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A Rough Day for an Obama Judiciary Nominee, Echoes of a Supreme Court Fight

 

"Welcome to the committee and to the Supreme Court nomination process," joked Sen. Ted Kaufman, D-DE, to Professor Goodwin Liu, as the Senate Judiciary Committee took up his nomination on Friday for a seat on the Ninth Circuit Court of Appeals, in what was widely viewed as a dress rehearsal for the impending high court fight to replace retiring Justice John Paul Stevens.

It was a rare light-hearted moment in an otherwise contentious hearing with Republicans grilling the 39-year old associate dean of Berkley Law school, for past comments, writings, and his failure to provide a full record of his past works in his original submission to the committee's investigation. And Democrats, particularly Sen. Dianne Feinstein, D-CA, vehemently defended the young lawyer as a bright legal mind who's lack of courtroom experience is not a negative, and noted past GOP nominees, including Roberts and Alito, who had to supplement their records like Liu.

Liu, an unabashed liberal with an impressive resume as a Yale Law School graduate and Rhodes scholar, did not appear to win over Republicans, who repeatedly took exception with what they saw as extreme, activist statements from the young Liu, and noted his lack of courtroom experience.

Ranking Committee Republican Jeff Sessions of Alabama, right out of the gate, hit Liu for his strong opposition to the nominations of both Supreme Court Justices John Roberts and Samuel Alito, rock stars in GOP circles, and said the professor's views "represent the very vanguard of what I would call intellectual judicial activism."

Sessions said Liu's testimony against Alito was too aggressive. As a witness in the 2006 confirmation hearing for Alito, Liu said, "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 all-white jury for killing a white man...Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be."

Sessions appeared particularly stung, asking, "Do you think that's a fair analysis of his record?"

Liu, not backing off of his criticism, merely said he had used "unnecessarily colorful language" to describe a set of opinions Alito had expressed. Liu said he has "the highest regard for Justice Alito's intellect," noting Alito's shared humble, immigrant background. "My criticisms and the concerns I expressed were limited to one area, and that is the area where individual rights come up against governmental concerns, and in that area, I had some specific concerns."

Sen Jon Kyl, R-AZ, then laid into the young professor for his criticism of Alito, calling into question Liu's temperament as a possible judge. Kyl compared the Liu speech to one made by the late Sen. Ted Kennedy, D-MA, against failed Supreme Court nominee Robert Bork's, in which the liberal lion criticized Bork's "vision of America."

"I see it as very vicious and emotionally and racially charged," Kyl said of the testimony. "To me it calls into question your ability to approach and characterize peoples' positions in a fair and judicious way."

Liu said he only meant to say that Alito, as a judge, "believed that those practices were permissible."

Committee Chairman Patrick Leahy, D-VT, came to Liu's defense, asking that members keep to the qualifications of the nominee, calling charges of racism "outrageous."

On the criticism of Justice Alito, Leahy asked the professor, "Do you believe that any criticism you might have made would make it difficult for you to follow precedent?"

"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. Those two are very different things," Liu answered, drawing a stark difference between the two jobs. "The role of a judge is to faithfully follow the law."

Hatch said he makes a lot of allowance for law professors in stating their opinions, but, the senator, once thought to be a possible nominee to the Supreme Court, appeared unable to reconcile that with past writings of Liu, particularly comments that, Hatch said, sounded as if the professor thinks "you can just about make up the law any way you want to."

Liu assured the senator, "Whatever I may have written in the books and in the articles, would have no bearing on my role as a judge," saying that he could "certainly understand" the skepticism.

Liu appeared humble as Republicans grilled him, apologizing for omitting documents on his nominee questionnaire for the committee, repeatedly saying, "I would like to do anything I can to earn the trust of members of the committee."

In answer to a question from Feinstein, Liu said he would have "no problem" with assigning the death penalty as a punishment, despite his past writings as a legal scholar.

Chairman Patrick Leahy, D-VT, asked, "Would you feel bound by the precedents of the Supreme Court?"

Liu answered, "Absolutely I would."

Still, Republicans did not appear moved. "I guess the question I have is, is this the right job for you?" Sen. John Cornyn, R-TX, asked.

Kyl and Hatch both tried to get at whether or not Liu would, as a judge, use foreign law to interpret the Constitution, citing the professor's supportive comments in past writings. Liu said, "The use of those (foreign) precedents can in no way be determinative."

Numerous senior Senate GOP aides to members on the committee said after the hearing that their bosses remained deeply skeptical of the nominee, and one, in particular, said his boss would be submitting follow up questions before making any final determinations. Kyl said he would like to have a one-on-one meeting with Liu to follow up.

It remains to be seen if Republicans, who occupy enough seats in the chamber to sustain any filibuster, will remain unified.

The rough and tumble Friday hearing is a harbinger of the Supreme Court fight that is to come. One potential nominee to replace Justice Stevens is U.S. Solicitor General Elena Kagan, could also draw the inexperience criticism. Kagan, like Liu, had no real courtroom experience and was also a law school dean, at Harvard, before taking her job at the Justice Department. But Republicans do widely view her as much more acceptable than someone like Liu.

As is typical with any high profile fight, the minority party scours the nominee's record, and that was evident today in the Judiciary Committee, and will surely be the case later this year for Stevens' replacement, with stinging questions and analyses.

The committee delayed Liu's confirmation hearing twice, at the request of Republicans, but Sessions was quick to note that he and fellow Republicans feel the hearing is still being rushed, saying that a mere 28 days lapsed between nomination and confirmation. Under President George Bush, Sessions said, an average of 247 days passed before hearings.

Feinstein, who lead the Friday hearing, noted that Liu's parents, Taiwanese doctors, were recruited decades ago to the US to treat under-served populations, saying his parents imbued in Liu an appreciation for freedoms in America, not available in then-militant Taiwan. Liu's parents, along with many of his family and friends, were present for the hearing, where Democrats repeatedly emphasized Liu's life story.

If confirmed, Liu would be the only Asian American currently serving on an appellate court. Liu clerked for Supreme Court Justice Ruth Bader Ginsberg.

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