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."
Another right-wing blogger has taken a stab at arguing that Judge Vaughn Walker should have been disqualified from the California same-sex marriage case because he is a gay man. But the post accidentally showed another reason why this argument has been deemed meritless and "ridiculous" by judicial ethics experts.
The blogger (presumably accidentally) argues that not only should Walker be disqualified from this case, but women judges must be disqualified from cases involving abortion.
Last night, as part of a series of National Review Online posts calling for Walker's disqualification, Matthew Franck hyped a guest post on the Patterico's Pontifications blog attacking Walker. The Patterico post, by Aaron Worthing, detailed an email exchange Worthing had had with San Francisco Chronicle reporter Bob Egelko about Walker.
In response to Egelko's remark that Walker "has no more of a conflict than a female judge, or a devoutly Catholic male judge, ruling on the right to abortion," Worthing stated: "[N]otice he also misses the issue of having your legal rights on the docket. A catholic male judge might have a certain preferred outcome in an abortion case, but he is not ruling on his personal rights."
Worthing responded to Egelko's analogy about a "devoutly Catholic male judge" ruling on abortion, but not about a "female judge" ruling on that issue.
I don't know why Worthing did not respond to the point about a "female judge," but a woman of childbearing age certainly has her own "legal rights on the docket" when ruling on abortion restrictions, and by the logic of Walker opponents, cannot hear such cases.
As we've already shown, by the logic of Walker's opponents, straight judges who are married or may someday want to get married must be disqualified from same-sex marriage cases. But now it's apparent that, in addition, female judges are disqualified from hearing abortion cases.
Or perhaps the real answer is that there are no grounds to disqualify Walker from the Proposition 8 case.
National Review Online blogger Ed Whelan has been trying for more than a year to disqualify the judge who declared California's bar on same-sex marriage unconstitutional. Whelan argues that because the judge in question -- Vaughn Walker -- is gay and in a long-term relationship, federal law requires that he be disqualified.
That hasn't stopped Whelan though. Today, he has posted a 1,400 word National Review piece that pleads for "a request by Prop 8 proponents" asking the appellate courts to throw out Walker's ruling on the grounds that he should be disqualified because of his sexual orientation.
Whelan writes that Walker should be disqualified because he is in a long-term relationship with a man and "a reasonable person would expect him to want to have the opportunity to marry his partner," which, according to Walker's own opinion, confers benefits on couples.
Whelan does not break any new ground in his arguments today. So there's not much new for us to add.
However, we'll note again that by Whelan's logic, a straight judge who is married or in a long-term relationship would also have to be disqualified because proponents of Proposition 8 argued that the ban on same-sex marriage was "about preserving marriage" as it has been traditionally defined.
Since marriage as traditionally defined would not be preserved were same-sex marriage to be legalized, straight judges would have an obvious interest in stopping same-sex marriage.
That would be no more ridiculous than believing Walker should be disqualified from the same-sex marriage case.
Responding to President Obama's budget speech, right-wing media have complained that Obama "blame[d] Bush" for the nation's deficit problems. In fact, Obama is right: Experts agree that President Bush's policies, along with the economic downturn, are largely to blame for the growing deficit.
National Review Online blogger Carrie Severino keeps pushing the argument that Supreme Court Justice Elena Kagan may need to recuse herself from cases dealing with the constitutionality of the health care reform law. However, after a series of posts suggesting that Kagan might have lied when she said she was not involved in strategizing over how to defend the health care law, Severino has acknowleged that she doesn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The campaign to stop Kagan from hearing health care cases began last summer during her confirmation hearings.
The Wall Street Journal argued that Kagan might have participated in strategizing over litigation involving the constitutionality of the health care reform law and therefore might have to recuse herself from health care reform-related cases. The Journal suggested a series of questions for Republicans to ask Kagan before voting on her nomination.
When Republicans asked those questions, Kagan responded that she had not been involved in discussions of the health care reform law or litigation involving the law. That appeared to settle the matter for the Journal, which subsequently said, "We have no reason not to take Ms. Kagan at her word."
However, others in the right-wing media have since filed Freedom of Information Act (FOIA) requests in order to try to prove that Kagan was lying. A FOIA request by the right-wing media outlet CNS News turned up no evidence that Kagan discussed the health care reform bill or litigation, but Severino still argues that at some point in the future, perhaps some documents showing that Kagan was involved will surface.
National Review Online blogger Matthew J. Franck published a guest blog post by Southern Illinois University professor Robert Clinton arguing that by supporting Roe v. Wade, "the strongest elements of the Democratic Party" belong to the "Party of Death." Comparing Roe to the notorious Supreme Court Dred Scott decision, Clinton added: "we seem to be approaching a situation of the kind that obtained shortly before the Civil War, in which a flawed Supreme Court decision was followed by an unbridgeable congressional divide and governmental paralysis."
While Clinton stated that he "would hardly venture so far as to predict another civil war," he then added: "the circumstances and the history cannot help but give one pause."
From a post on the National Review Online's Bench Memos blog:
The fact that the budget dispute resolved last night, threatening a partial shutdown of the national government, came down to the funding of Planned Parenthood, is a striking confirmation of Ramesh Ponnuru's description of the strongest elements of the Democratic Party as belonging to the "Party of Death."
If the decision whether to keep the government functioning at full strength boils down to resolution of a controversy over abortion, then we seem to be approaching a situation of the kind that obtained shortly before the Civil War, in which a flawed Supreme Court decision was followed by an unbridgeable congressional divide and governmental paralysis. As Hadley Arkes suggested around the time of the Bork hearings, Dred Scott and Roe are cut from the same cloth. While I would hardly venture so far as to predict another civil war, the circumstances and the history cannot help but give one pause.
Conservative media are claiming that the GOP is putting Democrats in a bind by cutting $12 billion in the one-week funding proposal while funding the military. Reporting on House and Senate budget negotiations, Fox News correspondent Carl Cameron adopted the GOP's characterization of the situation, stating:
CAMERON: House Republicans say if there's not a deal emerging from tonight's meeting with the president, they may push forward with that vote tomorrow. And if that's the case, it would leave it up to the Democrats in the Senate and the president to either accept the short-term extension or shut down the government on Friday night and deny funds to the troops.
Cameron also reported that the bill "has a rider to strengthen the prohibition on federal funds for abortion in D.C."
Similarly, National Review's Rich Lowry claimed that the "short-term measure is going to put Harry Reid and the White House in a tight spot." Lowry continued: "By putting the ball in their court, it puts them in the position of making the affirmative decision to shut the government and do it while turning away a bill to fund the military." Lowry concluded: "If they reject the bill anyway, it's going to make it easier to blame them for a shutdown; if they accept, Republicans will have gotten $22 billion in cuts even before a final deal."
It's rich for conservatives to be crowing about Republicans attaching irrelevant strings like abortion-related restrictions to a military funding bill.
By contrast, during the debate in 2007 and 2008 about war supplemental bills, conservatives were outraged when Democrats added a withdrawal timeline from Iraq to troop funding, a condition directly relevant to the military funding bill they were considering.
In a National Review Online blog post, Cato Institute director of tax policy studies Chris Edwards cheered the portion of Rep. Paul Ryan's (R-WI) budget plan that guts Medicare and replaces it with a system resembling government-provided vouchers for private insurance.
From National Review Online:
As Congress continues to battle over this year's budget, House Budget chairman Paul Ryan released a blueprint today to guide Republican fiscal policies for years to come. Ryan's budget proposes spending cuts, tax reforms, and the restructuring of entitlement programs.
His plan will dominate budget discussions for the rest of the year, and it will help frame the fiscal debate for the 2012 presidential campaign. That's why liberal pundits are already attacking it with gusto. In the Washington Post, E. J. Dionne called Ryan's plan "radical," "irresponsible," and "extreme." But serious fiscal experts know that the real extreme plan is President Obama's "do nothing" budget, which would result in disastrous levels of debt and crushing tax burdens on families in coming years.
As a first step toward budget sanity, Ryan proposes further cuts to discretionary spending beyond those currently being debated. However, his main focus is on transforming the so-called entitlements. He would transition Medicare from the current Soviet-style system to one based on consumer choice. Instead of a system based on payments to health-care providers, new retirees would receive a "premium support" payment to buy a private insurance plan of their own choosing.
The right-wing media have seized on an eight-second video clip of Rep. Jim McDermott (D-WA) to claim he called the Constitution "silly." In fact, McDermott was criticizing Republicans for not focusing on "job creation" in favor of doing "silly" things like reading the Constitution on the House floor.
As we have documented, National Review Online's Ed Whelan has strongly disagreed with a commentator who pointed out that Supreme Court Justice Samuel Alito appeared to employ an "empathy standard" when he disagreed with the eight-justice majority opinion siding with Westboro Baptist Church in a free speech case.
Whelan -- who has harshly criticized President Obama for saying that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law" -- stated that in the Westboro case, Snyder v. Phelps, the difference between the majority decision and the dissent is "a legal one, not a difference between dispassion and empathy." To make that claim, Whelan ignored the fact that in his dissent, Alito devoted more than 1,200 words to a recitation of Westboro's despicable attacks against the plaintiffs in the case, the family of slain Marine Matthew Snyder.
(Whelan subsequently conceded that it is possible that Alito acted out of empathy in the case.)
Now there's more evidence that the long recitation of the facts in Alito's dissent is not strictly about robotically searching for the correct rule of law, and it comes from a decision Alito himself joined.
Today, Alito joined a concurring opinion written by Justice Antonin Scalia (the justice for whom Whelan clerked) that attacked the dissenting judges for their lengthy recitation of the case's facts. The opinion said that the dissent's factual recitation was "puzzling" because the question at issue "is a legal one." From the concurring opinion in Connick v. Thompson:
The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. See Brady v. Maryland , 373 U. S. 83 (1963) . That question is a legal one: whether a Brady violation presents one of those rare circumstances we hypothesized in Canton 's footnote 10, in which the need for training in constitutional requirements is so obvious ex ante that the municipality's failure to provide that training amounts to deliberate indifference to constitutional violations. [emphases added]
So Alito himself believes that a "lengthy" recitation of the facts is "puzzling" when the Court is dealing with a legal question. Therefore, it stands to reason that Alito's own lengthy recitation of the facts in Snyder is about something other than just the pure legal question.
Following President Obama's national address on the crisis in Libya, the right-wing media has complained that he "bashe[d] Bush" by referencing the Iraq war, with Fox & Friends going so far as to suggest that Obama's reference was gratuitous because "nobody" is comparing Libya to Iraq. In fact, Obama made no mention of Bush and cited Iraq as an illustration of what could happen "[i]f we tried to overthrow Qaddafi by force"; additionally, Fox & Friends itself has pushed comparisons of Libya to Iraq.
There are few things that seem to dominate the front page of the Drudge Report more than attacks on climate change science and fearmongering about European-style laws coming to America. So it was no surprise today to see Drudge hyping a story out of the UK which claims that the European Union plans to "ban" cars from its cities - which Drudge, of course, touts as a sign of a "NEW WORLD ORDER."
Unsurprisingly, right-wing blogs quickly picked up the claim. Climate change skeptic Anthony Watts knocked the proposal, arguing that "it will [be] the EU that's banned by 2050, not the automobile." Meanwhile, the Washington Examiner's Mark Tapscott asked, "How long before Big Green Environmentalists here demand the U.S. ban cars, too?"
The Telegraph story that Drudge links to reports that "cars will be banned from London and all other cities across Europe under a draconian EU masterplan." However, while the EU's strategy document does call for a 60% reduction in greenhouse gas emissions in its transportation sector, it does not banish all cars from urban areas.
What the European Commission white paper does propose is the "gradual phasing out of 'conventionally-fuelled' vehicles" -- defined as those "using non-hybrid, internal combustion engines" -- from major cities by 2050. From the paper:
Cities suffer most from congestion, poor air quality and noise exposure. Urban transport is responsible for about a quarter of CO2 emissions from transport, and 69% of road accidents occur in cities. The gradual phasing out of 'conventionally-fuelled' vehicles from the urban environment is a major contribution to significant reduction of oil dependence, greenhouse gas emissions and local air and noise pollution. It will have to be complemented by the development of appropriate fuelling/charging infrastructure for new vehicles.