Bench Memos

Why Goodwin Liu’s Omissions Matter

The relevant issues concerning Ninth Circuit nominee Goodwin Liu’s Senate questionnaire response do not include whether he strictly complied with the admittedly onerous demands of the questionnaire.  Everyone familiar with the process recognizes that inadvertent omissions are routine.  The relevant issues instead are:

1.  Did Liu try to hide some of the most controversial aspects of his record from the Senate?

2.  Was Liu, whatever his motive, so incomplete in his questionnaire response that he can’t be said even to have substantially complied with his obligation?

3.  Does it make any sense to proceed with his hearing until we have answers on issues 1 and 2?

As I have discussed, I believe that there is a disturbing pattern that Liu’s most inexplicable omissions contain some of his most controversial and incendiary comments and that this pattern reasonably invites the suspicion that Liu was indeed trying to hide aspects of his record from the Senate.  Indeed, given what I’ve heard about White House chief of staff Rahm Emanuel’s initial opposition to nominating Liu, I have to wonder whether Liu was equally eager to hide these aspects from the White House.  (I’m sorry to say that law professor, and former Bush White House ethics adviser, Richard Painter is wildly wrong, and evidently hasn’t been paying due attention, when he characterizes Liu as having merely “missed some things in his initial answers to the Senate questionnaire:  a brown bag lunch here, a talk with alumni there, etc.”) 

The only way to dispel this reasonable suspicion, and to maintain the integrity of the Senate Judiciary Committee’s proceedings, is to conduct a thorough investigation before Liu’s confirmation hearing takes place.  Liu should expedite that investigation by authorizing committee staff to search the hard drives of his computers and to gain access to his e-mail records (subject, of course, to procedures that protect his legitimate privacy interests). Likewise, he should authorize his vetters to make fully available to the committee all his exchanges of information with them, and he and his vetters should agree to be interviewed by committee staff about the omissions in his questionnaire response.

Liu’s supplemental submissions do nothing to dispel this reasonable suspicion (even if they succeeded in providing what they purport to provide, which they do not—as this post from yesterday and a post to come shortly illustrate).

Meanwhile, Jonathan Singer at continues to display his Stalinist intellectual temperament.  For example, in a hilarious post entitled “A New Standard in Transparency,” Singer contends that Liu “acted well within historical precedent for judicial nominees” in his initial questionnaire response.  I suppose that’s why Liu saw fit to offer his “sincere and humblest apology for the omissions in my original submission.”  Singer somehow thinks it’s meaningful to compare the length of questionnaire responses submitted by various nominees.  That comparison wrongly assumes that all nominees have a similar quantum of responsive material.  More importantly, it diverts attention from the critical issues whether a nominee has made material omissions and, if so, whether there is reason to believe that those omissions were deliberate.