National Review Online's foremost legal analyst is continuing his colleagues' attacks on Supreme Court Justice Ruth Bader Ginsburg by criticizing her for “speaking publicly on abortion policy,” despite previously defending Justice Antonin Scalia's penchant for similar public comments and interviews.
In the past week, National Review “roving correspondent” Kevin Williamson echoed his outlet's debunked insinuations from 2009 that Ginsburg supported eugenics. Williamson accused her of harboring a “desire to see as many poor children killed as is feasibly possible,” an argument that NRO editor-at-large Jonah Goldberg offered "three cheers for" and that Williamson later compounded when he argued that women who have abortions should be hanged. NRO legal analyst Ed Whelan continued the attacks on Ginsburg, joining other anti-choice voices in condemning Ginsburg's statements in a recent interview in which she criticized a Texas law that closed down a number of the state's reproductive health clinics, arguing that commenting on legislation that could soon be before the Supreme Court was grounds for her recusal.
But Whelan went on to broaden his critique of Ginsburg, suggesting in a later post that she not speak publicly about abortion policy at all, regardless of whether it is in reference to a reproductive justice case before the court or not. In a September 30 blog post, Whelan complained about Ginsburg speaking “on all sorts of other matters related to abortion policy” and suggested that it was improper for the justice to “speak her mind openly on this matter.”
Whelan's condemnation of Ginsburg and her discussion of general “abortion policy” appears inconsistent with his defense of his former boss, Justice Antonin Scalia, who also frequently speaks on contentious public policy. For example, in 2011, when Scalia spoke at a “closed-door session with a group of conservative lawmakers,” Whelan balked at the suggestion that Scalia's attendance at a Tea Party function was inappropriate. According to The New York Times:
M. Edward Whelan, president of the Ethics and Public Policy Center and a former clerk to Justice Scalia, disputed [George Washington University law professor Jonathan] Turley's criticism.
“Does he think it's improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” Mr. Whelan told The Los Angeles Times. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similarly sized group of members of Congress who invited him.”
Earlier this year, when Bruce Allen Murphy's biography of Scalia was published, Whelan dedicated eight separate blog posts to correcting what he perceived were the errors in Murphy's book. One post in particular took exception to Murphy's claim that Scalia's “extrajudicial speeches and conduct ... ventured far beyond those of any other justice” and ran afoul of the “prevailing ethical norms of the Court against such extrajudicial speechmaking.” At the time, Whelan defended Scalia, calling Murphy's argument “bogus”:
Murphy's claims are bogus. For starters, if there had been an “informal rule” against “extrajudicial speechmaking,” how is it that Justice William Brennan could have given a speech in October 1985 contesting the Reagan administration's constitutional philosophy? Murphy conveniently forgets that speech, even though he had some twenty pages earlier quoted from it in highlighting the “legal intellectual fireworks between Justice William Brennan and Reagan attorney general Edwin Meese.” Murphy cites, and tries to distinguish away, a handful of speeches by Justice Blackmun in the early to mid-1980s, but his distinction -- Blackmun was trying to “explain why analysts and observers should see him differently,” while Scalia “was outlining the terms of how he would act in the future” -- is inane, ought to cut against Blackmun (why should a PR campaign be more acceptable than discussion of judicial philosophy?), and obviously doesn't apply to Brennan's speech.
Further, Canon 4 of the Code of Conduct for United States Judges (which doesn't formally apply to Supreme Court justices, but which they have long looked to for guidance) expressly provides that, within broad limits, a judge “may speak, write, lecture, and teach on both law-related and nonlegal subjects.” As it happens, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), refers to extrajudicial activities of justices that “can involve activities as innocuous as giving a speech.”
And Whelan registered no objections to Scalia's “long and interesting” interview with New York magazine in 2013, where Scalia discussed his judicial philosophy and how he would decide a constitutional challenge to a hypothetical “flogging” statute, among other ruminations. When asked about his dissent in Lawrence v. Texas where he wrote that Americans had a right to “protect themselves and their families from a lifestyle that they believe to be immoral and destructive,” Scalia said, “I would write that again. ... Maybe the world is spinning toward a wider acceptance of homosexual rights, and here's Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement.” Scalia also addressed his opinion on equal protection and marriage equality, both public policy topics of past and current interest to the Supreme Court. From the New York interview:
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can't treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there's a reasonable basis for not letting women do something -- like going into combat or whatnot ...
Let's put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny,blah blah blah blah. That's just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don't think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues' jurisprudence. You didn't talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
I would write that again. But that's not saying that I personally think it's destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.
U-K-A-S-E. Yeah. I think that's how you say it. It's a mandate. A decree.
It's worth noting that Scalia himself might very well reject a line of reasoning that Ginsburg should sit down and shut up. In 2004, Scalia refused to step down from a case involving then-Vice President Dick Cheney, despite the fact the two men had recently gone hunting and had dinner together. He also outlined other speaking engagements it would have been “silly” for “investigative journalists to suggest improprieties” about:
My recusal would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons. The Los Angeles Times has already suggested that it was improper for me to sit on a case argued by a law school dean whose school I had visited several weeks before -- visited not at his invitation, but at his predecessor's.
The same paper has asserted that it was improper for me to speak at a dinner honoring Cardinal Bevilaqua given by the Urban Family Council of Philadelphia because (according to the Times's false report) that organization was engaged in litigation seeking to prevent same-sex civil unions, and I had before me a case presenting the question (whether same-sex civil unions were lawful? -- no) whether homosexual sodomy could constitutionally be criminalized. While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.