In what has become the most contentious lower-court nomination of the Obama presidency, Republican senators on Friday picked apart the academic writings and public statements of law professor Goodwin Liu, nominated for the 9th U.S. Circuit Court of Appeals.
Liu faces the possibility of united GOP opposition after receiving intense criticism and little sympathy from Republicans during more than three hours of testimony. While he is likely to win the backing of the Senate Judiciary Committee within weeks, possibly along partisan lines, the ideological division could force a showdown in the Senate over a potential filibuster. That might happen at the same time the Senate is considering a successor to Justice John Paul Stevens.
During his confirmation hearing before the Judiciary Committee, Liu faced skeptical questioning about whether he supports racial quotas, whether the Constitution guarantees access to welfare, and whether the 10th Amendment is a dead letter. In each of those cases, he answered no.
Sen. Jon Kyl, R-Ariz., lectured Liu over his 2006 testimony against the confirmation of Justice Samuel Alito Jr. In that testimony, Liu criticized a series of Alito's rulings from the 3rd Circuit and concluded that 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" and "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."
"I see it as very vicious and emotionally and racially charged -- very intemperate," Kyl said. "And to me, it calls into question your ability to approach and characterize people's positions in a fair and judicious way."
Liu conceded that he used "unnecessarily flowery language," but he defended his earlier testimony. "I don't think that it represents his vision of America that he would implement as policy, the practices described in that paragraph. It was only meant to say that as a judge, he believed that those practices were permissible," Liu said.
At other points, Liu was more conciliatory. He said he has the "highest regard for Justice Alito's intellect and his career," and he identified with Alito's upbringing. He apologized again to senators for initially omitting some materials when he answered a committee questionnaire. And he said he would keep an open mind for any cases that would come before him.
"Obviously I have my views," Liu said, "but I hope I'm also someone who's able to take into account the opposing views of others."
Republicans have attempted to filibuster only one of President Barack Obama's judicial nominees: Judge David Hamilton for the 7th Circuit. That attempt failed, 70-29, and Hamilton was confirmed in November. Speaking to reporters on Thursday, Sen. Jeff Sessions, R-Ala., the top Republican on the Judiciary Committee, acknowledged that Liu's nomination could be another test of whether the GOP caucus is able to block a nominee.
Liu, 39, has taught at the University of California, Berkeley, since 2003. Now a full professor and associate dean, he has a long record of writings about constitutional law and education policy that Republicans said they found troubling. Sen. Orrin Hatch, R-Utah, cited a book Liu co-authored, "Keeping Faith with the Constitution," in which Liu praised judges who take into account "evolving norms" and the "practical consequences" of their rulings.
"Do you really think that judges should have this much power over the law?" Hatch asked Liu. "What will be left of the Constitution?"
Liu asked Hatch not to read too much into his work. "Whatever I may have written, in the books and articles, would have no bearing on my role as a judge," he said.
But Liu also argued that judging requires more than looking at text and at the original meaning of the Constitution's authors. He cited the U.S. Supreme Court's 1967 decision in Katz v. United States, requiring a search warrant before police can tap a telephone.
"That's not simply a situation of new technology and old principles," Liu said. "Rather, I think it required the Court to discern: What is the expectation of privacy around phone calls?"
Liu shied away from an array of controversial subjects. Deflecting questions about gun control and religion, he said he was not well-versed in those areas of constitutional law. He said he personally has no objection to the death penalty and would follow federal law regarding its imposition. He said he had not read the recently passed healthcare overhaul. He also declined to comment on the work of 9th Circuit Judge Stephen Reinhardt -- widely regarded as one of the most liberal federal appellate judges in the country -- because he said he was not familiar enough with Reinhardt's rulings.
Liu defended judges who look for ideas from foreign courts' rulings, while disavowing the idea that those rulings carry any authority. "I do not believe that foreign law should control in any way the interpretation of our laws," Liu said.