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Sessions Opening Remarks at Liu Hearing
Friday, April 16, 2010
WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, made the following comments today at the hearing on Berkeley professor Goodwin Liu, nominee to the U.S. Court of Appeals for the Ninth Circuit:
“Thank you. Madam Chairwoman, we appreciate being with you and I’m glad Senator Leahy can join us. I look forward to the nominees today and I see my congressional colleagues, I know they’re ready to say something and they’ve got things to do today.
“I do want to say a few things. I love this Constitution, the great Republic that we’ve been given, it’s something we should cherish and pass on to our children. In Professor Liu, we have someone that I know you have recently spent a number of hours with and have a high opinion of. The others that 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 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 the professors in the country and in the 9th Circuit has chosen Professor Liu and I think it says something about his approach to the law and 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 the professor has written.
“In his Stanford Law Review article of Nov of 2008, “Rethinking Constitutional welfare rights,” he states this: “my thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes codes 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 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 that 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 to do that. I believe Professor Van Alstine, then at Duke, I think he’s somewhere else now, at the 11th 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 are not empowered to identify somehow in the atmosphere what they consider to be socially altered opinions of the day and then re-define the meaning of the Constitution. And if you feel, 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’s confirmation. He issued a statement that said, “it’s fair and essentially 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 testified in this committee very aggressively, too aggressively I think, to 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 respond 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 evaluating the questionnaire and properly responding to it, to a degree that I’ve not seen since I think I’ve been in the Senate. I will also note that the nominee has not been in court and tried cases, he’s never tried a case; he’s 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 and we intend to pursue that and hope we’ll have a good hearing and a nice discussion about the future of law in America.”
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