Conservative commentator Ed Whelan has attacked President Obama's judicial nominee Goodwin Liu, who is having a hearing before the Senate Judiciary Committee today, in several recent blog posts. He has even created a "one-stop repository" of his attacks on Liu. There's not much new to the attacks. You can read them if you want. For factual rebuttal, you can look here, here, and here.
But what is amazing is how clearly Whelan's attempt to paint Liu as out-of-the-mainstream succeeds only at showing how out-of-the-mainstream Whelan is himself.
In order to attack Liu, Whelan has had to claim that Kenneth Starr -- former federal judge, former solicitor general, and of course former Whitewater special counsel -- was "badly confused" in a letter he wrote supporting Liu.
But that's not all. Whelan has also gone after former George W. Bush ethics attorney Richard Painter who has written a post in favor of Liu. Painter notes that he "worked to get" Chief Justice John Roberts and Justice Samuel Alito confirmed. Whelan calls Painter's defense of Liu "shoddy," "badly flawed," and said it is based in part on "ill-informed or utterly conclusory endorsements of Liu" from "some conservative who ought to know better."
Engaging in a bit of mind-reading to divine Painter's reasons for supporting Liu, Whelan surmises that Painter is "evidently suffering a case of battered-conservative-academic syndrome."
Painter and Starr aren't the only conservative scholars supporting Liu. Former Bush Justice Department official John Yoo, Goldwater Institute director Clint Bolick, and George W. Bush Institute official James Guthrie have also voiced support for him, as have former Secretary of Transportation William T. Coleman Jr. and former Rep. Tom Campbell (who ran against Carly Fiorina last year for the GOP nomination for U.S. Senate from California).
So are Starr, Painter, Yoo, Bolick, and the other conservatives all "badly confused" or not paying sufficient attention to Liu's record? Or is Whelan just plain wrong? The answer seems pretty simple.
In a National Review Online blog post today, conservative commentator Ed Whelan said we should "disbelieve" the testimony by Obama judicial nominee Caitlin Halligan that "the best way in which we can interpret [the Constitution] is to look to the text and the original intent of the Framers" and that it is not "ever appropriate to rely on foreign law in deciding the meaning of the U.S. Constitution."
His evidence: That Democratic nominees don't believe such things and that Halligan said in post-hearing written questions that she hadn't previously made the same statements. Therefore, she must be lying.
For the record, there are progressives who strongly believe that the text and history of the Constitution should form the basis of constitutional interpretation. Furthermore, in a statement consistent with her prior remarks on the subject, Justice Sonia Sotomayor said during her confirmation hearing that "I do not believe that foreign law should be used to -- to determine the results under constitutional law or American law, except where American law directs."
It is on this flimsy evidence that Whelan accuses Halligan of lying in her testimony. As a reminder, lying to Congress is a felony.
With the help of an anonymous "Senate insider," National Review Online Blogger Ed Whelan came up with a bizarre conspiracy theory to mitigate one of the most egregious examples of Senate Republicans' obstruction of President Obama's judicial nominations. And now the conspiracy theory has proven to be totally baseless.
The story involves Marco Hernandez, a nominee to be a federal trial judge in Oregon. What makes Hernandez different from most nominees is that he was originally nominated by President Bush in July 2008, but his nomination lapsed without action by the Senate. So, one would think that there would be little objection from Republicans when Obama renominated him. But on December, 22, 2010, Senate Judiciary Committee Chairman Pat Leahy (D-VT) reported on the Senate floor that Republicans had obstructed the nomination by refusing to grant unanimous consent to allow a floor vote.
Obama renominated Hernandez when the new Senate convened, and on February 7, Hernandez was confirmed by unanimous consent. The Oregonian newspaper subsequently ran an editorial decrying the obstruction of Hernandez's nomination. And then Whelan entered the picture.
Ed Whelan has posted his second attack on judicial nominee Caitlin Halligan for supposedly having a record that suggests she is "hard left." Previously, Whelan tried (but failed) to paint Halligan as outside the mainstream on the issue of same-sex marriage. His new attack is that she is too far left on national security issues. Unfortunately for Whelan, her position on one of the issues he highlights is the same as that taken by Justice Antonin Scalia.
Whelan argues: "The NYC Bar report maintains (p. 110) that the congressional Authorization for Use of Military Force (enacted September 18, 2001) does not authorize indefinite detention of enemy combatants." He paints this as out of the mainstream because a majority of the Supreme Court held in Hamdi v. Rumsfeld that the Authorization of the Use of Military Force did allow such detentions. Be that as it may (and the majority opinion in that case did not support the Bush administration's detention policies), four justices disagreed with that holding, and one of those was Scalia (the judge for whom Whelan clerked).
Scalia -- in an opinion joined by Justice John Paul Stevens wrote:
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.
Justices David Souter and Stephen Breyer also dissented from the view that the Authorization for Use of Military Force authorized the detention in Hamdi's case.
One final point: Whelan attempts to buttress his argument by saying that the U.S. Court of Appeals for the D.C. Circuit, the court to which Halligan has been nominated, has "adopted that broad construction" of the Authorization for Use of Military Force. However, Whelan cites only cases dealing with detainees at Guantanamo, and the report Halligan signed explicity said: "a large group of alleged 'enemy combatants' seized abroad is being held at the Guantanamo Bay Naval Base in Cuba (see p. 29, above), detentions which present distinct issues not addressed in this report."
So, in essence, either Whelan is providing evidence that Scalia is "hard left" or it's a bogus argument against Halligan. I suggest it's the latter.
National Review Online contributor Ed Whelan has promised to show that the record of President Obama's nominee to the U.S. Court of Appeals for the D.C. Circuit Caitlin Halligan suggests she is "hard left on a broad array of issues." Whelan's first attack on Halligan is that she is out of the legal mainstream on the issue of same-sex marriage. But it is a fairly weak attack.
Whelan attacks a memo that Halligan wrote as solicitor general of New York state on the issue of whether New York law allows same-sex marriage. It's strange for a conservative opponent of same-sex marriage like Whelan to focus on this memo, since Halligan concludes that New York law does not allow same-sex marriage even though New York law did not "explicitly prohibit same-sex marriage"; says the constitutional question has not been decided yet and does not have a clear outcome; and advises New York officials not to perform marriages for same-sex couples. Indeed, here is Halligan's conclusion on the subject:
We conclude that the Legislature did not intend to authorize same-sex marriages. This interpretation of the statute, however, raises concerns, which are best resolved by the courts of this State.
Because the purpose of the marriage licensing process is to "provide a definite, well-chartered procedure for entrance into marriage, so that parties following the statutory requirements can have a fair degree of certainty in their marital status," Practice Commentaries to DRL § 13 at 149, we recommend that clerks not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts.
Whelan doesn't mention this, but Halligan's memo advising New York officials that they shouldn't perform same-sex marriages came only a few days after a mayor of the small New York town of New Paltz began marrying same-sex couples. Thus Halligan's memo -- which was informal and did not have the force of law -- directly contradicted the decision by a New York official that the laws of New York state allowed same-sex marriage.
Whelan's argument amounts to a criticism that Halligan does not give sufficient weight to some of the arguments that Whelan finds compelling. But that is hardly evidence that Halligan is "hard left."
During the confirmation proceedings for Supreme Court Justice Elena Kagan, bloggers at National Review Online took it upon themselves to defend the Supreme Court from charges that it had tilted far to the right and in favor of corporate interests since John Roberts had taken over as Chief Justice of the United States. For instance, this summer, Ed Whelan strongly criticized Alliance for Justice President Nan Aron for "contend[ing] that the 'Roberts court has repeatedly placed corporate interests first and the rights of individuals second.' "
But now The New York Times has reported on a new study finding that "[t]he Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953." The study added that the "differences are statistically significant."
And the study is not the work of progressives alone. Indeed, one of its co-authors is federal appellate Judge Richard Posner, a Ronald Reagan appointee and a conservative hero.
This all leads me to wonder: Which NRO blogger will be the first to throw Judge Posner under the bus in defense of the Roberts Court?
National Review Online blogger Ed Whelan was last seen suggesting that Judge Vaughn Walker acted unethically by presiding over the case in which he declared California's ban on same-sex marriage unconstitutional despite being a gay man who is possibly in a long-term relationship. Legal experts pronounced this argument meritless and "ridiculous."
Now Whelan's back at it. He's used the occasion of Walker's announcement that he will resign his position next year to come up with the completely baseless and bizarre theory that Walker may have used the marriage case to "feather his nest."
Walker's decision to retire is no surprise. Indeed, the buzz from local courtwatchers is that Walker was going to retire last year (when he first became pension-eligible) but changed his mind when the anti-Prop 8 case, through the wonders of supposedly random assignment, fell into his lap.
Applying Ockham's razor, I will readily presume that Walker's wild course of misconduct in the anti-Prop 8 case was driven entirely by his ideological fervor for same-sex marriage and that Walker wasn't also trying to feather his own post-judicial nest. That said, if he were trying to feather his nest, his high-profile invention of a constitutional right to same-sex marriage, including his remarkable (and overturned) denial of a stay of his judgment pending appeal, would be one way to build a lot of goodwill among many prospective San Francisco employers. (On the other hand, anyone who actually read his ruling, and followed his actions, with care would be less than impressed by his legal ability.)
The entire anti-Prop 8 farce would be complete if Walker were to join either Ted Olson's or David Boies's firm. But negotiations could be complicated if Walker were to make a well-deserved request for back pay.
Let's count the baseless theories Whelan packs into these three paragraphs: (1) Walker may have manipulated the random case assignment system; (2) Walker may have decided the case because of "his ideological fervor for same sex marriage"; (3) and last, that perhaps he made his decision not because of "ideological fervor" but to improve his job prospects.
Or maybe Walker decided the case in the way he did because he found the plaintiffs' case that Proposition 8 unconstitutionally discriminated on the basis of sexual orientation legally compelling.
From the August 4 edition of ABC Radio Network's The Mark Levin Show:
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Ed Whelan and two of his colleagues at National Review Online have repeatedly attacked a New York Times article that reported on a study finding that the Supreme Court under John Roberts is "the most conservative one in living memory." Their attack is unsurprising since Whelan based a major part of his testimony opposing Elena Kagan's Supreme Court nomination on the premise that the conservative Supreme Court majority is actually non-ideological. But their complaints are undermined by the words of former Chief Justice William Rehnquist who described the philosophy of a "strict constructionist" in explicitly results-oriented terms.
NRO contributor Matthew Franck complained that the study relies on "the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior." Carrie Severino put the argument and the defense of conservative justices even more strongly, writing:
Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the "left" and the "right" to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as "you do what you think is right and let the law catch up," and if you subscribe to Marshall's philosophy, this type of blunt head-counting might make sense. The problem is that "conservative" judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must "catch up" to the law by putting aside political preferences when deciding cases.
Fatal to the claim that conservative judges put aside "political preferences when deciding cases," however, are Rehnquist's words. As a Nixon administration official, Rehnquist reportedly defined a "strict constructionist" as someone who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."
And it's hard to get more clearly results-oriented than that.
National Review Online's Ed Whelan and Carrie Severino attacked President Obama for nominating Louis Butler to a federal judgeship after he lost his electoral bid to retain his seat on the Wisconsin Supreme Court. In fact, there is nothing unusual about Butler's appointment: President Bush successfully appointed federal judges who lost a state court election race.
After a judge in Massachusetts ruled against a federal ban on gay marriage, National Review Online's Ed Whelan revived the falsehood that Supreme Court nominee Elena Kagan abandoned her constitutional duty as solicitor general and "succeeded in sabotaging the Defense of Marriage Act that she was dutybound to defend."
National Review Online's Ed Whelan is posting a "series of posts explaining some of the respects in which I find [Elena Kagan's] testimony unsatisfactory." Based on the early examples, I don't think we can expect very much from them.
For instance, in one post, Whelan falsely suggests that Kagan has refused to defend the "Don't Ask, Don't Tell" policy.
Whelan has previously attacked Kagan for refusing to immediately challenge a decision by the Ninth Circuit that required the government to provide further evidence to support its contention that the "Don't Ask, Don't Tell" policy was constitutional.
Whelan notes that at her hearing, Kagan stated that she thought it would be a stronger litigation strategy not to pursue an immediate appeal to the Supreme Court for tactical reasons.
Whelan does not attempt substantively to challenge Kagan's argument that further proceedings would have given the government a stronger argument that the Ninth Circuit's decision was overly-burdensome should Supreme Court review have become necessary. He just claims that the Ninth Circuit's decision was clearly wrong, and the Supreme Court would have clearly recognized that.
Whelan then engages in a bit of mindreading. He writes:
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don't Ask, Don't Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.
But Kagan proved Whelan's claim to be utterly false at her hearing. Kagan did "take a public position" on behalf of the Obama administration on the constitutionality of Don't Ask, Don't Tell.
As Kagan testified (via Nexis):
KAGAN: So take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the "don't ask/don't tell" policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- the government very much approved of, which was a decision that upheld the "don't ask/don't tell" policy.
And we told the court, in no uncertain terms, not to take the case, and we defended the statute vigorously. We told the court not to take the case because the statute was constitutional.
So in that Pietrangelo brief that I filed -- and it's a brief on which I'm counsel of record -- the -- the -- the argument is made vigorously that the "don't ask/don't tell" statute is fully constitutional, given the appropriate standard of review, and particularly given the deference that courts properly owe to the military.
So the Pietrangelo brief is a brief -- and, again, I'm counsel of record on that brief -- in which the U.S. government vigorously defended the "don't ask/don't tell" policy and statute, more importantly, and told the court not to take a case which challenged a decision upholding that statute. [emphasis added]
And indeed, the brief Kagan filed in Petrangelo v. Gates did exactly what Kagan said. The brief Kagan filed stated:
Petitioner contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to determine whether 10 U.S.C. 654 violates his substantive due process, equal protection, and free speech rights. The decision of the court of appeals is correct and does not conflict with any decision of this Court.
The brief then went on to defend the constitutionality of Don't Ask, Don't Tell on all of these grounds.
(It should be noted that the Solicitor General has an obligation to defend the constitutionality of federal statutes and, thus, her defense of Don't Ask, Don't Tell does not necessarily reflect her personal views on the subject.)
Joining WorldNetDaily, Ed Whelan has repeatedly launched attacks against Solicitor General Elena Kagan for praising former Israeli Supreme Court Justice Aharon Barak. We previously pointed out that U.S. Supreme Court Justice Antonin Scalia has also praised Barak. But Whelan is not satisfied. Apparently, Scalia did not issue the right kind of praise in order to satisfy Whelan. (Although, Scalia reportedly was "singing Barak's praises" when he presented him with an award.) Well, here's another conservative who has praised Barak: Former Reagan administration Solicitor General Charles Fried.
Fried described Barak as "superhuman, a mythical character" who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."
During the same event in which Kagan praised Barak -- a 2002 event sponsored by the Harvard Law Review -- Fried spoke right after Barak did. Fried said (at the 42:45 mark of the C-SPAN video):
FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'oeuvre, his absolutely best piece written many years ago and published in the Harvard Law Review, which was called "Hard Cases" -- develops a theory of judging. And his picture is of a judge, superhuman, a mythical character, whom he calls Hercules, who manages to integrate -- and I use the word integrate in the mathematical sense where you [gestures] -- manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer. It is a remarkable experience to be in the presence of and to have just heard a lecture from a living myth. Because Hercules lives, and you have just heard from him.
Get that? Fried said that Barak matched Ronald Dworkin's conceptual ideal of a judicial "Hercules," a judge who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."
So much for Whelan's suggestion that Kagan is way outside the mainstream because of her praise of Barak.
Ed Whelan and Volokh Conspiracy blogger Stewart Baker are attacking Elena Kagan for a brief the Solicitor General's office filed asking the Supreme Court to overturn one aspect of an Arizona law dealing with illegal immigration. (No, not the controversial SB 1070 that was passed earlier this year, but another law, which was passed in 2006 and punishes businesses for hiring undocumented immigrants.) Their attack is bizarre.
First, as Whelan and Baker acknowledge, the brief -- which was submitted by the Solicitor General's office on May 28 -- does not bear Kagan's name, because Kagan had recused herself before the brief was filed. Second, another blogger at the conserviative-leaning Volokh Conspiracy, Jonathan Adler has taken issue with the attacks on the Solicitor General's brief. And third, the overwrought is internally contradictory.
Baker, a former Bush administration official attacked the Solicitor General's office for filing a brief in Chamber of Commerce v. Candelaria that argues that the Supreme Court should strike down a portion of an Arizona law that imposes punishment on businesses that hire illegal immigrants. Baker states: "The brief takes positions that from a political and policy point of view are hard to square with, well, sanity. In leaving little room for states to address a problem the feds haven't solved, the brief gets to the left of the Ninth Circuit, which upheld this law." Later in the blog post, Baker states: "What does all this say about Elena Kagan, woman of mystery and Solicitor General until two weeks ago? Nothing good, I fear."
Whelan highlighted Baker's comments about Kagan, stating: "I'll highlight here Baker's harsh criticism of Elena Kagan's presumed role in the matter:
In fact, though, as Baker acknowledges in a portion of his post quoted by Whelan, Kagan "stopped acting as Solicitor General on May 17, and this brief was presumably filed on May 28, when it was released." Indeed, Kagan's name is not on the brief that Baker and Whelan attack. Baker's and Whelan's attack is based solely on pure speculation about how much work Kagan did on the brief before recusing herself from working as Solicitor General because of her Supreme Court nomination. Furthermore, even if they did have such evidence, it wouldn't be evidence of Kagan's personal views on the issue. As Kagan said in written questions regarding her Solicitor General nomination:
I understand that role [of the Solicitor General] as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients.
Is Ed Whelan's Google still broken?
Last year, my colleague Sarah Pavlus noted that Ed Whelan speculated that there may be "Political Corruption" at the Congressional Research Service because it issued a report on selected opinions by Justice Sonia Sotomayor. Concluding his post, Whelan asked: "Has CRS ever before prepared an assessment of the record of a Supreme Court nominee?" A simple Google search would have answered the question for him. Even after Whelan updated his post to acknowledge that CRS had issued a report on Alito, Whelan suggested that CRS might not have issued reports prior to its reports on Alito and Sotomayor. Again, a simple Google search would have revealed that CRS did a report on Clarence Thomas as well.
The article reveals that Kagan may have been the only law school dean who used the Third Circuit's ruling as an excuse to discriminate against military recruiters (for background, see my point 2 here):
Boston College law professor Kent Greenfield, who founded the law school coalition, which ultimately lost its case at the Supreme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track.
Following a ruling by the U.S. Court of Appeals for the Third Circuit that a law requiring schools to give military recruiters equal access to campuses Kagan briefly applied Harvard's anti-discrimination to military recruiters. For one semester in 2005, Kagan barred Harvard Law School's Office of Career Services (OCS) from working with military recruiters due to the military's discriminatory "Don't Ask, Don't Tell policy." Nevertheless -- as the Post makes clear -- military recruiters continued to have access to Harvard students during that semester. During the rest of her deanship, Kagan made an exception to Harvard's anti-discrimination policy and allowed OCS to work with military recruiter.
Contrary to Whelan's suggestion that no other law schools restricted military recruiters, according to 2005 articles in the Yale Daily News and The New York Times, after the Third Circuit ruling, Yale Law School also refused to allow military recruiters to avail themselves of the facilities of its career office. In addition, according to the Yale Daily News, New York Law School, Vermont Law School, and William Mitchell College of Law also took actions similar to Harvard following the 3rd Circuit ruling.
Furthermore, the Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices.