Whelan tries and fails to defend the credibility of his attack on Judge Thomas

Blog ››› ››› ADAM SHAH

After Media Matters for America pointed out flaws in his argument, Ed Whelan has attempted to defend his claim that Ninth Circuit Judge Sidney Thomas' decision in Harper v. Poway Unified School District showed that Thomas was on "the far Left." Most laughably, Whelan complains that Media Matters "cites a quote from a Montana district judge that Thomas 'has never let his politics get in the way of sound judgment.' " Whelan asks: "What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas's record?" What evidence exists? Is Whelan serious?

The judge in question, Chief Judge for the U.S. District Court for the District of Montana Richard Cebull -- an appointee of George W. Bush -- has been a district judge in the Ninth Circuit for close to nine years. Before that, Cebull was a federal magistrate judge for more than two years. During that time as a magistrate and district judge, Cebull has published hundreds of decisions -- and likely presided over thousands of cases. Cebull has been applying binding precedents written by Thomas during all that time. During that time, Thomas has also presided over appeals of Cebull's cases. If Thomas was an ideologue, would it really have escaped Cebull's notice for all these years?

In addition, Media Matters showed that conservative appellate court Judge Richard Posner had ruled -- like Thomas did -- that schools have broad leeway to ban derogatory speech. Whelan's response is that unlike Posner, Thomas was "approving of viewpoint discrimination restrictions" because the school in Harper allowed -- in the words of the dissent -- "pro-gay speech" but was trying to "gag other viewpoints." Completely undermining Whelan's response, however, is the fact that Posner was also dealing with a school that had allowed "pro-gay speech" as Whelan and the Harper dissent defined it but was trying to ban statements that were derogatory about gays and lesbians.

Whelan writes:

[A]ddressing itself obliquely to only one of the nine cases of Thomas's that I've addressed, Media Matters thinks it's meaningful to establish that "GOP-appointed judges have given schools broad leeway to restrict derogatory speech." (Gee, really?) But the distinct concern that the case raised (and that completely eludes Media Matters) is that Thomas and Reinhardt were approving of viewpoint-discriminatory restrictions. Here's what I wrote in my summary (point 1 of this post):

As Judge Alex Kozinski argued in dissent, the school district "may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day." But having permitted the pro-gay speech, the school can't be allowed to gag other viewpoints.

Here are the facts in Harper, as related by Judge Stephen Reinhardt, whose opinion Thomas joined:

(1) In 2003 and 2004, "a student group called the Gay-Straight Alliance to hold a 'Day of Silence' at the School which, in the words of an Assistant Principal, is intended to 'teach tolerance of others, particularly those of a different sexual orientation.' "

(2) On the "Day of Silence," students "wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians; these students would not speak in class except through a designated representative. Some students wore black T-shirts that said "National Day of Silence" and contained a purple square with a yellow equal sign in the middle. The Gay-Straight Alliance, with the permission of the School, also put up several posters promoting awareness of harassment on the basis of sexual orientation."

(3) During the 2004 "Day of Silence," "appellant Tyler Chase Harper wore a T-shirt to school on which 'I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,' was handwritten on the front and 'HOMOSEXUALITY IS SHAMEFUL "Romans 1:27" ' was handwritten on the back. There is no evidence in the record that any school staff saw Harper's T-shirt on that day." The next day, the student wore a similar shirt, a teacher saw it and sent Harper to the principal who ordered the student to remove the shirt before he could attend class.

The student sued, claiming a First Amendment violation. Thomas joined Reinhardt's majority opinion that ruled that there was no First Amendment violation because the school had the right to ban speech that made derogatory comments on the basis of sexual orientation even though -- according to the dissent and Whelan -- the school was allowing "pro-gay speech" at the same time. (Of course, one may question whether speech that teaches tolerance of gay men and lesbians is really "pro-gay speech.")

Here are the facts in the case over which Posner presided, Nuxoll v. Indian Prairie School District #204 as related by Posner:

(1) "A student club at Neuqua Valley High School called the Gay/Straight Alliance sponsors the 'Day of Silence' at the school."

(2) "Students participate by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the 'Day of Silence,' will not call on students participating in the observance. Some students and faculty wear T-shirts that day with legends such as 'Be Who You Are.' "

(3) "Two years ago a co-plaintiff (who has since graduated and as a result is no longer seeking injunctive relief) wore a shirt that read 'My Day of Silence, Straight Alliance' on the front and 'Be Happy, Not Gay' on the back. A school official had the phrase 'Not Gay' inked out. Last year neither plaintiff wore a shirt that contained the phrase, or otherwise tried to counter the Day of Silence, for fear of being disciplined."

The student sued seeking an injunction allowing him to wear the "Be Happy, Not Gay" shirt and striking down the school's policy against derogatory speech. Posner denied the injunction against the derogatory speech policy but granted an injunction allowing the student to wear the t-shirt in question because it was "only tepidly negative." Posner strongly suggested that the school would be able to ban more strongly negative derogatory speech. Thus Posner suggested that, even while the school board allowed what Whelan called "pro-gay speech," it had the ability to ban anti-gay speech -- exactly what Whelan complained was wrong with the decision Thomas joined.

Finally, Whelan claims that "I openly acknowledge and correct any errors that I make." Not so.

  • In 2009, Whelan claimed "there may be 'Political Corruption' at the Congressional Research Service because it recently issued a report on selected opinions by Judge Sotomayor." He concluded his post by saying: "Just wondering: Has CRS ever before prepared an assessment of the record of a Supreme Court nominee?" After we and others pointed out that CRS did a report on Alito, which was not hard to find, Whelan updated his post to say: "Whether that means that reports like those done on Sotomayor and Alito were done previously is unclear." However, more than a year ago, we pointed out that -- at the time of Justice Clarence Thomas' nomination -- CRS also did a report on Thomas, which was also findable via Google.
  • In an April 12 post, Whelan claimed that According to the latest Rasmussen Reports poll, Americans overwhelmingly reject President Obama's lawless empathy standard for judging: By a margin of 60% to 39% [sic: 31%], likely voters believe that the Supreme Court "[s]hould ... make decisions based on what's written in the Constitution and legal precedents" rather than "be guided mostly by a sense of fairness and justice." In fact, in 2009, when commenting on the retirement of Justice David Souter, Obama said that he sought judges who demonstrated both a commitment to law and empathy. Obama stated that "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes" to push the notion that this statement "aggravates those who believe justices should follow the Constitution and legislative intent." But in the very next sentence Obama stated: "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role." Obama added, "I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."

Whelan's falsehoods are not limited to his NRO blog. In July 2009, on the former CNN show Lou Dobbs Tonight, Whelan claimed that during Sotomayor's confirmation hearing, Sen. Charles Schumer "got her to claim that she was against the use of foreign international law in construing the Constitution, even though she said exactly the opposite in a speech just a few months ago." In fact, Sotomayor's statement in response to Schumer -- that "American law does not permit the use of foreign law or international law to interpret the Constitution" -- is completely consistent with statements she made during the April 2009 speech, that "American analytical principles do not permit us to use that law to decide our cases."

In her April 2009 speech, Sotomayor stated, "I always find it strange when people ask me, 'How do Americans' courts use foreign and international decisions -- law in making their decisions?' And I pause and say, 'We don't use foreign or international law. We consider the ideas that are suggested by international and foreign law.' " She went on to state, "American analytical principles do not permit us to use that law to decide our cases. But nothing in the American legal system stops us from considering the ideas that that law can give us."

Posted In
Government, Nominations & Appointments, The Judiciary
National Review Online
Ed Whelan
Supreme Court Nominations, Sidney Thomas
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