Executive Session

Floor Speech

Mr. GRASSLEY. Mr. President, I have a few closing remarks regarding the nomination of Goodwin Liu. Yesterday, I outlined my objections to this nominee in some detail. As I stated, my objections to this nominee can be summarized with five areas of concern: his controversial writings and speeches; an activist judicial philosophy; his lack of judicial temperament; his troublesome testimony and lack of candor before the committee, and his limited experience.

I hope the President will withdraw this nomination and send to the Senate a consensus nominee to fill this vacancy. We have demonstrated over and over again our cooperation in moving forward on consensus nominations. The President needs to nominate mainstream individuals, who understand the proper role of a judge.

Nominees who would bring a personal agenda or political ideology to the courtroom will have great difficulty in being confirmed.

Yesterday, a few Senators met with Mr. Liu. After that meeting, one of my colleagues from the other side of the aisle made the following statement, ``The court of appeals is where law is made, and we need the finest minds in the world for that.'' I am troubled by that statement on more than one level.

First, intellect is an important element I consider in the confirmation process. Mr. Liu does have an outstanding academic record. His intellect is not the issue. The nominee himself noted there was more to being a judge than intellect. He stated, with regards to the nomination of Chief Justice Roberts, ``[t]here's no doubt Roberts has a brilliant legal mind. ..... But a Supreme Court nominee must be evaluated on more than legal intellect.''

He then voiced concerns that ``with remarkable consistency throughout his career, Roberts ha[d] applied his legal talent to further the cause of the far right.'' Mr. Liu went on, demonstrating a lack of judicial temperament, to disparage Justice Robert's views on free enterprise, private property and limited government. In my statement yesterday I made my views very clear on how I feel about Mr. Liu's remarks, so there is no reason to repeat that.

The point is, intellect is only one component. Using Mr. Liu's standards, a nominee ``must be evaluated on more than legal intellect.'' Mr. Liu does have a fine intellect, but he has used his talent to consistently promote views that are far out of the mainstream. Shortly after President Obama was elected, he said, ``Now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.'' I do not intend to give Mr. Liu that opportunity.

The second problem I have with the statement is the assertion that ``The court of appeals is where law is made.'' We have heard this view before. While serving as a circuit judge, Sonia Sotomayor stated that the court of appeals ``is where policy is made.''

Now I understand there are elements of our society who wish this were the case. Those who can not get their policy views enacted through the legislative process, as our Constitution requires, often turn to the courts. But I flatly reject this notion.

The Constitution vests the legislative power in the Congress, not the courts. Judges are simply not policymakers. The court of appeals is not where law is made. The courts are vested with the judicial power. That means they are to decide cases and controversies. They are to apply the law, not make the law.

Unfortunately, this philosophical disagreement occasionally finds its way into the debates on nominations. But let me remind the Senate where this started. Going back to the nomination of William Rehnquist in 1971, Democrats have used or attempted to use the filibuster to delay or defeat judicial nominees. Fortunately, it is a rare occasion. There have been a total of 46 cloture votes, including this one, on 32 different judicial nominations in American history. Of the 32 judicial nominees subject to cloture votes, 22 were against Republican nominated judges. Between 1971 and 2000, there were 11 cloture votes on judicial nominees. Most of those filibusters, attempted by Democrats, were unsuccessful and cloture was invoked.

However, beginning in 2002, Senate Democrats changed the rules. There were 30 cloture votes on 17 of President Bush's judicial nominees. Eight of President Bush's nominees are not on the bench because of the filibuster or threatened filibuster by Senate Democrats.

This does not include a number of Bush's nominees that were subjected to the so-called ``pocket filibuster'' in Committee by the Democratic majority in the 110th Congress, including Peter Keisler to the DC Circuit and Robert Conrad to the 4th Circuit, among others.

We hear about the notion of ``extraordinary circumstances'' as a justification or requirement for extended debate. That was an outcome of an agreement in the 109th Congress. However, even after that time, Senate Democrats have used a broad and inconsistent application of that term. Even after that agreement, Senate Democrats attempted to filibuster judicial nominees. However, they do not seem to find it applicable to the nominee before us today. I disagree. The nomination of Goodwin Liu does raise extraordinary circumstances, as I outlined in depth yesterday.

I have no personal animosity towards Mr. Liu. I recognize he has a fascinating personal story and has accomplished much. This debate is not about his ethnic background or personal history.

I wish Mr. Liu well in his academic career. But a lifetime position on the Federal bench is not where he belongs. Therefore, I will vote no on the cloture motion and urge my colleagues to do the same.

I ask unanimous consent to have printed in the RECORD documents in opposition to the nomination.

There being no objection, the material was ordered to be printed in the Record.

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