Liu Confirmation Hearing Erupts Into Partisan Fight Over Experience and Philosophy

The long-awaited judicial confirmation hearing today of Berkeley Law Professor Goodwin Liu erupted into open warfare today as Republicans attacked Liu on his background and perceived bias. I discussed the confirmation fight on the segment below of Rachel Maddow.

Liu promised to keep an open mind and not pre-judge cases from a liberal perspective, but Republicans attacked him for his liberal views, particularly his interpretation of the Constitution. One quote often raised by the GOP was:

“The question … is not how the Constitution would have been applied at the founding, but rather how it should be applied today … in light of changing needs, conditions and understandings of our society.”

Sen. Jeff Sessions, R-Ala., criticized Liu for his criticism of Chief Justice John Roberts and Samuel Alito. He then attacked Liu on his lack of experience, asking “Have you argued any case before the Supreme Court or the court of appeals?”

Liu has never argued before the Supreme Court and only argued once before an appellate court.

However, arguing before the Supreme Court is hardly a criteria for judicial confirmation since only a small percentage of nominees have appeared before the Court. Such arguments have little to do with the lawyers but the cases and the interest of justices in a given issue at a given time. If Supreme Court argument were a criteria, ninety-eight percent of the GOP nominees would have failed.

Committee Chairman Patrick Leahy. D-Vt., seemed genuinely ticked. He and other Democrats agreed to accept claims of impartiality from conservative GOP nominees. Yet, his colleagues are unwilling to accept the same assurance from Democratic nominees.

The hearing occurs in the aftermath of the withdrawal of Dawn Johnsen who was all but abandoned by the Obama Administration, here, and opposed by Democrats like Senator Ben Nelson over her opposition to torture policies. Liu will be the latest test of whether the White House will support a liberal for such positions.

Liu has a remarkable resume:

— an Associate Dean and Professor of Law at UC Berkeley School of Law (Boalt Hall). —- clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg
— clerked for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit
— special assistant to the deputy secretary of the U.S. Department of Education
— senior program officer for higher education at the Corporation for National Service (AmeriCorps).
— Rhodes Scholar
— Board of Trustees of Stanford University
— Chair of the Board of Directors of the American Constitution Society
— B.S., Stanford University (1991)
— M.A., Oxford University (1993)
–J.D., Yale Law School (1998)

He reminds me of Michael McConnell who was confirmed in the Bush Administration and served as a federal judge on the United States Court of Appeals for the Tenth Circuit from 2002 until 2009. McConnell was brilliant and conservative. He was confirmed and so to should be Liu.

There is also an interesting comparison to Brett Kavanaugh who was appointed to the U.S. Court of Appeals on May 30, 2006. He also clerked on the court of appeals and the Supreme Court like Liu. He also had limited litigation experience. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. Judge Kavanaugh was a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, Judge Kavanaugh served as Associate Counsel and then as Senior Associate Counsel to the President.

Then there was the nomination of David Bunning, the son of Sen. Jim Bunning. David Bunning, 35, was an assistant U.S. attorney in Covington with a razor thin resume. He was rated as “not qualified” by the ABA due to his lack of experience but still confirmed unanimously by the Senate, here.

Then there was Michael Wallace who received a unanimous “not qualified” rating during the Bush Administration. He was supported by the GOP but eventually withdrew under opposition, here.

This is not to say that the ABA rating should be treated as dispositive either way. Academics often have difficulty on experience. The ABA gave Ronald Reagan’s judicial nominees Richard Posner and Frank Easterbrook “qualified/not qualified” ratings. Posner is arguably one of the greatest legal minds of his generation and Easterbrook is widely respected for the depth of this intellect and knowledge on the bench. Both are conservative but the bench is richer with their contributions. The same is true with Liu. If his career and writings are any measure, his contribution to the body of jurisprudence on the Ninth Circuit would be extraordinary.

For the full story, click here.

53 thoughts on “Liu Confirmation Hearing Erupts Into Partisan Fight Over Experience and Philosophy”

  1. “Sen. Jeff Sessions, R-Ala., criticized Liu ……. ”


    Amazing arrogance on Sessions’ part … he failed to win his own confirmation in ’86 largely because of his racist views (Thomas Figures, a black Assistant U.S. Attorney, testified that Sessions said he thought the Klan was “OK until I found out they smoked pot.”) … only in a state like Alabama could such a nitwit win the status of United States Senator and then actually think his mind was on equal footing with someone like Liu

    “Regarding future Supreme Court nominations, Sessions has said he believes an openly gay nominee might make the American people “uneasy”.”

    An openly gay nominee might make some uneasy … whereas an openly stupid senator is just par for the course.

  2. CEJ,

    Thanks for the video.


    Ms EM,

    Those people you mentioned, Palin et al., are representatives of the low class/low achiever cliques we knew in high school whose cohorts only feel safe and comfortable when accompanied by others with similar low IQs or lazy, underachiever statuses. The only two mental tools they have are ‘dummying down’ others to fit their base level and then spreading gossipy lies about the smart kids or overachievers.

    Unfortunately—in today’s persistently religious-based world where science is increasingly distrusted and feared—the Beck’s, Palin’s, and others are seen as ‘smart’ and safe to those persons exhibiting intellectual incuriosity.

    I never thought I would observe the USA devolving scientifically at such a rapid pace. Glenn Beck and Sarah Palin are the King and Queen harbingers of the coming intellectual decline of our Nation.

  3. Elaine M.

    True words on O’Lielly.

    Goodwin Liu was honored for teaching, here’s his acceptance speech.

  4. CEJ–

    Thanks for posting that video.

    I often wonder how Bill O’Reilly sleeps at night. Then again, if you don’t have a conscience, you won’t be troubled by your own lies and deceits.

  5. FF LEO–

    “I often wonder what people like Mr. Liu think when subjected to illogical rebukes from the likes of biased, mental midgets such as Mr. Sessions.”

    Those mental midgets like Sessions seem to be proliferating in Washington these days. Sad to say we’re living in times when many Americans prefer to listen to the inane blatherings of bobbleheads like Sarah Palin, Michele Bachman, and Glenn Beck than to articulate, thoughtful, and highly intelligent individuals like Professor Liu.

  6. Professor Turley, Thank-you for your defense tonight well done.

    Please help his confirmation take action phone, fax, write, email.

    United States Senate
    Committee on the Judiciary
    224 Dirksen Senate Office Building
    Washington, DC 20510

    Majority office, phone 202-224-7703 Fax 202-224-9516

    Minority office, phone 202-224-5225 Fax 202-224-9102

  7. Professor Turley,

    Your discussion tonight was especially convincing. This nomination matters to me because my State falls under the 9th Circuit’s jurisdiction. Mr. Liu appears to have all of the qualifications and temperament to become an exemplary appellate court jurist.

    I often wonder what people like Mr. Liu think when subjected to illogical rebukes from the likes of biased, mental midgets such as Mr. Sessions.

  8. Mespo,

    In the interest of judical fairness, will you not consider sending Mr. Liu a pro bono e-mail containing Jefferson’s wisdom?

    I would love to see the look on ol’ Beauregard’s face, that is, if he understood the qoute–which is not a given.

  9. FFLeo:

    “Too bad Mr. Liu does not recite that quote of Thomas Jefferson to Jefferson Beauregard Sessions III…”


    Serves him right for not hiring me to prep him! 🙂

  10. Too bad Mr. Liu does not recite that quote of Thomas Jefferson to Jefferson Beauregard Sessions III…

  11. Mespo,
    that is an amazing Jefferson quote. It goes right to the heart of the nonsense that the Republican hit men were spewing. This is the latest example why the Democrats and Obama should not even try to work with the Republicans. They will cooperate when they get what they want. Obama should now nominate Dawn Johnsen for the Supreme Court and watch Session’s head spin around on his shoulders.

  12. It would be helpful if you say what he’s being confirmed for, as not everyone has memorized the list of outstanding nominations. In this case it’s appellate judge on the U.S. Court of Appeals for the Ninth Circuit

  13. FFLeo:

    I stumble across these words at the most opportune times. I don’t know how or why it happens. I just read this for the first time today. Maybe “divine” inspiration, me thinks. The Almighty could have chosen a better loud speaker than me, of course.

  14. Mespo,

    That is an excellent and apropos quote—and one that I had not previously read or heard.

  15. Here’s another “liberal” wacko that Sessions might find palatable since he, of course, uttered these words in the 19th Century:

    I willingly acquiesce in the institutions of my country, perfect or imperfect; and think it a duty to leave their modifications to those who are to live under them, and are to participate of the good or evil they may produce. The present generation has the same right of self-government which the past one has exercised for itself.[emphasis mine].

    –Thomas Jefferson, Letter to John Hampden Pleasants, 1824.

  16. “The question … is not how the Constitution would have been applied at the founding, but rather how it should be applied today … in light of changing needs, conditions and understandings of our society.”


    Wow, stunningly controversial–revolutionary even! But, then again, for folks (like Rev. Sessions)who believe their life is dictated by a First Century book that pretends to be the unerring word of the Creator of the Universe, it should really come as no surprise. For them, documents written in the 18th Century are still newfangled things, and anything as contemporary as “I Love Lucy” reruns scares the sh** out of them. They find great comfort in the cold, dead hand of the past, and are content to rush about desperately trying to prostrate themselves to anything (or anybody) with a dull patina.

  17. arguing before the Supreme Court is hardly a criteria for judicial confirmation


    But could it signal what they are looking for in the nominee for the Supreme Court … and a signal they like the Solicitor General?

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