Fox News-Wash. Times witch hunt takes aim at new target: judicial nominee Edward Chen

››› ››› JEREMY HOLDEN, ADAM SHAH & TOM ALLISON

Fox News and The Washington Times have used a series of comments reportedly made by Edward Chen -- one of President Obama's judicial nominees -- to smear him as a "radical leftist" who "doesn't appear to love America," and as a "biased radical" when, in fact, the quotes in question establish nothing of the sort. These attacks on Chen follow months of a Fox News-led witch hunt against other Obama advisers and appointees, as well as race-baiting attacks on then-Supreme Court nominee Sonia Sotomayor.

Fox News, Wash. Times smear Chen as "radical"

Wash. Times smear: Comments indicate Chen "doesn't appear to love America." An October 25 Washington Times editorial charged that Chen was "another Obama nominee who doesn't appear to love America." The Times continued:

Judge Chen's words speak for themselves. When the congregation sang "America the Beautiful" at a funeral, Judge Chen told the audience of his "feelings of ambivalence and cynicism when confronted with appeals to patriotism -- sometimes I cannot help but feel that there are too much [sic] injustice and too many inequalities that prevent far too many Americans from enjoying the beauty extolled in that anthem."

In a speech on Sept. 22, 2001, he said that among his first responses to the Sept. 11 terrorist attacks on America was a "sickening feeling in my stomach about what might happen to race relations and religious tolerance on our own soil. ... One has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has [sic] recurred so often in our history can be effectively restrained."

And talking about the role of judges, he in effect embraced the "empathy standard" that Supreme Court Justice Sonia Sotomayor was forced to denounce in her own confirmation hearings: "Simply put, a judge's life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers. Rather judges draw upon the breadth and depth of their own life experience. ... Inevitably, one's ethnic and racial background contributes to those life experiences."

You get the picture. To quote and paraphrase Sen. Charles E. Schumer from another occasion, this man's attitude "doesn't even whisper 'judge.' " Instead, it yells out that he is a biased radical willing to impose his own politics from the bench. Judge Chen should not be confirmed. [The Washington Times, 10/25/09]

O'Reilly smear: Comments show that "you can't get more radical than Judge Chen." During his October 27 Fox News show, O'Reilly aired transcript of the purportedly offensive comments "radical leftist" Chen reportedly made and claimed that "you can't get more radical than Chen," and that Chen was wrong in his September 2001 comments. [The O'Reilly Factor, 10/27/09]

Hannity smear: Comments prove Chen should not be confirmed. During his Fox News show, Sean Hannity asserted that Chen's "comments over the years have been so controversial that The Washington Times recently called him, quote, 'another Obama nominee who doesn't appear to love America.' For example, he's no fan of the song 'America the Beautiful.' " Hannity concluded, "Judge Chen should not be confirmed by the U.S. Senate." [Hannity, 10/27/09]

Chen's reported comments do not indicate that he is a "radical leftist" who doesn't "love America"

Chen's 2001 reported comments warning of possible "racism, nativism and scapegoating" following the September 11 attacks are supported by rise in anti-Muslim hate crimes. As Fox News' Alan Colmes stated in discussing Chen's comments on The O'Reilly Factor, "We have seen nativism; we have seen racism." A 2002 FBI hate crimes analysis reported that the distribution of hate crimes based on national origin changed in 2001, "presumably as a result of the heinous incidents that occurred on September 11." The FBI further noted, "Anti-Islamic religion incidents were previously the second least reported, but in 2001, they became the second highest reported among religious-bias incidents (anti-Jewish religion incidents were the highest), growing by more than 1,600 percent over the 2000 volume. In 2001, reported data showed there were 481 incidents made up of 546 offenses having 554 victims of crimes motivated by bias toward the Islamic religion." A November 26, 2002, San Francisco Chronicle article reported, "Hate crimes against Muslims soared after Sept. 11, according to an FBI report released Monday that also shows that most hate offenses in 2001 were committed against African Americans."

Justice Department Inspector General found numerous problems with DOJ's treatment of "aliens" after 9-11. Further supporting Chen's reported comments, in 2003, the Justice Department's Office of Inspector General released a report about the treatment of "aliens following the 9-11 attacks and the inspector general stated: ""While our review recognized the enormous challenges and difficult circumstances confronting the Department in responding to the terrorist attacks, we found significant problems in the way the detainees were handled." The IG report found that "762 aliens were detained in connection with the FBI terrorism investigation," but that "The FBI in New York City made little attempt to distinguish between aliens who were subjects of the FBI terrorism investigation (called "PENTTBOM") and those encountered coincidentally to a PENTTBOM lead." Additionally, some detainees did not receive charging documents "for more than a month after being arrested. This delay affected the detainees' ability to understand why they were being held, obtain legal counsel, and request a bond hearing." The report also found problems with the conditions in which detainees were held.

Lawsuit alleges misuse of federal law to detain Muslims. Additionally, U.S. Court of Appeals for the Ninth Circuit has allowed a lawsuit to go forward by former detainee Abdullah Al-Kidd against then-Attorney General John Ashcroft and others alleging that al-Kidd was unlawfully detained because he was the target of "surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men"

Chen's comments do not support charge that he is a "biased radical"

Chen explicitly advocated for judges to "administer the law equally." In the speech in which Chen said "a judge's life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide," Chen explicitly advocated for equal administration of the law. From a law review article reprinting Chen's speech: "The case for diversity is especially compelling for the judiciary. It is the business of the courts, after all, to dispense justice fairly and administer the laws equally. It is the branch of government ultimately charged with safeguarding constitutional rights, particularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority." ["The Judiciary, Diversity, and Justice for All, reprinted in the California Law Review, July 2003 (obtained via Nexis)]

Chen's comments -- like Sotomayor's -- echo similar comments about personal experience made and celebrated by conservatives. Also undermining The Washington Times' suggestion that Chen's remarks about "a judge's life experiences" mark him as "a biased radical," numerous conservatives have previously cited empathy and personal experience as important qualities in a judge -- including Supreme Court Justice Samuel Alito. Conservatives including Supreme Court Justice Clarence Thomas, President George H.W. Bush, Sen. Strom Thurmond, Sen. Kit Bond, and John Yoo have cited personal experience or empathy as an important quality in a judge.

Chen gave specific examples of how "a judge's life experiences affect" credibility determinations

Chen: Different cultures view eye contact differently. The Times attack on Chen ignores the concrete examples Chen gave to back up his assertion that "a judge's life experiences affect the willingness to credit testimony." For instance, Chen stated that different cultures view avoidance of eye contact differently when deciding credibility issues. From Chen's law review article:

For example, it is commonly assumed within the legal profession that if a witness will not look you in the eye, he or she is untrustworthy. But such an assumption may be blind to cultural differences. In some cultures, meeting the eyes of another is a sign of disrespect under certain circumstances. Averting eye contact in some cultures may thus be a sign of respect rather than untruthfulness. Diversity among those who must make these types of evaluations can significantly reduce occasions of cross-cultural misunderstanding.

Chen: White judge and African-American judge viewed testimony about racial harassment in locker room differently. From Chen's law review article:

Another time, an African American judge recalled for me an instance in which a White colleague of his presided over a racial harassment trial. The White judge apparently expressed incredulity as to the plaintiff's testimony regarding racist graffiti found on a locker, considering the plaintiff's descriptions of a drawing of a hangman's noose around a baboon inherently hard to believe, even though the plaintiff was otherwise credible. While his colleague found the allegations unbelievable, the African American judge recounted how members of his own family had experienced precisely the kinds of harassment described by the plaintiff.

Chen, like Alito, stated that judges are affected by personal experience. In his law review article, Chen wrote:

I have heard more than one judge remark about how a particular witness or litigant reminds them of a friend or relative, causing them to perhaps listen a bit more carefully or give pause before passing judgment on that person. It should not be surprising that one might tend to have an initial visceral, perhaps unconscious, sympathetic reaction to someone who strikes a chord of familiarity.

Similarly, Justice Samuel Alito stated during his confirmation hearing in 2006, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

American Bar Association gave Chen its highest rating

ABA unanimously rated Chen "well qualified." The American Bar Association's standing committee on the federal judiciary unanimously rated Chen "well qualified," its highest rating.

Conservative attacks on Chen follow race-baited smears of Sotomayor

Conservatives compared Sotomayor to David Duke and labeled her an "affirmative action pick" and a "racist" who is "not that bright." Among the numerous outrageous smears of Sotomayor, Fox News' Glenn Beck referred to her as a "racist" who is "not that bright" and said that those who nominated her addressed her by saying, "Hey, Hispanic chick lady"; Rush Limbaugh compared her nomination to nominating David Duke and called her "a bigot" and "a racist"; and MSNBC's Pat Buchanan said she was an "affirmative action pick."

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