Note to media: Don't trust attacks on judicial nominees by NRO's Whelan

››› ››› ADAM SHAH

National Review Online's Ed Whelan has attacked Judge Sidney Thomas for supposedly being on the far left, citing, in part, Thomas' decision in Harper v. Poway Unified School District. But Whelan's comments are contradicted by statements from Thomas' colleagues as well as by an examination of that case.

Whelan claims Thomas is out of the mainstream

Whelan claims "Thomas is on the far Left of the very liberal Ninth Circuit." Whelan has recently attacked Thomas in four blog posts, writing in one of them that "Thomas is on the far Left of the very liberal Ninth Circuit." In a follow-up, Whelan cited an opinion Thomas joined in Harper v. Poway Unified School District, in which Thomas upheld a school's ban on a shirt that said "Homosexuality Is Shameful," as evidence for his attacks on Thomas and claimed that it showed Thomas occupies an "exotic land."

Conservative activist Curt Levey also claims the case shows "vulnerabilities" for Thomas. From a May 5 New York Times article:

Curt Levey, the executive director of the Committee for Justice, an advocacy group in Washington, said he saw "vulnerabilities" on cases involving abortion, immigration, criminal law and more; he cited a Thomas opinion that allowed a school to discipline a Christian high school student for wearing a homemade T-shirt that read "Homosexuality Is Shameful Romans 1:27."

NY Times also quoted Whelan attacking Thomas. From the Times article:

Ed Whelan, a conservative lawyer who writes for National Review Online, compared Judge Thomas to the best-known liberal judge on the Ninth Circuit, Stephen Reinhardt, when he wrote last month that Judge Thomas "may be physically in Montana, but he's jurisprudentially in Reinhardt-istan."

In contrast to Whelan, conservative colleagues have praised Thomas

Reagan-appointed Ninth Circuit chief judge Kozinski reportedly believes "Thomas is respected by both sides." The Times article also reported that conservative Ninth Circuit Chief Judge Alex Kozinski -an appointee of Ronald Reagan -- believes that "Thomas is respected by both sides":

The Ninth Circuit is an ideologically divided court, with strong factions of liberals and conservatives, and Judge Thomas is respected by both sides, said the court's chief judge, Alex Kozinski. "People really like him, really trust him," he said.

Judge Kozinski questioned whether persuasion actually has much of a role in the strong-willed, life-tenured federal judiciary -- "It really happens fairly seldom," he said -- but added that in the cases where it does play a part, "I think that Thomas is among the best."

Bush-appointed district judge on Thomas: "He has never let his politics get in the way of sound judgment." The Times further reported that Montana federal district judge Richard F. Cebull -- an appointee of George W. Bush -- strongly supported Thomas, saying that Thomas "has never let his politics get in the way of sound judgment":

Judge Thomas has that in abundance, said Judge Richard F. Cebull, the chief United States judge for the District of Montana. "He was a practicing lawyer -- in real life, representing real clients, in a real courtroom," Judge Cebull said with gruff enthusiasm. "When it became news out here in Montana that it was being considered, I thought, 'By golly, some brains are brewing back in Washington, D.C., for once.' "


Judge Cebull, who was appointed by President George W. Bush, said he had no concerns that his colleague's political views might lead him into liberal activism. "He has never let his politics get in the way of sound judgment," he said.

Thomas' former colleague in private practice: "He's a moderate, perhaps just left of center." The Wall Street Journal, reporting on Thomas' time in private practice before becoming a judge, stated:

Judge Thomas specialized in defending local businesses in litigation.

"His social views are probably left of center, but he's clearly familiar with and sympathetic to the interests of business," said Peter Habein, a Billings, Mont., attorney.

"He's a moderate, perhaps just left of center," said Billings attorney Larry Petersen, who worked with Judge Thomas in private practice in the 1970s and 1980s.

GOP-appointed judges have given schools broad leeway to restrict derogatory speech

Thomas joined an opinion upholding a school's ban on speech that was "derogatory" about people's sexual orientation. In the case that Whelan and Levey cited, Thomas joined a majority opinion written by Ninth Circuit Judge Stephen Reinhardt that dealt with a student who protested his school's decision to permit "a student group called the Gay-Straight Alliance to hold a 'Day of Silence' at the School which, in the words of an Assistant Principal, is intended to 'teach tolerance of others, particularly those of a different sexual orientation' " by wearing a t-shirt that said on the front, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" and said on the back, "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27.' " The student was removed from class after refusing to remove the shirt and subsequently sued, claiming a violation of his free speech rights under the First Amendment. The opinion rejected the student's claim and upheld the school's decision under its anti-harassment policy to forbid the student from attending class while wearing that t-shirt.

Seventh Circuit Judge Posner refused to enjoin rule banning "derogatory comments." The Seventh Circuit also dealt with a protest against a "day of silence," this time by a student who wore a "Be Happy, Not Gay" shirt. Richard Posner, a Reagan appointee, in a decision joined by the Reagan-appointed Judge Michael Kanne, issued an injunction allowing a student to wear a t-shirt that said "Be Happy, Not Gay" because such a slogan was "only tepidly negative; 'derogatory' or 'demeaning' seems to strong a characterization." But Posner declined to issue a broader injunction sought by the plaintiff against the school rule "forbidding 'derogatory comments,' oral or written, 'that refer to race, ethnicity, gender, sexual orientation, or disability.' " Posner wrote: "A heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense. The contribution that kids can make to the marketplace in ideas and opinions is modest and a school's countervailing interest in protecting its students from offensive speech by their classmates is undeniable." Posner also stated:

[The school district] has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including-perhaps especially including-adolescent schoolchildren, are highly sensitive. People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity-none more so than a sexual orientation that deviates from the norm. Such comments can strike a person at the core of his being.

Tenth Circuit upheld school's anti-harassment policy that banned Confederate flag. The Tenth Circuit has also upheld a school district's harassment policy that banned Confederate flags against a First Amendment challenge to a school rule that said:

District employees and student(s) shall not racially harass or intimidate another student(s) by name calling, using racial or derogatory slurs, wearing or possession of items depicting or implying racial hatred or prejudice. District employees and students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation-White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other "hate" group. This list is not intended to be all inclusive). Violations of this policy shall result in disciplinary action by school authorities. For students there will be a three day out-of-school suspension for the first offense with a required parent conference prior to readmittance.

The unanimous decision was written by Judge Bobby Ray Baldock, a Reagan appointee and joined by Judge Robert McWilliams, a Nixon appointee, and Judge Stephen Anderson, another Reagan appointee.

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