On Tuesday, two weeks after the Senate Judiciary Committee had origianlly planned to hold a confirmation hearing on his nomination to the U.S. Court of Appeals for the Ninth Circuit, Professor Goodwin Liu submitted a supplement (his fourth) to his Senate Judiciary Committee questionnaire, identifying several dozen lectures, talks, and other items he had failed to include previously. (All four supplements are here.) Republicans on the Committee are upset, and sent a letter to Senator Leahy, the Committee Chair, decrying Professor Liu’s “extraordinary disregard” for the Senate’s advise and consent role and asking for a further hearing postponement so they may have time to review the additional material. In response, Senator Leahy sent a letter of his own expressing disappointment that Professor Liu had not provided all of the materials in his initial submission to the committee, but declining to postpone the hearing. Is any of this a big deal?
The Senate Judiciary Committee demands an extraordinary amount of material from judicial nominees, including lists of a nominee’s past public appearances and writings, and transcripts or recordings of the former where they are available. For someone as prolific and accomplished as Professor Liu, complying with such a request is a monumental task. His initial questionnaire response was several hundred pages. For this reason, Professor Richard Painter thinks this is all much ado about nothing, and that GOP criticism of Professor Liu for omitting materials from his questionnaire is political posturing. GOP nominees had a hard time submitting complete questionnaires, so why should Democratic nominees be any different? When I first learned of omissions from Professor Liu’s questionnaire, several weeks back, I was inclined to agree with Professor Painter’s analysis. Now I am not so sure.
Reviewing the volume and nature materials that Professor Liu omitted, I am struck by some of the omissions, including appearances before the American Constitution Society, an organization he Chairs. Tracking down these materials, including videos and transcripts created or maintained by ACS, should have been easy. Indeed, it’s hard for me to believe that had Professor Liu been intent upon providing a complete response to the Committee, he would not have asked ACS to dig up all of his relevant appearances, and would not have omitted so many items from his initial paperwork. The omissions are evidence he was less-than diligent, if not cavalier about the process. Indeed, given Eric Holder’s failure to disclose Supreme Court amicus briefs in which he participated when he was nominated, I think it’s fair to conclude that ensuring complete responses by nominees has not been this Administration’s top priority. But none of this renders Professor Liu unfit for the bench.
Should any of this matter? While I am struck by the volume and nature of the omissions, I don’t think this makes Professor Liu unfit for the bench. As I have blogged before (here and here), I believe Professor Liu is qualified. I still feel that way, as I still believe Presidents should receive substantial deference in their judicial picks. But I also believe the volume of disclosure — dozens of items totaling over a hundred pages, and the possibility that even these supplements may be incomplete still — could justify a short delay before his hearing. Professor Liu was nominated less than two months ago, so it would hardly be an unconscionable delay, and there is quite a bit of new material for Senators to digest.
Will any of this matter? It might. The volume and nature of the new material, including many speeches and panels in which Professor Liu discussed politically sensitive issues (e.g. race), could make it easier for Senate Republicans to stall, if not block, his confirmation. There are some Senators who would like to oppose Professor Liu, but would also prefer to have a non-ideological basis for doing so — and Professor Liu has given it to them. The incomplete questionaire, combined with Senator Leahy’s refusal to postpone the hearing, provides cover for those Senators looking for a non-ideologicla basis for opposing confirmation. It could also make it easier for GOP leadership to hold party ranks, and perhaps even sustain a filibuster. Recall with Miguel Estrada, some Senate Democrats said they were only filibustering because of the White House’s failure to disclose documents from the Solicitor General’s office. This is all the more reason Senator Leahy’s response surprises me. The safer course would be to push back the hearing once more while decrying GOP obstruction, thereby eliminating the non-ideological basis for opposition. All that said, I still think Professor Liu will be confirmed, but I suspect the vote(s) will be much closer now than they would had this issue not emerged.
UPDATE: Ed Whelan responds to Richard Painter here, and Painter has additional comments on the Liu nomination here. [Prof. Painter also responds in the comment thread here.]