Executive Session

Floor Speech

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Mr. CORNYN. Madam President, I join my colleague from Alabama, who has served for a long time on the Senate Judiciary Committee, as have I, in voicing my strong opposition to this nominee.

It is odd, it seems to me, to have someone who has actually been nominated three separate times by this President, and I think it tells us something about the President's determination to nominate and see confirmed someone who is unsuited for service as a Federal judge.

In saying that, it doesn't mean they don't have rights to speak freely about their strongly held views. They do. That is what we do here in the legislative branch. That is not what we expect out of a life-tenured judge. We expect judges to be impartial, to render justice, and to decide cases, not to be roving policymakers making the country into their image of what it should be. We cannot vote for these judges. Judges are appointed and they serve for a lifetime. In return for that lifetime appointment and that protection from the sort of accountability that other elected officials are required to have, we understand and our Constitution provides, that they have a limited but important role, and that is to apply the law as written, apply the words of the Constitution as written, and not to sort of make it up as you go along or to dream up new rights along the way that are not subject to a vote of the American people, or subject to an election.

Based upon nearly everything that Mr. Liu, Professor Liu, has written or said, I have some very serious concerns about his impartiality and suitability to serve as a life-tenured judge. My concerns start with his lack of judicial temperament.

During the confirmation hearings of Justice Sam Alito, who is now on the U.S. Supreme Court, Mr. Liu went out of his way to testify under oath before the Senate Judiciary Committee in a way I can only describe as vicious and disgraceful. This is what he 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, absent a multiple regression analysis showing discrimination; and where police may search where a warrant permits, and then some.

I humbly submit this is not the America we know, nor is it the America we aspire to be. These were the words of a person who President Obama has, three times, nominated to serve on the Ninth Circuit Court of Appeals, one of the highest courts in the land, which is expected to dispassionately decide cases without fear, favor, or any preconceived notion about the outcome. I think these words, perhaps more than anything else, demonstrate Professor Liu's nonsuitability to serve as a Federal judge. These were not an off-the-cuff set of remarks or a temporary lapse in judgment; they were a product of carefully scripted and prepared testimony provided to the Senate Judiciary Committee during the Alito hearings.

Despite Professor Liu's comments, Justice Alito was confirmed with bipartisan support. During his failed confirmation process last year, I asked Professor Liu that, if given the opportunity, would he change anything about his remarks about Justice Alito. In response, Mr. Liu claimed that he regrets having written that passage, calling it ``unduly harsh and provocative.''

Well, Professor Liu waited 4 years to provide that semi-apology to Justice Alito for these shameful remarks. Like so many nominees who come before the Senate Judiciary committee, they seem to undergo a nomination conversion that changes the tone and nature of their remarks and attitudes. Frankly, we cannot depend on this conversion sticking. We need greater assurance that the nominees who come before the Senate are going to exercise a sort of dispassionate judgment that we expect of judges.

Frankly, Professor Liu has shown himself capable of incredibly poor judgment--and not just one time. After Chief Justice Roberts was nominated to the Supreme Court, Mr. Liu again went out of his way to criticize then-Judge Roberts. He argued that Justice Roberts' record ``suggests that he has a vision for American law--a right-wing vision--antagonistic to important rights and protections that we currently enjoy, and that he is not afraid to flex judicial muscle to achieve it.''

In that same article, he attacked Justice Roberts' membership in the National Legal Center for Public Interest, calling its mission to promote free enterprise, private property, and limited government--he called those code words for an ideological agenda hostile to the environment, workplace, and consumer protections.

So Professor Liu considers free enterprise, private property, and limited government code words for an ideological agenda hostile to the environment, workplace, and consumer protections. That is what he said. Is that the kind of person we want, the Senate should want, or that America should want to sit in judgment, enforce our Constitution and laws passed by the Congress? Well, I think not.

Yet, in another dramatic nomination conversion during his failed nomination process last year, Professor Liu responded to my written questions by calling this statement a ``poor choice of words.''

There are several more examples of Professor Liu's lack of judicial temperament. His record is already crystal clear. It is one thing for Professor Liu to disagree with a person--we do that every day on the floor of the Senate, in committee, and around the country, across kitchen tables in our homes--but it is quite another to repeatedly engage in these types of inaccurate and, frankly, disgusting attacks against a public official trying to do their job the way they think it should be done.

For Professor Liu to only reflect upon his statements once he is offered a life-tenured judgeship on the court of appeals is unacceptable.

Given his lack of experience as a practicing lawyer, obviously his lack of experience as a judge, never having served as a judge, it is impossible for me to trust his assurances that now all of a sudden he will calmly and impartially apply the law as written by Congress or as written in the Constitution of the United States.

I would cite just one other example of my experience on the Judiciary Committee, this one involving now Justice Sonia Sotomayor. Justice Sotomayor is a charming woman. She came into the Senate Judiciary Committee hearings and won over many people who were, frankly, a little skeptical of her nomination based on some of her previous writings and speeches. But I remember one particular question, she was asked whether she accepted as an individual right the guarantee in the second amendment of the Constitution the right to keep and bear arms, and she said she did. She accepted a decision in a case called the Heller case that said that was an individual right of a citizen.

A few months later, in a case called McDonald v. Chicago, she wrote a dissenting opinion from a Supreme Court decision where she said the right to keep and bear arms is not a fundamental right.

You can parse the words, ``an individual right,'' ``a fundamental right,'' but to me it is clear that Justice Sotomayor, during her confirmation hearings, tried to parse the words in a way so as not to raise alarms about her commitment to the Bill of Rights and the second amendment to the Constitution. But then once she was confirmed as a judge on the Highest Court in the land--of course, she serves for life with no accountability either to Congress or to the voters, and she, indeed, serves with impunity, even though her testimony before the committee and her decisions, once on the Court are inconsistent.

We just cannot take a chance that Professor Liu has somehow had a true conversion in his views and his attitudes during the nomination process.

Aside from his questionable temperament, Professor Liu's activist views of the law are equally troubling. In his book called ``Keeping Faith with the Constitution,'' Professor Liu summarizes activist philosophy in this way. He said:

Fidelity to the Constitution requires judges to ask not how its general principles would have applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.

What does that mean? Does that mean the words on the page do not necessarily mean what they say; that a judge is going to somehow subjectively read into those words what the evolving norms of our society are and to change an outcome to decide a case, to decide what our Constitution means based on their subjective impression of those words and what evolving norms in society means?

That is sometimes called a doctrine of believing in a living Constitution; that the words on the page are mutable or changeable and can morph over time and mean different things based on a judge's interpretation of what those evolving norms are. To me, that is a license to lawlessness. It is a license for a judge--an unelected, lifetime-tenured individual who takes an oath to uphold the Constitution and laws of the United States--that is untethered to any concept of what the law means, something that can be applied with equal application to every man, woman, and child in America and gives a judge a chance to impose their political or ideological views on what the Constitution means. That is dangerous, it is lawless, and it is not upholding the Constitution that we, even as Members, swear to uphold in our different jobs as policymakers.

Particularly troubling for Professor Liu is his controversial and, I would say, ridiculous view that our Constitution somehow guarantees a European-style welfare state. We are engaged in a very important debate on the floor of the Senate, and during the course of this vote on the debt ceiling--which I suppose we will have sometime in July, or not--with whether we are going to continue to be an opportunity society or whether we have become an entitlement society, a welfare state.

Professor Liu, in his article, ``Rethinking Constitutional Welfare Rights,'' has argued that the Constitution includes an ``affirmative right to health insurance, childcare, transportation subsidies, job training, and a robust earned-income tax credit.''

I must have missed that in my copy of the Constitution. I do not remember the Founding Fathers writing in the Constitution, nor the States ratifying language in the Constitution, that guarantees a right to a robust earned-income tax credit. When Senator Sessions gave Professor Liu the opportunity to clarify his views in April 2010, he replied:

I do believe that, Senator. But those arguments are addressed to policymakers, not the courts.

I think Professor Liu is being disingenuous, and I am trying to be charitable. When he says the Constitution includes these rights but says those arguments are addressed to policymakers, not the courts, he is denying that a court that might agree with him might enforce those rights as a matter of constitutional law. This is not just addressed to policymakers. That is not being honest. I do not blame him if he has an honestly held view about these matters. I would welcome candor in expressing those strongly held views. But they are views more appropriately expressed in the court of public opinion where we debate the values and meaning of our laws and what kind of country we want this to be, not in people who want to be judges and impose those views as a matter of judgment in an individual case, transforming the written Constitution into something completely different than what each of us can read on a printed page or what we learned in school our Constitution actually means.

In other words, Professor Liu believes the Constitution contains an unenumerated list of goods and services, such as free health insurance, daycare, and bus passes that Federal legislators must provide to every citizen.

It is not difficult to see how an activist judge might one day use Professor Liu's theory to force Congress to provide for these lavish welfare benefits, even though our country faces a historic debt crisis, as we do now. What is more, Professor Liu has suggested that under his view of the Constitution, it may be unconstitutional to repeal certain welfare programs once they are enacted.

For example, in ``Rethinking Constitutional Welfare Rights,'' Professor Liu wrote that legislation may give rise to a cognizable constitutional welfare right if it has ``sufficient ambition and durability, reflecting the outcome of vigorous public contestation and the considered judgment of a highly engaged citizenry.''

That is a mouthful. What he is saying is, once the legislature passes a law, the legislature has no power to repeal that law because it somehow then is transformed into a constitutional right and beyond the power of Congress to change. That is radical.

Professor Liu's writings also have suggested his unconventional belief that the death penalty is unconstitutional, that same-sex marriage is a constitutional right, and that it is appropriate for judges to consider foreign law when reaching their legal conclusions about what American law means.

Taken as a whole, Professor Liu's record demonstrates that he would use his position as a Federal judge to advocate his ideological theories and undermine the well-settled principles of the U.S. Constitution. That is simply unacceptable to me. I think it should be unacceptable to the Senate.

Given his lack of temperament, his poor judgment, and his activist view of the role of judges and the law, I am left with no choice but to fight Professor Liu's confirmation with every tool at my disposal.

Madam President, I yield the floor.

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