National Review Online's Ed Whelan certainly has issued his share of odd arguments about judicial nominees. But this might just take the cake. In a blog post yesterday, Whelan argued that filibustering judicial nominations is "a bad practice," but that this is precisely why Senate Republicans should filibuster the nomination of Goodwin Liu to be an appellate judge.
From Whelan's blog post:
I continue to hold the view that I've expressed since the outset of Bench Memos in 2004--that the filibuster of judicial nominees is constitutionally permissible but a bad practice. It's clear, however, that unilateral disarmament by Republicans would do nothing to deter Democrats from filibustering Republican nominees. As with the independent-counsel statute, the only sensible choice for Republican senators who want to get rid of the filibuster in the long run is to employ it against very bad judicial nominees by President Obama.
In sum, it's time for Republican senators to defeat cloture on the Liu nomination. [emphasis in the original]
By the way, Liu has been the subject of a concerted smear campaign by Whelan and others. And Senate Republicans are considering a filibuster of Liu even though many of the people leading the charge have argued -- unlike Whelan -- that filibusters are unconstitutional.
As we've documented, National Review Online blogger Ed Whelan and other supporters of California's ban on same-sex marriage seek to vacate Judge Vaughn Walker's ruling striking down that ban on the grounds that Walker is gay. At the same time, Whelan continues to pretend that Walker's sexual orientation is not the issue. The real problem, Whelan says, is that Walker is in a long-term same-sex relationship and therefore may want to marry his partner.
He makes this distinction because, as legal ethicists nearly universally agree, as numerous newspaper editorials and commentators have argued, and as Whelan himself acknowledges, it would be problematic to say a judge must be disqualified from the case simply because of his or her sexual orientation.
Now, in response to a brief filed by opponents of California's same-sex marriage ban, Whelan has sunk to a new low, defending his position by saying that a gay judge assigned to a case on same-sex marriage must either disclose "intimate details" about his or her personal life or silently reassign the case to another judge.
Rush Limbaugh accused President Obama of lying about government job losses and, citing a blog post by National Review's Jim Geraghty, claimed that "government employment is actually increasing." In fact, seasonally-adjusted job numbers show that the public sector has been cutting massive amounts jobs, a point Geraghty was forced to acknowledge when he updated the post.
The right-wing media has falsely accused Attorney General Eric Holder of "going after" CIA agents for administering enhanced interrogation techniques approved during the Bush administration. In fact, Holder has made it clear that the Department of Justice will not prosecute agents "who acted in good faith and within the scope of the legal guidance" of the Bush administration, and indeed, the DOJ's investigation reportedly focuses on agents who went beyond the Bush administration's "legal guidance."
National Review Online blogger Ed Whelan is pretending that the move to vacate Judge Vaughn Walker's ruling striking down California's ban on same-sex marriage is not based on Walker's sexual orientation. Whelan's argument is not only illogical, it fails to account for the right-wing slogan "if the judge ain't straight, you must vacate," which was coined by the head of Liberty Counsel, a prominent same-sex marriage opponent.
Whelan repeatedly argues that, in the words of one of his posts, "Prop 8 proponents do not base their motion on the fact that Walker 'is gay,' but on the fact that he is in a long-term same-sex relationship." It is extremely important for Whelan to make this distinction because legal ethicists nearly universally agree that Walker's sexual orientation is not grounds for recusal as have numerous newspaper editorials and commentators. And Whelan himself has said that "a judge's personal characteristics don't generally provide a basis for recusal."
However, Whelan's argument that the issue isn't Walker's sexual orientation falls flat.
Whelan has acknowledged that "there is 'no evidence' of Walker's specific intentions" about whether to marry or not. His recusal argument is based solely on surmises based on the length of Walker's relationship. However, Whelan never explains how long a same-sex relationship must be before it requires that the judge step aside. Nor does he explain why--based on his logic--a gay judge who definitely wants to marry but who hasn't yet found the right person should not also be disqualified.
Indeed, the threshold question a judge must answer in Whelan's view is not whether a judge is in a long-term relationship but whether the judge is gay. Under Whelan's theory, a judge presiding over a same-sex marriage case would seemingly have to disclose his sexual orientation and then subject himself or herself to a series of probing questions about whether the judge is in a relationship, how long that relationship has been going on, and whether the judge is really the committing type.
The conservative media are suggesting that former President Bush deserves more credit than President Obama for the death of Osama bin Laden. This is in stark contrast to their usual attacks that Obama is responsible for things that are happening during his presidency, including those tied to Bush-era policies like the Gulf oil spill, the weak economy, and the nation's deficit problems.
Right-wing media continue to attack President Obama over his speech announcing that U.S. forces had killed Osama bin Laden in a firefight. These attacks even include people saying that Obama should not have made the announcement himself.
Right-wing media outlets have criticized President Obama's call to end certain tax breaks for oil companies, claiming that doing so will increase the price of gasoline. However energy experts contacted by Media Matters explain that cutting the tax incentives will have little to no effect on prices at the pump.
After weeks of demanding President Obama "produce the birth certificate" so it can be "over [and] done with," right-wing media figures have begun attacking Obama for releasing his long-form birth certificate, claiming it was done as a "distraction" and complaining it was done to "personally put down his detractors."
Right-wing media responded to the release of President Obama's long-form birth certificate by attacking the president and claiming that certain questions surrounding the document remain unanswered. Below is a sampling of the early attacks by conservative media following the release of Obama's long-form birth certificate.
Since Judge Vaughn Walker, the federal judge who struck down California's ban on same sex marriage, disclosed that he is gay and in a long-term relationship members of the right-wing media have revived their campaign to have Walker disqualified from the case. Their campaign has culminated in a motion filed by opponents of same-sex marriage to vacate Walker's same-sex marriage ruling.
National Review Online blogger Ed Whelan has claimed that the motion to vacate Walker's ruling "elaborates the argument" he himself has made about why Walker should be disqualified from the case.
But several judicial ethicists agree that the arguments for why Walker should be disqualified from the case do not stand up to scrutiny.
Samford University's Cumberland School of Law Professor William G. Ross stated in a phone call with Media Matters that based on the arguments put forward by the opponents of same-sex marriage, "a reasonable person wouldn't believe [Walker] was biased."
New York University Law Professor Stephen Gillers stated in an e-mail that "[t]he fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal."
Hofstra University Law Professor Monroe H. Freedman stated in a phone call that "simply being gay and in a gay relationship" is not a reason for recusal.
In addition, the Associated Press reported:
DePaul University College of Law professor Jeffrey Shaman, co-author of a widely used textbook on judicial conduct, said the fact that Walker was rumored to be gay from the moment he randomly drew the Proposition 8 case "somewhat undercuts the argument that he should have disclosed he was in a long-term relationship."
Lawyers for backers of the ban seem to be grasping at straws in making their argument against the now-retired Walker, Shaman said.
"But it's their prerogative to do this as lawyers," Shaman said. "It might indicate they are worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it."
In an April 27 National Review Online blog post titled, "The New Burning Question," Jonah Goldberg wrote:
I haven't studied the just released PDF of Obama's birth certificate. But assuming there's nothing in there about a birthmark that resembles the numbers "666" or about how his father worked for the KGB and -- of course -- assuming that the font in question matches typewriters of the time (Let's get Dan Rather on that): I figure this puts the birther thing to bed once and for all. Good.
But it does raise the perplexing question: If this was possible all along, why did the WH take such sweet time releasing it? Could it be that this White House, continuing a tactic used by Democrats for years, actually liked being able to cast their opponents -- often through guilt by association -- as paranoid nuts? No, that couldn't possibly be it.
In the lead-up to Earth Day, members of the right-wing media have ridiculed conservation efforts and downplayed the concerns of environmentalists. This is nothing new for conservative media figures who have, in the past, used the Earth Day to attack conservationists by urging audiences to cut down trees and increase their energy consumption.
Right-wing media have recently revived the falsehood that the Independent Payment Advisory Board created by the health care law will lead to health care rationing. In fact, the law specifically prohibits the Advisory Board from making "any recommendations to ration health care ... or otherwise restrict benefits."