The Plagiarist and the Judgeship

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CommonDreams.org

The Plagiarist and the Judgeship

by
Christopher Brauchli

When you steal from one author, it's plagiarism; if you steal from many it's research.

- Wilson Mizner, Sayingyu

Talk about a bunch of whiners. We live in a country run by a consummate liar whose most egregious lies have resulted in (a) the deaths of more than 4000 American servicemen and women, (b) the infliction of life altering wounds on more than 20,000 servicemen and women, and© millions of people in a far-off land becoming homeless and refugees in foreign countries. We live in a country where a general of the Army whose first concern should be the welfare of his troops, lies to Congress about the quality of water supplied to troops working in the far off land that the consummate liar has done much to destroy. This is a general to whose command the welfare of those he commanded was entrusted. And we whine about a plagiarist.

Early in July it was disclosed by Senator Byron Dorgan that General Jerome Johnson misled (a Washington euphemism for lying) Congress in April 2007 when he testified that there were no problems with water supplied to American troops by KBR, described as the largest defense contractor in Iraq.

According to a report in the New York Times, beginning in 2006 whistleblowers let Congress know that there were problems with the nonpotable water KBR supplied the troops. The Pentagon's inspector general confirmed that KBR had not provided safe nonpotable water for hygiene uses at several Iraq bases. The Pentagon learned of this in a communication from the inspector general on March 31, 2007. Three weeks later General Johnson testified before the Senate Armed Services Committee that problems with the water supplied by KBR were not widespread. It was a minor breach of trust by the general. When your commander-in-chief is a man whose lies have ruined millions of lives, a drop or two of bad water is hardly anything to get excited about. Nor is a bit of plagiarism even when the plagiarist has been nominated to a Federal District Court judgeship.

Michael E. O'Neill, a former to aide to Senator Specter is law professor at George Mason University. He is considered a fine legal scholar who has had a brilliant career and is clearly of the sort of cloth from which federal judges are cut. There is only one flaw in the fabric and it would not even be noticeable if some journalist from the New York Times had not only discovered it but then seen fit to hold the fabric up for all to see. Alan Liptak is the journalist. He discovered that Mr. O'Neill has plagiarized on more than one occasion. One of several occasions of plagiarism involved an article he wrote in 2004 for the Supreme Court Economic Review, a journal published by the George Mason School of Law.

The purloined passage dealt with something called "bounded rationality" which, according to Mr. O'Nell "is not a refutation of the rational actor model," quoting word for word from a book review published in 2000 in the Virginia Law Review. Explaining the copying Mr. O'Neill said it was a result of a "poor work method." "I didn't keep track of things. I frankly did a poor and negligent job." He got that right. In 2007 the Review issued a retraction of the article.

The White House is unperturbed by a bit of plagiarism sanctioning as it has, lying to create foreign policy. Emily Lawrimore, a White House spokeswoman said Mr. O'Neill had been completely forthcoming" and had "expressed remorse for his actions. " She also said that the background searches the White House conducts are "very thorough" and "would capture issues such as this one ." It is hardly surprising that an administration that routinely lies would be unperturbed by a bit of plagiarism and would consider confession of misconduct adequate to remove the stain from a reputation. Not everyone agrees with the White House.

Deborah Rhode who teaches legal ethics at Stanford described the retraction of the article in the Review as "extremely unusual" and said the plagiarism was a "textbook case of conduct that casts doubt on someone's fitness for judicial office ." Mr. O'Neill, in contrast, said the 2004 plagiarism was "fairly insignificant" and asked whether it was "something to kill someone's career for?" One answer was given by Daniel Polsby, the dean of the law school. He said as a consequence of the plagiarism Mr. O'Neill "stepped away from tenure and will reapply for it." That may not be necessary. Mr. O'Neill, answering his own question has refused to withdraw his nomination for a federal judgeship and if an unethical administration has its way, Mr. O'Neill will have life tenure as a federal judge. That's much better than humbly applying for restoration of a privilege lost through misconduct that was held up for all the world to see.

Christopher Brauchli;brauchli.56@post.harvard.edu

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