Mr. HATCH. Mr. President, I rise in strong opposition to the nomination of Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. [Page: S3125] As he said at the first hearing before the Judiciary Committee, his record is public, and he has written what he has written; he has said what he has said.

That record is what we have to go on, the basis on which we have to make a decision about his nomination to the Federal bench or his confirmation by the Senate.

Professor Liu's record endorses a powerful judiciary that can take control of the law in general and of the Constitution in particular. His activist judicial philosophy is fundamentally at odds with the principles on which our system of government is based.

I examine a judicial nominee's entire record to determine if he is qualified by legal experience and, even more important, by judicial philosophy.

As to Professor Liu's legal experience, I know the ABA has rated him unanimously ``well qualified.'' That is more than a little baffling since the ABA's own criteria state the nominee should have at least 12 years of actual law and practice and substantial trial experience as a lawyer or trial judge.

So it is a little bit more than baffling. Professor Liu has none of that. None of the actual law practice and substantial trial experience as a lawyer--none. Suffice it to say that understanding the mysteries of the ABA's judicial nominee ratings has eluded me for many years. Sometimes they do a great job. A lot of times they do not and politics enter in.

The more important qualification for judicial service is the nominee's judicial philosophy and his understanding of the power and the proper role of government in our system of government. Professor Liu has been unequivocal about his views on this issue, writing and speaking directly about how judges should go about judging. He has written and spoken extensively about how judges should interpret and apply the law, especially the Constitution, to decide cases.

The debate about judicial philosophy comes down to this. We can all read what the Constitution says. The real question is what the Constitution means, where the meaning of its words properly may be found. The debate is about who gets the final say on what the Constitution means, the people or the judges.

America's founders clearly took the people's side in this debate. In his farewell address in 1796, President George Washington said that the very basis of our political system is that the people control the Constitution. He said until the people change the Constitution, it is sacredly obligatory upon all. That certainly includes, in fact that primarily includes, government because that is what the Constitution exists to do, to both empower and to limit government.

The Constitution cannot limit government if it cannot limit judges and it cannot limit judges if they control what the Constitution means. The Constitution belongs to the people, not to judges.

President Obama takes the opposite view. When he was a Senator and opposed the nomination of Chief Justice John Roberts, one of the greatest appellate lawyers in the history of the country--he said that judges decide cases based on their deepest values and core concerns, their perspective on how the world works, their empathy, and what is in their heart. That is what then-Senator Obama said.

As a Presidential candidate he made the same case to the Planned Parenthood Action Fund and said these were the criteria by which he would pick judges.

President Obama certainly kept that campaign promise in the person of Professor Goodwin Liu. Professor Liu has written that judges are literally on a search for new constitutional meaning. In article after article, in speech after speech, he argues that judges on this quest for new constitutional meaning may find it in such things as the concerns, conditions, and evolving norms of society; social movements and practices; and shifting cultural understandings. No matter how you cut it, these are simply alternative ways of saying the Constitution means whatever judges say it means. This is a blueprint for a judiciary that controls the Constitution.

Professor Liu's approach treats the Constitution as if it were written in some kind of code or disappearing ink and treats judges as the only ones who have the key to figuring it out.

Professor Liu, of course, is hardly the only one to make this argument. It is pretty standard fare for those who want our Constitution to say and mean something other than what it does. When these folks want government to have power the real Constitution denies, they urge judges to change the Constitution's meaning to be what they want. When these folks do not want government to have power the real Constitution allows, they urge judges to make up so-called rights that are not there at all.

Whether seeking liberal or conservative political results, this is real judicial activism: judges taking control of our law by taking control of its meaning; judges remaking the Constitution in their own image. In my 35 years of actively participating in the judicial confirmation process, I don't recall someone who more forcefully and directly advocated such an activist judiciary.

In a 2008 article published in the Stanford Law Review, for example, Professor Liu argued that the judiciary is ``a culturally situated interpreter of social meaning.'' That would be a surprise to America's founders, who had a much more pedestrian view of the judiciary, which Alexander Hamilton described as the weakest and least dangerous branch.

Thomas Jefferson warned that if judges could control the Constitution's meaning it would be nothing but a lump of wax that judges could twist and shape into any form they please. There is no room in this modest judicial role for something as grand as interpreting social meaning.

I grant that there are individuals or institutions in our society that should play this role. I think elected representative bodies, such as the one in which I am proud to serve, should play this role. But the last body of people in our society who should play this role of culturally interpreting social meaning are judges in whose hands is placed the interpretation and application of the supreme law of the land.

I, for one, did not take an oath to support and defend a judge's empathy or perspective on how the world works, whether that judge is liberal or conservative. I did not take an oath to support and defend a judge's view of evolving social norms or shifting cultural understandings. I took an oath to support and defend the Constitution of the United States, a document that belongs, in its words and its meaning, to the people of the United States. The Constitution I have sworn to support and defend places limits on government, including limits on the judiciary and the people alone have authority to change those limits.

Professor Liu advocated an activist judiciary before he had been nominated to the judiciary, but when he came before the Judiciary Committee in each of two hearings he painted a very different picture. Before his nomination, for example, he wrote in the Stanford Law Review that judges must determine ``whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.'' After his nomination he told the Judiciary Committee that there is no room for judges to invent or create new theories.

Now it is anybody's guess what all of that collective value convergence and credible crystallization means. But if that is not a new theory, I don't know what it is.

Before his nomination, Professor Liu wrote directly and forcefully about where judges should look for the meaning of the Constitution. He made a career of it, received awards for it, and became one of the stars of the leftwing legal universe. After his nomination when I raised some of his controversial writings at his first hearing, Professor Liu told me ``whatever I may have written in the books and articles would have no bearing on my role as a judge.'' At the end of that same hearing last year, Professor Liu told one of my committee colleagues that ``as you look across my entire record, there are many things I think relevant to the kind of judge I would be.'' Which is it? Before he wants to be a judge he argues that judges can find new meaning for the Constitution in changing cultural understanding and evolving social norms. After he wants to become a judge he tells critics to ignore that record but tells supporters to [Page: S3126] consider that record. This has been about the most stunning confirmation conversion I have seen in all my time in the Senate.

In closing, the fight over judicial nominees is a fight over judicial power. Judges must either take the law as they find it, as the people and their elected representatives make it, or judges may make the law into whatever they want it to be. Those are the two choices. Our liberty requires that people to whom the Constitution belongs alone have the authority to change it. Our liberty requires judges who will be controlled by that Constitution.

President Obama and Professor Liu instead advocate a judiciary able to control the Constitution, to change the Constitution, to literally create from scratch a new Constitution. That will destroy our liberty.

When I look at Professor Liu's record I see he consistently and strongly advocates an approach that allows judges to find the meaning of the Constitution virtually anywhere they want to. That is the opposite of the defined, limited role judges properly have in our system of government. I cannot support someone for appointment to the Federal bench, especially to what is already the most activist circuit in the country, who believes judges should have that much power.

The Ninth Circuit Court of Appeals is indeed the most activist court in the country. It is a court that ignores the law consistently--or at least some of the judges on that court. Judge Reinhardt, who is a brilliant man by any measure, apparently doesn't even care what the words of the Constitution say. He is going to interpret things the way he wants. He is just one. There is a whole raft of them there. Judge Reinhardt gets reversed almost every time he writes an opinion--by the Supreme Court of the United States. The problem is that people can say: Isn't that taken care of by the Supreme Court? Yes, it is in those individual decisions. But in these circuit courts of appeals there are thousands of court cases and legal opinions written that will never be considered by the Supreme Court because the Supreme Court only considers between 80 and 100 cases a year. But thousands of cases are decided by these circuit courts of appeal, so they are important. Who we put on them is important, too. We don't need any more judicial activists, either from the right or left, interpreting the Constitution in accordance with their own predilections rather than what the Constitution actually says.

Goodwin Liu has a long history of positions that are outrageous to those of us who want the courts to be what they should be, interpreters of the laws, not makers of the law. They are not elected to anything and they are appointed for life on the basis that they will do what is right and that they will uphold the law regardless of whether they agree with it.

I have to say folks on our side who have listened to Goodwin Liu, we know what he stands for and what he has taught in schools. What he has written in books and law review articles is contrary to what judges should do. I don't care that the American Bar Association has given him such a sterling rating.

This is an important issue. I wish I didn't have to vote against Goodwin Liu because I like him personally. In fact, this is not about him as a person but whether he will be the right kind of judge. I am convinced that he will not and, therefore, I must strongly oppose his nomination.