Madam Chair, I’ll put those in the record. 

[The letters appear as a submission for the record.] 

Chairman LEAHY. I strongly support this nominee. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Senator Hatch, you are next. 

Senator HATCH. Professor Liu, welcome to the Committee. We’re 

happy to have you here. I think your wife and family are beautiful. 

There’s no question that I believe you’re a very good intellect with 

a lot of ability. 

As I evaluate judicial nominees, I try to get a concrete picture 

of the kind of judge they would be. I look for clues about how much 

power they think judges should have over the law that judges use 

to decide cases. The law that Federal judges use is written law, 

such as written statutes and a written Constitution. We could all 

read what the law says. The real issue for judges is determining 

what the law means. The more leeway judges have, the more 

places they can look for the meaning of the law, the more powerful 

judges become, and are. 

The more power judges have over what the law means, the less 

power the people and their elected representatives have. Now, this 

issue is very important to me as I look at a judicial nominee’s 

record, including yours. So I want to note some of the things you 

have written that appear to relate to this question. In your book, 

Keeping Faith With the Constitution, you wrote that the Supreme 

Court looks to ‘‘social practices, evolving norms, and practical consequences’’ to give meaning to the Constitution. 

In an interview about that book you said that ‘‘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.’’ 

In a Stanford Law Review article you wrote that courts must determine ‘‘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.’’ 

Now, it seems to me that this type of an approach gives all the 

power to the judges. It lets judges decide what they want the Constitution to mean, not necessarily what it says. After all, judges 

pick which social practices to consider. Judges decide whether and 

how this or that norm is evolving. Judges pick which social challenges or conditions are relevant, which values are collective, how 

they have converged, crystallized, or been absorbed, if your philosophy is correct. 

Well, you wrote in your book that this approach is what you 

mean by fidelity to the Constitution. To me, it sounds more like fidelity to judging and to judges rather than the Constitution. Now, 

this approach just gets covered in whatever judges want to do with 

the law. 

Let me ask you this: do you stand by these approaches that you 

have written and spoken about, and do you really think that judges 

should have this much power over the law? What is left that can 

be identified as the Constitution after judges have finished adapting it generation after generation to changing conditions and chalVerDate Nov 24 2008 10:00 Mar 30, 2011 Jkt 065346 PO 00000 Frm 00074 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\65346.TXT SJUD1 PsN: CMORC
65 

lenges? What will be left of the Constitution if that is the approach? 

These are things that bother me and these are things that say 

to me that—well, put question marks in my mind as to whether or 

not you would properly act as a judge. It’s one thing to be a law 

professor and to make a lot of hypotheticals and other things. I 

make a lot of allowances for law professors, and we’re very grateful 

to good law professors like you. But what about that? Do you still 

stand by these approaches as though you can just about make of 

the law anything you want to? I know you can’t mean that, but tell 

me what you think. 

Professor LIU. Senator, first of all, thank you for extending the 

welcome to me and to my family. It means a lot to them and it’s 

an honor for them to be here. Thank you. 

Senator HATCH. You’re welcome. 

Professor LIU. Second, Senator, I think that whatever I may have 

written in the books and in the articles would have no bearing on 

my role as a judge. My role as a judge is, I think, clearly to follow 

the path laid for—— 

Senator HATCH. But how can you say that? Isn’t that your core 

philosophy, what you’ve written? 

Professor LIU. That is my core understanding of the duties of an 

appellate judge. And if I may, Senator, go further—— 

Senator HATCH. Sure. 

Professor LIU [continuing]. Then to address specifically the concerns you raised about the book. And let me say at the outset that 

I can certainly understand how it is that the phrases you’ve read 

lead to the concerns that you have. I appreciate the opportunity to 

explain a little bit more. 

In the book, I think one of the things we tried to articulate is 

that our Constitution is very special because it is a written Constitution, it’s a text. And as a text, it is a permanent embodiment 

of the core principles and the structure of government that we have 

chosen as a Nation. So that text is very special and the principles 

that are embodied in that text endure over the ages. Those things 

do not change. The text of the Constitution does not change, except 

through the prescribed procedures under Article 5 of the Constitution. 

What we argue in the book is that in order to preserve the meaning of that text, in order to preserve the power of that text, it’s necessary for judges, in some areas of the law, to give those phrases 

and those words meaning in the light of the current conditions of 

the society. Not all phrases, mind you. I mean, there are many 

parts of the Constitution that are clear-cut. You need two witnesses 

to convict someone of treason, not one. I think that’s a clear rule, 

so there’s no room for interpretation there. 

But where the Constitution says, for example, ‘‘unreasonable 

searches and seizures,’’ which are prohibited under the Fourth 

Amendment. Well, the Supreme Court has instructed that in applying that phrase, what we are to look to are the legitimate expectations of privacy that people have in the society. 

I’ll just recount, to close my answer, one example that we offer 

in the book. In 1961, the court decided a case called Katz v. United 

States, which considered the issue of whether the requirement of 

66 

physical trespass was necessary to make out an unreasonable 

search or seizure under the Fourth Amendment. That was a case 

about telephone wire taps. 

The court said, you know, in this day and age the answer to that 

is no, a physical trespass is not necessary to make it out because 

people have come to have a legitimate expectation of privacy in 

their telephone calls. That’s not simply a situation of new technology and old principles. Rather, I think it requires the court to 

have discerned, what is the societal expectation we have around 

phone calls as opposed to other challenges we have today, for example, like e-mail, Internet, and those are all issues that are still 

being litigated today where perhaps the privacy principles are not 

as clear-cut. But with respect to phones in 1961, the court said the 

Fourth Amendment applies to telephone wire taps. That’s the kind 

of approach, Senator, that those passages you read are meant to illustrate. 

Senator HATCH. Thank you. 

Madam Chairman, my time is up. I think I’ll probably have to 

wait till the second round. 

Senator FEINSTEIN. Thank you very much, Senator Hatch. Appreciate it. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Madam Chairman. 

Welcome, Professor Liu. I was going to follow up on Senator 

Hatch’s questions. You explained what this Constitution fidelity 

means to you. My question is, do you believe there’s only one legitimate way for a judge or a scholar to interpret the Constitution? 

Professor LIU. Senator Klobuchar, no, I don’t think there’s any 

one specific way. In fact, the court, in a variety of cases, has said 

that there’s not any formula, there’s not a mechanical process. The 

art of judging involves more than just a formula. 

Senator KLOBUCHAR. So are defenders of, say, originalism, like 

Justice Scalia, do you believe they are less legitimate judges than 

another judge that might have a different philosophy? 

Professor LIU. I would never say that Justice Scalia is a less legitimate judge than any other judge. Senator, I think the term is 

one of these terms that is used by lots of people to mean lots of 

different things, so I’d like to be careful in my answer to that question. 

If originalism is taken to mean that the original understanding 

of the constitutional provision is the sole touchstone and decisive 

sole touchstone for interpreting the Constitution, I would simply 

observe that the Supreme Court, throughout its history, has never 

adhered to that methodology. 

If originalism is taken to mean instead that the original meaning, and of course the text of the Constitution, are very important 

considerations that any judge, in interpreting a provision of the 

Constitution, must look to, absolutely. I believe that is absolutely 

true. In many cases, that could be determinative. But it is not, in 

some sense, the sole or ultimate touchstone against which all other 

considerations must yield. 

Senator KLOBUCHAR. So you would agree that judges could come 

at this with different constitutional interpretations when they look 

at a specific case? What I’m getting at here, is I was listening to 

67 

your answers to Senator Leahy about the difference between a 

scholar and a judge and I was thinking back to my law school days 

at University of Chicago, where Professor Easterbrook was my professor, who’s now on the Seventh Circuit, and also now-Judge 

Posner was at the University of Chicago when I was there. 

They clearly had a philosophy on economics and the law, a view 

of the law that not everyone would agree with. But do you believe 

that you can separate those out? And by the way, I think Judge 

Easterbrook was 36 years old, even younger than you, when he 

came before this Committee and he was confirmed through the 

process, despite having a view that might not be reflected in all of 

the past court decisions and interpretations. So my question of you 

is, do you believe that judges can separate out not only their goal 

as a scholar, but also as an advocate from what they become as a 

judge? 

Professor LIU. Indeed, Senator, I believe they can, and I believe 

they must. 

Senator KLOBUCHAR. Very good. 

I wanted to get at something else. We’ve been focusing a lot on 

some of your past advocacy or scholarship, as we would with any 

nominee, but just your life story, as I see your parents sitting back 

there, having emigrated from Taiwan. My understanding is, you 

didn’t even learn English until you were in kindergarten. Is that 

right? 

Professor LIU. That is true, Senator. 

Senator KLOBUCHAR. And that your parents believed in the value 

of education. The little boy who didn’t learn English till he was 5 

years old went on to be valedictorian of his public high school class, 

and then went on to attend Stanford, Oxford, and Yale. 

Could you talk about how your parents’ story and your life growing up, which is half your life, while we focus so much on individual things at the end, how that will influence you as a judge? 

Professor LIU. Certainly, Senator. I guess the way I would put 

it, is that I feel in many ways, Senator, I’ve lived a very ordinary 

life, but I’ve had very extraordinary opportunities along the way. 

The first of those extraordinary opportunities was to have parents 

who really cared about education. They came from a society that 

did not at the time know many of the freedoms that we take for 

granted in America, and that has always sat with me as a very important consideration in my coming to the law. 

I’ve also had tremendous educational opportunities at the fine institutions that you mentioned, and I’ve also had tremendous mentors along the way. I’m very glad that Congresswoman Matsui is 

here today because her husband Bob, who died an untimely death, 

was one of my early mentors in politics and the law. 

So the combination of all of these, I think, has made me the person who I am, and I believe in all the intangible ways, that would 

influence my perspective, hopefully for the better, as a judge. 

Senator KLOBUCHAR. Thank you very much. 

Senator FEINSTEIN. Thank you, Senator Klobuchar. 

Senator Kyl is actually next on the list, but he has very generously permitted Senator Coburn to go ahead. So, thank you, Senator Kyl. 

Senator Coburn, I’ll call on you. 

68 

Senator COBURN. Thank you, Senator Feinstein. And thanks, 

Senator Kyl. We have a hearing going on the financial breakdown 

in the Permanent Subcommittee on Investigations, and so I appreciate the opportunity. 

Professor Liu, welcome. I’m sorry I was not here for your opening 

statement, but I’ve read it. 

I want to go through a series of questions for you. I must tell 

you, based on what I’ve read, I’m highly concerned. I think you and 

I have a completely different philosophy when we look at the U.S. 

Constitution, and I want to try to understand where you are to give 

you a fair opportunity to convince me of how wrong I am. 

You co-wrote an article on ‘‘Congress, the Courts and the Constitution: Separation Anxiety.’’ You criticized the Supreme Court 

for overturning the Gun-Free Schools Act, legislation that restricted gun rights, stating, ‘‘Even more astounding than the 

court’s willingness to override common-sense legislation with such 

broad support—the House passed it with only one dissenting vote 

and the Senate passed it by unanimous consent—is its eagerness 

to do so in terms which are deliberately designed to exclude Congress, and by extension the American people, from playing a part 

in defining what the Constitution requires and what it permits.’’ 

You continued in that article, ‘‘The recent cases do not pretend 

to be opening arguments in the longer debate. Instead, they are 

self-conscious pronouncements asserting the court’s authority to be 

the sole and final arbiter of constitutional meaning. More and 

more, it seems Congress, and the American people by extension, 

are regarded by the court as mere targets of judicial discipline, unable to live and govern themselves within judicially enforceable 

limits. The court may have the final say on constitutional interpretation, but I do not see any reason why it should have the only 

say.’’ 

Then in a press interview concerning a legal challenge to California’s Proposition 8 which overturned California’s Supreme Court 

ruling in favor of gay marriage, you said the question before the 

court was: ‘‘Should the democratic process be allowed to enact this 

discrimination by a simple show of hands or is a more deliberative 

legislative process required? ’’ 

Given the brief that you filed in that case, I assume your answer 

to the question is no. You further stated in an L.A. Times article, 

‘‘Proposition 8 targets a historically vulnerable group and eliminates a very important right. Changing the constitution, the State’s 

paramount law, in such a momentous way arguably calls for deliberative, rather than direct, democracy. Indeed, as early as the Nation’s founders, our constitutional tradition has favored representative democracy over simple majority rule when it comes to deciding 

minority rights.’’ 

Now, I’m a physician. I’m not a lawyer, along with Senator Feinstein right now on this Committee. We’re the only two that aren’t. 

I understand that in one instance you’re discussing the Commerce 

Clause, and in another you’re commenting on the Fourteenth 

Amendment. But it seems to me that you think in one case the 

American people should have a say in the interpretation of the 

Constitution through the democratic process, and in another you 

say they should not. 

69 

This distinction, to me, based on these two episodes, would appear that it’s purely based on what you personally—what you personally—think of which right is important or is at issue. Can you 

please explain why a court should consider the will of the majority 

as expressed through the legislative process when restricting gun 

rights, but not when upholding the law protecting traditional marriage? 

Professor LIU. Senator, thank you for the question. I’m pleased 

to address it. 

Actually, Senator, if I could clarify the passages you read about 

Proposition 8. I actually testified before the California Assembly 

and Senate Judiciary Committees in October of 2008 about the 

legal implications of Proposition 8, in particular, the anticipated 

State constitutional challenge to the process by which that amendment to the State constitution was adopted. 

The testimony I gave was very clear Senator, that I believe that 

Proposition 8 should be upheld by the California Supreme Court— 

not struck down, but upheld by the California Supreme Court— 

under existing precedents. I was asked to testify in my role as a 

neutral legal expert. And despite whatever other views I might 

have had about Proposition 8 on the merits, my personal views, 

whatever, and even my legal views of the past, I testified before 

that Committee that the California Supreme Court should uphold 

that Proposition in deference to the democratic process. 

Senator COBURN. If I could correct your testimony, what you said 

in that is that you thought that they would, not that they should. 

I believe that was your testimony, according to the copies of your 

testimony that I have here. You said that they would. 

So my question remains the same. The question is, how on one 

hand can you say the court should—in other words, how are you 

going to pick that? If you’re an appellate judge, how are you going 

to pick which time you say you get the choice or we get the choice? 

The fact is, that is a whole new intervention in judicial philosophy for me, for an old guy from the sticks in Oklahoma, when I 

see this book—and I kind of like it and I kind of like what it says, 

even though sometimes it goes against me—and we’re going to be 

picking which way we’re going to do it. To me, I think it’s a marked 

inconsistency. 

Let me go on, if I may. In a recent Supreme Court decision, 

Roper v. Simmons, Justice Scalia stated in his dissent that the 

‘‘basic premise of the court’s argument that American law should 

conform to the laws of the rest of the world ought to be rejected 

out of hand.’’ Scalia continues that, in the case before the court, 

what these foreign sources affirm, rather than repudiate, is the 

Justice’s own notion of how the world ought to be and their dictates, that it should be so henceforth in America. 

I happen to have pretty strong agreement with that philosophy, 

and I’m sure you knew that before coming in here. For that reason, 

some of your statements about the use of foreign law deeply concern me. 

In an article you published, I guess it’s Daito University Law 

School in Japan, you said, ‘‘The use of foreign authority in American constitutional law is a judicial practice that has been very controversial in recent years. The resistance to this practice is difficult 

70 

for me to grasp, since the United States can hardly claim to have 

a monopoly on wise solutions to common legal problems faced by 

constitutional democracies around the world.’’ 

The only problem with that is, when you’re sworn in you will 

swear an absolute oath and allegiance to this document. It’s not 

about having a monopoly on being accurate, it’s a monopoly on the 

rulebook that we have. 

So would you give me your philosophy on how you will utilize foreign law to interpret our constitutional laws and treaties? 

Professor LIU. Certainly, Senator. I do not believe foreign law 

should control in any way the interpretation of United States law, 

whether it’s the U.S. Constitution or a statute. I believe that the 

use of foreign law contains within it many potential pitfalls. In 

other words, I think that what I’ve observed the Justices doing in 

some of these cases, is they choose the law that is favorable to the 

argument. It is not a canvassing of the world’s practices or in any 

way a full account of the various practices throughout the world 

with respect to their laws. 

And one of the things I think that makes this country unique 

and worth cherishing is that we are in many ways—in many, many 

ways—a much freer nation than many of the other countries 

around the world. So I think there are many hazards involved in 

looking at foreign law as guidance for how we interpret our own 

principles. 

I think the statement in the Law Review, if I could clarify, because I think there was only just a brief paragraph, alludes only 

to the idea that I think foreign precedent can be cited in the same 

way that a Law Review article might be cited, which is simply to 

say, judges can collect ideas from anyplace that they find it persuasive. But there’s a very important difference, Senator, and one that 

I take very seriously, between looking for guidance or ideas versus 

looking for authority. Authority is the basis on which cases are decided, not ideas or other forms of guidance. 

Senator COBURN. All right. Thank you very much. I went way 

over. I apologize. 

Senator FEINSTEIN. Thank you, Senator. 

Senator Kyl, you are next. 

Senator KYL. Thank you very much. 

Welcome, Professor Liu. Just on that last point, you distinguished between authority and ideas. The role of a judge is to decide the case, applying the authorities to the facts of that case. 

What’s the role of ideas that would warrant a citation to foreign 

authorities? 

Professor LIU. Well, Senator, I think that judges—— 

Senator KYL. Excuse me. If I can just add your exact quotation 

here: ‘‘The resistance to the practice,’’ you say, ‘‘is difficult for me 

to grasp, since the United States can hardly claim to have a monopoly on wise solutions to common legal problems.’’ 

Professor LIU. I think, Senator, the allusion is simply to the idea 

that judges, in their ordinary practice, do cite a variety of sources 

to bolster their reasoning on a particular point. But I go back to 

the point I was trying to make to Senator Coburn, which is simply 

that the role of a judge, to me at least, is only to decide—to make 

determinative—to make determinative the applicable precedents 

71 

and the written law—namely our law—on a particular case or controversy. 

Senator KYL. So then why do you write that the resistance to 

this practice—and you say ‘‘the use of foreign authority.’’ That’s 

what you’re talking about, not just citing Law Review articles. You 

say, ‘‘The resistance to this practice is difficult for me to grasp, 

since the United States can hardly claim to have a monopoly on 

wise solutions to common legal problems faced by constitutional democracies around the world.’’ It seems to me, there are two problems with this. The first, is finding ‘‘wise solutions’’ as opposed to 

interpreting the law; second, the reference to ‘‘foreign authorities’’ 

as ever being appropriate to interpret a U.S. law, except of course 

in treaty situations and the like. 

Professor LIU. Well, Senator, to the first point about the term 

‘‘solutions’’, I didn’t mean it in any way to implicate the notion of 

policy solutions. I meant the way in which judges have to, when 

they decide cases, articulate a legal rule. That’s the only meaning 

that I intended there. 

With respect to the use of foreign precedents, I would simply say 

that the use of those precedents can in no way be determinative. 

I think a review of Supreme Court cases that have actually implemented this practice shows, I think quite clearly, that the mention 

of foreign citations in those cases, to my reading at least, is not 

doing any legal work in the analysis and—— 

Senator KYL. Well, if I could just respectfully disagree with you, 

it is used, at least in one decision that I can recall, to bolster the 

argument that was made by the Justice writing the opinion. So 

we’ll talk more about this, this idea of authorities versus ideas, but 

I’m a bit confused. 

I also would like unanimous consent, Madam Chairman, to put 

into the record a bench memo, National Review Online, Wednesday, March 24th piece, that responds to the Amar-Starr letter that 

I think Senator Leahy put in the record, but in any event, someone 

did. 

Senator FEINSTEIN. So ordered. That will go in the record. 

[The memo appears as a submission for the record.] 

Senator KYL. Thank you. Thank you. 

And Professor Liu, let me also follow up on something one of my 

colleagues talked to you about. Senator Sessions, I believe, quoted 

the comments that you made relative to Justice Alito’s vision of 

America. Now, to me, this was reminiscent of Senator Kennedy’s 

quite unfair characterization of Judge Bork’s vision of America in 

the very famous speech that he made. 

Do you really believe that the words you spoke, what you said, 

is Justice Alito’s vision of America? 

Professor LIU. Senator, I think that that phrase is perhaps unnecessarily flowery language to make the simple point, that I was 

trying to give a series of examples of opinions that he rendered. 

Senator KYL. So you don’t really believe that it represents his vision of America? 

Professor LIU. Well, I don’t think that it represents his vision of 

America that he would implement as policy the practices described 

in that—in that paragraph. It was only meant to say that as a 

72 

judge, he believed that those practices were permissible in America—— 

Senator KYL. Well, why did you say it that way then? I mean, 

this calls into question your judicial temperament. That’s a key 

consideration for members of this Committee. That is not tempered 

language. I mean, you would acknowledge that, I gather. I hope. 

Professor LIU. Well, Senator, that—that statement—— 

Senator KYL. Would you acknowledge that that is not temperate 

language? 

Professor LIU. Perhaps not, considered in isolation, Senator. But 

that paragraph comes after 14 pages of quite detailed legal analysis of Judge Alito’s opinions, and that was the concluding—I believe, penultimate paragraph in that 14-page analysis. 

Senator KYL. Well, I see it as very vicious and emotionally and 

racially charged, very intemperate, and to me it calls into question 

your ability to approach and characterize people’s positions in a 

fair and judicious way. 

Senator FEINSTEIN. Thank you very much, Senator Kyl. 

Senator Cornyn, you are next. 

Senator CORNYN. Thank you. 

Senator FEINSTEIN. Before you go, Senator Cornyn, I’d like to acknowledge the presence of Representative Bobby Scott, again from 

the other House. He also serves on the Judiciary Committee. Welcome, Representative Scott. 

Please proceed. 

Senator CORNYN. Good morning, Professor Liu. Welcome. I don’t 

think there’s any doubt in my mind, certainly, that you are an 

American success story, as a son of immigrants and someone who’s 

taken advantage of the opportunities that fortunately we all have 

here in America, to get to the very top of the legal profession, in 

your case. 

I guess the question I have is, is this the right job for you? It’s 

not just a question of brilliance, it’s not just a matter of your academic skill. It really is, is this the right job for you? 

I know that you and Senator Hatch talked about the role of a 

law professor relative to that of a judge, but let me tell you specifically what some of my concerns go to. They may seem relatively 

mundane, but I think they really are very important. 

I note that you say in your questionnaire you’ve not tried any 

cases in courts of record to verdict, judgment, or final decision. Is 

that correct? 

Professor LIU. That is correct, Senator. 

Senator CORNYN. Having been a State court judge myself for 13 

years, I am really very troubled by the fact that, as Senator Sessions documented in his questions, that the lack of attention and 

diligence, and frankly, sloppiness, in your response to this Committee’s questionnaire. There were four occasions when you supplemented your responses, not because you discovered they were incomplete, but because Committee members and staff went on 

Google and found speeches, documents, press releases, and things 

that you hadn’t previously disclosed. 

From my experience as a former trial judge, I will tell you that 

if a lawyer came into my courtroom and failed to respond completely and accurately to a request from the other side for informaVerDate Nov 24 2008 10:00 Mar 30, 2011 Jkt 065346 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\65346.TXT SJUD1 PsN: CMORC
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tion and had to be called to task four different times before they 

finally got the honest, complete, and truthful answer, that that 

lawyer would find themselves held in contempt of court, or worse. 

So I don’t know whether it’s because of your lack of experience 

in a courtroom or what it is, but can you offer me any comfort at 

all that this is not really just an act of contempt, but is just some 

other explanation? 

Professor LIU. Certainly, Senator. I have the—I want to express 

again the fullest commitment that I possibly can to providing this 

Committee with any information that it wants or needs in evaluating my candidacy for the bench. 

Senator CORNYN. Have you actually apologized? 

Professor LIU. I have, Senator. 

Senator CORNYN. You have? 

Professor LIU. In my transmittal letter of the April 5th submission, I did express an apology, and I’m happy to reiterate it here, 

which is that I’m very sorry for the omissions that existed in the 

initial questionnaire. I would simply say, though, that the lion’s 

share of items that I submitted in the supplements were not items 

that were brought to my attention by others, they were items that, 

upon more diligent searching, I was able to provide to the Committee, including all the various instances in which I moderated a 

panel, or accepted an award, or emceed an event, or introduced a 

speaker, or spoke at a brown bag. I tried my best to comb through 

all the Internet sites and all the other places that one could look 

for such things. I understand the Committee’s frustration with my 

handling of the questionnaire, and I would have done things differently if I had had the opportunity. 

Senator CORNYN. Can you assure us that you’ve made a complete 

and accurate response to the Committee’s questionnaire at this 

point, or are there other items that we are going to discover or find 

out about that have not been revealed? 

Professor LIU. Well, Senator, in the—in the revised submission 

of April 5th, I detail in the beginning of the answer all the searches 

that I conducted. And if the Committee or any member would desire that I do any more searching, I would be happy to do that with 

dispatch and turn over any other material that I’m able to find. 

Senator CORNYN. Let me turn to part of your response earlier. 

I think it was in response to Senator Kyl’s questions. You characterized some of your criticism of Justice Alito as ‘‘not striking the 

proper balance between individual rights and governmental 

power.’’ 

I’d just like to ask you, in a straightforward way, what do you 

think the Tenth Amendment of the Constitution means, and how 

should it be applied? It reads: ‘‘The powers not delegated to the 

United States by the Constitution nor prohibited by it to the States 

are reserved to the States respectively, or to the people.’’ 

Do you recognize any limit on Federal power to do whatever Congress decides it wants to do or do you think that that’s—in other 

words, do you think the Tenth Amendment is a dead letter? 

Professor LIU. Absolutely not, Senator. The Supreme Court has 

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ment, and I respect those precedents and would apply them faithfully. 

Senator CORNYN. Yet, you criticized Chief Justice Rehnquist’s decision or opinion in the Lopez case, which was the application of 

that very same doctrine of federalism. Is that correct? 

Professor LIU. I—I expressed concerns about that decision, yes. 

Senator CORNYN. And I would tell you that the American people—I hear it from my constituents in Texas, and I hear it from 

people all across the country, are very concerned about the aggressive growth of the Federal Government and the intrusion of the 

Federal Government in their lives, which is one reason why at 

least 16 Attorney Generals—maybe there are more by now—have 

filed suit, challenging, for example, the individual mandate in the 

health care reform bill as an unprecedented expansion of Federal 

power into their lives. 

I’m not going to ask you for a legal opinion about that, since that 

may come before you, if you are confirmed. But do you recognize 

that our government is not a national government, but a Federal 

Government, and that individuals and States reserve significant 

power to make decisions affecting their lives that the Federal Government cannot, and should not, touch? 

Professor LIU. Absolutely, Senator. I think that from the founding of our country, we have always had a Constitution that defines 

the powers of the Federal Government as a set of enumerated powers only. In other words, the Congress of the United States, together with the President, the political branches are not—it’s not 

a legislature of general powers, as the States are. The States are 

legislatures of general powers, but the Federal Government is not. 

So, the whole notion of enumeration presupposes the idea that it 

is a government of limited powers. 

Senator CORNYN. Madam Chairman, I know my time is up. I 

would just like to note that I know Professor Liu has been rated 

unanimously ‘‘Well Qualified’’ by the American Bar Association’s 

Standing Committee on the Federal Judiciary, even though, as he’s 

acknowledged, he hasn’t tried any cases in courts of record to verdict, judgment, or final decision. 

I would note, just a few years ago when Judge Frank 

Easterbrook was nominated to the Seventh Circuit, that it appears 

that a different standard was applied by the American Bar Association when they gave him a majority ‘‘Qualified’’, minority ‘‘Not 

Qualified’’ because they said he lacked experience as a practitioner. 

Maybe the ABA, when they come—and I assume they will at some 

point—to testify can explain that. But it appears to be a double 

standard. 

Senator FEINSTEIN. Thank you very much, Senator Cornyn. 

Senator Kaufman. 

Senator KAUFMAN. Yes. Welcome to the Judiciary Committee and 

the Supreme Court nomination process. 

[Laughter.] 

Senator KAUFMAN. As you can see, there are some basic differences about the Constitution on this Committee. Senator Cornyn, who I hold in very high regard, I think may have—and Senator Sessions, and Senator Kyl—a different opinion about the role 

of the Federal Government, which we battle on every single JudiciVerDate Nov 24 2008 10:00 Mar 30, 2011 Jkt 065346 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\65346.TXT SJUD1 PsN: CMORC
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ary Committee meeting, but in a very collegial way, in a very good 

way. I think we’ve all kind of agreed to disagree on some of these 

issues. 

Anyway, can you talk a little bit about, you clerked both in the 

District of Columbia Court of Appeals and the Supreme Court. Can 

you tell me what you kind of learned about the role and function 

of appellate judges during your experience? 

Professor LIU. Certainly. Thank you, Senator Kaufman. 

I had the enormous privilege to clerk for two outstanding judges. 

And one of the things I learned as a law clerk on the U.S. Court 

of Appeals for the DC Circuit, I think, is applicable to the point 

that Senator Cornyn raised. It is true, I have not tried cases to verdict and I wouldn’t claim expertise in that—in that way. 

But one of the things that the judge for whom I clerked routinely 

did, was he instilled in his law clerks an appreciation for the role 

of the District judge, and the role of the District judge in understanding how litigants bring cases and how cases get framed. Thus, 

in virtually all the cases I can remember, he always sent us down 

to the first floor of the courthouse to go read the record, read the 

record of what happened in the court below, and those determinations and that record was due an amount of deference because a 

judge had already passed over this issue once. 

And I think that that perspective has always stayed with me, 

that although we have a system of hierarchy in our courts, all of 

the members of the courts serve as Article 3 appointees, in some 

sense as co-equals in the judicial system, and they serve different 

functions at different points. 

And so I would pay, I think, as an appellate judge, very careful 

attention to the standards of review that apply to the case at hand, 

because many of those standards of review caution against appellate judges making, in essence, new determinations or as if they 

were writing on a blank slate when in fact the issue has always 

been passed through once. 

Senator KAUFMAN. And so many of the questions you’re asked 

here, your personal beliefs really don’t matter that much, do they, 

as long as you’re a Circuit Court of Appeals judge? 

Professor LIU. Not at all, Senator. In fact, the other thing I 

learned on the DC Circuit was how many issues—virtually everything that comes through the door—has around it a set of applicable precedents, and so there really is no room, in the cases that 

come up, for judges to invent new theories or to create new doctrine. They are applying the law as it has been interpreted by the 

Supreme Court and as it has been written by Congress in the cases 

of statutes. 

Senator KAUFMAN. So you don’t have real flexibility in terms of 

your personal beliefs on issues? 

Professor LIU. Personal beliefs, I believe, Senator Kaufman, 

never have a role in the act of judging. 

Senator KAUFMAN. Your experience at Department of Education. 

What do you think came out of that that would help you serve on 

the Circuit Court? 

Professor LIU. Well, I had the great distinction of being able to 

work for some extremely talented leaders in that department. I 

think what it gave me was some perspective on how agencies make 

76 

decisions, and to the extent that the Courts of Appeals do hear 

cases that concern administrative law, it does help, I think, to have 

some appreciation for the ways in which regulatory decisionmaking, as well as other forms of guidance, get made through the 

Federal agencies. 

Senator KAUFMAN. And how about your experience in private 

practice? How would that, do you feel, help you if you get on the 

Circuit Court? 

Professor LIU. I feel enormously grateful that I had the time that 

I had at the O’Melveny & Myers law firm, a collection of outstanding and extremely talented and smart lawyers who showed 

me in many ways how businesses approach problems, that the role 

of the lawyer is absolute loyalty to his or her client, and the vigorous and zealous advocacy for the client’s interests. I learned, I 

think, a respect for the process of litigation and the virtues of our 

adversarial system of litigation. 

I also learned what it was like to bill a lot of hours from time 

to time, but I think that that is part of the zealous advocacy that 

is expected of any lawyer who takes on a client. 

Senator KAUFMAN. I want to thank you for your public service. 

This is difficult, but the fact that you’re willing to do it and the fact 

that others are willing to do it really makes this country function. 

I think everyone here applauds the fact that you are willing to 

make the sacrifices you have, and even more important, your wife 

is willing to make the sacrifice she’s going to have to make for you 

to go through this, and then to serve on the Circuit Court. So, I 

want to thank you for your service to your country. 

Professor LIU. Thank you, Senator Kaufman. 

Senator KAUFMAN. Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator Kaufman. 

Because of the importance of this nominee, we will certainly have 

a second round. I’d like to just indicate, my intent would be to go 

to 12:30, take a half-hour break, and reconvene at 1. We have four 

additional nominees to hear, and so I know that this is a long wait 

for you, but I hope you understand. I think it’s very important that 

members have an opportunity to ask Professor Liu all the questions that they want to ask and take the time that’s required to 

do it. So I must apologize to you, but it is the way of the Senate. 

So if there’s no objection, we’ll proceed with a half-hour break in 

about 45 minutes, and then begin again. 

Senator SESSIONS. Thank you for that. I think the nominee 

raises a lot of important philosophical questions about law and the 

Constitution and we do have a number of questions, so I thank you 

for the courtesy of allowing sufficient time. 

Senator FEINSTEIN. Thank you very much. 

To begin the second round, I’d like to say a couple of things. I 

really think that there is a double standard being applied here, so 

I’d like to take a look at just a few of President Bush’s nominees. 

Let me begin with the Chief Justice. Chief Justice Roberts failed 

to provide documentation for over 75 percent of the speeches and 

remarks listed in his questionnaire. Not a single Republican objected when the Committee received 15,000 supplemental documents just 4 days before his confirmation hearings were scheduled 

to begin. In fact, both Chief Justice Roberts and Justice Alito supVerDate Nov 24 2008 10:00 Mar 30, 2011 Jkt 065346 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\65346.TXT SJUD1 PsN: CMORC
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plemented their questionnaires several times after returning them, 

including, 75,000 and 36,000 pages of documents, respectively. 

Judge Michael McConnell has been covered: appointed to the 

Tenth Circuit, a prolific constitutional law professor from 1985 to 

2001. He did not list a single speech or talk on constitutional law 

or legal policy. He was confirmed. 

Judge Jeffrey Sutton, appointed by the President to the Sixth 

Circuit, submitted a questionnaire that simply stated ‘‘I have given 

numerous speeches to local Bar Associations, Ohio judges through 

the Ohio Judicial College, the Federalist Society, and continuing 

legal education seminars regarding the United States Supreme 

Court and the Ohio Supreme Court. I either spoke from informal 

notes or extemporaneously.’’ He was confirmed. 

Judge Brett Kavanaugh, as has been stated, appointed by President Bush to the DC Circuit, submitted a questionnaire that listed 

22 speaking events, prefaced by this statement: ‘‘I’ve given remarks 

on occasions, etc.’’ He was confirmed. 

Judge Catharina Haynes, appointed by President Bush to the 

Fifth Circuit, submitted a questionnaire that said, ‘‘As a local judicial candidate I’ve been to dozens, maybe hundreds, of events 

where each candidate is asked to introduce himself or herself. I 

have no recordings or notes of these matters, no way to track accurately the dates and locations.’’ She was confirmed. 

Judge Diana Skyes, appointed by President Bush to the Seventh 

Circuit, submitted a questionnaire along the same lines. The same 

thing for Judge Kent Jordan to the Third Circuit. 

So I think this, and I must say, is remarkably unfair. We have 

heard the nominee clearly state that he overlooked some things, 

clearly state that he’s prepared to do anything he can to see that 

the Committee is fully informed of his writings. I don’t know what 

more a nominee can do, you know. To rise this to the level that he 

should be denied confirmation, and this being one of the major reasons, seems very unfair to me. 

I would like to ask one question on the commerce clause, however. In recent years—the commerce clause, as we all know, is a 

very important clause of the Constitution which essentially allows 

the Congress to legislate in a number of different areas as long as 

they relate to interstate commerce. 

In recent years, the Supreme Court has used a much more constraining view of the commerce clause to strike laws such as the 

Gun-Free Schools Act of 1995, and the Violence Against Women 

Act of 1994. So what is your understanding of the scope of Congressional power under Article 1 of the Constitution, particularly the 

commerce clause? 

Professor LIU. Well, Senator, in those two cases, as well as other 

cases that have followed on—in particular, I’m thinking of the medicinal marijuana case, the Gonzales v. Raich case, the court has 

articulated a doctrine in which there are essentially three categories of ways in which Congress can exercise commerce power, 

the most substantial of which is a third category in which the court 

says that the Congress can legislate on matters having a substantial effect upon commerce. A lot of the constitutional doctrine has 

turned on, what is a substantial effect? 

78 

In the Gun-Free School Zones case, as well as the Violence 

Against Women case, which I know both of them are very important to you, Senator, the court articulated a doctrine that said that 

the activity being regulated has to be economic in nature, but it 

stops short of saying that that is an absolute requirement before 

the substantial effects analysis can get going because in the medicinal marijuana case just a few years afterwards the court said, but 

we have to look at the activity as a class of activities, not just the 

individual instance of an individual possessing a gun, or in the case 

of the marijuana case, the individual who is desiring the medicinal 

marijuana, but rather we have to look at it as a class. 

And I think that’s where the state of the law is right now, is that 

the court has said that—has put a focus on the economic nature 

of the activity, but has instructed the lower courts to look at that 

issue, not simply as the individual instance but as a class. That is 

the doctrine, as I understand it, and I would faithfully apply that 

doctrine in any case that came before me as a judge. 

Senator FEINSTEIN. Thank you very much. My time is up. 

Senator Sessions. 

Senator SESSIONS. Professor Liu, your article I quoted earlier, 

‘‘Rethinking Constitutional Welfare Rights’’, is a troubling document to me. You say there that your thesis is that the legitimacy 

of judicial recognition of welfare rights depends on ‘‘socially situated modes of reasoning that appeal not to transcendent moral 

principles of an ideal society, but to the culturally and historically 

contingent meanings of social goods in our own society.’’ 

Well, I presume that’s a standard you think judges should apply. 

Do you think a standard, once you reject ‘‘transcendent moral principles for an ideal society and move to culturally and historically 

contingent meanings of particular social goods in our own society’’, 

what kind of legal standard is that? Doesn’t that allow a judge to 

do anything they want to do? 

Professor LIU. Senator Sessions, the Supreme Court has, I think, 

pretty clearly said that judges cannot create welfare rights in the 

Constitution. 

Senator SESSIONS. No, no, no. What you wrote. 

Professor LIU. And I—— 

Senator SESSIONS. Let me just say—— 

Chairman LEAHY. Let him answer the question. 

Senator SESSIONS. I’m going to allow him to answer, but I just 

want to say, we do have a time problem. I’m asking a specific question, so if you can do the best you can to be succinct, I’d appreciate 

it. 

Professor LIU. Certainly, Senator. I simply mentioned what the 

Supreme Court said because in that article I express agreement 

with what the Supreme Court had said on this score, which is 

that—elsewhere in the article I say very clearly that judges have 

no role in inventing welfare rights out of whole cloth and doing it 

on their own. 

Instead, I think the passages that you’re reading there are perhaps overly academic language for a simple point, which is that if 

there are going to be welfare rights in society they must come from 

the legislature, they must come from Congress, and I used the term 

‘‘legislative supremacy’’ to capture that idea. And so—— 

79 

Senator SESSIONS. Well, could I say, you say ‘‘so conceived justiciable welfare rights reflect the contingent character of our society’s 

judgments.’’ So you’re talking about a judge’s welfare rights. 

Professor LIU. Senator, yes. The role for judges that the article 

lays out is only that role that the Supreme Court’s own precedents 

have supported in the past, which is when the legislature has created a program of benefits or some sort, there are various challenges that are occasionally brought to eligibility requirements or 

termination processes, and the court has seen those as justiciable 

issues. 

Senator SESSIONS. Does it raise a question of whether a State or 

a Federal Government could reduce welfare rights once they’ve 

been established? Is that a justiciable—— 

Professor LIU. Senator, elsewhere in the article I make very clear 

that the courts have—I believe I used the term ‘‘no role for courts 

at all’’ in disturbing legislative judgments of that sort, and I use 

the example of Congress’ 1996 welfare reform law which ended 

cash assistance to poor families as an entitlement, and I said that 

the courts have no role at all in questioning that judgment by Congress. 

Senator SESSIONS. Well, you do say that you deal with that danger. You note there’s a danger of court take-over of the legislative 

process, but you say that can be avoided ‘‘when courts employ constitutional doctrine in a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our 

social understanding.’’ 

That seems to mean that you’re saying a judge has a right to use 

the power of the court—lifetime appointment—‘‘to ensure that welfare provisions democratically reflects our social understandings.’’ 

So to me, that’s an unintelligible standard and you’re giving a virtually unlimited power of courts to review welfare or health care 

type legislation. 

Professor LIU. Senator, I think that, once again, if I could, you 

know, try to in some sense cut through the academic jargon there, 

the only—— 

Senator SESSIONS. I’ll agree. 

Professor LIU. Thank you. On that point we can agree. I guess 

I’d simply say that the point was trying to capture the way in 

which the Supreme Court has in past cases approached questions, 

constitutional questions, that have arisen about legislated programs of benefits. One thing to note about that, Senator, is just 

that that area of doctrine has not in some sense spiraled out of control. It’s not that judges are, even in an everyday kind of way, making decisions about what kind of welfare rights people should get. 

In fact, it’s a very limited role, and that’s the only role that I envisioned in the paper. 

Senator SESSIONS. Well, in your statements that were not originally produced, but later produced, commenting on your book, 

Keeping Faith With the Constitution, you defined what fidelity to 

the Constitution is. I expressed what I think I believe, and what 

Professor Van Alsteen believes, which is, faithfulness is following 

it as written even if you don’t like it. 

But you say, ‘‘what we mean by fidelity is that the Constitution 

should be interpreted in ways that adapt its principles and its text 

80 

to the challenges and conditions of our society in every single generation.’’ So it seems to me you’re saying that a judge can ignore 

the proper way to amend the Constitution and adapt not only its 

principles, but its text, to meet whatever challenge they divine at 

a given time. Correct me if I’m wrong. 

Professor LIU. Well, Senator, that is not what I believe. If I may, 

I think that the interpretation of the Constitution always has to be 

on the basis of legal principle and not on the basis of what a majority of the society thinks or what the judge in question thinks. 

Across any—in any generation, the interpretation of the Constitution has to be guided by not what makes people happy, rather, it 

has to be guided by the faithful application of the text, the underlying principles, and the precedents that have accrued up to that 

time. 

Senator SESSIONS. Well, I’m going to try to fairly evaluate that 

answer, but I don’t think your writings reflect it. So, it’s up to my 

judgment. I mean, I have to make a decision: is what you’re saying 

today consistent with what you said then? I would note that— 

thank you. 

Senator FEINSTEIN. Thank you, Senator Sessions. 

Senator Leahy. 

Chairman LEAHY. Thank you. I would note that it’s one thing to 

write academic papers and another thing to testify under oath. I 

think that Professor Liu has testified very well here today. I would 

note that the article we’ve been talking about explicitly rejects the 

idea that the courts have the power to create benefits and respects 

the role of the legislature in the creation of those. I mean, the article speaks for itself. I would hope we would keep on the facts on 

his legal abilities. I’ve heard comments made suggesting your views 

are racist, and I just find that outrageous. 

Let’s talk about your legal reasoning. We throw around these ancillary charges so easily these days. I don’t know why, what has 

happened in this country. I remember when I said, as many others 

did, that I opposed Justice Alito’s nomination and I was attacked 

as being—in a full-page ad as being anti-Italian. 

Now, when my grandparents emigrated to the United States to 

Vermont from Italy, when my Italian-American mother and her 

siblings were growing up, knowing how much I respect my uncles 

and aunts and cousins in Italy and visit them often, I remember 

sitting on my Italian grandparents’ knees and speaking Italian 

with them, I think it’s kind of a stretch. 

It’s sort of the same stretch that you heard when I opposed 

Judge Pryor’s nomination and Senator Kennedy and Senator Biden 

and Senator Durbin and I were called anti-Catholic. I remember 

talking to my pastor leaving mass the next day. He said, ‘‘Where 

does this sort of thing come from? ’’ And so I would hope we can 

talk about the law and not things that have belonged to another— 

maybe another time, an unhappy time in our country. 

We’ve heard you criticized that you hadn’t had a lot of courtroom 

experience. You know, I don’t recall a single Republican saying 

anything when Judge Kimberly Ann Moore was nominated by 

George W. Bush, President Bush, for the Federal Circuit. She had 

had 2 years as a clerk, 1 year of private practice, and 7 years in 

academia. Nobody felt this disqualified her. 

81 

Or when Judge J. Harvey Wilkinson was nominated at the age 

of 39 by President Reagan to the Fourth Circuit, he had had 1 year 

as a clerk, 5 years as a newspaper editor, 2 years in the government, 5 years in academia. He was confirmed. 

Or Judge Frank Easterbrook, nominated by President Reagan at 

the age of 36. He spent 1 year as a clerk, 5 years in the government, 7 years in academia. Let’s talk about realities. Let’s leave 

these straw men kind of complaints out of it. 

We have so many people sitting on our Courts of Appeals nominated by Republican Presidents, supported by both Republican and 

Democrats who do not begin to have the kind of background that 

you do, or begin to have the kind of support, bipartisan support, 

that you have. I think we shouldn’t forget that. 

The American Bar Association’s Standing Committee on the Federal Judiciary found you unanimously ‘‘Well Qualified.’’ That’s the 

highest possible rating. They did it in a nonpartisan hearing. 

Strong support of both your home State Senators. Even a conservative Fox News commentator recently conceded your qualifications 

for the appellate bench are unassailable. 

Now, tell us again the difference between the role of the legal advocates or academic commentators, as you have been playing, as 

opposed to the role you’d have to play as a judge. Tell us the difference, and tell us whether you think you’d have any difficulty adjusting to a new role as a judge. 

Professor LIU. Certainly, Mr. Chairman. I think 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 that process works is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations 

that are at issue in the case. 

Academics, when they write, are not bound in the same way. The 

job of law scholars, when they write, largely, I think, is to probe, 

criticize, invent, be creative—in other words, many of the qualities 

that are not the qualities that one expects the judicial process to 

possess. 

One thing that I would like to highlight, though, between these 

two types of roles, which I hope comes through upon a review of 

my record, is that there are some similarities between, hopefully, 

the legal scholarship and the process of judging, which is that I 

would hope that my record shows an open mindedness, an ability 

to consider all points of view, a rigor, a respect for the law as an 

enterprise that has to have integrity, and all of those forms of discipline that make for habits of mind of good listening that I think 

in other ways makes—could make a person a good judge. 

Chairman LEAHY. Thank you. As my sainted mother would have 

said, molto grazie, but as I’ll say, thank you very much. 

Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator Leahy. 

Senator Kyl. 

Senator KYL. Thank you, Madam Chairman. 

Professor Liu, just expanding on this point that we’ve been discussing earlier, you’re distinguishing between the situation in 

which Congress has legislated in an area, and then the court can 

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bility for those rights. That was the way you described the substance of what you wrote in this one article. 

Let me ask if you personally believe—personally believe—that 

‘‘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 training, and a robust Earned Income Tax Credit.’’ In 

fairness, that is exactly what you wrote. That’s a direct quotation. 

Also, ‘‘that we should be thoughtful, but not bashful, in forging political solidarity necessary for redistributive mutual aid.’’ Do you 

personally believe those statements? 

Professor LIU. Senator, I’m not familiar with which—is that from 

my article? Or which text is that that you’re reading from? 

Senator KYL. Yes. I’m sorry. We were quoting from that article. 

It is the ‘‘Education, Equality and National Citizenship’’, in 116, 

Yale Law Journal, 2006. 

Professor LIU. OK. As in—as in all things, Senator, I think I— 

I stand by my writings. I—I—whatever views I’ve expressed about 

those matters, however, I would set aside absolutely in my role as 

a judge, because quite frankly I don’t see the role of a judge as 

being involved in those kinds of issues. 

Senator KYL. And I appreciate the fact that you’ve said that. The 

problem is, colleagues here on the Committee have talked about 

the need to get judicial nominees—now, I grant, this was in the 

context of a Supreme Court nominee—who would have certain 

agenda that they would bring to the office, agendas that conform 

with my Democratic colleagues’ agendas, which I don’t necessarily 

share. One of the concerns that I have expressed about an activist 

judge is whether or not you approach deciding cases with those 

agendas in mind or you lay them aside. 

Now, you’ve expressed—and I did quote accurately, I think, from 

that article what you wrote. I perceive these to be your personal 

opinions. Then I also perceive your view of the law to be that we 

should find ways to accommodate those opinions, albeit you do say 

once the legislature has acted. I’ll just quote directly how you state 

that. This is on ‘‘How Welfare Rights May be Recognized Through 

Constitutional Adjudication in a Democratic Society.’’ 

‘‘Once a legislative body creates a welfare program it’s the proper 

role of the courts to grasp the community meaning and purpose for 

that welfare benefit. When necessary, courts should expand the 

wealth redistributing effects of the program to satisfy needs of 

equality and national citizenship.’’ Then you note that you can do 

that, for example, by ‘‘invalidating statutory eligibility requirements or strengthening procedural protections against withdrawal 

of benefits’’, and that is what you said earlier. 

Professor LIU. That’s true. 

Senator KYL. That seems to me to be an agenda. You bring an 

agenda to the court, and you’ve written about how that agenda can 

be accomplished through the judicial process, not the legislative 

process. You say in another place in this article, ‘‘the constitutional 

guarantee of national citizenship has never realized its potential to 

be a generative source of substantive rights.’’ You talk about how 

it was ‘‘neutered by previous court decisions, the affirmative as opposed to negative interpretation of the Constitution.’’ 

83 

So I view this as, you have these views. They are very liberal 

views. You believe that once the legislature has opened the door, 

that courts can be used to expand those rights in what you would 

consider to be an appropriate way. 

Professor LIU. Well, Senator, I guess I would say that the—those 

are my views and they’re accurately reflected in the passages you— 

you wrote—you—you spoke. I guess I would characterize them 

though not as an agenda, but rather as my endorsement of precedents of the court that have done precisely those things. And as a 

lower court judge, I would follow certainly those precedents, but 

any precedents that—— 

Senator KYL. I recognize what you’re saying is that when the legislature has acted, courts—there’s some precedential ability of 

courts then to—either through restricting qualifications, for example, of expanding those rights. But it is very clear from what you’ve 

said not that these are just examples that you picked out of thin 

air as, gee, this is what the court might do, but rather, this is your 

personal view of something the court should try to do. Am I wrong? 

Professor LIU. Senator, I’m not sure that I would say that they 

are things that the court should try to do. I think that a court— 

certainly if I were confirmed as a judge—would have to simply follow what the Supreme Court has instructed the courts to do on 

particular issues. But if I could put the passages you read in further context, I would say that most of my writing in this area and 

the area that Senator Sessions has asked me about—and I understand this is an interest of great importance to you, Senator—most 

of my writings on education, on welfare, and on, you can call it, 

broadly, social policy, if you wish, have been directed actually at 

policymakers and at legislators, not at judges. 

So if you look across the broad range of my scholarship on a sort 

of, I guess, page-for-page basis, most of what I’ve written is directed at legislators because I come at this from a perspective of 

judicial restraint in this area. I think that those articles, I hope, 

convey my understanding of how difficult it is for courts to get involved in this area. We have some historical lessons learned about 

those—about these kinds of areas. And so that’s why I think most 

of my work, my scholarly work, has actually been directed at policymakers, not really at urging courts to do more. 

Senator KYL. If I could just—one final question. Can you see why 

the passages from this particular article raise the doubt that I have 

expressed to you? 

Professor LIU. I certainly do. 

Senator KYL. Thank you. 

Professor LIU. I understand. 

Senator FEINSTEIN. That completes our second round. Now, Senator Kyl—excuse me. Senator Cornyn has indicated that he is on 

his way back and will arrive within 5 minutes and does wish a second round. I’ll tell you what we will do, if that’s all right. We’ll 

begin a third round, and then I’ll give Senator Cornyn some additional time when he comes in. We’re just going to go for another 

15 minutes and then recess. 

Are you bearing up all right? 

Professor LIU. I’m doing just fine. Thank you, Madam Chair. 

84 

Senator FEINSTEIN. You’ve got amazing cool. Congratulations. I 

wish I had. 

In describing your approach to constitutional fidelity, you have 

said that the practical consequences of legal rules matter. I happen 

to agree with this. For example, in the Lilly Ledbetter case, the 

court interpreted Title 7 to require a woman to pay a pay discrimination case—excuse me, to file a pay discrimination case within 

180 days of when her employer first paid her less than her male 

counterparts, even if she had no way of knowing at that time that 

she was being paid less. Congress has had to pass a new law to 

overrule that decision and communicate to the court that Title 7 

was not intended to have this result. Senator Mikulski led this battle, and I think it was the first bill signed by President Obama. 

So here’s the question: when do you believe it’s appropriate for 

a judge to consider the practical consequences of legal rules? 

Professor LIU. Well, Senator, I think that that’s one of the aspects of decisionmaking that I think properly inform the consideration of most cases that come before the courts. Law affects people’s lives and it’s not a bunch of words on paper, it’s not a bunch 

of cases in the books. These are real things that affect people’s 

lives. Decisions made by a judge should not be based on favoritism 

toward affecting a person’s life one way or the other, it should be 

based, though, on an appreciation of what’s at stake in a particular 

case. I don’t think that one can really grasp the magnitude of the 

particular case or controversy without understanding how that 

plays out in people’s lives. 

Senator FEINSTEIN. Well, thank you. 

Just so people know, there is no way that Lilly Ledbetter could 

have known. She didn’t find out until years later what had happened. So the question was, did she have redress? The court ruled 

no, and we changed that to change the law. 

The Supreme Court stated conclusively in the case of Grutter v. 

Bollinger that State universities have a compelling interest in obtaining the educational benefits that flow from a diverse student 

body. That case and others also made clear that efforts to attain 

diversity must be carefully tailored to the true educational benefits 

and not a racial quota. 

Now, in log entries, you have been accused of favoring racial 

quotas, so I want to ask you plainly: do you favor racial quotas, 

and do you believe they are constitutionally permissible? 

Professor LIU. Senator Feinstein, I absolutely do not support racial quotas. In my writings, I think I’ve made very clear that I believe they are unconstitutional. 

Senator FEINSTEIN. So will you follow Supreme Court law, as articulated in Grutter v. Bollinger and Gratz v. Bollinger, that laid 

out the court’s guidelines for when and how it is permissible for a 

university to seek to attain a diverse student body? 

Professor LIU. Absolutely, I would, Senator. I think my writings 

have written approvingly of the standards set forth in those cases. 

Senator FEINSTEIN. The question that Senator Kyl asked you on 

social welfare rights—let me ask this question in another way. In 

a highly theoretical article in the 2008 Stanford Law Review, you 

critiqued two other scholars’ notion of constitutional welfare rights 

and put forth a theory of your own in which courts engage in ‘‘a 

85 

dialectical process of engagement with the political branches and 

the public they represent.’’ 

Now, I’d really like to hear you explain this in plain English. I 

mean, you’re obviously very smart. You’ve been gifted with a great 

mind. How much is genetic and how much is learned, I don’t know, 

but you have an unusual mind. You’re also very young. Sometimes 

one can get so fancy in their writing that the plainspoken person 

attributes a lot of things to it that may well not be there. So could 

you take a crack at what the ‘‘dialectical process of engagement 

with the political branches and the public they represent’’ actually 

means? 

Professor LIU. Certainly, Senator Feinstein. Let me preface my 

answer by promising that if I were ever confirmed as a judge, I 

would not write opinions that sound like that. 

[Laughter.] 

Professor LIU. All I mean to say, I think, in that article, is it is 

a characterization of the process through which the precedents of 

the court have in a sense gone back and forth with the exercise of 

the legislative power to define the scope of welfare rights. In that 

back-and-forth process, courts occasionally—occasionally—weigh in 

with principles under the due process clause or the equal protection 

clause. 

But the legislature, I argue in that—in that piece, retains the 

final word with respect to the creation of those rights and the 

elaboration of when those rights are going to kick in and not kick 

in. The final word belongs to the legislature. 

And so I hope that what comes through in the article is a posture 

really of judicial deference, because what I’m arguing against in 

the first half of the article is a strain of thinking that was popular 

in the 1960s and 1970s, that judges should just wholesale invent 

these things and come up with their own moral theories of what 

the Constitution requires. I wholesale reject that point of view. 

That is what the first half of the article is devoted to, is a rejection 

of that point of view. 

Senator FEINSTEIN. Thank you very much. 

Senator SESSIONS. Excuse me. Could I defer to Senator Cornyn, 

and then come to you, for his second round? 

Senator KYL. Madam Chairman, if we’re going to do that, and 

we’re going to break at 12:30 but we’re going to come back at 1, 

if I could just excuse myself right now then and be back. 

Senator FEINSTEIN. Yes, certainly. 

Senator KYL. Thank you very much. 

Senator FEINSTEIN. So why don’t you, in an effort to extend all 

of the exigencies of membership which aren’t usually extended, let 

me give you your second round now so you wouldn’t have missed 

it. 

Senator CORNYN. Thank you, Madam Chairman. 

Professor, I assume you’re familiar with the work of Judge Stephen Reinhardt on the Ninth Circuit? 

Professor LIU. I wouldn’t say I’m familiar with his work, but I 

know a little bit about him and his reputation, yes. 

Senator CORNYN. Do you recall having disagreed with a decision 

by Judge Reinhart? 

86 

Professor LIU. Senator, actually, I can’t even think of an opinion 

by him off the top of my head. 

Senator CORNYN. Okay. Fair enough. Fair enough. 

Let me then ask you, is your theory of constitutional fidelity substantively different from the living Constitution view endorsed by 

other liberal scholars? 

Professor LIU. Well, Senator, I think the term ‘‘living Constitution’’ has been used by lots of people to mean lots of things. I don’t 

like the term and I—in the book, we reject the term because it suggests that the Constitution is a malleable document that can be 

read to have words in it that really are not in it. 

And I think we take the position that the Constitution is a written text for a special reason, and that is because the text was 

meant to be the enduring thing that judges would have to apply 

in the course of deciding cases and not, you know, something that’s 

extra—you know, outside of the text and not something that they 

would invent on the fly. 

Senator CORNYN. On the issue of foreign law, Professor Koh—I 

guess now he is, of course, at the State Department—has described 

the debate between transnationalists and nationalists when it 

comes to the application of foreign law, or what its use might be 

by judges interpreting, for example, the United States Constitution, 

United States law. 

I believe he thinks that transnationalists believe that domestic 

courts have a critical role to play in incorporating international law 

into domestic law, while nationalists claim only that the political 

branches are authorized to domesticate international legal norms. 

Do you agree, first of all, with this distinction by Professor Koh, 

and if you do, which are you, a transnationalist or a nationalist? 

Professor LIU. Well, Senator, frankly, I’m actually not familiar 

with this debate in the law. I would say perhaps something similar 

to what I said to Senator Coburn on this issue, which is just that 

I think that in the decision about what the meaning of American 

statutes are and what the meaning of the American Constitution 

is, American precedents and American law are the things that control. 

Senator CORNYN. Changing subjects again, in your article, ‘‘Rethinking Constitutional Welfare Rights’’—I think this has come up 

in a different context since I had to leave—you write that legislation may give rise to a cognizable constitutional welfare right if it 

has ‘‘sufficient ambition and durability, reflecting the outcome of 

vigorous public contestation and the considered judgment of a highly engaged citizenry.’’ 

I don’t know if that would pass Senator Feinstein’s standard for 

plain speaking. But I would just ask your reflecting on the recent 

debate on health care reform, which passed after vigorous public 

contestation. I think we could all vouch for that. Does that give rise 

to—does passing a law like that give rise to new constitutional 

rights? 

Professor LIU. Well, I think it’s an excellent question, Senator 

Cornyn. I want to say, I have not—I don’t have a view on that because, like many Americans, I actually haven’t read the health care 

legislation. And beyond that, I think it’s—within just the confines 

of the quote that you read, the durability of it is something I guess 

87 

that’s remained to be seen, because I understand that it’s being 

challenged in the courts and that even Members of Congress may 

wish to revisit elements of it in the future. So I think my initial 

take on your question, although I haven’t thought about it very 

much, is just that it’s too early to tell. 

Senator CORNYN. Well, so you would at least hold out the possibility that an act of Congress could confer welfare rights or benefits 

that would somehow become constitutional in nature, which then 

could not be repealed by a subsequent Congress. Is that right? 

Professor LIU. It could always be repealed, Senator. My theory 

doesn’t suggest that it could never be repealed. It could always be 

repealed. And the only way—I mean, the term ‘‘constitutional’’, as 

I’ve used it, is perhaps misleading. It only means to say that, according to the court’s precedents, the court has recognized, in the 

application of, say, equal protection principles or due process principles, a recognition of the rights that are created by Congress, and 

in making decisions under those other clauses of the Constitution, 

have given them due weight in the consideration of, say, eligibility 

restrictions or termination processes. Those are the cases in which 

I—those are the cases I’ve endorsed in that article as conferring a 

judicially cognizable right. So, that’s—that’s the only sense in 

which I mean those terms. 

Senator CORNYN. My last question is, in that same article you 

cite the Supreme Court’s decision in USDA v. Murray of 1973 as 

an example of how the court may invalidate an act of Congress and 

recognize a welfare right. You note that Murray directly engaged 

the court in substantive policy judgment, an approach that you call 

‘‘plausibly appropriate in exceptional cases.’’ 

Can you list some examples of exceptional cases in which it 

would be appropriate for the court to engage in substantive policy 

judgments, and as a judge, if confirmed, would you feel authorized 

to engage in such substantive policy judgments? 

Professor LIU. Senator, I don’t think I would feel authorized to 

engage in substantive policy judgments because I think that’s a 

prerogative that belongs to the democratic process. I think, actually, in the article, Senator, if I recall correctly, I was critical of the 

Murray decision because it went further in that regard than my 

theory would—would—would permit. 

Senator CORNYN. Well, thank you very much, Professor. 

Professor LIU. Thank you. 

Senator CORNYN. Thank you, Senator Feinstein. 

Senator FEINSTEIN. Thank you, Senator. 

The hour of 12:30 has arrived. I would like to place some letters 

in support in the record. So ordered. 

[The letters appear as a submission for the record.] 

Senator FEINSTEIN. We will take a one-half hour break. When we 

come back, Senator Sessions will lead off. So, please, get some food 

and some drink and come well prepared. 

Professor LIU. Thank you. Thank you. 

Senator FEINSTEIN. Thank you. 

The Committee will be in recess until 1 p.m. 

[Whereupon, at 12:30 p.m., the Committee was recessed.] 

AFTER RECESS [1:08 p.m.] 

Senator FEINSTEIN. The hearing will resume. 

88 

As I indicated, we will begin with the Ranking Member, Senator 

Sessions. 

Senator? Oh. If I might say something while you’re getting ready. 

The procedure is really to do just two rounds for an appellate 

judge. I want everybody to have an opportunity to ask questions, 

and so I suggested to the nominee that we will do just whatever 

it takes to have the questions asked and answered. I would really 

beg the forbearance of the other four nominees, although I suspect 

you don’t mind not being on the hot-seat. 

[Laughter.] 

Senator FEINSTEIN. Senator Sessions. 

Senator SESSIONS. Thank you so much. 

Well, words have meaning. We are in a serious location, dealing 

with serious issues involving the appellate courts of the United 

States and a lifetime appointment. I remain uneasy about some of 

the—not so much the answers you give, but how they square with 

what you’ve written before and what impact that has on my understanding of the clarity of your thought and how you approach judging. There’s quite a bit of difference between a theoretical law professor and the practicality, the day-after-day duty of enforcing contracts and disputes and ruling on rules of evidence, so I have to 

say that. 

With regard to the death penalty, you’ve written some about 

that. Let me just ask you, first, do you personally favor it? I would 

say absolutely that this would not impact my view of how you 

would conduct your office. I think good judges can differ on whether they believe in a death penalty or not, and the critical thing is, 

I guess, will you follow the law. 

So I guess my first question is, do you favor the death penalty 

or not? 

Professor LIU. Senator Sessions, I have no opposition to the 

death penalty. I’ve never written anything questioning its morality 

or constitutionality. I would have no problem enforcing the law as 

written in this area. 

Senator SESSIONS. Well, in talking about—in a report of a panel 

you moderated called ‘‘Civil Rights Litigation in the Roberts Court 

Era’’ as part of the Reclaiming and Reframing the Dialogue on 

Race and Racism, you made some comments about it. You talked 

about changes in State courts and said, ‘‘and part of that movement are changes in some of the State legislation and Supreme 

Courts is the result of State court decisions that have gotten rid 

of some bad practices—some State legislation that’s gotten rid of 

some bad practices—and then the absorption of that cultural shift 

into Federal law through the Eighth Amendment.’’ 

It seems to me what you’re saying there is that legislation in various States somehow can change how we should interpret the 

Eighth Amendment. Do you mean that, and whether or not it applies to the death penalty? 

Professor LIU. Senator, I think I was perhaps reporting the way 

in which the Supreme Court has instructed that the Eighth 

Amendment be interpreted, and the Supreme Court, in its opinions, looks to the practices of the States in informing the meaning 

of the Eighth Amendment. 

89 

Senator SESSIONS. Well, I’m not sure about that. It seems to me 

that—well, I could see that that would be a theory. Is that the theory that Marshall and Brennan used when they consistently dissented in every death penalty case, asserting that the death penalty violates the Eighth Amendment prohibition on cruel and unusual punishment? 

Professor LIU. Senator, I’m actually not sure what theory they 

used to arrive at that conclusion. I think the comment that you 

read tracks more closely to the view that the justices have used 

since the time, actually, of Brennan and Marshall to articulate the 

standard by which they determine whether something is or is not 

constitutional under the Eighth Amendment. 

Well, is it relevant to you too that there are six—I think maybe 

eight—references in the Constitution to the death penalty and it 

would be a stretch, would it not, to say that the Constitution prohibits the death penalty, and that any phrase in it, general phrase 

like ‘‘cruel and unusual punishment’’ should be construed to eliminate what is positively referred to at six or eight different places? 

Professor LIU. Senator, I think that is very strong and important 

textual evidence that the Constitution contemplates the death penalty. The Fifth and Fourteenth Amendments to the Constitution 

specifically refer to deprivation of life, but it’s followed, of course, 

with the guarantee of due process of law. But I think that is pretty 

strong textual evidence that the Constitution contemplates—— 

Senator SESSIONS. But do you think that the actions by States 

can change that? That’s what you said, it ‘‘could shift the absorption of that cultural shift.’’ That’s your words. ‘‘Some cultural shift 

can transfer into Federal law through the Eighth Amendment.’’ 

The implication of your remarks is that it could somehow have the 

cruel and unusual clause constrict the death penalty. 

Professor LIU. Well, Senator, I think my understanding of that 

is that the court has always said consistently throughout its cases 

that the imposition of the death penalty is a constitutional punishment within the confines of the other guarantees of the Constitution. I haven’t understood those decisions to attempt to outlaw the 

death penalty. Rather, they have dealt with specific—much more 

specific issues related to how the death penalty is administered 

and to whom. 

Senator SESSIONS. Well, Professor Liu, two justices on the Supreme Court dissented in every single death case, Justice Brennan 

and Justice Marshall, on the clear view that it was cruel and unusual punishment. 

Professor LIU. I’m not endorsing their view, Senator. 

Senator SESSIONS. Well, you seem to in this quote. You can say 

that today. Your quote here seems to suggest you think that if the 

States change some of their rules of death penalty, that somehow 

will allow the Eighth Amendment now and Federal judges to alter 

what I think is plainly a constitutional punishment. 

On the—gosh, time flies. 

Senator FEINSTEIN. Yes. Questions are long. 

[Laughter.] 

Senator SESSIONS. You’ve written, arguing that the citizenship 

clause of the Fourteenth Amendment creates a positive right, I 

would summarize, to whatever benefits are at least necessary to 

90 

fulfill full participation as a citizen. You go on to note in your 

‘‘Interstate, Inequality, and Educational Opportunity’’ piece that 

the Fourteenth Amendment ‘‘guarantee of national citizenship was 

a generative source of substantial rights.’’ 

I’m uneasy a bit to suggest that the plain words of the Fourteenth Amendment are generating rights. But besides that—and 

you wrote that citizens have ‘‘positive rights to government assistance’’, as I understand it. 

That is rights derived from the Constitution, as I understand it, 

and that ‘‘these rights can be a guarantee not only against State 

abridgment’’, you wrote, ‘‘but also as a matter of positive right.’’ 

You concluded that such an agenda, a constitutional agenda, would 

‘‘include expanded access to health insurance, child care, transportation subsidies, job training, and a robust Earned Income Tax 

Credit.’’ So do you believe that, yes or no? 

Professor LIU. I do believe that, Senator. But those arguments 

are addressed to policymakers, not to the courts. 

Senator SESSIONS. Well, that’s important—a very important distinction, and I’ll review that. It does seem to be consistent with 

your view of expansive governmental powers. 

Senator FEINSTEIN. Thank you, Senator Sessions. 

Senator SESSIONS. One thing, and I’ll conclude this remark. That 

is that as you noted, both with Alito and Roberts, judicial philosophy is important. Your writings are the only thing we have to evidence that. I don’t think it’s sufficient just to say that I’ll follow authority somewhere in the system, because many, many times a case 

of first impression will be before you and your philosophy will indeed impact how the law is shaped. 

Senator FEINSTEIN. Thank you very much. You cannot say you 

have not had adequate time. 

Senator SESSIONS. Thank you. 

Senator FEINSTEIN. Senator Kyl. 

Senator SESSIONS. I believe it was on fast. 

Senator FEINSTEIN. Oh, do you? 

[Laughter.] 

Senator KYL. Thank you, Madam Chairman, and for your patience. 

I want to get back to this question of agenda that I was talking 

about before we had our little break. You, in a broadcast earlier 

this year, January 3rd, on NPR, were discussing how the Obama 

administration represented a new opportunity for the American 

Constitution Society. You said that Obama administration, ‘‘that 

ACS had the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.’’ 

What did you mean by ‘‘our ideas’’ and your ‘‘progressive vision’’ of 

the Constitution and law and policy? 

Professor LIU. Senator, I think that was a reference to the ideas 

that underpin the American Constitution Society. I think, as the 

mission statement of that organization reads, it’s a dedication to 

certain basic principles of our Constitution: genuine equality, liberty, access to the courts, and a broad commitment to the rule of 

law. 

Senator KYL. Is it fairly described as a progressive vision or progressive mission? 

91 

Professor LIU. I think many people have described it that way. 

I think that’s fair, yes. 

Senator KYL. Now, the—— 

Professor LIU. The—the organization, I mean. 

Senator KYL. Yes. 

Professor LIU. Not necessarily—I think the values are those of 

the Constitution. I don’t think they’re—I wouldn’t say they’re progressive or conservative, or whatever. I think those are the values 

in the Constitution. 

Senator KYL. Well, the way you described it was ‘‘the opportunity 

to actually get our ideas and the progressive vision of the Constitution and of law and of policy into practice’’, so I assume you subscribe to these views when you talked about ‘‘our ideas.’’ 

Professor LIU. I have—I think, as I think the record shows, Senator, I have been deeply involved in the American Constitution Society. 

Senator KYL. Yes. 

Professor LIU. I have served on the board, I have chaired the 

board. 

Senator KYL. There’s nothing wrong with having views that are 

wrong. 

[Laughter.] 

Senator KYL. No. OK. But I mean, so that’s what you meant by 

‘‘the opportunity to actually get our ideas and progressive vision of 

the Constitution and law and policy into practice.’’ But I guess the 

follow-up question is, obviously I guess you would say you were 

speaking in a policy way, not through the judicial process. Is that 

the way—— 

Professor LIU. I think—well, Senator, the short answer is yes. In 

addition, I think that—look, I mean, I think every President has 

his or her own views of what vision they would like to enforce as 

a President. I think—I don’t think I was meaning anything more 

than just that basic prerogative of the President. 

Senator KYL. Policy through the appropriate ways of implementing policy. 

Professor LIU. Absolutely. Yes. 

Senator KYL. And what you’re suggesting is that it isn’t appropriate for a judge to have a policy agenda which he brings to the 

court and to try to get that agenda adopted into law. 

Professor LIU. Absolutely. I think it would not be appropriate for 

any President to appoint a nominee for a judgeship because of that 

nominee’s agenda. 

Senator KYL. OK. I mentioned to you before, two of my colleagues, one of whom is the Chairman of the Committee—and I’ll 

just quote from an April 13th article in Politico. He was talking 

about things like the Ledbetter case and the Citizens United case: 

‘‘I think what people are going to do is say, do you share our concern about the fact that the court always seems to side with the 

big corporate interests against the average American.’’ That’s the 

end of Chairman Leahy’s quote. Do you think, first of all, that 

that’s an accurate characterization of what the Supreme Court 

does? 

92 

Professor LIU. I think the Supreme Court tries as best as it can 

to apply the law fairly and equally to all interests of the society, 

whether they are ordinary people or corporate interests. 

Senator KYL. Do you think that if you were on the Ninth Circuit 

Court of Appeals that you would have a biased or a preconceived 

notion or an agenda to try to right a balance and rule more against 

big corporate interests? 

Professor LIU. Absolutely not, Senator. 

Senator KYL. How about in cases where the question of executive 

power versus legislative power or judicial power is concerned? Do 

you think that executive power has gotten too big and that the 

courts should try to reign it in and rebalance so that the executive 

power is more limited vis-a ́-vis the other branches? 

Professor LIU. Senator, I couldn’t say that I have any sort of theory of that sort. I think courts can only decide the cases that are 

presented to them based on the applicable law. The—— 

Senator KYL. So would—— 

Professor LIU. Sorry. 

Senator KYL. No. Excuse me for interrupting. So your view would 

be that if this Committee tried to promote a nominee because of 

our belief that that nominee would rule against big corporate interests or would rule against executive powers, that that would be an 

inappropriate basis for us to base support for a nominee on? That’s 

bad grammar, but forgive me. 

Professor LIU. I think—I think that—obviously, Senator, I won’t 

pretend to suggest what standards this Committee should use in 

evaluating a judicial nominee. That’s clearly your prerogative and 

not mine. I would simply say that for all judicial nominees, I think 

the—I—I would hope that the important test is whether the nominee would be faithful to the law that has been given, and especially 

for a lower court nominee like myself. In virtually all of these 

areas, the Supreme Court has said things and handed down precedents, and those would have to be faithfully followed regardless of 

whatever theory the nominee had about the issue and whatever the 

nominee may have written previously. 

Senator KYL. Thank you. 

Senator FEINSTEIN. Thank you very much, Senator. 

The hour is now 1:30. I would really like to recess or adjourn this 

part of the hearing and move on to the four other judges. I know, 

Senator Kyl, you’re going to meet with Professor Liu separately. 

Senator KYL. Well, I would like to do that. I’m just wondering, 

and of course, whatever you would like to do, obviously we can do. 

I can probably, in about—in no more than 10 minutes, and maybe 

less than that, conclude the questions that I had, if that would better fit into the schedule. I mean, I’m just going to try to truncate 

all of this and forget some stuff. 

Senator FEINSTEIN. Well, in hopes that you might then vote for 

him, 10 minutes. 

[Laughter.] 

Senator KYL. Now, how about that for a test? 

[Laughter.] 

Senator KYL. Obviously we don’t want to approach cases with a 

preconceived notion, do we? I mean, whatever you want to do. But 

I think I could fairly quickly get through this. 

93 

Senator FEINSTEIN. All right. Fairly quickly. 

Senator KYL. OK. 

Senator FEINSTEIN. No more than 10 minutes, and then we move 

on. 

Senator KYL. That’s acceptable. 

Let me ask a question that I asked a previous nominee. The 

President had talked about—he used two different analogies about 

judging, talking about the kind of nominee he would nominate. 

One, was the first 25 miles of a 26-mile marathon, and the other 

was, he said, ‘‘In 95 percent of the cases the law will give you the 

answer, the last 5 percent, legal process will not lead you to the 

rule of decision. The critical ingredient in those cases is supplied 

by what is in the judge’s heart’’, he said. 

Do you agree with him that the law only takes you the first 25 

miles of the marathon and that the last mile has to be decided by 

what’s in the judge’s heart? 

Professor LIU. Senator, I guess that’s a colorful analogy, but I’m 

not sure that’s necessarily the one that I would subscribe to. I 

think that judges should apply the law all the way through, and 

I’m not a person who believes that what’s in the judge’s heart 

should have a bearing on what the outcome of a case would be. 

Senator KYL. OK. Relative to the Ledbetter case, because Senator 

Feinstein asked you if in some cases it’s important to determine— 

let’s see. I’ll try to get the exact quotation: ‘‘to consider the effects 

of a decision on persons’ lives’’, and that was a case where, at least 

presenting it from the Supreme Court’s point of view, they interpreted the law as they saw it. 

Many people believed that the result was a—led to an unfortunate—that that interpretation led to an unfortunate result on Mrs. 

Ledbetter’s life. So I guess the question is, should that court have 

considered the effect on her life in making the decision that it did? 

Professor LIU. Senator, not to my knowledge. I mean, it would 

depend on what the applicable law told you to take into consideration. But I don’t believe—— 

Senator KYL. You remember the statute of limitations issue. 

Professor LIU. Yes, I’m aware. Yeah. And I don’t believe that the 

effect on Ms. Ledbetter’s life is the relevant determinant there. 

Senator KYL. So presumably you would have just tried to read 

the statute, and if she lost, then that was something to be corrected 

by the legislature, if the legislature decided to correct it? 

Professor LIU. I would look to the way the statute of limitations 

had been applied in the precedents. I would look to the statutory— 

the relevant statute that governed that issue, and I would try to 

apply it faithfully, yes. 

Senator FEINSTEIN. Senator Kyl. 

Senator KYL. Sure. 

Senator FEINSTEIN. Just for a moment. 

Senator KYL. Sure. 

Senator FEINSTEIN. My question was a little different. It wasn’t 

how it affected her life, it was the practical consequences of legal 

law. In other words, the consequence of the law was so convoluted 

because she could not possibly have known that she should have 

been paid on a different pay scale. 

94 

Senator KYL. Of course, I stand corrected since I was citing Senator Feinstein. 

Would that change your answer? 

Professor LIU. I think, you know, just to perhaps bring the two 

things closer together, I think it is important to consider the kinds 

of practical consequences Senator Feinstein speaks of in the sense 

of saying, if the statute of limitations doctrine has within it—and 

I’m not saying it does. Actually, I don’t know what—you know, I 

don’t know off the top of my head what the doctrine says. But if 

it has within it some notion of a notice, that a person has to know 

when their rights are being violated in order for the statute to start 

running, then one would have to inquire, how does the law play out 

in someone’s life. 

Senator KYL. Yes. That’s the question. 

Professor LIU. Right. 

Senator KYL. I mean, as you know, statute of limitations law is 

‘‘knew or should have known.’’ 

Professor LIU. Exactly. 

Senator KYL. And that’s as part of the ‘‘should have known.’’ If 

the person should have known and still loses out on benefits, then 

the court says that’s just the way it is. Is that correct? 

Professor LIU. That is correct. 

Senator KYL. Now, one of the things that you said in this ‘‘Keeping Faith With The Constitution’’ was that the Constitution requires adaptation of its broad principles to conditions we face 

today, and so on. You said the question is not how the Constitution 

would have been applied at the founding, but rather how it should 

be applied today. I want to focus on that word ‘‘should.’’ Then you 

went on—there’s an ellipsis here—‘‘in light of changing needs, conditions, and understandings of our society.’’ I mean, ‘‘should’’ is 

not—I mean, that’s a normative term. The question—I mean, it 

really begs the question, what is the legal test for how you decide 

‘‘should’’, right? 

Professor LIU. Yeah. Well, Senator, if I could address that. The 

ellipsis, the missing words, I believe say how it should be applied 

to preserve the power and meaning of the text and the principles. 

The ‘‘should’’ is not—I’m sorry. 

Senator KYL. No. If—if—I didn’t have those words in here, and 

that does make it somewhat different. 

Professor LIU. Yes. I only mean to say that the ‘‘should’’ is not 

should as in however a judge feels it should apply, it’s, rather, how 

it should apply in order to preserve what the text says and what 

the principles behind the text mean. 

Senator KYL. One of the areas that we’ve gotten into in this context is the question of the role of religion or faith in our society. 

I just note today there’s a story out of Madison, Wisconsin. A Federal judge has ruled that the National Day of Prayer is unconstitutional. Obviously, neither you nor I have read this decision, but can 

you think of any determinative constitutional argument that would 

support that ruling? 

Professor LIU. Senator, I’m going to confess that I have spent 

hardly any time in my career studying the religion clauses of the 

Constitution, so I am not familiar with the relevant precedents in 

that area. 

95 

Senator KYL. All right. Let me just conclude with this. You’ve 

been pretty outspoken in your criticism of the current Supreme 

Court. In fact, you’ve suggested that it lacks both principle and legitimacy. In one article you—and I’m specifically referring to the 

Bush v. Gore decision. You said it was ‘‘utterly lacking in any legal 

principle.’’ That’s a pretty tough criticism for a Supreme Court decision. 

And in another you claimed that, again, ‘‘if you look across the 

entire run of cases, you see a fairly consistent pattern where respect for precedent goes by the wayside when it gets in the way 

of result.’’ Now, you obviously have a problem with the Supreme 

Court decisions here, the precedents that you would be asked to 

apply. You haven’t been bashful about expressing that serious opposition to it, but you’re telling us that, notwithstanding that, it’s 

‘‘utterly lacking in legal principle.’’ You would apply the legal principle that you discern that they—or that was the basis of a decision, right? 

Professor LIU. Well, Senator, the reason that I perhaps said 

those words was that the opinion itself stated that it was only to 

apply in that case. So I’m not sure I would apply that case because 

the court instructed, in its terms—— 

Senator KYL. Well, but—yeah. But that’s a distinction there with 

a difference. ‘‘Utterly lacking in legal principle’’ is different than 

‘‘wouldn’t apply to a future case.’’ I mean, are you saying the court 

had no legal principle basis for the decision that it made in Bush 

v. Gore? 

Professor LIU. Well, Senator, I guess the only import of the 

phrase that I chose there was that it was my thinking that a legal 

principle should be something that applies in more than one case 

because it’s a principle. 

Senator KYL. So you don’t think they used a principle, but simply 

used some kind of pragmatic decisionmaking in the case? 

Professor LIU. Well, Senator, I won’t—I guess I won’t try to characterize it further here, but I’ve written what I’ve written and said 

what I’ve said. 

Senator KYL. You said that Justice Alito ‘‘approaches law in a 

formalistic, mechanical way, abstracted from human experience.’’ 

You’re very critical of that. Now, would you like to invent a fourth 

element of a tort besides duty, breach of duty, and damage, or elements of a contract, or whatever? I mean, that’s a purely mechanical, formalistic way of deciding how a particular case gets decided, 

isn’t it? 

Professor LIU. I think this perhaps goes back to your earlier 

question, Senator Kyl. It’s just that I think that in the application 

of, say, the elements of tort or the elements of contract there is a 

human aspect to judging. That’s why we don’t put legal problems 

through a machine, or through a formula, or through a computer. 

Senator KYL. Well, what is the human aspect? I mean, I can understand that in sentencing, for example, but I’m not sure I can understand it in the question of who should win the case, A versus 

B, defendant versus plaintiff. 

Professor LIU. I think a judge must fairly apply the law as it’s 

given and follow the written law to its logical consequence, no matter what the—what the result is. I think in the application of legal 

96 

principles, judges are called on to exercise judgment with respect 

to how they apply in a particular case. I think judges are human 

beings, and there is often reasonable disagreement about the application of law to facts. But the task, I think, for all judges remains 

the same, which is applying the law faithfully to the facts of a specific case. 

Senator KYL. Yes. And that’s a fair statement of the way it 

should be. We all come to our positions with our preconceived notions, our political ideologies, our notions, and personal experiences 

can certainly shape how we view certain issues. The job of the 

judge is to try to remove as much of that from his decisionmaking 

or her decisionmaking process as possible, would you not agree? 

Professor LIU. I would absolutely agree with that, Senator Kyl. 

Senator KYL. And finally, would you also agree that when someone has written as extensively as you have in very, as you put it 

in one sense, colorful language—I mean, you’ve not been bashful 

about expressing very specific and strong—obviously strongly held 

views about certain things, that it can give way to some questioning as to whether or not, the views having been held that 

strongly, with as much writing about them as you’ve done and as 

much very explicit criticism of people who have held a contrary 

point of view, whether it’s possible for you to lay aside those ideas 

or ideologies and approach cases from a purely objective, unbiased 

point of view. 

Professor LIU. Well, Senator, if I could just offer one thought on 

that, I hope that my writings demonstrate that I’m someone 

who’s—obviously I have my views, but I hope that I’m someone 

who’s also able to take into account the opposing views of others. 

Frankly, I appreciated this opportunity to have this dialog with 

you, and Senator Sessions, and others about very important and— 

important and controversial issues of law, about which there is, I 

think, very reasonable disagreement in America. In fact, one of the 

great things, I think, about this country and the legal tradition we 

have is that there is room for that disagreement. 

As much as I like my own views, I confess to you that I would 

actually be a little afraid if I was the only voice speaking and that 

everything went my way. That’s not—that is not the kind of certainty that I have about my own views, and I hope my writings reflect—at least the more thoughtful parts of my writing reflect—that 

type of discipline and restraint. 

Senator KYL. Madam Chairman, thank you. If there is an opportunity for us to visit personally, I would welcome that. 

Professor LIU. I would also. 

Senator FEINSTEIN. I appreciate that. 

Senator KYL. I suspect there may be questions for the record, following up on some of these things, and so on. 

Senator FEINSTEIN. Thank you. 

Senator KYL. Of course, it goes without saying, you can add to 

your—or further elucidate on your answers if you want to do that. 

Senator FEINSTEIN. Thank you. Thank you. 

I’d like to close this off with a few words. 

Senator SESSIONS. Madam Chairman. 

Senator FEINSTEIN. Yes, go ahead. 

Senator SESSIONS. I had a question. 

97 

Senator FEINSTEIN. Questions? 

Senator SESSIONS. Yes. He got—— 

Senator FEINSTEIN. If they’re softballs, yes. Hardballs, no. 

[Laughter.] 

Senator SESSIONS. I would note that Jeffrey Sutton’s hearing— 

and he was a mainstream, I think, skilled attorney, had a restrained review of the role of a judge—went on for 12 hours. Senator Schumer had at least one 20-minute round in that time. So 

we’ve had some long hearings. This certainly does not exceed the 

norm. 

With regard to your comments about the theory of constitutional 

fidelity, that it may be valid when the object, fidelity, ‘‘may be valid 

when the object of the interpretation is one of the Constitution’s 

concrete and specific commands.’’ You said you should show fidelity 

to that. 

For example, I think you’ve noted that revenue bills must arise 

in the House. That’s unequivocal. What about the Second Amendment, which states that ‘‘the right to keep and bear arms shall not 

be infringed’’ ? Is that a precise command that cannot be abridged 

by unelected judges? 

Professor LIU. Senator, the Supreme Court, I think, has clearly 

said that that is a clear command that protects an individual’s 

right to bear arms. 

Senator SESSIONS. Well, there’s some uncertainty about it all, 

whether or not it will apply to States, cities. So what’s your view 

of the Second Amendment? 

Senator FEINSTEIN. Oh, here we go. 

Senator SESSIONS. Is it clear on that subject? You don’t hesitate 

to say a revenue bill must rise in the House. Do you hesitate to 

say that the right to keep and bear arms shall not be infringed? 

Is that ambiguous? 

Professor LIU. Senator, I confess, I have not thought about, written about the Second Amendment in any great detail. The book, I 

think, discusses the Second Amendment as an example of where 

judges have applied a basic approach to constitutional interpretation that takes into account a variety of factors, including the original meaning, including the text, but also including the practical 

consequences of a decision and precedent. I think that’s the extent 

of any view that I have about the Second Amendment and I 

couldn’t really go further. 

Senator SESSIONS. You’ve been clear that you felt that quotas are 

unconstitutional. 

Professor LIU. Yes. 

Senator SESSIONS. Is that your personal analysis of that or just 

based on Supreme Court? 

Professor LIU. That is my view, Senator. 

Senator SESSIONS. But I’m troubled. That’s an easy word to say, 

but I’m troubled that you have written that Adarand should be 

consigned to the dustbin of history. Adarand dealt with racial setasides, giving preference to one person or another as a result of the 

color of their skin or their ancestry. So I ask you, is that inconsistent? How do you dismiss so firmly the Adarand decision when 

it seems to be based on similar theories as quotas? 

98 

Professor LIU. Well, Adarand is a precedent of the court, and of 

course I would follow it as a judge. I think my disagreement with 

Adarand doesn’t have anything to do with, I think, it’s central 

holding, which was that all racial classifications by government are 

subject to the highest level of constitutional suspicion by the courts. 

I have agreed with that principle in my writings and I have not 

urged the court to revisit that in any way. 

I think the only disagreement I had with Adarand was its extension of the principles of the Crowson case, which dealt with the obligations of States rather than the Federal Government, with respect to the latitude given to implement Affirmative Action programs. I took a perhaps broader view than the court took of that 

particular issue, and that’s the only point of disagreement that I 

have with the Adarand case. 

Senator SESSIONS. One final thing. I’m curious about the American Constitution Society. So many members of the Obama administration talk about a progressive agenda and progressivism. As I 

understand it, the progressive movement started in the early 

1900s, and one of their doctrines was that elite people knew best 

and that the Constitution was an impediment to them being able 

to do what was best for those uneducated folk out there in the 

country. 

Is that in any way the American Constitutional Society’s view? 

Why do you use that phrase if it’s not? 

Professor LIU. Well, Senator, I—this—I think your question 

rightly, I think, exposes the hazards of using labels of that sort. I 

guess I’ll just put it in plain terms, which is that I think that the 

American people have always, I think, demonstrated great reverence for our Constitution because they think of it as a set of principles and a document that they can embrace as their own. 

I don’t think it’s a question at all of whether policymakers or 

judges are in some sense wiser than the people. There is no greater 

wisdom than that that resides in the American people itself, and 

that’s what has sustained this country, I think, throughout its 

many, many years as a nation dedicated to the rule of law under 

our own Constitution. 

Senator SESSIONS. Thank you. 

Senator FEINSTEIN. Thank you very much, Senator. 

I’d like to conclude this now, but I’d like to say, you know, I’ve 

been very, very impressed with you personally. You came to my 

home in San Franciso, we spent a couple of hours. You joined with 

my family and me for dinner, and my daughter happens to be a 

judge, so we had a good conversation. I cannot, in my time on this 

Committee, remember anybody quite so young that has done so 

much and I have great respect for that. 

I think the thing that all of us have to remember is that this is 

a very diverse country and the law is equal for everybody, but 

within that law there are certain tensions and there’s dialog, and 

there’s discussion, and there are cases on point and not on point. 

It really takes a mature mind and someone I think that is willing 

to weigh the sales equally on both sides and make that transition 

from an advocate to a judge. 

Judge Chen, for example, who was an advocate, he’s pending for 

a District Court, has been 8 years as a magistrate judge and has 

99 

been able to demonstrate that for 8 years. Here, you are being appointed to the Circuit Court. You haven’t had an opportunity to 

demonstrate that for a period of time. I’ve asked you about this before. You did not make an opening statement. I would ask you to 

make a very brief concluding statement just on that point. 

Professor LIU. Certainly, Senator. And I think it’s a very fair 

point. Many nominees come before this Committee with backgrounds different from mine. I guess I would say, as you look 

across my entire record, there are many things I think relevant to 

the kind of judge that I would be. In my scholarship, I hope that 

the record shows that I am a rigorous and disciplined person who 

makes arguments carefully, in a nuanced way, taking into account 

all the other possible ways of looking at an issue, and where I’ve 

decided to lay down my view, I have respectfully treated the views 

of others. 

I think if you look at my teaching, and many of my former students are here today, I hope that what you would find is that I’m 

a good listener, that I don’t seek to impose my views on other people. Rather, what I try to do is elicit all the different points of view 

that could illuminate an issue. 

And I hope that it counts for something that I’ve won, at least 

among some, the respect of colleagues who see in me the temperament, the integrity, and the qualifies of collegiality and balanced 

judgment that have enabled me to perform certain leadership positions and to be involved in various organizations that require that 

skill set. So although, Senator Feinstein, I can’t hold up for you a 

judicial resume that demonstrates in the most direct way the qualities of a judge, I hope at least you’ll find analogous evidence in 

some of the other things that I’ve done. 

Senator FEINSTEIN. Well, thank you very much. I’m going to excuse you now. 

I’d like to correct the record of something Senator Coburn said. 

There are four of us that are non-lawyers on this Committee, and 

we believe we see the forest rather than just the trees. So, thank 

you very much for being here today. 

Professor LIU. Thank you very much. 

Senator SESSIONS. While you’re changing, could I offer for the 

record some letters, Madam Chairman. 

Senator FEINSTEIN. Yes, you certainly may. 

Senator SESSIONS. I have 10 letters here from the Judicial Action 

Group, Criminal Justice Legal Foundation, Judicial Watch, Liberty 

Council, 42 California District Attorneys who say, ‘‘For many years 

our ability to enforce the law and protect the citizens of our jurisdiction has been hampered by erroneous decisions of U.S. Court of 

Appeals for the Ninth Circuit. This court has been far out of the 

judicial mainstream.’’ They say, ‘‘Under no circumstances should 

any nominee be confirmed to the Ninth Circuit who would take 

that court further in the wrong direction. Regrettably, the President has sent to the Senate just such a nominee.’’ 

Also, the Concerned Women of America, the Crime Victims 

United of California, the American Conservative Union, Republican 

National Lawyers Association. 

Senator FEINSTEIN. Well, thank you very much. Those letters 

will go on the record. 

100 

[The letters appear as a submission for the record.] 

Senator FEINSTEIN. And I would like to submit to the record a 

list of 24 court nominees confirmed under the Bush administration 

who had no prior experience as a judge. So, those documents will 

go into the record. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. Thank you very much, Professor Liu. 

Professor LIU. Thank you. 

Senator FEINSTEIN. To your family and those wonderfully wellbehaved children, thank you for being here. Bye, Violet. [Laughter.] 

Thank you so much. 

And if our four other nominees would please come forward and 

take your place, we will begin that. 

Since I’m giving you the oath, I’ll give you one, too. If you would 

affirm the oath when I complete its reading. 

[Whereupon, the witnesses were duly sworn.] 

Senator FEINSTEIN. Thank you. 

We now have Hon. Kimberly J. Mueller, Richard Mark Gergel, 

Michelle Childs, and Catherine Eagles before us, all distinguished 

people. And I would like to open the floor to Judge Mueller. Is it 

Muller or Mueller? 

Judge MUELLER. It’s Mueller, Senator. 

Senator FEINSTEIN. Mueller. 

Judge MUELLER. Thank you for asking. 

Senator FEINSTEIN. All right. And she, as I understand it, is from 

the Eastern District of California. This is a district with a very 

high caseload. She is nominated for Judge Damrell’s seat, who has 

taken senior status. She has presided over more than 50 trials and 

seen approximately 230 cases to verdict or judgment, so she is an 

experienced jurist. 

And I think what we will do is go right down the line and ask 

each of you to make a few opening comments and introduce your 

family, if you will. 

So why don’t we begin with you, Judge? 

Senator KYL. May I please interrupt? Excuse me for that, 

Madam Chairman. 

Senator FEINSTEIN. Sure. 

Senator KYL. I’ve just gotten notice now that I do have to run, 

but could I just welcome each of you and apologize for what seems 

to be a very unfair process here, where you probably will not get 

the same attention that the nominee just before you did. [Laughter.] 

And I want to assure all of the people who have so patiently 

waited and have come here to see you perform on this stage, that 

the fact that you may not get quite the same attention is a testament to the fact that, having looked at all of this stuff in advance— 

I shouldn’t say stuff. All of the material that you provided in advance—you don’t seem to have created anything of sufficient controversy, shall we say, to cause us to have to spend that much time 

with you. So with your leave, I would like to express my congratulations to all of you. I look forward to reading anything that you 

might say that’s controversial. That might be a hint. 

And thank you, Senator Feinstein, for your courtesies at the 

hearing this morning. 

101 

Senator FEINSTEIN. Oh, you’re very welcome. 

Senator KYL. Thank you. 

Senator FEINSTEIN. Thank you. 

That means you have Senator Kyl’s——[Laughter.] 

In any event, thank you for being here. I know I speak for the 

Ranking Member—he can speak for himself—but we both very 

much regret this, but it is the way of trying to move a number of 

judges at one time. 

So let me begin with you, Judge. 

STATEMENT OF HON. KIMBERLY J. MUELLER, TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA 

Judge MUELLER. Madam Chairman, thank you very much for the 

opportunity to be here today, Senator Sessions. I would like to first, 

of course, thank President Obama for the great honor of placing my 

name in nomination. I would like to thank each of you, and the 

Committee as a whole, for taking me under consideration, considering whether or not to confirm. 

I would also like to acknowledge family members and friends 

who are here with me today, if I may. May I ask them to stand 

briefly as I introduce them? 

Senator FEINSTEIN. Yes. Please do. 

Judge MUELLER. All right. My parents have joined me here from 

North Newton, Kansas, Ted and Burneal Mueller; my husband, 

Robert Johnston Slobe. 

Senator FEINSTEIN. Please stand so that we might be able to see 

you. Thank you. 

Judge MUELLER. Ted and Burneal Mueller; Robert Johnston 

Slobe, my husband, from Sacramento. I’m also joined by my sister, 

LuGene Meuller Isleman from West Des Moines, Iowa. 

Additionally, I’m joined by friends, very good friends, from Boston, Massachusetts: Brad and Mary Power, and their daughters, 

my special friends, Mary and Hana. Additionally, Dave Jones— 

Dave Smith, a friend from New York City; Andy Stroud, a former 

colleague at Orrick, Herrington & Sutcliffe from Sacramento; Ann 

Blackwood, a friend from Sacramento who is working in Washington, DC today. 

Senator FEINSTEIN. You’re filling up the room. 

Judge MUELLER. All right. [Laughter.] 

Senator FEINSTEIN. Yes. 

Judge MUELLER. And I risk having left someone out. There are 

some people watching, and with your patience I would just acknowledge them as well. 

Senator FEINSTEIN. Please. 

Judge MUELLER. And my family and friends could now be seated 

if they are still standing. 

My sister, Mailan and her husband Simon Foster are not able to 

be here. They are in London, England. My mother-in-law, Carolyn 

Slobe of Sacramento, is not able to be here; my brother-in-law, 

Gary Slobe of San Diego; my sister-in-law, Wendy Blackmoor of 

Boulder, Colorado, and her children, Katie, a teacher in Denver, 

her son Patrick, a first-year student at Cornell Law School; and finally, our cousin, Stephen James in Sacramento. 

Thank you for the opportunity to acknowledge them here today. 

102 

Senator FEINSTEIN. Thank you very much. Appreciate it. 

Judge Gergel. 

[The biographical information follows.] 

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STATEMENT OF RICHARD MARK GERGEL, TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA 

Mr. GERGEL. Thank you, Senator and Ranking Member, for the 

privilege of being here today. I, of course, would like to thank 

President Obama for the high honor of the nomination. I would like 

to thank Senator Graham and Senator DeMint for their support for 

my nomination, and I was quite humbled by the warm comments 

of Senator Graham and Majority Whip Clyburn today at the beginning of the proceeding. 

I would like, if they could stand, my dear wife of 30 years, Dr. 

Belinda Gergel; my son, Richie, who has come from New York, 

where he works for NBC News; my son Joseph, a graduate student 

in Paris, is watching by streaming video, as is my 88-year-old 

mother, who was very humbled by her youngest son being here 

today; and my dear friend, Doug Jennings, has come from 

Bennettsville, South Carolina. 

Thank you. 

Senator FEINSTEIN. Thank you very much. 

Judge Childs. 

[The biographical information follows.] 

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STATEMENT OF HON. J. MICHELLE CHILDS, TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA 

Judge CHILDS. Yes. Madam Chair Feinstein and Ranking Member Sessions, and also other members of the Judiciary Committee 

who have not had the opportunity to be here before us, thank you. 

I’m greatly humbled by this opportunity to appear before you. I’d 

like to express sincere appreciation and gratitude to President 

Obama for this high honor and privilege of being nominated, and 

of course to our Senators who have been here in support, particularly Senator Graham, who also made some very warm comments 

for us today. Then also, Majority Whip Clyburn. We also express 

appreciation to Senator DeMint, who’s also in support of our nomination. 

I’d like to acknowledge my family as well. I’ll begin, first, with 

my husband, Dr. Floyd Angus. He’s a gastroenterologist in Sumter, 

South Carolina. He also has next to him my mother, Shandra 

Childs. My mother is second of 12 children, and I wish to acknowledge my grandmother. 

Senator FEINSTEIN. She looks like your sister! 

Judge CHILDS. Thank you. 

[Laughter.] 

Senator FEINSTEIN. That’s amazing. 

Judge CHILDS. Bertha Mary Green, who is in Detroit, Michigan, 

who is the matriarch of the family, not able to be here. My mother’s other sibling, my uncle Derek and Vivian Green, they came 

here from Atlanta, Georgia. And when you have a family of 12, 

there’s always an older sibling who watches a younger sibling, and 

that’s the pair relationship between those two. 

My brother-in-law, Dr. Sherwin Angus, who is an anesthesiologist here in Hampton, Virginia, and my sister, who’s watching by 

web, who’s watching my 16-month-old daughter, my heart, Juliana, 

and her family and her husband and children. I’d like to acknowledge them. Then also here with us as well is my cousin, Victoria 

Trice, who actually lived in Louisville, Kentucky, and I’d like to say 

hello to all my Weathers family. There’s an original 13 on that 

side, so I do have a large family contingency. 

Senator FEINSTEIN. You’re lucky. 

Judge CHILDS. Thank you. 

And then also a dear family friend who’s part of our extended 

family, Ms. Deborah Lum. I believe I caught everyone. Yes. Thank 

you all. 

Senator FEINSTEIN. Thank you. I should have said Madam Chief 

Justice. In any event, welcome. Welcome to your family. 

Judge CHILDS. Thank you. 

Senator FEINSTEIN. Judge Eagles. 

[The biographical information follows.] 

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STATEMENT OF HON. CATHERINE C. EAGLES, TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 

Judge EAGLES. Yes. Thank you, Madam Chair and Senator Sessions. I also would like to thank the President for the honor. 

I am privileged to introduce my family that I have here with me. 

My husband—and I’d ask them to stand. My husband Bill is here, 

my sons, John Ivey and Thad are here; my mother, Dorothy 

Caldwell is here. I’m also joined by some friends who live in the 

DC area, college friends who are here, Mary Kingsley and Alice 

Smith and some friends from the time I spent in DC when I was 

in law school, Susan Kaplan and Paul Colarulli. They are all here 

with me. My brothers and sisters are scattered around the country, 

and my nieces and nephews, and they are here in spirit. 

Thank you. 

Senator FEINSTEIN. Thank you very much. 

Since three of you are already judges, I’d like to ask one question 

and go right down the line and have you answer it. 

How can you assure us that in any case that comes before you 

you will, or that you have been, able to disregard your own personal views and allegiances and decide the case only on the law 

and the facts? Judge Mueller. 

Judge MUELLER. Madam Chairman, thank you for that question. 

I believe that’s the first principle of judging. In fact, I think putting 

on the black robe symbolizes that exercise of putting aside personal 

views and coming to the bench, coming to the case with the intent 

of applying only the law as it is given in the Constitution by the 

Supreme Court—by the Circuit Court in my case—applying controlling precedent, and doing a judge’s best to reach the correct decision under the law. 

Senator FEINSTEIN. Thank you. 

Judge—excuse me. Mr. Gergel. 

Mr. GERGEL. I don’t mind that reference. [Laughter.] 

Madam Chairman, the paramount issue in the adjudicative process is the rule of law. There is nothing more fundamental. I pledge 

to you, if I’m fortunate enough to be confirmed, that that will always be my first and central concern, the paramount nature of the 

rule of law. 

Senator FEINSTEIN. Thank you. 

[The biographical information follows.] 

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Madam Chief Justice. 

Judge CHILDS. Well, actually, that is not my correct title. I’m a 

Circuit Court judge. The reference earlier to Chief Justice was to 

Chief Justice Toal, who has allowed me, in her gratitude, to serve 

as an acting justice on our South Carolina Supreme Court from 

time to time. 

Senator FEINSTEIN. I see. 

Judge CHILDS. But thank you. 

In reference to your question, I have a high regard and sincere 

appreciation for our legal system, which is the form of order in our 

court, in our democracy. I believe that my record supports that I 

allow litigants to access the courts and have their disputes adjudicated in a fair and impartial manner under a fair and independent legal system. I approach all cases allowing litigants to 

have equal justice under the law and to act in accordance with the 

rule of law 

Senator FEINSTEIN. Thank you very much. 

Judge Eagles. 

Judge EAGLES. Yes. I would join my colleagues here at the table 

in expressing respect for the rule of law. Part of the role of the 

judge is to ensure a predictable process to ensure that the law, as 

it has been expressed by the higher courts—I’ve been a State court 

judge for almost 17 years. In my case, it would have been the 

North Carolina Court of Appeals and North Carolina Supreme 

Court—is followed in my courtroom every day as fairly and consistently as I am able to do so. 

Senator FEINSTEIN. One other question. What is your understanding of the scope of Congressional power under Article 1 of the 

Constitution, in particular the commerce clause and under Section 

5 of the Fourteenth Amendment? Who would like to go first? Judge 

Mueller. 

Judge MUELLER. Madam Chairman, I’ll do my best to answer 

your question. I have not had the opportunity to make such a decision. I can tell you, if the question is asking about whether or not 

I would ever rule a statute unconstitutional, I can tell you that I 

would presume a statute to be constitutional and only overturn 

after very serious consideration and not readily. 

But generally, my approach to any case would be to look at the 

question presented, look at the record of the case before me, marshal the applicable law, and apply that law to the specific question 

presented. I have not made a decision, I believe, that addresses 

that question to date. 

Senator FEINSTEIN. Mr. Gergel. 

Mr. GERGEL. Yes, ma’am. Obviously the commerce clause provides broad powers to Congress; the precedents of the Supreme 

Court demonstrate that. But that power is not unlimited. The 

Tenth Amendment is an important feature in balancing the respective powers of the Federal and State government. Likewise, Section 

5 of the Fourteenth Amendment provides important remedial powers to Congress to remedy violations of equal protection and due 

process, but again, that power is not unlimited. 

Senator FEINSTEIN. Thank you. 

Judge Childs. 

298 

Judge CHILDS. I, too, have not had the opportunity to address 

this particular situation in State court. However, as a limited role 

in Federal court, I would approach only cases and controversies before me. With respect to any laws respecting your Congressional 

powers, I would presume that anything that you all are doing is 

constitutional and would approach it with that mindset, knowing 

that you would only enact laws that you have had due deliberance 

over and consider deliberation over, so I wouldn’t make that presumption in the first place. 

There may be a course of action in which we might have to consider something to be unconstitutional, but I would hope that we’d 

be in a position where the record—you may not have to reach that 

decision. But of course, only those particular facts and circumstances that are before the court would I make decisions about. 

Senator FEINSTEIN. Thank you. 

Judge Eagles. 

Judge EAGLES. Yes. As a State court judge, I have not faced 

many commerce clause issues. I do know there are some recent 

cases in that area from the U.S. Supreme Court. It would be my 

intention to read those cases carefully, to read Fourth Circuit cases 

if there are any that are on point and helpful to the factual situation that would be in front of me, and if there are not, to perhaps 

look beyond the Fourth Circuit to other circuits if I were fortunate 

enough to be confirmed, and to apply the law as it is put forward 

by those appellate courts to the facts specifically in front of me, to 

only reach constitutional questions when necessary and to rule narrowly when possible. 

Senator FEINSTEIN. Thank you. 

Senator Sessions. 

Senator SESSIONS. Well, thank you. It’s good to have all of you 

here. The process is more rigorous, as you know, than just the 

hearing we have today. Each of you had to be interviewed by the 

Department of Justice, and perhaps the President and the White 

House. You’ve been asked to submit your materials. FBI has done 

backgrounds, ABA has done evaluations. 

You’ve submitted documents, according to our questionnaire, to 

the Senate and our staffs have done their best to pore over them 

to make sure that things are in order. I have to say at this point, 

there is nothing happening that is bad, I guess you would say. It 

looks good on your record. Each of you have had a good deal of experience, it seems to me, to have the kind of skills and gifts and 

graces and background that would put you in a position to do a 

good job as a U.S. District Judge. 

But it’s not a little bitty matter that we go through. This is a lifetime appointment. It’s the only opportunity the public has to have 

any kind of role in it. So I want to say, even though we’re not going 

to be grilling you this morning, or this afternoon, that a lot of work 

has gone into assuring the public that your nominations are worthy 

of going forward, that you have the skills, the integrity to do a good 

job. 

Mr. Gergel, you mentioned the rule of law. You’ve practiced for 

some time. I just was reading an article in Fortune Magazine by 

the CEO of a major company or investment group, and they were 

investing all over the world. He was talking positively about it. The 

299 

interviewer said, well, what about the United States? Do you still 

believe in investment in the United States? On three different occasions in that protracted interview he said yes, and the first reason 

he gave was the rule of law, that you can invest in the United 

States, you can feel like you’ll have a fair day in court if something 

comes up, and you’re at much greater risk in other countries, many 

other countries, because they don’t have that great tradition. 

In your experience, how do you evaluate the importance of the 

rule of law? 

Mr. GERGEL. Well, Senator, I think that’s an excellent question. 

I have a friend who was telling me the story about a colleague who 

had invested in Russia and had a dispute come up that was an ordinary business dispute, and the disputant sent over thugs to 

threaten the American businessman and he packed up and left 

Moscow and he’s never returned. It shows you you cannot have a 

free enterprise system, you cannot have a free market if you don’t 

have the rule of law. It is essential to the rule of law. 

Senator SESSIONS. I’d just agree. That’s one of the reasons I feel 

so deeply, is the rule of law is—you interpret the statutes and Constitution as written and we give—you get awfully inconsistent verdicts if each judge allows their empathy, or their feelings, or their 

philosophy to impact it. 

Judge Mueller, you’ve had experience with the sentencing guidelines. You have expressed some concern about the tough sentences 

on occasion you’ve been called upon to impose, I understand, in one 

commencement speech, I understand. You’re not the only judge 

that’s expressed that. 

And we just passed, in a bipartisan way, unanimously out of the 

Senate a modification of the crack and powder sentencing guidelines, which are, I think, the primary source, would you not agree, 

of some of the heavier sentences in the system. So I guess my question to you is, you’re about to have this lifetime appointment. How 

do you feel about the guidelines? What deference do you feel they 

should be given, and to what extent will you follow them? 

Judge MUELLER. Senator, thank you for that question and the 

opportunity to clarify. I’m not certain I’m remembering the comments you’re referencing. It might have come from my very first 

days as a judge. When I first became a magistrate judge I had had 

no criminal experience. 

Senator SESSIONS. I think the quote was, ‘‘Why am I faced with 

placing children in jail longer than they’ve been alive? ’’ Sometimes 

that is true. Then you said, ‘‘Of course there is never a reasonable 

justification, but I’m still searching for explanations.’’ 

Judge MUELLER. I may be completely forgetting. That doesn’t 

sound like anything I’ve ever said. 

Senator SESSIONS. You look puzzled. I think you’re correct. 

Judge MUELLER. Ah. 

Senator SESSIONS. I don’t think that was you. 

Judge MUELLER. OK. 

[Laughter.] 

Senator SESSIONS. Somebody else will have to answer for that. 

Judge Childs. 

Judge MUELLER. I have forgotten many things I’ve said, but I am 

glad to know I wasn’t—— 

300 

Judge CHILDS. I must say, when you were stating that the words 

sounded quite familiar. 

[Laughter.] 

Senator SESSIONS. Well, it’s a tough thing. How do you feel about 

it, the duty that you have to impose sometimes very tough sentences, and will you do it? 

Judge MUELLER. Absolutely, Senator. And let me just say, even 

though I do not currently see felony cases, I see felony defendants 

only on initial appearance’s detention hearings. But I regularly 

consult the guidelines in resolving the Class A misdemeanor cases 

that are before me. Even though I understand, following Booker 

and Fan-Fan, that the guidelines are advisory, I regularly consult 

them in every case. 

I consider them an essential tool, both to ensure that I make a 

well-informed decision in imposing judgment and sentence, but 

moreover, in ensuring that I am complying with the statutory factors under 18 U.S. Code, Section 3553, and in particular, the factor 

that focuses on uniformity, ensuring to the best possible that courts 

are imposing uniform sentences throughout the country. So, I consider the guidelines a very valuable tool. 

Senator SESSIONS. I appreciate that. I think that’s a good answer 

for you new Federal judges-to-be. I think that’s good advice. A lot 

of time and effort went into identifying what an appropriate sentence is, what are the aggravating/mitigating circumstances. It’s a 

bit mechanical and some judges don’t like it for that reason, but 

when the dust settles, I think we’ve definitely achieved more uniformity, more consistency, and actually allow you to feel more comfortable that the sentence you’ve imposed is one that is not out of 

the mainstream of thinking. 

Mr. Gergel, would you share your thoughts about how you would 

approach the guidelines? 

Mr. GERGEL. You know, we in South Carolina have a special relationship with the guidelines because the chair of the original Sentencing Commission was Billy Wilkins, the Chief Judge of the 

Fourth Circuit, and I’ve had the privilege of having two lengthy 

discussions with Judge Wilkins, since the President was kind 

enough to nominate me, about both the underlying philosophy and 

the practical application of the guidelines. And I’ve also had—spent 

a good bit of time studying them. They show a lot of collected wisdom and experience. They are a very valuable tool. They should be 

the benchmark and the beginning point of every sentencing process. 

I have found, looking at this, that’s often where you end up because it is so reasonable. There are obviously circumstances where 

they don’t fit. Often, all parties—the U.S. Attorney’s Office and the 

defendant counsel—will recognize when they don’t fit. They’re usually—that’s not a matter of dispute. But generally speaking, they’re 

a very valuable tool and I pledge to seriously consider them in any 

sentencing that I do. 

Senator SESSIONS. I would say that Judge Wilkins’ leadership in 

establishing the sentencing guidelines was probably the greatest 

change in the entire criminal justice system since the founding of 

the Republic—maybe the eliminating of parole, and you get you get 

definite sentences. But both of those happened about the same 

301 

time. It was a bipartisan act by this Senate before I got here. I 

think it has been helpful. 

Judge Childs. 

Judge CHILDS. Yes. In State court, we obviously are not bound 

by any sentencing guidelines, as well as we don’t really have sentencing guidelines as advisory. So in that regard, I do believe that 

the Federal court guidelines—and I appreciate the collaborative 

and bipartisan efforts that have gone into those guidelines—they 

assure more consistency, uniformity, and reasonableness of the sentences. 

As State court judges, we have a broad range and that will differ 

from judge to judge as to what a particular sentence might be to 

an individual defendant. So I’m certainly ready, if lucky enough to 

be confirmed as well, to approach those guidelines as advisory, but 

also have some well-reasoned explanations for departing from such 

guidelines. 

Senator SESSIONS. It might make you sleep a little better if 

you’re following the recommendations of people who objectively figured out what they thought would be a reasonable sentence. 

Judge CHILDS. Absolutely. 

Senator SESSIONS. Judge Eagles. 

Judge EAGLES. Yes. When I became a judge in 1993, we did not 

have any sentencing guidelines or anything like that in North 

Carolina. Very big disparities in sentencing across the State from 

judge to judge. But we did have structured sentencing enacted in 

North Carolina in 1994. It’s not exactly the same as the Federal 

system, I understand, but it does have presumptive sentences with 

aggravating factors and mitigating factors. 

I have been working with those since, I think if I can remember, 

October 1st of 1994, crimes committed after that date. So I’m used 

to working with guidelines. It gives a framework for sentencing 

that is extremely helpful and useful, and I agree with my colleagues that I would definitely consult those in the first instance. 

Senator FEINSTEIN. Thank you very much, Senator Sessions. 

I’m not going to ask any more questions, but I am going to say 

this: you are all going to the Federal trial court and it’s where the 

rubber hits the road, and it’s where people come in and petition. 

It’s where you will be depended upon to settle cases because some 

of you will have very large caseloads, and so your ability to work 

a case to settlement rather than take it to trial is also all-important. 

We consider the Federal court the best, the smartest, the premier 

court in the United States, and so there is a level of trust that you 

take. The fact that this is a lifetime position, that you can only be 

impeached, you don’t have to run for office, is an enormous, I 

think, responsibility. The faith and trust and obligation toward the 

law and the Constitution of your country, of our country, is all-important. 

So I just want to say that I have no doubt but that you’re going 

to be confirmed, and I want to wish you well. I want you to carry 

that standard high. 

So with that, this hearing is adjourned. 

[Whereupon, at 2:16 p.m., the Committee was adjourned.] 

[Questions and answers and submissions follow.] 

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Æ 


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