Ethics

This one reminds me of Ronald Reagan's famous speech before the British Parliament in 1982 in which he said that communism would end up on the ?ash heap of history.?  Up until that revealing moment, we suspected but we never really knew -- Ronald Reagan was an anticommunist.  

Just as startling is Professor Liu's statement in a speech, apparently not provided to the Senate Judiciary committee in his first round of disclosure that the holdings in three Supreme Court cases should be swept into the ?dustbin" of history.   Some things we never knew about this man until we heard that speech.

Unless of course we read his law review articles that are publicly available and were already disclosed to the committee in the original questionnaire.  He has apparently never, orally or in writing, called for those cases to be overruled, but it is clear that he does not like them.  It is inconceivable that Liu could hide anything by omitting the talk where the ?dustbin? statement was made while turning over pages of law review articles where he dissects and criticizes these same three cases.  If he tried to hide something from the committee by not disclosing the speech, he was about as effective as Ronald Reagan would have been passing himself off as a communist.

Law professors routinely refer to cases they don?t like with the ?trash can? or ?dustbin? analogy.  Owen Fiss at Yale said this so often that his students presented him with a trash can on the last day of class.  It means the professor doesn?t like the holding or the reasoning in the case or both.  Ronald Reagan?s ?ash heap? metaphor is better but we all get the point.

To save space here I discuss in my own comment below on this post what Liu already said in his articles abouut these three cases .

When we accuse somebody of lacking candor ? here of concealing important information from the Senate Judiciary Committee ? we have an obligation to point to something specific that person did that showed lack of candor.  Here the information that was not disclosed about the ?dustbin? speech added nothing new.  It should have been disclosed earlier so a senator who did not want to bother reading the law review articles could tell from this statement that Liu does not like these three cases.  The nominee should do everything possible to help the Committee sort through his record.  I sometimes wonder, however, if this process has become more like a fraternity hazing ritual in which the older boys are upset because they believe the pledge did not with sufficient speed cooperate to the fullest extent possible.