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Copied passages cloud judicial nomination of Michael E. O’Neill

By A. James Memmott

July 7, 2008 at 9:15am

On paper, the nomination by President Bush of Michael E. O’Neill to be a federal judge would seem to have a good chance of being confirmed by the U.S. Senate.

But O’Neill’s prospects of serving on the U.S. District Court for the District of Columbia cannot have been helped by a story in Friday’s New York Times.

Adam Liptak of the Times reports on concerns about the legal scholarship of O’Neill, a former Supreme Court clerk and counsel to the Senate Judiciary Committee, who is now a professor at George Mason University Law School.

Liptak reports that some of O’Neill’s writing contains unacknowledged, nearly verbatim, passages of other scholars’ work.

In an interview with Liptak, O’Neill, 43, blamed the echoes on “a poor work method.” He said that his writing and the writing of others might have gotten mixed together as he put them into a single computer file.

“I didn’t keep appropriate track of things,” O’Neill said. “I frankly did a poor and negligent job.”

The Times looks longest at an article O’Neill published in 2004 in the Supreme Court Economic Review.

Passages in the article are similar to those in a book review by Anne C. Dailey, a professor at the University of Connecticut. Her review appeared in the Virginia Law Review in 2000.

O’Neill includes extensive footnotes in his article entitled “Irrationality and the Criminal Sanction.” However, he does not acknowledge Dailey’s review even though some of her language appears in his article word-for-word.

Dailey called the apparent plagiarism to the attention of the editors of the Economic Review. They, in turn, retracted the article saying that “substantial portions” had been “appropriated without attribution.”

Daniel D. Polsby, the editor of the review and the dean of the George Mason Law School, told Liptak that he considered the copying to be “negligent behavior.”

“The idea of O’Neill committing a theft is just impossible,” he said. “It’s just impossible.”

In an interview, Sen. Arlen Specter, the ranking Republican member of the Senate Judiciary Committee that will consider O’Neill’s nomination, told Liptak that he knew of the concerns about O’Neill’s writings.

“I’ve heard him out on it and put it in the balance of everything else I knew about him,” Specter said. “I believe he is an excellent prospect for the district court.”

Specter was chair of the judiciary committee from 2005 to 2007. O’Neill served as the committee’s chief counsel and staff director.

At the time, some argued that Specter, a political moderator who needed conservative support to head the Judiciary Committee, appointed O’Neill chief counsel because of O’Neill’s conservative credentials.

After Yale Law School, O’Neill first clerked for David B. Sentelle, a conservative, who was then a judge on the U.S. Court of Appeals for the District of Columbia, and is now the chief judge.

O’Neill then went on to clerk for Supreme Court Justice Clarence Thomas, also a conservative.

During his time as counsel to the Judiciary Committee, O’Neill helped guide the nomination of John G. Roberts Jr. to be chief justice of the Supreme Court to confirmation.

Similarly, he watched over the successful confirmation of Samuel A. Alito Jr. as an associate justice of the Supreme Court.

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