Goodwin Liu
Submitted Questions
2010-04-16 - Goodwin Liu - Professor Goodwin Liu testified about his nomination to the Ninth Circuit Court of Appeals.
Goodwin Liu
Submitted Questions
2010-04-16 - Goodwin Liu
- Professor Goodwin Liu testified about his nomination to the Ninth Circuit
Court of Appeals.
5. Do you believe that it is ever appropriate for judges to indulge their own
values
and/or policy preferences in determining what the Constitution and the laws
mean?
If so, under what circumstances?
Response: I do not believe it is ever appropriate for judges to indulge their own values or
policy preferences in determining what the Constitution and the laws mean.
6. Do you believe that it is ever appropriate for judges to indulge their own
subjective
sense of empathy in
determining what the Constitution and the laws mean? If so,
under what circumstances?
Response: To the extent that empathy means an ability to understand a claim from
another person’s point of view, I think it can help a judge to appreciate the arguments on
all sides of a case and to ensure that the litigants’ claims have been fully heard.
However, to the extent that empathy causes a judge to be biased or prejudiced or to
identify with a particular litigant or outcome, it is inappropriate and must have no role in
judicial determinations of what the Constitution and the laws mean.
7. Do you believe that it is ever appropriate for judges to indulge their
empathy for
particular groups of persons? For example, do you believe that it’s appropriate
for
judges to favor those who are poor? Do you believe that it’s appropriate for
judges
to disfavor corporations?
Response: I do not believe it is ever appropriate for judges to indulge their empathy for
particular groups of persons. A judge must approach every case objectively and
impartially.
20. President Obama has stated: “[W]hile adherence to legal precedent and
rules of
statutory or constitutional construction will dispose of 95 percent of the cases
that
come before a court . . . what matters . . . is those 5 percent of cases that
are truly
difficult. In those cases, adherence to precedent and rules of construction and
interpretation will only get you through the 25th mile of the marathon. That
last
mile can only be determined on the basis of one’s deepest values, one’s core
concerns, one’s broader perspectives on how the world works, and the depth and
breadth of one’s
empathy. In those 5 percent of hard cases . . . . the critical
ingredient is supplied by what is in the
judge’s heart.”
a. Do you agree with the President that legal precedent and rules of statutory or
constitutional construction sometimes fail to provide an answer in hard
cases? If so, what percentage of cases do you think constitute “hard cases”?Response: I believe all cases must be decided by applying the law to the facts
from beginning to end.b. Assuming for the sake of argument that there is a “hard case” where the law
is indeterminate, what factors and concerns would you, as a judge, consider
in deciding the case?
Response: Where the law is indeterminate, I would, if confirmed, faithfully
follow any Supreme Court and circuit precedents that provide guidance on legal
questions related to the one at issue in the specific case or controversy, including
any guidance in such precedents on how to interpret particular constitutional
provisions or statutes.
“Empathy – that’s the phrase I expressed concern with President Obama, because empathy is a nonlegal thing, it suggests bias,” Sessions said, adding that Liu’s “writings are pretty far out there and they represent about as far as you can go intellectually to expand judicial power and that makes me nervous.”