Senator Webb Opposes Nomination of Goodwin Liu to be U.S. Circuit Judge

Full transcript of Sen. Webb’s remarks:

Remarks on the nomination of Goodwin Liu to be US Circuit Judge for the 9th Circuit Senator Jim Webb (D-VA) May 18, 2011
 

Mr.  President, I would like to speak today on the pending nomination of Professor Goodwin Liu for a seat on the Ninth Circuit Court of Appeals. 

Let me begin by saying that I will be voting against this nomination, for reasons that I will explain.  At the same time, I have a profound respect for this institution and for my fellow Senators from both parties, and I believe it would be wrong to vote against a cloture motion whose intent is to proceed forward with debate on the merits of one who is nominated to be a judge.  I made this point loudly and clearly when the nomination of one of my Virginia constituents, Barbara Keenan, was filibustered.  Philosophical consistency – and my respect for all of the work that Chairman Leahy has been doing to fill the many vacancies in our federal court system – compel me to vote to proceed to the debate on Mr. Liu.  I do not, however, intend to vote in favor of his confirmation. 

I have met with Mr. Liu.  I have read many of his writings and most of the testimony from his two confirmation hearings.  He is clearly talented and whatever he ends up doing he is certain to have a long future in our country.  He has also been blessed beyond words by the goodness of our society.  Both his parents came to this country as physicians.  He attended our finest universities, was a Rhodes Scholar and a Yale Law school graduate, and has spent almost his entire career as a talented, if controversial, professor of law.  When I met with Mr. Liu I found him to be personable and clearly bright. 

But intellect in and of itself does not always give a person wisdom.  Nor does it guarantee good judgment.  And the root word of judgment is, of course, judge, and this is our duty today:  to decide whether Professor Liu’s almost complete lack of practical legal experience, coupled with his history of intemperate, politically charged statements, allow us a measure of comfort and predictability as to whether he would be fair and balanced while sitting on one of the highest courts in the land.  Mr. Liu’s temperament and his frequently strident political views have been called into question by many well-intentioned observers, including my respected colleague Senator Lindsay Graham, who voted in favor of both Justices Sotomayer and Kagan – as did this Senator. 

Senator Graham concluded that Professor Liu seems better fit for a life in politics rather than on the bench.  My own concern is that we in the Senate have no real ability to know whether Mr. Liu would temporize these views or conduct himself in a different manner if he were to be given a seat in one of the highest judicial positions in our country.

The list is long, and time is short, Mr. President.  So I would summarize my concerns through two observations.

The first involves Professor Liu’s public comments regarding Supreme Court Justice Alito, which I know will be repeated by others.  Mr. Liu’s view was that “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 a black man may be sentenced to death by an all-white jury for killing a white man… I humbly submit that this is not… the America that we aspire to be.” 

Obviously, I share the view of many others that whether one agrees or disagrees with Justice Alito’s view of the constitution, this is hardly a fair representation of his view of our society.
 
The second observation is more telling, Mr. President, and it goes to the America that we all should aspire to be:  an America where every person, regardless of race, creed, national origin or personal circumstances has the same opportunity to succeed, to the full extent of their potential.  Let me make a point that a lot of people seem uncomfortable with in speeches on this floor.  That means white people, too.  Economic disadvantage is not limited to one’s race, ethnic background, or time of immigration to America.  And when it comes to policies that are designed to provide diversity in our society, we do ourselves an enormous injustice by turning a blind eye to the wide variance among white cultures as we discuss greater representation from different minority groups.  

For all of his emphasis on diversity programs, I do not see anywhere that Mr. Liu understands this vital point.  In fact, one tends to see the opposite.  In 2004 Mr. Liu made a speech at an American Constitution Society Conference.  In this speech he mentioned “the power of the courts to influence society, … the power of legal principle to ratify inequality.”  He then went on to comment that “if we work hard, if we stick to our values, if we build a new moral consensus, then I think someday we will see Millikan, Rodriquez, Adarand, be swept into the dustbin of history.”

So we know, first, that Mr. Liu wants to use the courts to influence society and to ratify his view of inequality.  OK.  How does that fit into Adarand being swept into the dustbin of history?

What was Adarand about?  Well, Mr. President, it was about Randy Pech, one of five kids born to a welder and a mom who worked as a sales clerk in a department store, neither of whom ever went to college.  Mr. Pech left college after three years and started a company that put up guard rails along highways.  His startup was the money he would have used for his fourth year of college, and a loan that was made using his parent’s retirement pensions as collateral.  He made a bid as a subcontractor on a highway construction project in Colorado that was by far the lowest bid, but he lost to a minority-owned company because our own government was paying bonuses to contractors who made subcontracts with so-called “disadvantaged businesses,” and Mr. Pech happened to be white.  The Supreme Court said this was wrong and decided in Mr. Pech’s favor – although the Civil Rights Commission pointed out ten years later that the Supreme Court’s decision was still not being complied with by federal agencies.

Mr. Liu offered an explanation for his comments during the confirmation process, but taken in the context of his other remarks I find it unconvincing. 

Mr. President, last July I wrote an article in the Wall Street Journal saying that while I continue to support the original goal of affirmative action, which was to assist African Americans who still suffer the badges of discrimination and slavery, it’s time for us to recognize that we harm ourselves any time we cut away any person or group from the opportunity to reach their full potential in our wonderful and unique society.  As you might imagine, I got a few questions from different groups about this article.  So let me answer those questions – and sum up my concerns about Mr. Liu – with an observation.

The same day that my Wall Street Journal article ran, a Remote Area Medical clinic was held in the open air of the Wise County fairgrounds in the Appalachian Mountains of southwest Virginia.  These RAM clinics bring medical professionals into under-served areas where medical care is hard to find.  They are not that different from what we used to do out in the impoverished villages of Vietnam when I was a Marine infantry officer, many years ago.  Twelve of my staff members went down to Wise County to volunteer.  Working in tents, mobile units, and horse stalls, over three days this RAM clinic took care of 6,869 patients, and pulled more than 4,000 teeth. 

In this part of Virginia nearly half of the population lives below 200 percent of poverty level, almost a quarter of them have no insurance at all.  Age-adjusted mortality rates in some counties are as much as 70 percent higher than the rate for Virginia writ large.  And this Appalachian Mountain region is, of course, predominantly white.  And let me emphasize, Mr. President, that these conditions proceed from cultural issues based on many generations of hardship and strife, not simply individual choice.

Mr. President, back there in those mountains there is no doubt somebody who is thinking that if he could put together a little money and maybe get somebody to believe in him, maybe he could start up a construction company just like Randy Pech did, and compete for government contracts – on a completely fair playing field, which has always been the gift and the miracle of America.  I want him to have that opportunity, just like I want every other American to have it.  And I don’t want a judge on a circuit court somewhere telling him that his own chance for a fair and prosperous future should be swept into the dust bin of history.

I yield the floor.