Controversial Appellate Court Nominee Apologizes for Omissions in Senate Questionnaire; GOP Says ‘Nomination in Jeopardy’

By Matt Loffman

Apr 6, 2010 12:55pm

In a letter to the chairman of the Senate Judiciary Committee, Associate Dean and Professor of Law at the University of California, Berkeley School of Law Goodwin Liu, a nominee to the U.S. Court of Appeals for the Ninth Circuit, apologized for dozens of omissions from his Senate questionnaire.

The “original submission of my Senate Questionnaire on February 24 inadvertently omitted a number of items,” Liu wrote to Sens. Pat Leahy, D-Vermont. “I would like to offer a sincere and personal apology to you, to the Ranking Member” – Sen. Jeff Sessions, R-Ala. – “and to the entire Committee for the omissions in my original submission.”

Liu said “none of the omissions in my original submission was intentional,” and that he’d “made a good faith effort to track down all of my publications and speeches over the years.” He’d checked his personal calendar and conducted electronic searches, Liu said, but clearly “missed items I should have found the first time” and “did not think to include various occasions when I spoke at informal seminars, brown bag lunches, or student or alumni gatherings on campus or elsewhere because I viewed those occasions as part of my day-to-day work as a faculty member, akin to teaching class or meeting with students. I now understand that those should have been included as well.”

The explanation was not received warmly by Sessions and the other Republicans on the panel, including Sens. Orrin Hatch of Utah, Lindsey Graham of South Carolina, John Cornyn of Texas, Jon Kyl of Arizona, and Tom Coburn of Oklahoma.

“At best, this nominee’s extraordinary disregard for the Committee’s constitutional role demonstrates incompetence,” Sessions said in a letter to Leahy, adding that “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.”

Some of the omissions include Liu’s commencement speech to UC Berkeley Law, his participation in a presentation entitled “The Fate of Affirmative Action from the O’Connor Court to the Roberts Court,” and his participation in a panel entitled “The Legacy of Brown v. Board of Education” at the American Constitution Society’s (ACS) 2004 national convention.

“These are not minor omissions,” Sessions wrote. “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.”

The American Bar Association has rated Liu “well qualified” and, as the liberal New York Times editorial board noted in its endorsement of Liu, “Kenneth Starr, the conservative lawyer who investigated President Bill Clinton, and is now the dean of Pepperdine University School of Law, co-signed a letter endorsing Mr. Liu, vouching for his ‘independence and openness to diverse viewpoints.’”

Sessions asked Leahy for a delay in Liu’s hearing, which is currently scheduled for Friday, April 16, “a mere 11 days after the Committee has received what essentially amounts to a new Questionnaire.”

As ABC News’ Ariane de Vogue noted last month, the Liu hearing had already promised to be contentious, with conservatives arguing Liu's record on issues such as constitutional welfare rights, the death penalty, and affirmative action puts him outside the mainstream of judicial thinking.

“Although Liu has never argued a Supreme Court case, he has written extensively on constitutional law and civil rights. His scholarly work — touching on everything including affirmative action, the death penalty, welfare rights and same-sex marriage — provides his critics with an unusually long paper trail,” de Vogue wrote. “He clerked for Supreme Court Justice Ruth Bader Ginsburg in 2000 and later told the Los Angeles Times that Bush v. Gore, the decision that settled the 2000 presidential election, was ‘utterly lacking in legal principle.’ Sessions and other Republicans on the committee are concerned about Liu's judicial philosophy as outlined in a book he co-authored, ‘Keeping Faith with the Constitution.’ In the book, Liu writes that the Constitution should be interpreted by adapting its broad principles to the conditions faced by successive generations.”

M. Edward Whelan III, president of the conservative Ethics and Public Policy Center, told de Vogue that "Liu has all the makings of a hard-Left judicial activist, as shown by his positions on matters ranging from welfare rights to racial quotas to same-sex marriage and by his utterly lawless constitutional philosophy generally."

But some conservatives support the Liu nomination. Liu has been supportive of charter schools and some government-funded vouchers for private schools, and Clint Bolick, director of the conservative Goldwater Institutes' Scharf-Norton Center, wrote to the Senate Judiciary Committee that “I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."

- jpt

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