In response to a New York Times article discussing Elena Kagan's opposition to the military's discriminatory "Don't Ask, Don't Tell" policy, Ed Whelan has again highlighted Peter Beinart's assertion that "you can't alienate yourself from the [military] without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement." Whelan also accused Kagan of engaging in "her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom."
It bears mention that military veterans at Harvard Law School strongly dispute the idea that Kagan was anti-military and stated that she had a "strong record of welcoming and honoring veterans on campus." In connection with Kagan's solicitor general confirmation hearings, three military veterans who were Harvard law students at the time wrote a letter to the Judiciary Committee that said:
We are sending this letter due to an op-ed by Flagg Youngblood titled "Solicitor general flimflam," which appeared in the January 30, 2009 edition of The Washington Times. This article unfairly labels Dean Elena Kagan as an "anti-military zealot." As Iraq War veterans who currently attend Harvard Law School, we wanted to inform the Committee of Dean Kagan's strong record of welcoming and honoring veterans on campus. We have enclosed the letter to the editor that we submitted to The Washington Times in response to Mr. Youngblood's piece. This letter highlights Dean Kagan's support for the student veteran community. Thank you very much for your time and consideration.
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.
Right-wing media figures -- including National Review Online blogger and Ethics and Public Policy Center president Ed Whelan -- have been baselessly suggesting that judicial nominee Goodwin Liu was trying to hide something by submitting additional writings and statements as a supplement to his Senate Judiciary Committee questionnaire.
University of Minnesota law professor Richard Painter, a former assistant White House counsel during the Bush administration, pretty much destroyed those arguments, noting of Liu's additions, "most of these items are the types of things that law professors do routinely and frequently" and are thus "nearly impossible to keep track of" and stating: "Professor Liu also apparently does not have a photographic memory. It appears to me, however, that his original answers to the questions were a careful and good faith effort to supply the Senate with the information it needed to assess his nomination." Painter continued: "He provided a lot more information than many nominees do in response to these questions. He has now provided the additional information the Senate wants. I doubt the Senators will learn anything new from it."
Since Painter's definitive debunking hasn't stopped the attacks, we thought it was worth remembering that Chief Justice John Roberts omitted his affiliation with the Federalist Society from the questionnaire he submitted as a court of appeals nominee in 2001. That questionnaire asked Roberts to "list all bar associations, legal or judicial-related committees or conferences of which you are or have been a member." Roberts listed several legal organizations but did not list the Federalist Society -- an influential conservative legal organization to which many of President Bush's judicial nominees belonged -- in response to that question. However, according to The Washington Post, the Federalist Society listed Roberts' name in its 1997-98 "leadership directory." The Post reported that the Federalist Society listed Roberts "as a member of the steering committee of the organization's Washington chapter and includes his firm's address and telephone number."
And who was busy excusing Roberts for not listing the Federalist Society on his questionnaire? Ed Whelan.
Conservatives appear ready to attack anyone President Obama nominates to the Supreme Court as suggested by a New York Times article that quoted conservative activist Richard Viguerie signaling that he will affix the "radical" label to anyone Obama nominates. Furthermore, the specific attacks on potential nominees cited by the Times do not hold up to scrutiny.
A Rasmussen poll asked whether President Obama believes "Supreme Court justices should decide cases based on what's written in the Constitution and legal precedents or does he believe they should decide cases by a sense of fairness and justice," and gave no indication whether respondents were given the choice to say both. In fact, Obama has stated that he is looking for justices that both follow the law and have empathy.
Lou Dobbs did not challenge the accusation by Ed Whelan that Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases.