Conservative attacks on potential Supreme Court nominees don't hold water

››› ››› ADAM SHAH

Conservatives appear ready to attack anyone President Obama nominates to the Supreme Court as suggested by a New York Times article that quoted conservative activist Richard Viguerie signaling that he will affix the "radical" label to anyone Obama nominates. Furthermore, the specific attacks on potential nominees cited by the Times do not hold up to scrutiny.

Conservatives signal attack on anyone Obama nominates

Conservative activist Viguerie signals that conservatives will paint any nominee as "radical." The New York Times reported in an April 16 article:

Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election.

"The more material he gives us to work with, the easier the battle will be," Mr. Viguerie said. "The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is."

Conservatives distort Wood's record on so-called "partial birth abortion" cases

Conservative claim: Wood's decision on so-called "partial-birth abortion" bans show that she follows her ideology rather than the law. The New York Times reported that that National Review Online blogger Ed Whelan has called Seventh Circuit Judge Diane Wood "a hard-left judicial activist and aggressor on culture-war issues." The Times added that "Americans United for Life, an anti-abortion group, said Judge Wood's 'record shows she places her pro-abortion ideology above her judicial duty.' " The Times further reported: "Conservatives point to several cases in which she voted to strike down laws restricting abortion, including a ban on the procedure opponents call partial-birth abortion."

Reality: Wood's vote was in line with Supreme Court majority as well as Republican appointees on her court. As with many of the cases cited by conservatives, Wood's position in a 1999 case that Illinois' and Wisconsin's bans on so-called partial-birth abortion were unconstitutional is far from out of the mainstream. As the Times reported, "Judge Wood's defenders say ... in many of those cases, including several involving abortion, Republican appointees -- often including the renowned conservative Judge Richard Posner -- voted the same way she did." Indeed, Reagan-appointed Judge Richard Posner, George H.W. Bush-appointed Judge Ilana Rovner, and Clinton-appointed Judge Terence Evans agreed that the laws were unconstitutional. In 2000, the Supreme Court struck down a similar Nebraska law in a 5-4 decision joined by retiring Justice John Paul Stevens. Six years later, after the retirement of Justice Sandra Day O'Connor, the Supreme Court did uphold a federal ban on so-called "partial-birth abortions," but four justices, including Stevens, dissented, with Justice Ruth Bader Ginsburg writing that the Court had essentially reversed itself from the position it had taken in the Nebraska case.

Reality: Stevens explicitly lauded the opinion Wood joined. In the case involving the Nebraska law, Stevens joined a concurring opinion by Ginsburg that explicitly endorsed the Posner opinion that Wood joined. Ginsburg wrote: "Chief Judge Posner commented, the law prohibits the procedure because the State legislators seek to chip away at the private choice shielded by Roe v. Wade ... Again as stated by Chief Judge Posner, 'if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.' " Stevens himself wrote in a separate concurrence: "Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation."

Conservatives distort Wood's position on "informed consent" abortion laws

Conservative claim: Conservatives suggest Wood defied Supreme Court on "informed consent" abortion statute. The Times reported: "Conservatives point to several cases in which she voted to strike down laws restricting abortion, including ... an 'informed consent' law similar to one the Supreme Court had previously upheld."

Reality: Wood did not defy the Supreme Court, but rather relied on evidence that was not previously available. As Slate's Emily Bazelon has noted, although Wood voted to strike down a statute that contained provisions nearly identical to ones the Supreme Court upheld in Planned Parenthood v. Casey,

what changed between that 1993 ruling and Wood's dissent in 2002 was the factual record. Wood's panel had before it a new 1997 study published in the medical journal JAMA that found that abortion rates fell 12 percent more in Mississippi, which had a 24-hour waiting period, than they did in South Carolina, which did not. Meanwhile, the number of second trimester abortions in Mississippi increased 39 percent more. The Supreme Court in Casey didn't have the benefit of that study.

Both the majority and dissent agreed that evidence that informed consent laws burdened abortion rights were relevant. Both the Seventh Circuit majority and dissent agreed that the Supreme Court had left the door open to evidence that an informed consent statute created an undue burden on abortion rights. The majority opinion said: "Casey stated, and [the Seventh Circuit case of] Karlin [v. Foust] reiterated, that an informed-consent statute may have effects that differ from the written terms, and that those effects could in principle demonstrate that an innocuous-appearing law actually imposes an undue burden on abortion." The majority and dissent differed, however, on whether the plaintiffs had produced evidence that showed that the law would create an undue burden if enforced. The majority decided that studies about informed consent laws in Mississippi and Utah do not "imply that the effects in Indiana are bound to be unconstitutional, so Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences." Wood disagreed with the majority and stated that there was now evidence that informed consent laws imposed undue burdens on abortion.

Conservatives distort Wood's decision on cases involving extremist anti-abortion protestors

Conservative claim: Wood's decision on cases involving extremist anti-abortion protestors is evidence that she follows her ideology rather than the law. The Times article reported that conservatives criticize Wood because she "was also twice reversed by the Supreme Court in a long-running civil lawsuit, in which she approved applying extortion laws to an aggressive group of abortion clinic protesters."

Reality: Conservatives have condemned extremist anti-abortion protestors such as those involved in the case. Conservatives are discussing two opinions Wood wrote or joined in the NOW v. Scheidler litigation, in which the National Organization for Women and others sued anti-abortion protestors who disrupted abortion clinics, assaulted clinic staff and patients, and, according to Bazelon, in one case "grabbed a patient who'd come to the clinic for a follow-up appointment for ovarian surgery. The rough treatment reopened her incisions, and she had to be rushed to the hospital." Numerous Republicans have stood up against such extreme protestors, including several who voted for the 1994 Freedom of Access to Clinic Entrances (FACE) Act such as Sen. Mitch McConnell (KY) and then-Sens. Pete Domenici (NM) and Nancy Kassebaum Baker (KS). Then-Sen. Bob Dole (R-KS) joined McConnell, Domenici and Kassebaum Baker in voting for an earlier version of the bill.

Reality: Wood's decisions were joined by George H.W. Bush appointee. In both of the NOW v. Scheidler cases in which Wood was involved, Rovner, a George H.W. Bush appointee, and Wood took the same position.

Reality: Wood's decisions in favor of plaintiffs followed Supreme Court decision allowing plaintiffs' case to go forward. As Bazelon has noted:

NOW sued the protest groups under what's known as the RICO [Racketeering Influence and Corrupt Organization], or federal racketeering law, which triples damages for violations of another federal extortion statute called the Hobbs Act. The theory behind the suit was that the protesters' acts of planning, threats, and destruction effectively amounted to extortion. In its first crack at the case, in 1992, a three-judge panel of the 7th Circuit, which did not include Wood, ruled that RICO didn't apply. The Supreme Court reversed that ruling in 1994 and sent the case back for trial.

Following the Supreme Court's unanimous decision -- in an opinion by then-Chief Justice William Rehnquist -- to reverse the dismissal of NOW's case, the Seventh Circuit sent the case back for a trial, which lasted for seven weeks and resulted in a decision in favor of the plaintiffs and against the protestors.

Reality: Supreme Court said Wood was following "Circuit precedent" in finding on behalf of the plaintiffs in her initial decision. Following the trial, Wood upheld the jury finding that the defendants had violated federal law by depriving women and abortion clinics of intangible property, such as "the clinics' rights to provide medical services and otherwise conduct their businesses." The Supreme Court reversed the decision, stating that defendants must have not only deprived the plaintiffs of property, but must themselves have "pursued" or "received" the property. However, in making the decision, the Supreme Court acknowledged that Wood's decision "rel[ied] on Circuit precedent." The Supreme Court said: "Again relying on Circuit precedent, the [Seventh Circuit] held that 'as a legal matter, an extortionist can violate the Hobbs Act without either seeking or receiving money or anything else. A loss to, or interference with the rights of, the victim is all that is required.' " While the Supreme Court is not bound by Seventh Circuit precedent, a panel of Seventh Circuit judges is generally bound by such precedent.

Reality: Like Wood, Bush administration agreed that RICO statute made the protestors' conduct in this case illegal. Undermining the argument that Wood's decision showed that Wood follows her ideology rather than the law, Solicitor General Ted Olson filed a brief on behalf of the Bush administration in NOW v. Scheidler arguing that the protestors' deprivation of abortion clinics' intangible property violated federal law. While the brief took issue with a separate part of Wood's opinion that the Supreme Court did not discuss, the brief stated that the federal law at issue is violated "when, as in this case, a defendant threatens violence in order to force a victim to abandon his business or to cease selling a product or service."

Reality: When Wood got the case a second time, she did not flout the Supreme Court decision. Whelan has accused Wood of "plain defiance of the Supreme Court's initial order of reversal and ... resort[ing] to a legal argument so flimsy that that the Court unanimously rejected it." However, as Bazelon has reported, Wood held -- in a decision joined by the George H.W. Bush-appointed Rovner -- that the Supreme Court had not yet ruled on one of the issues in the case:

In the next stage of the case, Wood was reversed 8-0. This part is about a loose thread that Wood thought the Supreme Court had left dangling. On remand, the abortion clinics argued to the 7th Circuit that in analyzing the case the justices hadn't addressed four acts of physical violence by the protesters that might on their own support a new injunction. Wood agreed that this was possible: There were two ways to read the Hobbs Act on this point, she said, and the Supreme Court had never said which one was right. So she sent this single issue back to the district court-with a warning not to overreach. "This remand is not a 'green light' to start this old litigation anew," she cautioned. For the district court to renew its former nationwide injunction based only on the four acts of violence would be an abuse of discretion, "from what we can tell of the record." In other words, Wood cracked open only a small window for keeping the case alive.

The Supreme Court promptly shut it in looking at the case again in 2006. Eight justices (Justice Alito did not participate) said the Hobbs Act does not provide for a separate crime based on violent conduct that's not related to extortion or robbery. To read the law otherwise "would federalize much ordinary criminal behavior," Justice Stephen Breyer wrote. Once the court said so, it seemed obvious. But appellate judges don't necessarily do their jobs best by anticipating which way the Supreme Court will go (as opposed to making their own judgments).

After Wood's ruling, the Supreme Court reversed again.

Conservatives distort Wood's record on sectarian prayer case

Conservative claim: Wood is "hostile to religion" because she allowed people to challenge official sectarian prayer in the Indiana House. The Times article reported that "Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge ... the Indiana House of Representatives' practice of opening sessions with sectarian prayers."

Reality: All the judges involved -- including Reagan appointees -- agreed the sectarian prayers likely violated the First Amendment. As noted by the Seventh Circuit, Indiana taxpayers brought a lawsuit alleging that the Indiana House of Representatives had a practice "of opening its proceedings with overtly sectarian prayer, usually Christian." The district court judge, David Hamilton (since elevated to the Seventh Circuit), found that the Indiana House practice violated the Establishment Clause of the First Amendment. The Speaker of the Indiana House appealed the decision and, in a preliminary decision, a three judge panel unanimously refused to issue a stay of the district court's decision pending a full appeal. The panel found that the plaintiffs were likely to win on the merits and that the Indiana House Speaker's "position has been rejected by the Supreme Court, as well as many lower federal courts and state courts. Few cases have confronted squarely the constitutionality of sectarian legislative prayer, but, notably, those cases have concluded that [the Supreme Court case of] Marsh [v. Chambers] prohibits the practice. Most importantly, the Supreme Court itself has read Marsh as precluding sectarian prayer." The panel decision was written by Judge Kenneth Ripple, a Reagan appointee, and joined by Wood and Judge Michael Kanne, another Reagan appointee. Later, the Seventh Circuit ultimately dismissed the case, ruling that the plaintiffs did not have standing, with Wood dissenting.

Conservatives distort Wood's record on faith-based initiative case

Conservative claim: Wood's decision in faith-based initiative case shows hostility to religion. The Times reported that "Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups."

Reality: Wood joined the decision written by conservative Reagan-appointed Posner. Reagan-appointed Judge Posner wrote the decision at issue, Freedom From Religion Foundation, Inc. v. Chao, and Wood joined Posner's 2-1 majority decision.

Reality: The Posner decision that Wood joined did not deal with the merits of the issue. The case involved an Establishment Clause challenge by taxpayers to the funding of conferences by President Bush's "Faith Based and Community Initiatives." Posner and Wood did not find that the Faith Based Initiatives conferences violated the Establishment Clause claim. Rather, they held that, under Supreme Court precedent, the taxpayers had standing to challenge the taxpayer-funded conferences and remanded the case to the lower court "for a determination of the merits of those claims that we have determined the plaintiffs have standing to litigate."

Reality: Six justices -- including Stevens -- agreed that under Supreme Court precedent, the plaintiffs had standing. The Supreme Court later reversed Posner's and Wood's decision by a 5-4 vote, but the judges in the majority disagreed with each other on their rationale. Three justices -- Samuel Alito, Chief Justice Roberts, and Anthony Kennedy -- argued that under Supreme Court precedents the taxpayers did not have standing to sue. Two justices -- Antonin Scalia and Clarence Thomas -- argued that the taxpayers did have standing to sue under the prior Supreme Court case of Flast v. Cohen, but that the Court should overrule Flast (something Wood as an appellate court judge obviously couldn't do). And four justices -- David Souter, Stevens, Ginsburg, and Stephen Breyer -- dissented, agreeing with Scalia and Thomas that Flast granted the taxpayers standing in this case, but disagreeing with them that Flast should be overruled. Thus six justices -- Scalia, Thomas, Souter, Stevens, Ginsburg and Breyer -- stated that, under then-existing Supreme Court precedent, the plaintiffs did have standing.

Conservatives distort Wood's opinion in case upholding prohibition on sexual orientation discrimination

Conservative claim: Wood's decision preliminarily upholding university rule prohibiting sexual orientation discrimination shows hostility to religion. The Times reported that, as further evidence that Wood is hostile to religion, conservatives cite another case in which Wood "sided with a public university that revoked the status of a Christian club because it denied membership to gay people." In the case at issue, Christian Legal Society v. Walker, Southern Illinois University revoked the official student organizational status of the Christian Legal Society because the organization banned membership by gays and lesbians. Judge Diane Sykes, a George W. Bush appointee, and Kanne, a Reagan appointee granted Christian Legal Society a preliminary injunction reinstating the group's official student organizational status. They held that SIU had likely violated the organization's First Amendment speech and association rights. Wood dissented, noting that "SIU has in no way tried to compel CLS to admit members or to elect officers that offend its precepts. It has said only that CLS must content itself with the benefits and support given to non-recognized student organizations, rather than also receiving the additional perks that go along with recognized status."

Reality: Wood's decision is well within the mainstream as shown by votes of Republican-appointed judges. Republican-appointed judges have also upheld universities' non-discrimination policies against constitutional associational and free speech claims. In Chi Iota Colony v. CUNY (retrieved via Lexis), a case involving a university's ban on sex discrimination by student groups, the Second Circuit dissolved a preliminary injunction requiring the College of Staten Island to reinstate a fraternity's official recognition status. The decision was joined by circuit judge John Gibson, a Reagan appointee.

Reality: Ninth Circuit found that school policy did not violate Christian Legal Society's rights. In addition, the Ninth Circuit summarily affirmed -- based on circuit precedent -- a decision upholding the University of California-Hastings' application of its policy that all student organizations must accept all comers even if they disagree with the mission of the group. The Ninth Circuit decision was joined by Reagan appointee Alex Kozinski, George W. Bush appointee Carlos Bea, and Carter appointee Procter Hug. It stated:

The parties stipulate that Hastings imposes an open membership rule on all student groups -- all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.

The Supreme Court has agreed to hear an appeal of the Ninth Circuit case.

Conservatives distort Kagan's record on military recruiting on campus

Conservative claim: Kagan's decision to restrict military recruiters was "radical." Regarding Solicitor General Elena Kagan, the Times reported that as Harvard Law School dean Kagan had briefly reinstated previous-existing restrictions on military restrictions -- but dropped the policy after one semester -- and joined a brief arguing that universities could restrict military recruiters "without losing their financing, so long as their antidiscrimination policy did not single out the military." The Times further reported that: "Curt Levey of the conservative Committee for Justice, said her handling of the recruiting matter would generate criticism on both national security and gay rights grounds. And Liz Cheney, a daughter of former Vice President Dick Cheney and a former student of Ms. Kagan's, recently declared in a Fox News discussion about her that 'not allowing the military to recruit on campus clearly was very radical.' "

Reality: Kagan's decision to briefly reinstate restrictions on military recruiters followed Third Circuit decision stating that the law requiring full access was unconstitutional. In 2004, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment -- which stated that universities that do not provide access to military recruiters cannot receive certain federal money -- violated First Amendment free-speech rights. Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Stapleton had previously been appointed to a federal district court judgeship by President Nixon. Kagan subsequently reinstated the ban against military recruitment through OCS for one semester in 2005 after the 3rd Circuit held that the law was unconstitutional. As Kagan explained in a September 2005 letter to her colleagues:

The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.


I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.

Reality: Dozens of other law professors, other law schools, and the Cato Institute argued against the government's interpretation of the Solomon Amendment. As Media Matters for America has documented, Kagan joined a brief filed on behalf of 40 Harvard law professors arguing against the government's interpretation of the Solomon Amendment. Briefs filed on behalf of 100 other law professors also argued against the Solomon Amendment or the government's interpretation of that amendment, as did other organizations including the Cato Institute.

Reality: Other law schools have had policies that accorded with Harvard's. The Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices. Following the 3rd Circuit's decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters. In addition, at least one other school had a more restrictive policy than Harvard. According to the FAIR v. Rumsfeld complaint, from 1989-2002, at Whittier Law School, "[m]ilitary recruiters were not permitted to post recruiting information, speak at school-sponsored events, sit at tables, access student/alumni addresses, leave material visible in any library area, or interview on campus. If a student expressed interest in a military JAG [Judge Advocate General] career, the director of career services would refer the student to a recruiting office."

Conservatives make ridiculous claim about Garland's quote on Blackmun papers

Conservative claim: It's "alarming" that Garland called the release of Blackmun's papers a "great gift to the country." The Times reported that "while [D.C. Circuit] Judge [Merrick] Garland has not often dealt with social issues, at a 2005 book event, he reportedly described the release of the papers of the late Justice Harry Blackmun -- the author of the 1973 Roe v. Wade abortion rights decision -- as a 'great gift to the country.' Phillip Jauregui, the president of the conservative Judicial Action Group, said that remark sent an alarming signal to social conservatives. 'The fact that he would use those words to describe Harry Blackmun's papers is cause for concern,' he said."

Reality: People from across the spectrum have used the "great gift" of justices' papers in their research. The National Right to Life Committee has used reports on Blackmun's papers to attack the Roe decision and the doctrine of a constitutional right to abortion. In addition, news outlets have used the Blackmun papers to shed light on the Roe decision and on the Supreme Court as a whole. Furthermore, abortion rights opponent and law professor Douglas Kmiec reported that he had researched some of former Justice Thurgood Marshall's papers and used his research to attack Roe v. Wade.

Attack on Garland's deference to federal regulations does not hold water

Conservative claim: Garland often votes to uphold the decisions of federal agencies. The Times reported: "Because the District of Columbia Circuit hears all challenges to federal agency regulations, Judge Garland also has a long record of voting to uphold such federal authorities - an issue that could resonate with the libertarian sentiment on display in the Tea Party movement."

Reality: Based on a decision by Stevens, Supreme Court requires courts to give great deference to agency decisions. In the 1984 case of Chevron, USA, Inc. v. National Resources Defense Counsel, the Supreme Court held in a decision written by Justice Stevens that federal courts should give great deference to agency regulations. Stevens wrote in a 6-0 decision (with three justices recused):

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

Reality: Justice Scalia has argued for strong judicial deference to agency decisions. Scalia has been a staunch supporter of the doctrine that federal courts must give great deference to agency decisions. Indeed, in United States v. Mead, a case decided 8-1, Scalia was the lone dissenter from a decision finding that an agency decision was not entitled to "Chevron deference." Scalia argued that the federal courts should enforce a "general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce."

Garland, like the Supreme Court, has often ruled in favor of detainee rights

Conservative claim: It's potentially problematic that Garland has "several times sided with the rights of detainees." Finally, the Times identified as a potential conservative line of attack against Garland the fact that he "has also several times sided with the rights of detainees. He voted to overturn the military's determination that a Chinese Muslim detainee at Guantánamo Bay prison in Cuba was an 'enemy combatant.' He also voted to allow former detainees who had been held at the Abu Ghraib prison in Iraq to sue private contractors accused of being involved in abuses."

Reality: Supreme Court repeatedly overturned Bush detainee policies, including on decision by Garland. The Supreme Court has repeatedly overturned Bush administration policies relating to "enemy combatants" and Guantanamo Bay, including in the 2004 cases of Hamdi v. Rumsfeld and Rasul v. Bush, the 2006 case of Hamdan v. Rumsfeld, and the 2008 case of Boumediene v. Bush. In each of these cases Stevens was in the majority, except for Hamdi, a case in which Stevens and Scalia argued that the Court had not gone far enough in striking down the government's policy. Furthermore, in Rasul, the Supreme Court actually overturned a decision by Garland in favor of the government and against the detainees.

Posted In
Government, Nominations & Appointments, The Judiciary
The New York Times
Ed Whelan
Merrick Garland, Elena Kagan, Diane Wood
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