Yesterday, we showed how the attempt by National Review Online blogger Ed Whelan to paint President Obama's judicial nominee Goodwin Liu as out-of-the-mainstream has actually demonstrated that Whelan is himself far outside the mainstream.
Today, Whelan lashed out at one of the conservative supporters of Liu's nomination, Richard Painter, the former White House ethics lawyer during President George W. Bush's administration. Whelan -- a former clerk for Justice Antonin Scalia, a former deputy assistant attorney general, and a former senior Capitol Hill staffer -- claimed that Painter has "evidently lost his marbles":
In addition to failing to confront my actual arguments, Painter relies heavily on the argument-by-authority fallacy. As he puts it:
Now, you can believe the top experts in the areas of Liu's scholarship and prominent conservatives such as Ken Starr and Clint Bolick -- or you can believe National Review Online's Ed Whelan. I know where I would put my marbles.
Set aside that Painter, having evidently lost his marbles, would have to find them first before he could put them anywhere. Painter leaves the false impression that folks like Starr and Bolick have actually responded to my critiques of Liu and of their misunderstandings of his record. So far as I'm aware, they haven't.
As a reminder, in addition to Painter, Liu has the support of Kenneth Starr, Clinton Bollick, John Yoo (who has reaffirmed his support for Liu while criticizing Painter's post), and other conservative scholars.
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.
Before conservatives launch their regular attacks against the so-called liberal media, it might be helpful to see if openly conservative media outlets are guilty of the same supposed crime against journalism. And if they are, then it's probably best to shelve the liberal media attack.
Nonetheless, we see this same pratfall over and over. The latest to take the tumble is NRO's Greg Pollowitz, who's indignant that news outlets all be ignored Republican Scott Walker's campaign for Wisconsin governor last fall.
Here's the entire angry item from NRO [emphasis added]:
A quick search of the New York Times website for "Scott Walker" from August 1, 2010, until Nov. 1, 2010, yields nine hits.
Christine O'Donnell, the witch running in Delaware? She scores 162 during the same period.
Sharron Angle in Nevada? 131.
Sarah Palin? 280.
And back to those nine hits for "Scott Walker" — not one is a piece from the Times' op-ed section. In other words, nobody of any notoriety at the Times cared about the Wisconsin governor's race, because these geniuses were too concerned with saving America from the likes of Christine O'Donnell. How's that working out for you?
Elections matter, as does the coverage of said elections.
Those dopes at the New York Times didn't care about Walker's campaign last year, Pollowitz complains.
Right, and you know who else didn't care about Walker's campaign last year? The staunchly conservative Washington Times as well as the Rupert Murdoch-owned New York Post, both of which published even fewer Walker references between last Aug. 1 and Nov. 1, than did the New York Times, according to a Nexis search.
Like I said, before partisans make nasty attacks against the Times and ascribe motivation to its coverage, they might want to first see if conservative media outlets covered (or didn't cover) the same story in the exact same way. Could save some time in the future.
Today, Congressional Budget Office director Douglas Elmendorf sent a letter to House Speaker John Boehner (R-OH) estimating that the bill to repeal the health care reform "would cause a net increase in federal budget deficits of $210 billion over the 2012-2021 period." You might think this might stop people from claiming that health care reform repeal is fiscally responsible. But that doesn't account for the dishonesty of the right-wing blogosphere.
Several headlines on conservative blogs are shouting some variant of: "CBO Says Repealing ObamaCare Would SAVE 1.4 TRILLION DOLLARS Over 10 Years"
Where are they getting this? Well, the blogs quote this passage from Elmendorf's letter outlining some of the effects of H.R. 2, the health care reform repeal bill:
The enacted legislation contained a set of provisions designed to expand health insurance coverage that was estimated to increase federal deficits. The costs of those coverage expansions--which include the cost of the subsidies to be provided through the exchanges, increased outlays for Medicaid and the Children's Health Insurance Program (CHIP), and tax credits for certain small employers--will be partially offset by revenues from the excise tax on high-premium insurance plans and net savings from other coverage-related effects. By repealing those coverage provisions of PPACA and the Reconciliation Act, over the 2012-2021 period H.R. 2 would yield gross savings of $1,390 billion and net savings (after accounting for the offsets just mentioned) of $1,042 billion. [emphasis added by NRO]
But that was just one paragraph in Elmendorf's letter. The next two paragraphs of the letter explained that other provisions in the repeal bill would "increase direct spending in the next decade by $732 billion" and "would reduce revenues by an estimated $520 billion over the 2012-2021 period":
PPACA and the Reconciliation Act also included a number of other provisions related to health care that were estimated to reduce net federal outlays (primarily for Medicare). By repealing those provisions, H.R. 2 would increase other direct spending in the next decade by $732 billion.
The enacted legislation will increase federal revenues (apart from the effect of provisions related to insurance coverage), mostly by increasing the Hospital Insurance payroll tax and imposing fees on certain manufacturers and insurers. Repealing those provisions would reduce revenues by an estimated $520 billion over the 2012-2021 period.
Elmendorf then summarizes:
H.R. 2 would, on net, increase federal deficits over the next decade because the net savings from eliminating the coverage provisions would be more than offset by the combination of other spending increases and revenue reductions.
In total, CBO and JCT estimate that H.R. 2 would reduce outlays by about $604 billion and reduce revenues by about $813 billion over the 2012-2021 period (see Table 2).
So, CBO is not saying, in any way shape or form, that the health care reform law repeal will save the government money. CBO is saying that certain provisions would save the government money, but that those provisions are more than offset by other provisions that would cost the government money.
It's no secret that many in the right-wing media are not fans of President Obama's plan to develop high-speed passenger rail lines throughout the country. However, the right-wing media's reporting on Florida Gov. Rick Scott's decision to turn down federal money to build a high-speed rail line between Tampa and Orlando has been particularly one-sided. Several reports have failed to mention the tens of thousands of jobs that the high-speed rail project would have brought to the state.
From February 12 coverage of CPAC 2011:
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Misrepresenting testimony from the CBO director, conservative media claim the health care reform law will eliminate 800,000 jobs. In fact, CBO said the law will "reduc[e] the amount of labor that workers choose to supply, and as health expert Paul Van De Water stated, "If people voluntarily choose to reduce their hours of work ... that's not killing jobs."
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.
Conservative media figures have attacked Republicans for voting to repeal a provision of the health care reform bill that mandates the businesses file 1099 forms to the IRS when they purchase more than $600 worth of goods or services from a vendor. These media figures also warn Republicans not to support similar measures in the future. They say the 1099 provision hurts business, but argue that voting for such provision is a "trap" for Republicans who want to repeal the entire health care reform bill.
On February 2, 81 senators voted in favor of a repeal of the 1099 provision, which both Republicans and Democrats, including President Obama, have called overly burdensome. Since then conservative media figures have been attacking Republicans for their vote:
Erickson and Thiessen both state that the 1099 provision was harmful to businesses. So why do they argue against its repeal? In Erickson's words: "[D]oing this, instead of keeping the pain in place until Obamacare is repealed, makes the pain less and less. And as the pain becomes less and less because Republicans work with Democrats to 'fix' Obamacare, it becomes less and less likely that Obamacare will actually get repealed."
But are these conservative commentators really deluded enough to think that repeal of the Affordable Care Act is just around the corner? Perhaps. Or perhaps they are afraid that with a few fixes, calling for repeal of the health care reform law will become a real loser politically.
On RedState.com, CNN contributor Erick Erickson claimed that the Obama Administration has canceled an annual Centers for Disease Control and Prevention report on abortion statistics because it is "afraid of the truth," and continued to insist that the report was "killed" even after the CDC said it was merely delayed and will be published. Indeed, an internal CDC email obtained by Media Matters shows that the report was submitted for review and editing on November 12.
Following right-wing group Live Action's first release of a video allegedly "exposing" Planned Parenthood's "cover-up of child sex trafficking," conservative media have rushed to accuse Planned Parenthood of engaging in criminal activity. In fact, at least two weeks before the video of the sting operation in a New Jersey Planned Parenthood was released, Planned Parenthood reported to the FBI a "potential multistate sex trafficking ring" and later fired the employee behaving improperly in the video.
Right-wing media have seized on the conflict in Egypt to attack President Obama by comparing him to former President Carter and the Iranian uprising in the late '70s. However, experts have noted that comparing the uprising in Egypt to the 1979 Iranian revolution is "dangerously misleading."
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."