Shortly after President Obama nominated Goodwin Liu to the United States Court of Appeals for the Ninth Circuit, I commented on the staunchly left-wing nature of Liu’s academic work. I also suggested that, coupled with Liu’s lack of relevant experience, his ideology might well constitute strong grounds for opposing confirmation. Ed Whelan has since demonstrated that Liu is, indeed, too radical to merit confirmation.
Now a new development, which I believe is related to ideology, raises additional questions about whether Liu deserves to be confirmed — Liu failed to provide the Senate Judiciary Committee with some of his most controversial writing. His failure is discussed in this letter from Judiciary Committee Republicans to Senator Leahy, the Committee chairman:
We write regarding the voluminous supplement to Professor Goodwin Liu’s Questionnaire that we received from the Justice Department today. The supplement lists numerous additional items that Professor Liu omitted from the Questionnaire he submitted to the Committee on February 24, 2010. These glaring omissions were provided only after Committee staff continued to locate other additional items not disclosed by the nominee. At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee. Professor Liu’s unwillingness to take seriously his obligation to complete these basic forms is potentially disqualifying and has placed his nomination in jeopardy.
In the weeks since we received Professor Liu’s original Questionnaire, Committee staff has repeatedly discovered missing items, including: (1) Professor Liu’s commencement speech to UC Berkeley Law; (2) his participation in a panel entitled “What the 2008 Election Will Mean for the Supreme Court”; (3) his participation in a presentation entitled “The Fate of Affirmative Action from the O’Connor Court to the Roberts Court”; (4) his participation in an event co-sponsored by La Raza and the Center for Social Justice at Berkeley entitled “Mendez v. Westminster: 1946–A California Look at Brown v. Board of Education”; and (5) his participation in a conference on school funding. In addition, on March 31, it was reported that Professor Liu failed to include his participation in a panel entitled “The Legacy of Brown v. Board of Education” at the American Constitution Society’s (ACS) 2004 national convention. At the time of his participation, Professor Liu was a member of ACS’ board, his academic work focused heavily on Brown, and the panel discussion marked the 50th anniversary of Brown. Moreover, a transcript of the event can be found through an internet search. Nevertheless, Professor Liu failed to identify his participation in and/or provide a transcript of this panel discussion in his Questionnaire.
These are not minor omissions. A cursory glance at the titles of the events that Professor Liu has omitted from his Questionnaire shows that his participation in and comments during each are crucial to this Committee’s review of his nomination. Not only will the Committee require more time to review these new items, but, as we are sure you will agree, the Committee must conduct further research to confirm that there are no other missing items.
[Portions of the leter pertaining to another nominee, Judge Robert Chatigny, omitted]
Professor Liu’s hearing is currently scheduled for Friday, April 16, 2010, a mere 51 days after he was nominated, and now a mere 11 days after the Committee has received what essentially amounts to a new Questionnaire. This expedited schedule is unacceptable given that we have no confidence in the completeness and accuracy of his record before the Committee. Accordingly, we request that you postpone the Committee’s consideration of this nomination. We believe that maintaining the integrity of the Committee’s constitutional advise and consent responsibilities more than justifies such a request.
The key point, I think, are that the number of documents Liu did not disclose — 117 of them, as I understand it — coupled with their controversial and non-obscure nature, make it highly likely that Liu was attempting to conceal the material. Liu surely understands, for example, that his radical positions on issues relating to race in general, and affirmative action in particular, are high on the list of those Senators will wish to explore. This makes it extremely difficult to believe that his failure to disclose much of this work was inadvertent.
Thus, the case against confirming Liu no longer rests solely on his leftist ideology and lack of experience, though these factors certainly constitute sufficient grounds to block him.
UPDATE: Liu plainly has written and said much he would rather not have to explain to the Senate. For example, he believes that non-blacks owe “reparations” to the descendants of slaves. The debt is owed, according to Liu, not just by the descendants of slaveowners, but by the descendants of “everyone who inherits this nation.” Does this mean that the debt is owed by the descendants of slaves to whom the reparations would be awarded, or did they not inherit this nation?
For Liu, the key question, which he asks several times in the two minute clip below, is what are “we” going to have to give up to “make things right.” With any luck, the answer in Liu’s case will be a seat on the Ninth Circuit.
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