When I learned of the first of what are now at least seven six* material omissions from Goodwin Liu’s Senate questionnaire response, I was willing to assume that Liu had committed an innocent error, even though the missing item contained damning material about Liu’s support for pervasive racial quotas for generations to come and even though it was difficult to imagine how Liu could have failed to locate the item. As I will discuss more fully in this post, the cumulative omissions—and the pattern of incendiary comments that they concealed—now make it unreasonable to continue to extend Liu the benefit of the doubt.
The Senate Judiciary Committee’s hearing process depends on a nominee’s good-faith effort to provide a thorough response to the committee’s questionnaire. At this point, it is clear that Liu has failed to comply with his duty. No one can know what remaining materials remain hidden. It is imperative that the committee conduct an investigation to satisfy itself that it has received all relevant materials before it proceeds with a hearing on Liu’s nomination.
Let’s review the known omissions to date, all of which were discovered by a single part-time blogger, Morgen of Verum Serum:
1. Liu failed to identify five separate presentations in which he took part. Records of Liu’s comments have been discovered for two of those five presentations:
a. On a showcase panel on “The Legacy of Brown v. Board of Education” at the American Constitution Society’s 2004 national convention, Liu called for the Supreme Court rulings in Milliken v. Bradley, San Antonio Independent School District v. Rodriguez, and Adarand Constructors, Inc. v. Peña to “be swept into the dustbin of history.” He thus made clear that he embraces a judicial agenda that would require massive busing of public-school students to achieve racial quotas across metropolitan areas. (In Liu’s jargon, schools are “desegregated” only when their student bodies “reflect the racial and socioeconomic diversity of the metropolitan area—not the local school district—where they are located.”) His agenda would likewise subject systems of school finance and all other aspects of public education to federal judicial micromanagement. And it would permit the federal government to impose racial quotas against whites in perpetuity. On that same panel, Liu expressly rejected the “precept that judges are just supposed to figure out what the law is and not what it should be,” and he made crystal-clear that he would use his judicial office to advance his agenda.
b. Two weeks before the November 2008 presidential election, Liu took part in an American Constitution Society event, “Counting to Five: What the 2008 Election Will Mean for the Supreme Court,” in which he stressed that Barack Obama, if elected president, should take care to nominate federal appellate judges who would be young enough to be groomed for the Supreme Court. He also emphasized the need for the American Constitution Society and other liberal groups to “hold the administration’s feet to the fire”—i.e., to press for the nomination of very liberal judges.
The three other events that Liu did not disclose and for which no authoritative record has yet been located involve controversial topics.
2. Liu failed to provide any records of another two events that he did identify in his questionnaire response. Those records reveal *The record reveals how controversial his remarks were:
a. On a panel on “Segregration, Integration, and Affirmative Action After Bollinger” at the American Constitution Society’s national convention in August 2003, Liu advocated reviving “the idea of remedying societal discrimination as a justification for affirmative action.” As I’ve discussed more fully, Liu showed no concerns about timelessly imposing what Justice Powell called “discriminatory legal remedies that work against innocent people.” What Liu’s proposed approach would mean in practice is imposition of racial quotas in education, employment, and contracting for generations to come, and probably forever (since any persisting disparities would be attributed to past societal discrimination).
b. In May 2008, taking part in a discussion of a documentary film on the slave trade, Liu argued in support of massive reparations for slavery, and he contended that “all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to … make things right.” That duty, in his view, is “gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton …. our segregated neighborhoods, our segregated schools …. our money,” in order for “reconciliation” to “fully occur.” (Again, by “segregated,” Liu means noncompliance with what a racial quota would dictate.) Never mind that Liu, far from giving up anything, is advancing his own career by his grievance-mongering.*
Now perhaps it’s just a highly improbable coincidence that the omissions from Liu’s questionnaire response that have been discovered so far contain such controversial and incendiary comments. But at this point it’s unreasonable to make that assumption. Moreover, it’s beyond dispute that Liu and his vetters haven’t done a thorough job of searching for his records. If they had done so, how could they have missed the American Constitution Society events and transcripts? If they had done so, how could a single part-time blogger have found so many omissions?
Liu’s defenders might argue that some of his omissions were so conspicuous that they couldn’t possibly have been intentional, for, so the argument would go, they would surely have been discovered. One problem with that theory is the factual reality that they wouldn’t have been discovered before last week’s scheduled hearing but for the diligent efforts of blogger Morgen of Verum Serum. Further, if we indulge the assumption that the omissions were unintentional, it follows that Liu was remarkably sloppy and that we have no idea how many more omissions may remain to be discovered.
At this point, the only sensible course, if the Senate Judiciary Committee is to try to maintain the integrity of its proceedings, is to conduct a thorough investigation before Liu’s confirmation hearing takes place to make sure that Liu has provided all relevant information and records. Liu could 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 could authorize his vetters to make fully available to the committee all his exchanges of information with them, and he and his vetters could agree to be interviewed by committee staff about the omissions in his questionnaire response.
* Strikethroughs per this post.