Recently, Sean Hannity and The Washington Times editorial page have both claimed that the Senate should oppose judicial nominee Edward Chen based on reported comments he made in the past about America and 9-11. However, both Hannity and the Times editorial page previously claimed Senate Democrats were wrong for opposing judicial nominees based on their political views and personal opinions, claiming that, as Hannity put it, "nominees' personal opinions are irrelevant."
Hannity, Wash. Times call for opposition of Chen's nomination based on his political views
Wash. Times: "Judge Chen should not be confirmed." An October 25 Times editorial argued that Chen is "another Obama nominee who doesn't appear to love America," who "should not be confirmed." As evidence that Chen "doesn't appear to love America" the Times added:
Judge Chen's words speak for themselves. When the congregation sang "America the Beautiful" at a funeral, Judge Chen told the audience of his "feelings of ambivalence and cynicism when confronted with appeals to patriotism -- sometimes I cannot help but feel that there are too much [sic] injustice and too many inequalities that prevent far too many Americans from enjoying the beauty extolled in that anthem."
In a speech on Sept. 22, 2001, he said that among his first responses to the Sept. 11 terrorist attacks on America was a "sickening feeling in my stomach about what might happen to race relations and religious tolerance on our own soil. ... One has to wonder whether the seemingly irresistible forces of racism, nativism and scapegoating which has [sic] recurred so often in our history can be effectively restrained." [The Washington Times, 10/25/09]
After quoting Wash. Times, Hannity said "Judge Chen should not be confirmed by the U.S. Senate." On the October 27 edition of his Fox News show, Hannity stated:
HANNITY: And tonight in "Hannity's America," the revolving door of radicals coming into the Obama administration continues to spin. Now, the latest Obama nominee to draw fire is Judge Edward Chen, who has been nominated to serve as a U.S. district court judge in northern California.
His comments over the years have been so controversial that The Washington Times recently called him, quote, "another Obama nominee who doesn't appear to love America." For example, he's no fan of the song, "America the Beautiful" because he said, quote, "Sometimes I cannot help but feel that there's too much injustice and too many inequalities that prevent far too many Americans from enjoying the beauty extolled in that anthem."
And just a few days removed from 9-11, Chen said one of his first reactions to the 9-11 attacks was, quote, "a sickening feeling in my stomach about what might happen to race relations and religious tolerance on our own soil."
Well, that's funny. My first reaction was to think about the thousands of innocent civilians that were murdered on that day. Judge Chen should not be confirmed by the U.S. Senate.
Hannity, Wash. Times previously suggested political views are not an appropriate reason to oppose judicial nominees
Hannity: "[T]he nominees' personal opinions are irrelevant." On the June 28, 2001, edition of Fox News' Hannity & Colmes (accessed via Nexis), Hannity asserted: "But I -- but what bothers me about this -- the reason that the Senate has advice and consent and it doesn't include an ideological litmus test is because the nominees' personal opinions are irrelevant, as they're supposed to set those aside and rule as a matter of law. And it seems to me that they want to disqualify anybody because they have an opinion but which they're supposed to put aside."
Wash. Times criticized Schumer for "outrageous rationale for rejecting judicial nominees based on ideology." In a July 24, 2001, editorial, the Times wrote: "Mr. Schumer lay down what can only be described as an outrageous rationale for rejecting judicial nominees based on ideology; or, more specifically, for rejecting nominees for thinking beyond the 'mainstream' -- the Democratic 'mainstream,' that is, particularly on political flash points such as abortion and race." From the editorial (accessed via Nexis):
Today, Sen. Charles Schumer, New York Democrat, will convene a second Judiciary subcommittee session on how to delay or deny confirmation hearings to President Bush's nominees to the federal courts. Not, of course, that Mr. Schumer bills it that way. He favors loftier titles, such as last month's "Should Ideology Matter?: Judicial Nominations 2001," and today's "The Senate's Role in the Nomination and Confirmation Process: Whose Burden?" Whose burden, indeed. With several more of these seminar sessions in the works, Mr. Schumer and the Democrats are successfully turning the Judiciary Committee's summer session into one long, open-ended essay question, leaving Mr. Bush's 27 judicial nominees to hang on the answer.
In last month's opener, Mr. Schumer lay down what can only be described as an outrageous rationale for rejecting judicial nominees based on ideology; or, more specifically, for rejecting nominees for thinking beyond the "mainstream" - the Democratic "mainstream," that is, particularly on political flash points such as abortion and race. Supported by Harvard's Lawrence Tribe, University of Chicago's Cass Sunstein and the National Women's Law Center's Marcia Greenberger - the same three experts who, as National Review Online's Byron York noted, addressed a Democratic strategy session on the federal judiciary last spring - Mr. Schumer has called for an open examination of every nominees' ideological beliefs, as though being appointed to the federal bench were tantamount to running for political office.
Notable resistance to such litmus-testing -- call it "Schumerism" -- came from no less than Lloyd Cutler, former White House counsel to the last two Democratic presidents. Reading from a 1996 study he worked on, Mr. Cutler said, "To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."
At today's "Whose Burden?" hearing, Mr. Schumer is expected to make the case for shifting said "burden" of winning confirmation onto the nominee. Where senators traditionally have had to find good reason not to confirm a presidential pick, Schumerism would require that pick to offer senators good reason -- "good" ideology? -- to win their votes. This would seem to set adherence to ideology over fidelity to the law. The question is, why? Judges are not appointed to execute their political ideology; or, rather, they're not supposed to be. Indeed, the Constitution provides the mechanism by which legislators - Mr. Schumer, for instance - are duly elected for that task. Maybe a refresher course in civics would be just the thing for the subcommittee's next little get-together.
Wash. Times advanced conservative argument that opposing a nominee on basis of "political views" is "outside the mainstream of our entire constitutional tradition." In a June 5, 2001, editorial, the Times quoted Bush judicial nominee Christopher Cox's complaint to Sen. Barbara Boxer that she had "made it clear that you believe it is acceptable to oppose a prospective judicial nominee on the basis of his or her political views" but "this view is outside the mainstream of our entire constitutional tradition." The editorial went on to assert: "Once upon a time, this was the stuff of high school civics courses. Now, U.S. senators such as Mrs. Boxer and her ideological cohorts on the Judiciary Committee seem to be in dire need of remedial help." From the June 5, 2001, editorial:
The first casualty of the Jeffords defection came the day after the senator from Vermont left the Republican Party -- and left it a minority in the Senate -- when Rep. Christopher Cox, California Republican, asked President Bush to withdraw his name from consideration for a federal judgeship. However, Mr. Cox's decision shouldn't be relegated to a historical footnote without first being examined for what it reveals about the lamentable state of the Judiciary Committee as it comes under Democratic leadership.
Besides informing Mr. Bush of his decision, Mr. Cox wrote letters to California's two Democratic senators, Dianne Feinstein and Barbara Boxer. Both liberal lawmakers had threatened to block Mr. Cox's expected nomination to the Ninth Circuit Court of Appeals by exercising their "blue-slip" power, which, according to a new Democratic interpretation (adamantly contested by Republicans), amounts to a procedural kiss of death by which a home-state senator may pre-emptively veto, or "blue slip," any judicial nominee for any reason.
Given that Mrs. Feinstein ultimately reconsidered her position, informing the White House on May 24 (the same day Mr. Jeffords left the Republican Party) that she would not be using her "blue slip" to block a hearing on Mr. Cox's nomination, the congressman's letter to Mrs. Feinstein sounded a conciliatory tone as he explained his chief concern that the likely delay his nomination would now encounter could leave his 700,000 constituents without representation for as long as a year.
But there was more to be said -- which Mr. Cox saved for the blue-slip-happy Mrs. Boxer. "I will continue to oppose this anti-democratic abuse of the 'blue-slip' policy -- particularly as it applies to the Court of Appeals," Mr. Cox wrote. "A single senator, out of 18 who represent the Ninth Circuit, should not be able to deny the Senate the opportunity to conduct a hearing and a democratic vote on presidential nominees. At a minimum, the views of other liberal Democratic Senators representing the Ninth Circuit, such as Sen. Ron Wyden (who would be strongly supportive were I nominated), should be given equal weight in determining when a hearing and a vote can be scheduled."
The California conservative went on to make another crucial point. "You have also made it clear that you believe it is acceptable to oppose a prospective judicial nominee on the basis of his or her political views," he wrote. "But this view is outside the mainstream of our entire constitutional tradition, because it implies that judges' political views should be expected to play a role in the administration of justice. It is in fact the duty of every judge to set aside his or her personal and political views and impartially apply the laws of the United States. Hundreds of political conservatives and political liberals on the bench have succeeded admirably in keeping their own predilections from affecting a fair, reasonable, and accurate reading of our law. Federal judges Mikva, Buckley and Wiggins - former members of Congress each - are recent outstanding examples."
"Thus," he continued, "the fact that you disagree with my commitment to lower taxes, less spending, welfare reform, or a national missile defense should be irrelevant to a common understanding of the rule of law. It is your role, and mine, to debate and determine the law of the land through the democratic process. It is for judges impartially to apply that law to the facts of each case, and to do so with a high degree of predictability."
Once upon a time, this was the stuff of high school civics courses. Now, U.S. senators such as Mrs. Boxer and her ideological cohorts on the Judiciary Committee seem to be in dire need of remedial help. It is too awfully bad that Mr. Cox, as accomplished as he is, won't be able to offer it to them as an outstanding judicial nominee.
Chen's reported comments do not indicate that he is a "radical leftist" who doesn't "love America"
Chen's 2001 reported comments warning of possible "racism, nativism and scapegoating" following the September 11 attacks are supported by rise in anti-Muslim hate crimes. As Fox News' Alan Colmes stated in discussing Chen's comments on The O'Reilly Factor, "We have seen nativism; we have seen racism." A 2002 FBI hate crimes analysis reported that the distribution of hate crimes based on national origin changed in 2001, "presumably as a result of the heinous incidents that occurred on September 11." The FBI further noted, "Anti-Islamic religion incidents were previously the second least reported, but in 2001, they became the second highest reported among religious-bias incidents (anti-Jewish religion incidents were the highest), growing by more than 1,600 percent over the 2000 volume. In 2001, reported data showed there were 481 incidents made up of 546 offenses having 554 victims of crimes motivated by bias toward the Islamic religion." A November 26, 2002, San Francisco Chronicle article reported, "Hate crimes against Muslims soared after Sept. 11, according to an FBI report released Monday that also shows that most hate offenses in 2001 were committed against African Americans."
Justice Department Inspector General found numerous problems with DOJ's treatment of "aliens" after 9-11. Further supporting Chen's reported comments, in 2003, the Justice Department's Office of Inspector General released a report about the treatment of "aliens following the 9-11 attacks and the inspector general stated: "While our review recognized the enormous challenges and difficult circumstances confronting the Department in responding to the terrorist attacks, we found significant problems in the way the detainees were handled." The IG report found that "762 aliens were detained in connection with the FBI terrorism investigation," but that "The FBI in New York City made little attempt to distinguish between aliens who were subjects of the FBI terrorism investigation (called "PENTTBOM") and those encountered coincidentally to a PENTTBOM lead." Additionally, some detainees did not receive charging documents "for more than a month after being arrested. This delay affected the detainees' ability to understand why they were being held, obtain legal counsel, and request a bond hearing." The report also found problems with the conditions in which detainees were held.
Lawsuit alleges misuse of federal law to detain Muslims. Additionally, the 9th Circuit U.S. Court of Appeals has allowed a lawsuit to go forward by former detainee Abdullah Al-Kidd against then-Attorney General John Ashcroft and others alleging that Al-Kidd was unlawfully detained because he was the target of "surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men"
Chen's comments do not support charge that he is a "biased radical"
Chen explicitly advocated for judges to "administer the law equally." In the speech in which Chen said "a judge's life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide," Chen explicitly advocated for equal administration of the law. From a law review article reprinting Chen's speech: "The case for diversity is especially compelling for the judiciary. It is the business of the courts, after all, to dispense justice fairly and administer the laws equally. It is the branch of government ultimately charged with safeguarding constitutional rights, particularly protecting the rights of vulnerable and disadvantaged minorities against encroachment by the majority." ["The Judiciary, Diversity, and Justice for All, reprinted in the California Law Review, July 2003 (obtained via Nexis)]
American Bar Association gave Chen its highest rating
Conservative attacks on Chen follow race-baiting smears of Sotomayor
Conservatives compared Sotomayor to David Duke and labeled her an "affirmative action pick" and a "racist" who is "not that bright." Among the numerous outrageous smears of Sotomayor, Fox News' Glenn Beck referred to her as a "racist" who is "not that bright" and said that those who nominated her addressed her by saying, "Hey, Hispanic chick lady"; Rush Limbaugh compared her nomination to nominating David Duke and called her "a bigot" and "a racist"; and MSNBC's Pat Buchanan said she was an "affirmative action pick."