A polite and humble Goodwin Liu educates Senate Republicans and charms Senate Democrats

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Fri Apr-16-10 10:12 PM
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A polite and humble Goodwin Liu educates Senate Republicans and charms Senate Democrats

(The transcript below is mine, painstakingly taken from CSPAN recording from earlier today).

Accompanying Goodwin Liu to the hearing wife Ann O'Leary with their daughter Violet and their newborn (4 weeks) son Emmett. Goodwin introduced his family and asked for "special dispensation to sleep" for his newborn. His two children share the same birthday.

Liu swears an oath of truth before testifying today. Senator Feinstein presided though Chairman Leahy also attended, apparently to the surprise of Senator Feinstein.

"What process did you use to provide materials to the committee and how are these supplemental materials overlooked and were they provided?"

Republican members are asking Liu to provide a written record of everything he has ever done or said. Liu describes the difficult inherent in doing the impossible but was very polite and apologetic despite their use of this as a political attack. "For better or worse Madam Chair I have lived most of my professional life in public and my record is an open book. I absolutely have no intention and frankly madam Chair I have no ability to conceal things that I have said, written, or done."

After reading Liu's past testimony opposing Justice Alito's confirmation: "Do you think that is a fair analysis of his record? Do you think it meets the standard of civility that we would normally seek to achieve in this Senate confirmation process?"

"I think that the passage you read is perhaps unnecessarily colorful language" but "my criticisms and the concerns I expressed were limited to one area and that was the area in which individual rights come up against assertions of governmental power and in that area I had some specific concerns about then Judge Alito's opinions on the third Circuit."

"Do you believe that any criticism (of Roberts and Alito) you might have made would make it more difficult for you to follow precedent?

"No Mr. Chairman, I think that there is a clear difference between what people write as scholars and how one would approach the role of judge... (a point he made a number of times throughout the hearing) "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 is simply not the role of a judge..."

"I strongly support this nominee."

"Do you still stand by these approaches, as though you can just about make of the law anything you want to?"

Liu: "What we argue in the book is that in order to preserve the meaning of that text, in order to preserve the power of that text, it is necessary for judges, in some areas of the law, to give those phrases and those words meaning in the light of the current conditions of the society - not all phrases mind you, I mean there are many part of the Constitution that are clear cut. You need two witnesses to convict someone of treason not one, and I think that is a clear rule so there is no room for interpretation there but where the Constitution says for example, unreasonable searches and seizures, which are prohibited under the fourth amendment, well the Supreme Court has instructed that in applying that phrase what we are to look to are the legitimate expectations of privacy that people have in the society, and I will just recount, to close my answer, one example that we offer in the book. In 1967 the court decided a case Katz v. United States, which considered the issue of whether the requirement of physical trespass was necessary to make out an unreasonable search and seizure under the forth Amendment, that was a case about telephone wiretaps and the court said, in this day and age the answer to that is no. A physical trespass is not necessary to make it out because people have come to have a legitimate expectation of privacy in their telephone calls."

"So are defenders of say originalism, like Justice Scalia, do you believe they are less legitimate judges than another judge that might have a different philosophy?

"I would never say that Justice Scalia is a less legitimate judge than any other judge" (laughter) but "if originalism is taken to mean that the original understanding of a Constitutional provision is the sole touchstone for interpreting the Constitution, I would simply observe that the Supreme Court throughout its history has never adhered to that methodology. If originalism is taken to mean instead that the original meaning and of course the text of the Constitution are very important considerations that any judge in interpreting a provision of the Constitution must look to, absolutely, I believe that is absolutely true and in many cases that could be determinative."

"From my experience as a former trail judge, I will tell you that if a lawyer came into my court room and failed to respond completely and accurately to a request from the other side for information and had to be called to task four different times before they finally got the honest complete and truthful answer that that lawyer would find themselves in contempt of court or worse. So I don't know if it is from your lack of experience in a courtroom or what it is but can you offer me any comfort at all that this is not just really an act of contempt but is some other explanation? Have you actually apologized?"