The American Constitution Society has published an issue brief by law professors Michael Gerhardt and Richard Painter setting forth a "proposal for judicial nominations reform" that suggests limiting the power of a minority of senators to obstruct a judicial nominee from being confirmed. Predictably, National Review Online's Ed Whelan -- who professes to be an opponent of filibustering judicial nominees, but always seems to provide cover for Republican attempts to filibuster President Obama' nominees -- is on the warpath against the report.
People can legitimately disagree about when, if ever, filibusters of judicial nominees are legitimate. But Whelan's attack against Gerhardt and Painter is far from fair.
In their report, Gerhardt and Painter noted that in 2005, a "Gang of 14" senators agreed not to filibuster judicial nominees except in "extraordinary circumstances." Gerhardt and Painter then suggested that the agreement has broken down, in large part because all remaining Republican members of the Gang of 14 have voted to filibuster one or more of President Obama's judicial nominees:
On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was otherwise almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate's rules for making such a revision, the Gang of 14, as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were "extraordinary circumstances." For the remainder of George W. Bush's presidency, the agreement held, and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14.
Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found "extraordinary circumstances" justifying their support of some judicial filibusters.
Whelan responded by calling Gerhardt and Painter "hilariously confused" and stating: "One elementary flaw in Gerhardt's and Painter's account is that they fail to recognize that the Gang of 14 agreement, by its very terms, related only 'to pending and future judicial nominations in the 109th Congress' -- that is, for 2005 and 2006."
But while the agreement technically applied only in 2005 and 2006, Whelan is either confused himself, woefully uninformed about the judicial nominations process, or dissembling when he suggests that the Gang of 14 agreement is no longer applicable.
Indeed, in Senate floor speeches in 2011 alone, the following Republican senators have applied the "extraordinary circumstances" test: Sens. Jeff Sessions (AL), a former ranking member of the Senate Judiciary Committee; John McCain (AZ), a member of the Gang of 14; Jon Kyl (AZ), a member of the Senate Judiciary Committee; Charles Grassley (IA), the current ranking member of the Senate Judiciary Committee (on two occasions); and John Cornyn (TX), a member of the Senate Judiciary Committee.
If the Gang of 14 agreement is now meaningless, why do the senators continue to reference it when justifying filibusters of judicial nominees?
In a blog post yesterday, National Review Online's Ed Whelan reported that "President Obama is on the verge of nominating NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit," a court that is often called the second most important court in the land. Whelan then proceeded to suggest that Adegbile is unsuited to the job, based solely on Adegbile's having been a lawyer at a prominent New York law firm and then an attorney at the NAACP Legal Defense and Education Fund.
After noting that Adegbile had worked for seven years for the New York City law firm of Paul, Weiss, Rifkind, Wharton & Garrison and has since spent a decade working for the NAACP Legal Defense Fund, Whelan acknowledged that he had "never heard of Adegbile." He then pronounced it "odd" that Obama had nominated Adegbile and another person to the D.C. Circuit, both of whom he described as "New York lawyer[s] with no significant background in federal administrative law (and no judicial experience to offset that deficiency)."
Whelan concluded his short post by saying that "[t]his may well be a pick more designed to excite Obama's left-wing base than to produce a confirmation."
Why should someone with seventeen years of experience as a litigator, including a decade as a civil rights attorney, not be considered the right fit for the D.C. Circuit? After all, Adegbile is no stranger to federal court litigation. A Lexis search shows that he has worked on cases at all levels of the federal system throughout the country -- including in D.C. -- since at least 1996.
Can one really say Adegbile is less qualified than Judge David Sentelle, a D.C. Circuit judge nominated by President Ronald Reagan who, at the time of his nomination, had worked for roughly 10 years in private practice in North Carolina, four years as an assistant U.S. attorney in North Carolina, three years as a North Carolina state trial court judge, and a little more than a year as a federal judge in North Carolina?
What about Judge Janice Rogers Brown, a D.C. Circuit judge nominated by President George W. Bush whose experience consisted almost exclusively of work as a California state employee and California state court judge? Did that really prepare her for the D.C. Circuit?
Or is just that Adegbile's civil rights experience is particularly disfavored in Whelan's view?
If so, history is not on Whelan's side.
National Review Online blogger Ed Whelan attacked the Justice Department's Civil Rights Division for assigning two gay attorneys to the team of attorneys working on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case in which the Supreme Court will address the extent to which religious organizations can engage in discrimination without running afoul of sex discrimination law.
In a blog post, Whelan quoted discredited research from Pajamas Media to attack one of the attorneys, Aaron Schuham, for his previous position with Americans United for Separation of Church and State, an organization dedicated to preserving the Establishment Clause of the First Amendment.
But Whelan then went a step further, stating that Schuham has a "same-sex partner [who] is ... Chris Anders, federal policy director for the ACLU's LGBT Rights project." Whelan further reported that another Justice Department attorney working on the case, Sharon McGowan, "was also a staffer on the ACLU's LGBT Rights project" and that she is married to a woman who is "the Family Equality Council's 'federal lobbyist on gay, lesbian, bisexual and transgender family issues.' "
Whelan then used this information to spin a conspiracy theory about the Justice Department possibly using the discrimination case as a step in their agenda to "have gay causes trump religious liberty":
Thus, insofar as personnel is policy,* it may well be that the Obama DOJ's hostility to the ministerial exemption in the Hosanna-Tabor case is part and parcel of a broader ideological agenda that would have gay causes trump religious liberty.
So, in Whelan's opinion, should all gay lawyers have been barred from working on a case that deals with the application of anti-discrimination laws to religious freedom, or just the ones who were previously gay-rights activists or have same-sex partners who are gay-rights activists? Or is it OK to assign gay lawyers to the case, but only if the Justice Department takes a position more to Whelan's liking? Whatever Whelan meant, it's a ridiculous argument.
National Review Online blogger Ed Whelan is still arguing that the decision by Judge Vaughn Walker to strike down California's ban on same-sex marriage must be thrown out because Walker is a gay man in a long-term relationship.
Last week, I documented Whelan's incredible admission that, if his argument is correct, a gay judge assigned to hear a same-sex marriage case must either disclose "intimate details" about his or her personal life or "[ask] the court clerk to reassign the case" to another judge.
As detailed by the lawyers opposed to the California ban on same-sex marriage, if Whelan's theory were correct, a gay judge who did not silently reassign the case would have to answer questions about "how long term, or how serious" the relationship was and "the judge's interest in marriage." The person who is in a relationship with a judge might have to answer similar questions.
But even more astoundingly, the defenders of California's ban on same-sex marriage are making the same argument in their brief (which, according to Whelan, "systematically dismantles" the other side's argument). Here is the relevant excerpt from the brief:
Plaintiffs argue that the statutory disclosure duty "would require federal judges to publicly disclose intimate details of their private lives," Doc # 779 at 23, but of course any judge who does not wish to make "a full disclosure on the record," 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge.
As I've previously detailed, this argument is odious on its own, but it's not even correct on the law. As the opponents of the same-sex marriage ban say: "Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse." Thus, if Whelan and the defenders of the ban are correct, a gay judge assigned to hear a same-sex marriage case who does not believe he or she should be disqualified must preside over the case and must disclose the intimate details of his or her sexual orientation, relationship status, length of the relationship, seriousness of the relationship, and personal views on marriage.
Common sense suggests that this cannot be the law. And judicial ethics experts agree that this is not the law.
As Media Matters has previously reported, Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the ninth Circuit. Despite bipartisan support for Liu by prominent conservative politicians, the right-wing media have continuously attacked the nominee, and in some cases called for a filibuster of the nomination.
Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the Ninth Circuit, and the usual suspects in the right-wing media are rehashing their reasons for opposing Liu.
You wouldn't know it from the vitriol of the right-wing media, but Liu actually has a large number of conservative and Republican supporters.
Among those supporters are former independent counsel and federal appellate judge Kenneth Starr; former Bush Justice Department official John Yoo, who authored the infamous "torture memos"; former GOP Rep. Tom Campbell (CA); conservative legal activist Clint Bollick; former Secretary of Transportation William T. Coleman; and law professor Richard Painter, who served as the chief White House ethics lawyer during the Bush administration.
Kenneth Starr. A letter supporting Liu that Starr co-wrote with Yale Law Professor Akhil Amar stated: "What we wish to highlight, beyond his obvious intellect and legal talents, is his independence and openness to diverse viewpoints as well as his ability to follow the facts and the law to their logical conclusion, whatever its political valence may be."
John Yoo. According to The Los Angeles Times, Yoo said of Liu's nomination: "[H]e's not someone a Republican president would pick, but for a Democratic nominee, he's a very good choice."
Tom Campbell. Campbell -- former dean of the business school at the University of California-Berkeley and an unsuccessful candidate for the 2010 Republican nomination for U.S. Senate in California -- stated that Liu "is one of the most capable colleagues I've had in my three decades in academia. I hate the thought of Berkeley losing him, but it's a higher calling and the nation's gain. His ability to analyze, communicate, and inspire will make him a favorite among litigants and a leader among judges."
Clint Bollick. Bollick, director of the Goldwater Institute, wrote that he "strongly support[s]" Liu's nomination, adding that, "[h]aving reviewed several of his academic writings, I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."
William T. Coleman. Coleman, Secretary of Transportation during the Ford administration, stated: "I have known Goodwin Liu for many years as after he finished Yale Law School and then clerked for a Justice on the Supreme Court of the United States he worked at O'Melveny & Myers LLP in the Washington office for several years and did a tremendous job." Coleman later added, "I think he will make a tremendous Judge for the Ninth Circuit."
Richard Painter. Painter wrote: "Based on my own review of his record, I believe it's not a close question that Liu is an outstanding nominee whose views fall well within the legal mainstream. That conclusion is shared by leading conservatives who are familiar with Liu's record."
National Review Online's Ed Whelan certainly has issued his share of odd arguments about judicial nominees. But this might just take the cake. In a blog post yesterday, Whelan argued that filibustering judicial nominations is "a bad practice," but that this is precisely why Senate Republicans should filibuster the nomination of Goodwin Liu to be an appellate judge.
From Whelan's blog post:
I continue to hold the view that I've expressed since the outset of Bench Memos in 2004--that the filibuster of judicial nominees is constitutionally permissible but a bad practice. It's clear, however, that unilateral disarmament by Republicans would do nothing to deter Democrats from filibustering Republican nominees. As with the independent-counsel statute, the only sensible choice for Republican senators who want to get rid of the filibuster in the long run is to employ it against very bad judicial nominees by President Obama.
In sum, it's time for Republican senators to defeat cloture on the Liu nomination. [emphasis in the original]
By the way, Liu has been the subject of a concerted smear campaign by Whelan and others. And Senate Republicans are considering a filibuster of Liu even though many of the people leading the charge have argued -- unlike Whelan -- that filibusters are unconstitutional.
As we've documented, National Review Online blogger Ed Whelan and other supporters of California's ban on same-sex marriage seek to vacate Judge Vaughn Walker's ruling striking down that ban on the grounds that Walker is gay. At the same time, Whelan continues to pretend that Walker's sexual orientation is not the issue. The real problem, Whelan says, is that Walker is in a long-term same-sex relationship and therefore may want to marry his partner.
He makes this distinction because, as legal ethicists nearly universally agree, as numerous newspaper editorials and commentators have argued, and as Whelan himself acknowledges, it would be problematic to say a judge must be disqualified from the case simply because of his or her sexual orientation.
Now, in response to a brief filed by opponents of California's same-sex marriage ban, Whelan has sunk to a new low, defending his position by saying that a gay judge assigned to a case on same-sex marriage must either disclose "intimate details" about his or her personal life or silently reassign the case to another judge.
National Review Online blogger Ed Whelan is pretending that the move to vacate Judge Vaughn Walker's ruling striking down California's ban on same-sex marriage is not based on Walker's sexual orientation. Whelan's argument is not only illogical, it fails to account for the right-wing slogan "if the judge ain't straight, you must vacate," which was coined by the head of Liberty Counsel, a prominent same-sex marriage opponent.
Whelan repeatedly argues that, in the words of one of his posts, "Prop 8 proponents do not base their motion on the fact that Walker 'is gay,' but on the fact that he is in a long-term same-sex relationship." It is extremely important for Whelan to make this distinction because legal ethicists nearly universally agree that Walker's sexual orientation is not grounds for recusal as have numerous newspaper editorials and commentators. And Whelan himself has said that "a judge's personal characteristics don't generally provide a basis for recusal."
However, Whelan's argument that the issue isn't Walker's sexual orientation falls flat.
Whelan has acknowledged that "there is 'no evidence' of Walker's specific intentions" about whether to marry or not. His recusal argument is based solely on surmises based on the length of Walker's relationship. However, Whelan never explains how long a same-sex relationship must be before it requires that the judge step aside. Nor does he explain why--based on his logic--a gay judge who definitely wants to marry but who hasn't yet found the right person should not also be disqualified.
Indeed, the threshold question a judge must answer in Whelan's view is not whether a judge is in a long-term relationship but whether the judge is gay. Under Whelan's theory, a judge presiding over a same-sex marriage case would seemingly have to disclose his sexual orientation and then subject himself or herself to a series of probing questions about whether the judge is in a relationship, how long that relationship has been going on, and whether the judge is really the committing type.
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."
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.
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.
Continuing to demonstrate his extremism, National Review Online blogger Ed Whelan suggested today that the Supreme Court's landmark decision in Gideon v. Wainright establishing that states are constitutionally required to provide counsel for indigent defendants in all criminal trials is an example of "liberal judicial activism."
In today's edition of his near-daily series of blog posts titled, "This Day in Liberal Activism," Whelan quotes from a biography of former Supreme Court Justice William Brennan noting that on March 18, 1963, "the liberal bloc [of the Supreme Court] overturned four of the Court's long-standing precedents." Whelan -- a former clerk for Justice Antonin Scalia and a former high-ranking Justice Department official -- then goes on to describe the four cases, including Gideon:
In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a "square rejection of long-accepted principles governing the nature and scope of the Great Writ," the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.
But not every conservative thinks so poorly of Gideon. In fact, Chief Justice John Roberts said during his confirmation hearing: "I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage."
National Review Online blogger Ed Whelan has frequently misinformed in order to attack 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." So, when the Huffington Post published a piece highlighting that conservative Supreme Court Justice Samuel Alito appeared to rely at least in part on empathy in writing a lone dissent in Snyder v. Phelps -- a case dealing with the extent of Westboro Baptist Church's First Amendment right to protest near the funeral of a deceased Marine -- it didn't take long for Whelan to go on the attack.
In a piece claiming that the difference between the eight-justice majority opinion and Alito's dissent is "a legal one, not a difference between dispassion and empathy," Whelan -- a former Supreme Court clerk and high ranking Justice Department official -- points out that Alito cited the Supreme Court case of Chaplinsky v. New Hampshire to say that the First Amendment does not shield utterances that "form 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' "
Whelan adds that "as Alito saw it, an abusive attack on a private figure rather than speech on a matter of public concern -- 'the First Amendment should not interfere with recovery.' "
Therefore, Whelan suggests, empathy played no part in Alito's coming to a different conclusion than all the other justices. But that only makes sense if you ignore much of what Alito wrote as well as Alito's own statements about how he views his role as a judge.
Yesterday, we showed how the attempt by National Review Online blogger Ed Whelan to paint President Obama's judicial nominee Goodwin Liu as out-of-the-mainstream has actually demonstrated that Whelan is himself far outside the mainstream.
Today, Whelan lashed out at one of the conservative supporters of Liu's nomination, Richard Painter, the former White House ethics lawyer during President George W. Bush's administration. Whelan -- a former clerk for Justice Antonin Scalia, a former deputy assistant attorney general, and a former senior Capitol Hill staffer -- claimed that Painter has "evidently lost his marbles":
In addition to failing to confront my actual arguments, Painter relies heavily on the argument-by-authority fallacy. As he puts it:
Now, you can believe the top experts in the areas of Liu's scholarship and prominent conservatives such as Ken Starr and Clint Bolick -- or you can believe National Review Online's Ed Whelan. I know where I would put my marbles.
Set aside that Painter, having evidently lost his marbles, would have to find them first before he could put them anywhere. Painter leaves the false impression that folks like Starr and Bolick have actually responded to my critiques of Liu and of their misunderstandings of his record. So far as I'm aware, they haven't.
As a reminder, in addition to Painter, Liu has the support of Kenneth Starr, Clinton Bollick, John Yoo (who has reaffirmed his support for Liu while criticizing Painter's post), and other conservative scholars.