Conservative media are gearing up to target Caitlin Halligan - President Obama's nominee to the D.C. Circuit Court of Appeals - in their ongoing campaign to block the administration's judicial nominees, a practice that has led Justice Ruth Bader Ginsburg to lament "we are destroying the United States' reputation in the world as a beacon of democracy."
Right-wing media have a long history of insisting that the Republican Party filibuster and otherwise obstruct judicial nominees who are insufficiently conservative. The resulting court vacancies have led to "judicial emergencies," but right-wing media have made it clear they will not let up as the Senate considers President Obama's nominees to the crucial D.C. Circuit.
Directly after President Obama was re-elected, National Review Online's Ed Whelan urged the Republican Party to block the president's Supreme Court nominees because those without "conservative judicial principles" are "unfit for the Court." On February 14th, the Senate Judiciary Committee once again sent to the full Senate the nomination of former New York Solicitor General Halligan to the second most important court in the country, the D.C. Circuit, which is considered the last stop on the way to the Supreme Court. Whelan has consistently and prolifically joined the right-wing media opposition to Halligan's nomination, and recently made clear he will continue to extend his right-wing litmus test to the entire federal judiciary.
On the anniversary of the 1954 nomination of Republican Earl Warren as the Chief Justice of the Supreme Court of the United States, Ed Whelan of the National Review Online characterized as "accurate" former President Eisenhower's description of the pick as a "damned-fool mistake." Whelan did not mention that the Eisenhower quote was in reference to Warren's historic opinion in Brown v. Board of Education, the Supreme Court decision that prohibited racial segregation.
Whelan, legal expert for the right-wing NRO, regularly comments on dates of legal events in a regular series called "This Day In Liberal Judicial Activism." In selecting the nomination of Warren to emphasize his agreement that this Chief Justice was a "mistake," Whelan did not describe Eisenhower's motivations for the comment. As reported by The New York Times:
"The biggest damn fool mistake I ever made," Dwight D. Eisenhower said of his appointment of Chief Justice Earl Warren, who discomfited him with the Brown v. Board of Education ruling ordering desegregation of public schools, and other liberal opinions.
In Warren's obituary, the Times described the impact of the Supreme Court under Warren, a legacy left unexplained by Whelan:
The parts that constituted the whole [of the Warren Court] were embodied in a series of decisions that had the collective effect of reinforcing popular liberties. Among these were rulings that:
Outlawed school segregation.
Enunciated the one-man, one-vote doctrine.
Made most of the Bill of Rights binding on the states.
Upheld the right to be secure against "unreasonable" searches and seizures.
Buttressed the right to counsel.
Underscored the right to a jury trial.
Barred racial discrimination in voting, in marriage laws, in the use of public parks, airports and bus terminals and in housing sales and rentals.
Extended the boundaries of free speech.
Ruled out compulsory religious exercises in public schools.
Restored freedom of foreign travel.
Knocked out the application of both the Smith and the McCarran Acts--both designed to curb "subversive" activities.
Held that Federal prisoners could sue the Government for injuries sustained in jail.
Said that wages could not be garnished without a hearing.
Liberalized residency requirements for welfare recipients.
Sustained the right to disseminate and receive birth control information.
Opponents of effective voting rights enforcement have taken to right-wing media outlets to allege that the Department of Justice engaged in "collusive," "illegal," and "crooked" acts for its role in the determination of whether a California county and the state of New Hampshire qualify to opt-out of Section 5 of the Voting Rights Act (VRA). But these allegations of "trickery," most recently pushed by National Review Online contributor Hans von Spakovsky, ignore that DOJ is complying with the text of the VRA as interpreted by the courts.
Two former Bush administration DOJ officials have accused the department of acting improperly in the successful removal of Merced County, California, from the voter protection requirements of Section 5 and the ongoing consideration of such an opt-out for New Hampshire. Writing on the right-wing blog PJ Media, J. Christian Adams argued that in the Merced case DOJ had "ignore[d] the law" and "conned" a federal court as part of an "elaborate legal ruse" to preserve the VRA in Shelby County v. Holder, the case in which the U.S. Supreme Court will consider a claim that Section 5 is unconstitutional. Continuing this attack, von Spakovsky accused the DOJ in the National Review Online of similar "deception" and "manipulation" of the VRA in its considerations of the New Hampshire case, again in order to "manipulate the Supreme Court in the Shelby case." A conservative advocacy group immediately adopted their argument and filed a motion to intervene in the New Hampshire case, as was predicted by election law expert and law professor Rick Hasen:
I expect this argument to get a lot of play.
The great irony here, for those who don't follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act's coverage.
Under Section 5 of the Voting Rights Act, Southern jurisdictions who illegally denied citizens the right to vote during the Jim Crow era - and subsequent jurisdictions that engaged in similar conduct - are forbidden from changing covered election practices without federal approval. There is a legal opt-out to Section 5, by which jurisdictions can "bailout" of the "preclearance" requirements by proving they are no longer breaking the law. To encourage successful bailouts, Congress increasingly "liberalized" this process. Similarly, the Supreme Court in its last VRA case -NAMUDNO v. Holder - "rewrote" the bailout requirements to encourage even more use of the process.
Nevertheless, right-wing activists have successfully placed the Shelby case before the Supreme Court, which could release all covered jurisdictions if Section 5 is declared unconstitutional. Adams and von Spakovsky, who quote anonymous sources and internal DOJ documents to support their arguments, argue that DOJ has "designed" a "legal strategy" to avoid this outcome by aggressively following NAMUDNO.
Beyond the unremarkable fact that the DOJ - the defendant in Shelby - would prefer not to both lose the case and part of the most effective civil rights law in history, Adams and von Spakovsky misrepresent the bailout cases to claim neither Merced nor New Hampshire qualify. Adams complains that the extensive DOJ investigation of Merced's bailout request revealed that the county should have submitted certain past election changes for preclearance and because the county "settled" a Section 5 case, it was ineligible for bailout. But Merced's counsel responded to Adams' accusations, pointing out that "case law under Section 5...holds that the preclearance obligation can be retroactively satisfied":
Mr. Adams is simply incorrect about the Lopez litigation. There was no "settlement"; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
[R]egarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were "were trivial, were promptly corrected, and were not repeated." 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams's implication that Section 5 has a "no tolerance" standard--and that the Attorney General is therefore ignoring the command of Congress--is refuted by the text of Section 5 itself.
"[P]ost hoc" preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5.
Adams subsequently admitted "retroactive" preclearance was possible.
Von Spakovsky repeated Adams' claim that states seeking bailouts must not have "failed to submit for preclearance...voting changes they have made" over the past ten years, without acknowledging the retroactive preclearance that may occur for New Hampshire. Von Spakovsky used this misleading point as proof that New Hampshire is actually less qualified than Shelby County for a bailout, because New Hampshire allegedly has more unsubmitted preclearance requests than Shelby County did. But the footnote from the Shelby case on appeal that von Spakovsky partially quoted for the uncontroversial rule that unprecleared voting changes - absent retroactive approval - preclude bailout, explicitly notes that Shelby County's primary problem was DOJ's objection:
Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection...with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E). The Attorney General concedes that, in 2008, he interposed an objection [.]
In the wake of the presidential election, National Review Online's Ed Whelan made it clear that the country can expect more of the unprecedented right-wing opposition of the past four years to President Obama's judicial nominees. However, news outlets often neglect this obstructionism and ignore the role of the GOP and conservative media in creating "judicial emergencies" where courtrooms across the country suffer from vacancies on the bench, an omission highlighted by a prominent judicial nominations expert.
Fresh off of ascribing a lack of virtues to the majority of the nation who re-elected the president, conservative legal analyst Ed Whelan urged the Republican party on November 8 to redouble its efforts in blocking judicial picks by expanding the obstruction to any and all Supreme Court nominees. In the NRO blog, Whelan wrote:
I'm surprised to see, in [a November 8] Wall Street Journal article, that one conservative legal commentator has opined (according to the article's paraphrase and internal quote) that "[b]ecause Republicans lost the presidential election and a couple of Senate seats, ... Mr. Obama was entitled to 'a lot of deference' should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee."
I think that this view is badly misguided.
[C]onservatives shouldn't set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn't embrace those principles is unfit for the Court.
This sentiment serves as a reminder of just how intransigent the right-wing has become in objecting to judicial nominees who aren't conservative ideologues. Although the named WSJ article at least referenced the prospect that Republicans would filibuster anyone left of centrist U.S. Court of Appeals for the District of Columbia Judge Merrick Garland for the Supreme Court, it ignored the rampant obstructionism that has ground the lower court confirmations process to a halt. The unprecedented nature of this bottleneck could become even more apparent this week, when multiple stalled nominations will be sent to the lame-duck Senate floor in hopes of receiving the due consideration of an up-or-down vote that was accorded President George W. Bush's nominees exactly ten years ago. As recounted by the Constitutional Accountability Center's Doug Kendall:
There is certainly precedent for a big crop of lame-duck confirmations--in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
This precedent may be overlooked, as it has become unfortunately common for the news media to downplay the GOP's role in blocking the President's nominees. But as judicial nominations expert and University of Richmond Professor of Law Carl Tobias has repeatedly noted, ignoring obvious obstructionism and instead claiming the administration fails to prioritize nominations - "overstat[ing] Democratic responsibility, and understat[ing] Republican" - does not adequately explain the unacceptably high number of vacancies in the federal judiciary. From Tobias' November 11 editorial in the Baltimore Sun:
Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees -- inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.
Whelan's post is not only an excellent reminder that the Republican obstructionism highlighted by Tobias may continue unabated, but also that Republican Senators have refused to be cooperative on centrist choices. Indeed, the prospect of Republicans only filibustering those "to the left of Merrick Garland," as suggested by the WSJ article, is highly suspect in light of the treatment of similarly centrist nominees this past Congressional session.
Future coverage of federal court nominees should thus look to the influential Whelan as to why these vacancies are not being confirmed. Whatever responsibility the administration may have in not offering nominees in a timely manner, the real reasons lie in Whelan's admitted goal of a Supreme Court with a "supermajority" of conservative Scalia clones.
Matching the inflammatory rhetoric about health care reform's elimination of cost-sharing for women's contraception, conservative media outlets are currently misrepresenting a preliminary court order in a private company's challenge to this policy. Contrary to the right-wing narrative that crudely oversimplifies the complex legal issues at stake and ignores the need to balance the constitutional rights of employers with those of their female employees, the questions in the case are neither easy nor clear.
When the popular requirement went into effect that most insurance plans -- including employee plans sold to employers -- could no longer charge women co-pays or deductibles for prevention or wellness care, conservative media figures declared a national disaster. On August 1, the Editors of the National Review Online intoned that "[t]his day...is a dark one for religious freedom in the United States." Sean Hannity mirrored this solemnity on Fox News and announced "today is the day that religious freedom in America, in many ways died" (Fox Hannity Show, 8/1/12, via Nexis).
This reaction was unfortunately unsurprising. Despite the fact that many religious believers and institutions and most voters support insurance coverage of contraceptives, birth control has conflicted with the religious concerns of some since the 1960s. Recognizing this, the law provides an exemption from the contraceptive coverage requirement to "a nonprofit church or close church affiliate if it primarily employs and serves persons who share its religious tenets, and the purpose of the institution is the inculcation of religious values." [National Health Law Program, 8/12]
The exemption is similar to those used on the state level, and twenty-eight states currently have contraceptive insurance equity acts. The administration may also accommodate non-exempted non-profit organizations by allowing them to opt-out of the provision of insurance coverage for contraception, but instruct insurance companies to meet the preventive and wellness requirements directly. Nevertheless, claiming that these exemptions and accommodations do not go far enough, a for-profit, secular, Colorado-based company filed a lawsuit alleging it too should be treated like a church and be exempted from offering female employees plans with contraception coverage.
The case is one of first impression. As such, the judge issued a preliminary injunction, temporarily halting this company's compliance with the law until the court could consider the merits of the case. The Heritage Institute's Foundry said the company "demonstrated the strength of the religious liberty challenge to Obamacare." Ed Whelan of the National Review Online said "it's clear that the HHS mandate tramples [religious] protections[.]"
It's not that simple.
National Review Online blogger Ed Whelan is trying to aid the unprecedented obstruction tactics Senate Republicans are using to block President Obama's nominees.
On June 20, 2012, American Bar Association president William T. Robinson III sent a letter to Sens. Harry Reid (D-NV) and Mitch McConnell (R-KY) urging that the Senate hold confirmation votes on three judicial nominees who had strong bipartisan support but were being blocked despite the merits of their nominations. Whelan, a blogger with significant influence in the media and Capitol Hill, responded to the letter by saying: "A Senate staffer in the know tells me that the ABA never sent a similar letter on behalf of George W. Bush's nominees."
But it would have been impossible for the ABA to send a "similar letter" on behalf of President George W. Bush's judicial nominees, because Bush's judicial nominees were not subject to the type of obstruction experienced by the Obama nominees in question.
As the ABA noted in its letter, Obama nominees William Kayatta, Jr., Robert Bacharach, and Richard Taranto "are consensus nominees who have received overwhelming approval from the Senate Judiciary Committee." In addition, Kayatta and Bacharach have "the staunch support of" the Republican senators from their home states. And Taranto, who is nominated to a court with nationwide jurisdiction, has the "endorsement of noted conservative legal scholars."
Nevertheless, Senate Republicans have announced that they are blocking all three of these nominees along with every single one of Obama's judicial nominees until after the presidential election, regardless of whether they would be good judges.
Following on the heels of the trumped-up outcry over the Obama administration's regulations allowing women to have access to insurance coverage for contraception, conservative media figures are lauding a federal judge's decision allowing pharmacies to refuse to fill prescriptions for Plan B emergency contraception as well as a host of other important prescription drugs.
In 2007, in response to complaints from groups such as Legal Voice and Planned Parenthood Votes Northwest, the Washington State Board of Pharmacy issued regulations to deal with pharmacies that refused to dispense lawfully prescribed medications such as Plan B and certain AIDS drugs. Pharmacies had also been accused of destroying or confiscating such prescriptions.
While preserving the right of individual pharmacists to refuse to fill prescriptions that conflicted with their religious or moral views, the Board of Pharmacy determined that licensed drug stores had a responsibility to fill the prescriptions that patients and doctors had decided were appropriate or necessary. Thus, if a drug store employs a pharmacist who refuse to dispense certain prescription drugs, it must have another pharmacist available who will do so.
The decision to strike down the regulations could endanger women's health. As Legal Voice and Planned Parenthood Votes Northwest said in a statement:
"We respectfully and firmly disagree with the court's decision today," said Lisa M. Stone, Executive Director of Legal Voice, which co-represented seven individuals who intervened in the lawsuit on behalf of patients. "This ruling adds another brick in the ever-growing wall between women and their health care. What's more, it ignores well-established legal principles long ago articulated by the U.S. Supreme Court."
Women's health care, contraceptive access and abortion rights are being debated across the United States, and the court's decision is yet another instance of a vocal minority injecting their beliefs between women and health care. Even as so many important discussions take place around health care, insurance, and access to health care, this ruling represents yet another interference in the doctor-patient relationship. A refusal to fill someone's prescription for personal reasons can have serious and damaging personal and public health consequences.
"This decision not only affects two pharmacists and one pharmacy, it is a blow to access to health care for all patients. When a pharmacist can refuse to serve a patient because he or she does not like the drug or the patient, where will it stop? The overarching priority in this state should be patient access to health care," said Elaine Rose, CEO of Planned Parenthood Votes Northwest.
But right-wing media personalities are celebrating the decision. National Review Online's Ed Whelan and Red State's Leon Wolf both celebrated the decision, with Wolf calling it a "blow against regulatory fascism." The ruling was also mentioned by Fox News' Gretchen Carlson. All three media personalities suggested the decision might call into question the constitutionality of the Obama administration's regulations giving women access to insurance coverage for birth control.
Not only are these media figures celebrating a judicial ruling that could be harmful for women's health, a closer look at the ruling in question shows that it is also likely headed for reversal on appeal and actually demonstrates how little merit there is to the argument that the Obama administration's contraception ruling is unconstitutional.
An examination of the legal issues in the case is below the fold.
Yesterday, Senate Majority Leader Harry Reid (D-NV) filed a motion to cut off a filibuster against the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit. Halligan has been smeared by the right-wing media based on a number of myths about her record. Media Matters has posted an extended debunking of those media myths and presents a summary of them here.
REALITY: Halligan Has Support From Across The Political Spectrum. Halligan's supporters include:
With Senate Majority Leader Harry Reid (D-NV) having filed a motion to cut off a filibuster of the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit, often called the second most important court in the country, Media Matters presents a rebuttal to myths and falsehoods right-wing media have used to attack Halligan.
In the midst of its disingenuous campaign to have Supreme Court Justice Elena Kagan disqualified from deciding whether the Affordable Care Act is constitutional, National Review Online accidentally undermined the case for having her disqualified.
A post on National Review Online's Bench Memos blog by Ed Whelan poses the following hypothetical:
Let's say that in January 2010 President Obama met with Solicitor General Kagan and told her (a) that she was a leading candidate for the next Supreme Court vacancy, (b) that it was important to him that any justice he appointed be able to take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge, and (c) that he was instructing her not to exercise her ordinary duties as Solicitor General on litigation involving his health-care legislation so that she would not be clearly disqualified (under 28 U.S.C. § 455(b)(3)) from taking part in deciding the litigation as a justice. Under these hypothetical facts, would Justice Kagan have to recuse herself under 28 U.S.C. § 455(a) because her "impartiality might reasonably be questioned"?
According to Kagan, this isn't what actually happened. Kagan has stated that she began scaling down her participation in general Department of Justice matters on March 5, 2010, not in January.
But let's imagine for a second that Whelan's hypothetical actually did happen, with one amendment: It's extremely unlikely that President Obama would have told Kagan that he wanted a justice he appointed to "take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge." [emphasis added] But it would not be totally out of the realm of possibility for Obama to have said that he wanted to make sure a justice he appointed could take part in such a case to avoid a 4-4 tie.
And that would have been totally appropriate and not provided grounds for recusal, since in the amended hypothetical Obama would not have been saying how he expected Kagan to rule.
The American Constitution Society has published an issue brief by law professors Michael Gerhardt and Richard Painter setting forth a "proposal for judicial nominations reform" that suggests limiting the power of a minority of senators to obstruct a judicial nominee from being confirmed. Predictably, National Review Online's Ed Whelan -- who professes to be an opponent of filibustering judicial nominees, but always seems to provide cover for Republican attempts to filibuster President Obama' nominees -- is on the warpath against the report.
People can legitimately disagree about when, if ever, filibusters of judicial nominees are legitimate. But Whelan's attack against Gerhardt and Painter is far from fair.
In their report, Gerhardt and Painter noted that in 2005, a "Gang of 14" senators agreed not to filibuster judicial nominees except in "extraordinary circumstances." Gerhardt and Painter then suggested that the agreement has broken down, in large part because all remaining Republican members of the Gang of 14 have voted to filibuster one or more of President Obama's judicial nominees:
On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was otherwise almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate's rules for making such a revision, the Gang of 14, as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were "extraordinary circumstances." For the remainder of George W. Bush's presidency, the agreement held, and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14.
Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found "extraordinary circumstances" justifying their support of some judicial filibusters.
Whelan responded by calling Gerhardt and Painter "hilariously confused" and stating: "One elementary flaw in Gerhardt's and Painter's account is that they fail to recognize that the Gang of 14 agreement, by its very terms, related only 'to pending and future judicial nominations in the 109th Congress' -- that is, for 2005 and 2006."
But while the agreement technically applied only in 2005 and 2006, Whelan is either confused himself, woefully uninformed about the judicial nominations process, or dissembling when he suggests that the Gang of 14 agreement is no longer applicable.
Indeed, in Senate floor speeches in 2011 alone, the following Republican senators have applied the "extraordinary circumstances" test: Sens. Jeff Sessions (AL), a former ranking member of the Senate Judiciary Committee; John McCain (AZ), a member of the Gang of 14; Jon Kyl (AZ), a member of the Senate Judiciary Committee; Charles Grassley (IA), the current ranking member of the Senate Judiciary Committee (on two occasions); and John Cornyn (TX), a member of the Senate Judiciary Committee.
If the Gang of 14 agreement is now meaningless, why do the senators continue to reference it when justifying filibusters of judicial nominees?
In a blog post yesterday, National Review Online's Ed Whelan reported that "President Obama is on the verge of nominating NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit," a court that is often called the second most important court in the land. Whelan then proceeded to suggest that Adegbile is unsuited to the job, based solely on Adegbile's having been a lawyer at a prominent New York law firm and then an attorney at the NAACP Legal Defense and Education Fund.
After noting that Adegbile had worked for seven years for the New York City law firm of Paul, Weiss, Rifkind, Wharton & Garrison and has since spent a decade working for the NAACP Legal Defense Fund, Whelan acknowledged that he had "never heard of Adegbile." He then pronounced it "odd" that Obama had nominated Adegbile and another person to the D.C. Circuit, both of whom he described as "New York lawyer[s] with no significant background in federal administrative law (and no judicial experience to offset that deficiency)."
Whelan concluded his short post by saying that "[t]his may well be a pick more designed to excite Obama's left-wing base than to produce a confirmation."
Why should someone with seventeen years of experience as a litigator, including a decade as a civil rights attorney, not be considered the right fit for the D.C. Circuit? After all, Adegbile is no stranger to federal court litigation. A Lexis search shows that he has worked on cases at all levels of the federal system throughout the country -- including in D.C. -- since at least 1996.
Can one really say Adegbile is less qualified than Judge David Sentelle, a D.C. Circuit judge nominated by President Ronald Reagan who, at the time of his nomination, had worked for roughly 10 years in private practice in North Carolina, four years as an assistant U.S. attorney in North Carolina, three years as a North Carolina state trial court judge, and a little more than a year as a federal judge in North Carolina?
What about Judge Janice Rogers Brown, a D.C. Circuit judge nominated by President George W. Bush whose experience consisted almost exclusively of work as a California state employee and California state court judge? Did that really prepare her for the D.C. Circuit?
Or is just that Adegbile's civil rights experience is particularly disfavored in Whelan's view?
If so, history is not on Whelan's side.
National Review Online blogger Ed Whelan attacked the Justice Department's Civil Rights Division for assigning two gay attorneys to the team of attorneys working on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case in which the Supreme Court will address the extent to which religious organizations can engage in discrimination without running afoul of sex discrimination law.
In a blog post, Whelan quoted discredited research from Pajamas Media to attack one of the attorneys, Aaron Schuham, for his previous position with Americans United for Separation of Church and State, an organization dedicated to preserving the Establishment Clause of the First Amendment.
But Whelan then went a step further, stating that Schuham has a "same-sex partner [who] is ... Chris Anders, federal policy director for the ACLU's LGBT Rights project." Whelan further reported that another Justice Department attorney working on the case, Sharon McGowan, "was also a staffer on the ACLU's LGBT Rights project" and that she is married to a woman who is "the Family Equality Council's 'federal lobbyist on gay, lesbian, bisexual and transgender family issues.' "
Whelan then used this information to spin a conspiracy theory about the Justice Department possibly using the discrimination case as a step in their agenda to "have gay causes trump religious liberty":
Thus, insofar as personnel is policy,* it may well be that the Obama DOJ's hostility to the ministerial exemption in the Hosanna-Tabor case is part and parcel of a broader ideological agenda that would have gay causes trump religious liberty.
So, in Whelan's opinion, should all gay lawyers have been barred from working on a case that deals with the application of anti-discrimination laws to religious freedom, or just the ones who were previously gay-rights activists or have same-sex partners who are gay-rights activists? Or is it OK to assign gay lawyers to the case, but only if the Justice Department takes a position more to Whelan's liking? Whatever Whelan meant, it's a ridiculous argument.
National Review Online blogger Ed Whelan is still arguing that the decision by Judge Vaughn Walker to strike down California's ban on same-sex marriage must be thrown out because Walker is a gay man in a long-term relationship.
Last week, I documented Whelan's incredible admission that, if his argument is correct, a gay judge assigned to hear a same-sex marriage case must either disclose "intimate details" about his or her personal life or "[ask] the court clerk to reassign the case" to another judge.
As detailed by the lawyers opposed to the California ban on same-sex marriage, if Whelan's theory were correct, a gay judge who did not silently reassign the case would have to answer questions about "how long term, or how serious" the relationship was and "the judge's interest in marriage." The person who is in a relationship with a judge might have to answer similar questions.
But even more astoundingly, the defenders of California's ban on same-sex marriage are making the same argument in their brief (which, according to Whelan, "systematically dismantles" the other side's argument). Here is the relevant excerpt from the brief:
Plaintiffs argue that the statutory disclosure duty "would require federal judges to publicly disclose intimate details of their private lives," Doc # 779 at 23, but of course any judge who does not wish to make "a full disclosure on the record," 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge.
As I've previously detailed, this argument is odious on its own, but it's not even correct on the law. As the opponents of the same-sex marriage ban say: "Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse." Thus, if Whelan and the defenders of the ban are correct, a gay judge assigned to hear a same-sex marriage case who does not believe he or she should be disqualified must preside over the case and must disclose the intimate details of his or her sexual orientation, relationship status, length of the relationship, seriousness of the relationship, and personal views on marriage.
Common sense suggests that this cannot be the law. And judicial ethics experts agree that this is not the law.
As Media Matters has previously reported, Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the ninth Circuit. Despite bipartisan support for Liu by prominent conservative politicians, the right-wing media have continuously attacked the nominee, and in some cases called for a filibuster of the nomination.