Bench Memos

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Re: Why Goodwin Liu’s Omissions Matter


A follow-up to this post:

Politics being what it is, it’s not surprising that Goodwin Liu’s supporters are trumpeting former Bush White House ethics adviser Richard Painter’s ill-informed assertion that Liu merely “missed some things in his initial answers to the Senate questionnaire:  a brown bag lunch here, a talk with alumni there, etc.” Let me explain why that use is legally defective.

As the letter from Senate Republicans makes clear, they are concerned that “glaring omissions” from Liu’s initial response suggest that “he knowingly attempted to hide his most controversial work from the Committee.”  Their letter highlights six specific omissions and particularly emphasizes Liu’s participation on a showcase panel at the American Constitution Society’s 2004 annual convention.  As I’ve discussed, the transcript of that panel (which Liu did not provide, of course, as he did not even disclose the event) shows that Liu explicitly called for three important Supreme Court precedents to “be swept into the dustbin of history.” In addition, he rejected the “precept that judges are just supposed to figure out what the law is and not what it should be” and thus gave compelling evidence that he would use the judicial office to advance his agenda.  So far as I’m aware (and I’d be happy to be corrected on the point), Liu’s remarks are not merely redundant of other material in his record. 

The other five items that Senate Republicans identify in their letter—four of which I’ve discussed in these posts—also cannot remotely be characterized as “a brown bag lunch here, a talk with alumni there, etc.”:  One is a UC Berkeley commencement speech*; one is an American Constitution Society event on “What the 2008 Election Will Mean for the Supreme Court”; one is a presentation to the Asian Pacific Bar Association of the Silicon Valley on “The Fate of Affirmative Action from the O’Connor Court to the Roberts Court”;  one is a Berkeley La Raza colloquium; and one is a panel at an education conference in D.C.

There is nothing in Painter’s post to indicate that he was even aware of the Senate Republicans’ letter, much less of the particular concerns the letter raised (or of any of my extensive posts).  That, of course, hasn’t stopped a Los Angeles Times reporter from presenting Painter as a seeming authority on the matter.  In fairness to Painter, the reporter misquotes Painter as having “said the items Liu left out of his original disclosure form ‘were relatively unimportant and/or redundant of what he had already disclosed.’”  What Painter actually wrote was that “a lot of the items he left off of his original Senate disclosure form were relatively unimportant and/or redundant of what he had already disclosed.”  That’s undoubtedly true.  But it’s also utterly trivial, as the controversy is not over any such items (though, of course, it’s not entirely clear at this point which items fall into that category).

* 4/10 (10:35 p.m.) Update:  I now see that Singer, utterly ignoring the major thrust of this post, falsely contends that I have mistakenly “accuse[d] Goodwin Liu of omitting a commencement speech the nominee gave to Berkeley Law.” In fact, as the reader will see, I have accurately summarized the letter from Senate Republicans and have not made my own allegation about the commencement speech. On the contrary, when I note above that I’ve discussed four of the “other five items that Senate Republicans identify in their letter” in my posts, the commencement speech is the one item that I had not identified as missing (and had not discussed at all). I readily accept Singer’s showing that the Republican letter is wrong on this minor point.

Tags: Whelan


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