WASHINGTON — In his opening remarks at the confirmation hearing on law professor Goodwin Liu’s federal appeals court nomination, Sen. Ted Kaufman (D-Del.) prompted a ripple of laughter that swept the room as he said what many were likely thinking: “Professor, welcome to the Judiciary Committee and the Supreme Court nomination process.”
In fact, President Barack Obama has nominated Liu, a professor and associate dean at the University of California Berkeley School of Law, to the U.S. Court of Appeals for the Ninth Circuit, one step below the high court. But given a unanimous “Well Qualified” rating from an American Bar Association review of his fitness for the federal bench despite having never served as a judge, many believe Liu, 39, is being groomed for a future Supreme Court nomination.
Thus, conservative Republicans have declared war on Liu’s nomination. They forced his confirmation hearing to be postponed twice and hinted that his liberal views on issues such as affirmative action and the death penalty will lead to unrestrained “judicial activism” should he be confirmed.
If Liu, a 2008 Diverse Emerging Scholar, is confirmed, he would become the only Asian-American to hold an active federal appellate court judgeship. When asked by Diverse about the value of diversity on the court, Judiciary Committee Ranking Member Jeff Sessions (R-Ala.) criticized Obama over his stated desire for prospective judges to have “empathy” for minority and underprivileged groups.
“Empathy – that’s the phrase I expressed concern with President Obama, because empathy is a nonlegal thing, it suggests bias,” Sessions said, adding that Liu’s “writings are pretty far out there and they represent about as far as you can go intellectually to expand judicial power and that makes me nervous.”
Yet Liu, in response to questioning from Senate Judiciary Chairman Patrick Leahy (D), said he, if confirmed, will follow the law and respect precedent as a judge, even if such precedents contradict his personal views.
“There’s a clear difference between what things people write as scholars and how one would approach the role of a judge,” Liu said. “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 it’s simply not the role of a judge to be. The role of a judge is to faithfully follow the law as it is written and as it is given by the Supreme Court, and there is no room for invention or creation of new theories.”
Committee Republicans questioned Liu over his harsh written criticisms of death penalty cases and of conservative judges like Supreme Court Justices Samuel Alito and Chief Justice John Roberts. Though there was general acknowledgement that Liu is liberal minded, anathema to most of the Republicans on the committee, one of their chief criticisms was that he was being intentionally misleading when he left out [his] most controversial [writings] from his initial answers to the committee’s questionnaire.
Liu submitted a more complete questionnaire to the committee earlier this month, giving members a short period of time to review the additions. Liu apologized for the omissions in response to Sen. Dianne Feinstein’s query about the matter.
“Let me acknowledge the frustration of the members of the committee with the way that I’ve handled the questionnaire,” Liu said. “I’m sorry that I missed things the first time. For better or worse, I have lived most of my professional life in public and my record is an open book. I absolutely have no intention and frankly no ability to conceal things that I have said, written or done.”
Yet, Republican Judiciary Committee members like Sen. John Cornyn continued to express skepticism about Liu’s fitness for the court. “I’m really concerned about the lack of attention, diligence and frankly sloppiness in your response to this committee’s questionnaire,” Cornyn said.
Feinstein (D.-Calif.) noted that Liu is not the first nominee to have to amend their questionnaire and also took time as acting chairwoman of the committee to highlight key parts of Liu’s resume and life story. Liu is a Phi Beta Kappa graduate of Stanford University, a Yale Law School graduate and he was a Rhodes Scholar. Also, Liu is the son of immigrant Taiwanese doctors and he did not learn to speak English until kindergarten yet he became co-valedictorian of his high school class.
In response to questioning about his life story’s bearing on his fitness for the bench by Sen. Amy Klobuchar (D.-Minn.), Liu highlighted the value of education and the freedoms he has enjoyed as an American, in contrast to an authoritarian regime his parents left behind in Taiwan.
“I feel in many ways … I’ve lived a very ordinary life but I’ve had very extraordinary opportunities along the way. And the first of those extraordinary opportunities was to have parents who really cared about education and they came from a society that did not, at the time, know many of the freedoms that we take for granted in America.”
A committee vote on Liu’s nomination has not been set.