Just Say No to O'Neill

At this point, unless a judicial nominee is completely uncontroversial, there's no reason for the Senate Judiciary Committee even to consider a potential judge chosen by President Bush. Michael O’Neill, who is proud to have helped some of the president's more contentious nominees achieve confirmation, would be controversial even in the absence of questions about his ethics as a scholar:

Last year, a peer-reviewed legal journal, the Supreme Court Economic Review, issued a retraction of an article by Mr. O’Neill in 2004. “Substantial portions” of the article, the editors wrote, were “appropriated without attribution” from a book review by another law professor. In addition, at least four articles by Mr. O’Neill in other publications contain passages that appear to have been lifted from other scholars’ works without quotation marks or attribution.

Long passages in the 2004 article are virtually identical to the book review, which was published in 2000 in the Virginia Law Review and was written by Anne C. Dailey, a law professor at the University of Connecticut. [emphasis added]

Accusations of plagarism do not trouble the president. Nor do they bother Sen. Arlen Specter, who argues that "a mistake ... ought not negate an extraordinary record of public service." Putting aside the senator's definition of "extraordinary," it's hard to believe that five separate instances of lifting another writer's work without attribution can reasonably be characterized as a mere "mistake." [more ...]

It's not as if O'Neill is being nominated for a judgeship in Alaska (although no state deserves to get stuck with a judge of questionable ethics):

The White House nominated O'Neill in mid-June to a slot on the federal district court in Washington, one of the nation's most prestigious benches. Now a George Mason University law professor, he also worked as Specter's top aide, helping win confirmation of two Republican Supreme Court justices, John G. Roberts Jr. and Samuel A. Alito Jr.

O'Neill's explanation of his borrowed language would make more sense if the problem had occurred only once:

O'Neill said mistakes were made when he wrote reviews and notes in a single computer file, then was not as careful as he should have been during the writing process. "I have always used a big old file of articles I was working on," he said. "I cut and paste information" into it.

"I lost track of stuff, and I just had catastrophic results," he added.

It's difficult to believe that a writer who copies "substantial portions" of another writer's work doesn't recognize which words are his own and which are borrowed. Apart from his invocation of the "mistakes were made" defense, O'Neill does not sound particularly remorseful:

"I am a creature of the Senate," he said. "If you believe this was inadvertent, and it was fairly insignificant, is it something to kill somebody's career for?"

Of course, O'Neill's current "career" is at George Mason. But that hasn't gone so well in light of the plagiarism accusations.

O'Neill surrendered his tenure at George Mason after a university investigation concluded he had used material from another author, without attribution, in a law review piece published shortly before he achieved the coveted academic status, according to Daniel D. Polsby, dean of the law school. O'Neill remains at the school as an associate professor.

Does O'Neill think his career path gives him a right to ascend to the federal bench without regard to questions about his ethics, just because he thinks they are "fairly insignificant"? Does O'Neill share the common viewpoint of politicians on the right, that cheating is just fine if you get away with it, and "insignificant" if you get caught? Obviously George Mason attaches more significance to his conduct than O'Neill's apologists.

As to O'Neill's distinguished record of "public service":

O'Neill served as a law clerk to Supreme Court Justice Clarence Thomas and to David B. Sentelle, now chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. O'Neill also shaped criminal justice policy as a member of the U.S. Sentencing Commission from 1999 to 2005.

Working with Specter on Capitol Hill, he helped draft complex bankruptcy and asbestos legislation, winning plaudits from a bipartisan group of senators when he left to return to teaching in 2007.

So O'Neill served on the Sentencing Commission, an institution fiercely dedicated to a "lock 'em up" philosophy in drug cases and fiercely opposed to the concept that juries, not judges, ought to decide what crimes a defendant actually committed. And he served Justice Thomas in a prestigious and highly sought position (a great resume builder that doesn't exactly count as "public service"). And he helped shepard in Justice Alito, an act that many would view as a public disservice. And of course he helped draft legislation that favored the asbestos industry over workers who were unknowingly contaminated by the toxic effects of asbestos exposure, and legislation that made it harder for consumers who face disastrous debt (often because of tragic health problems, like asbestosis) to make a fresh start.

O'Neill is the Republican version of a dream candidate for a judicial position. He loves corporations, has no sympathy for employees or the economically disadvantaged, and thinks the Executive Branch should play a greater role in sentencing than the Judicial Branch. In 2005, the Senate would have stamped "confirmed" on his forehead. Not this year ... we hope.

Erica Chabot, a spokeswoman for Sen. Patrick J. Leahy (D-Vt.), the Judiciary Committee chairman, declined to comment on the nomination yesterday.

Perhaps Senate Democrats and Republicans intend to give him a pass because, after all, he's a "creature of the Senate." Perhaps you should let you own senators know that isn't such a good idea.

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    Where's Joe Biden on this one? (5.00 / 1) (#5)
    by scribe on Tue Jul 08, 2008 at 01:44:04 PM EST
    IF memory serves (and wikipedia says it does), Biden's presidential hopes were scotched back in 1988, when he was accused of "plagiarizing" a stump speech by British pol Neil Kinnock and, later, an alleged plagiarism incident involving a first-year legal writing assignment came to light.

    If there's anyone who should be the first to put a hold on this clown O'Neill, it's Biden. He was beaten up in the press, and raked over by the proto-RWNM for something not nearly as bad as what O'Neill's done.  And, he got an F for his writing assignment and almost failed out of law school as a result.

    Stepping aside from Biden, when I was teaching legal research and writing, a student pulled a similar (though arguably more egregious) stunt, going to a court file and copying a brief which addressed an issue in the writing assignment, then including a huge chunk of it in the student's work.  That the brief had been written by the supervising professor made matters worse;  we wanted to have this student expelled, but the administration gave him a lesser punishment.  I still keep that student's name on a mental list, though.  I've got no time for plagiarists, but I guess that's why I'll never get a judgeship from a Republican president.

    Based on the NYT article, (none / 0) (#1)
    by oculus on Tue Jul 08, 2008 at 12:54:57 PM EST
    which I read July 4 in "hard copy," O'Neill should not be confirmed.  If Dem. Senators vote to confirm him, this will be yet another failure of the Senate Dem. leadership and, I might add, of Senator Obama, who is proud of his background as an academic.

    And One Really (5.00 / 1) (#9)
    by The Maven on Tue Jul 08, 2008 at 02:55:52 PM EST
    needs to look at the side-by-side comparison of O'Neill's published passages with the plagiarized originals to get a sense of just how blantant this was -- we're not just talking about a felicitous phrase, but multiple sentences, almost verbatim.  Seeing it in the dead-tree edition made it all just that much more obvious.

    Given that we're in the fading twilight of the Bush Administration, it truly would be a travesty to set someone like O'Neill up for a lifetime appointment, even if his judicial philosophy were otherwise acceptable (which it is not).


    dems controll the Judiciary cmte... (none / 0) (#6)
    by TimNCGuy on Tue Jul 08, 2008 at 01:54:47 PM EST
    He should never even make it to a full floor vote.  But, you would have to hope that Schumer and Feinstein vote NO in cmte.

    Schumer will do the right thing. (5.00 / 1) (#7)
    by oculus on Tue Jul 08, 2008 at 02:17:38 PM EST
    Feinstein, who is one of my Senators, won't.

    Judge... (none / 0) (#2)
    by Richard in Jax on Tue Jul 08, 2008 at 12:57:55 PM EST
    I think it's OK to say no to a guy's pursuit of a JUDGE-ship if he has demonstrated such poor JUDGMENT   in the past.

    Question TChris, (none / 0) (#3)
    by bocajeff on Tue Jul 08, 2008 at 01:10:13 PM EST
    Outside of obvious disagreements in policy and law, what sort of personal and professional behavior would one have to partake to be considered unworthy of the bench? DUI, Infidelity, Membership to certain types of clubs and/or professional orginizations?

    Just curious as this type of conversation seems to come up quite often and everyone seems to have different tolerances dependant upon personal and professional points of views...

    For me, rightly or wrongly, I always give the President the benefit of the doubt since that is one of the jobs he/she is elected to do. Absent criminal behavior or personal behavior outside of the norm (I know it when I see it) I just go with President. Even this one.

    "go with the President?" No way (none / 0) (#10)
    by txpublicdefender on Tue Jul 08, 2008 at 03:18:14 PM EST
    I don't understand why anyone would just "go with the President" on his nominees "since that is one of the jobs he/she is elected to do," especially when you are talking about lifetime appointments.  The Senate has a constitutionally assigned role to Advise and Consent.  And they are falling down on their job if they just "go with the President."  I think, absent criminal or ethical issues or a clear case of lack of necessary skills or experience for the job, the President's political appointments that last only through his time in office should generally be approved.  But, when you are talking about lifetime appointees who can only be removed by impeachment, there needs to be much more scrutiny.  In my opinion, this is not even a close call.  Academic fraud in five different published works is disqualifying.  Even if you accept his explanation of being careless, it demonstrates a carelessness that one would not want in a federal judge.  And as I do not accept that rather implausible excuse, you are talking about repeated instances of fraud and dishonesty.  That is not the type of person I think deserves a lifetime appointment to the federal bench.

    Frankly, I think George Mason went easy on him.  Anyone caught plagiarizing in as many different papers as he was would be expelled if he were a student at the school.  Instead of just surrendering his tenure, he should have been fired.  I know at my alma mater he would have been.


    Sad though..... (none / 0) (#4)
    by Carolyn in Baltimore on Tue Jul 08, 2008 at 01:27:13 PM EST
    I believe Judges should have unquestioned ethics - they are responsible for decisions that affect us all. (Pols too, but that's a different post).
    Taking others work 5 times is stealing. Worse than infidelity (none of my business) or a nanny problem IMO.

    But the big thought I had was that the ethical lapses here are the main thing that could hold him up. The fact that he clerked for Thomas and Santelle, trashed workers rights and imposed harsh sentencing guidelines - well that's just good experience.
    IMO, I d prefer McCain's picks to W's so I would stop this one dead. But I'm not a Senator.

    What's the big deal, (none / 0) (#8)
    by g8grl on Tue Jul 08, 2008 at 02:47:38 PM EST
    Obama does it with his speeches and he's running for President.  Doesn't seem to have hurt him.  I mean this is the slippery slopa we're on.  How can anyone say that this is a problem then turn around and vote for Obama?

    Oh, please (none / 0) (#11)
    by txpublicdefender on Tue Jul 08, 2008 at 03:20:08 PM EST
    Nothing Obama has done in his speeches even comes close to what this guy did.  And this guy did it in academic papers where there are very clear standards about attribution.  

    And, it would appear to have been serious (none / 0) (#12)
    by scribe on Tue Jul 08, 2008 at 04:13:54 PM EST
    enough for George Mason, no liberal-sanctuary university, to have backed him into the corner of giving up his tenure over plagiarism.

    How often does that happen?  (Like, next to never....)


    In 2005, the Senate would have stamped (none / 0) (#13)
    by scribe on Tue Jul 08, 2008 at 04:18:37 PM EST
    "confirmed" on his forehead.

    This year ... we hope ... it's something more like this.

    Martin Luther King (none / 0) (#14)
    by diogenes on Tue Jul 08, 2008 at 08:54:23 PM EST
    According to Wikipedia, he plagiarized a good deal on his thesis.  Does that AUTOMATICALLY bar him from being the only person in the US besides Jesus Christ to have a holiday named after him?  
    Confirm or don't confirm the judge on his merits.  After all, that's the standard you'll want used for President Obama's nominees.  A lot of people have plagiarism rattling around in their lifetimes (did none of you copy others' homeworks?) and sanctioning the gotcha game isn't doing anyone any good.

    this is not his homework (none / 0) (#15)
    by txpublicdefender on Tue Jul 08, 2008 at 09:06:06 PM EST
    I might take a different view if this had to do with something he did in school.  Lots of young people make mistakes like that.  But this was someone who, as part of his profession, was publishing scholarly work in which he was blatantly plagiarizing.  That is very different.  That is repeated dishonesty that defrauds the publisher, its readers, and the educational institutions that rely on your "publishing" to make decisions on your merits as a professor.  I'm not saying this guy shouldn't be able to get a job.  Or that he shouldn't be able to even get a good job with the government.  But, he should NOT get a lifetime appointment to the federal bench.  No way.

    "fraud" (none / 0) (#16)
    by diogenes on Wed Jul 09, 2008 at 06:17:59 PM EST
    Of course, as a judge his job will be to have his legal clerks write opinions that he will pass off as his own.  :)