Ed Whelan

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  • How The National Review Pushed A Lie Into The Supreme Court Contraception Case

    ››› ››› SHARON KANN

    On March 23, the Supreme Court heard Zubik v. Burwell, a case brought by religious nonprofits challenging the process for opting out of the Affordable Care Act's (ACA) contraception mandate. Prior to oral arguments, the National Review falsely alleged that a leading expert on religious liberty law had "retracted" his support for the government's position. This falsehood was then apparently referred to during oral arguments to attack the ACA's accommodation for religiously affiliated organizations that seek an opt-out from required contraception coverage in their employer-sponsored health insurance.

  • Right-Wing Media Have Been Following Their Deceptive SCOTUS Nominee Playbook To A T

    Blog ››› ››› PAM VOGEL

    supreme-court

    On March 16, President Obama announced his nomination of Judge Merrick Garland to the Supreme Court. Before the nomination, Media Matters explained how right-wing media would respond: by following their deceptive conservative playbook against the nominee, regardless of who it was. And that's exactly what they did. Right-wing media resurrected the same tired tactics they've used before to oppose Obama's judicial nominees -- distorting the nominee's record to push alarmist rhetoric, purposefully taking past statements out of context, and lobbing attacks based on the nominee's race, gender, or religion. In the last week, we've already seen many of these plays put into action, with conservative media predictably propping up dishonest talking points and false claims dedicated to obstruction.

    Judicial Crisis Network Has Led The Pack In Pushing Debunked Misinformation On Garland's Record Into Media Coverage

    The discredited conservative group Judicial Crisis Network (JCN) -- known as the Judicial Confirmation Network during the Bush administration, but now committed to opposing Obama judicial nominations -- has led the way in fearmongering around "one more liberal justice," attempting to re-cast Garland's record as that of an anti-gun, job-killing judicial extremist.

    JCN began its misinformation campaign well before Garland's March 16 nomination, pushing myths about the records of several potential nominees at the National Review's Bench Memos legal blog, in press statements and attack ads, and in media appearances by JCN chief counsel Carrie Severino. On March 11, Severino authored a post on the Bench Memos blog attempting to smear Garland as "very liberal on gun rights" by grossly distorting actions he took on two cases pulled from his nearly two decades of judicial service, one of which did not even concern the Second Amendment. Severino cited Garland's 2007 vote to rehear a case on D.C.'s handgun ban and his 2000 ruling in a case related to the national background check system for gun purchases to draw this baseless conclusion. But she failed to note crucial context -- voting to rehear a case in what's called an en banc review does not indicate how a judge might theoretically rule, and in both cases, Garland either acted in agreement with colleagues or other courts across the ideological spectrum. Veteran Supreme Court reporters and numerous legal experts quickly and summarily debunked these misleading claims, but other right-wing outlets have further distorted them, and JCN has pushed the myths in subsequent attack ads and media appearances.

    Following Garland's formal nomination, JCN released a series of "topline points" outlining its opposition, further misrepresenting Garland's guns record to falsely suggest he had "voted to uphold" D.C.'s handgun ban and "demonstrated a remarkable level of hostility to the Second Amendment," as well as contending Garland was "the sole dissenter in a 2002 case striking down an illegal, job-killing EPA regulation." Like its earlier attacks on Garland's supposedly "very liberal" guns record, JCN's newer claims about Garland's ruling in the 2002 EPA case also grossly distorted the facts.

    Some mainstream outlets have uncritically echoed JCN's debunked "topline points" and attack ads on Garland's record, and these reports -- in The New York Times, The Washington Post, and The Wall Street Journal, and on National Public Radio -- lend an air of undeserved legitimacy to the group's misinformation campaign against Garland.

    National Review Has Served As The Right-Wing-Media Source For Misleading Talking Points

    National Review's Supreme Court coverage to date has continued its tradition of injecting context-free talking points into mainstream reporting on the nominee. Its legal blog, Bench Memos, has served as a testing ground for new smears against Garland, hosting several misinformation-filled posts from JCN's Severino that eventually made their way into mainstream reporting and broadcast coverage. In giving space for JCN and other right-wing legal pundits like contributor Ed Whelan to distort Garland's record, Bench Memos quickly made it clear that a lack of evidence is no reason to avoid making sweeping claims about the nominee.

    Before Garland was nominated, National Review featured posts from both Severino and Whelan that attempted to smear several potential nominees. On March 7, Whelan questioned the intelligence of Judge Ketanji Brown Jackson absent any evidence to suggest the accomplished federal judge was anything but qualified. That same day, Severino attempted to smear Judge Jane Kelly for fulfilling her constitutional duty of providing legal representation for an unsavory client while working as a public defender. In subsequent posts, Severino attacked Judges Sri Srinivasan and Paul Watford in a series aimed to undermine their reputations as "moderates" by misrepresenting a handful of their past decisions as "extremist."

    Attacks on Garland, too, began before the March 16 nomination announcement; Severino's March 11 post on Bench Memos first floated what have since become widespread and false conservative talking points on Garland's record on guns. In the post, Severino claimed that Garland's vote to rehear a 2007 case related to the D.C. handgun ban and his joining of a ruling in a 2000 case related to the FBI's National Instant Criminal Background Check System for gun purchases together indicated "a very liberal approach" to the Second Amendment and a desire to overturn the 2008 Heller Supreme Court decision on the Second Amendment. These attacks, which legal experts quickly and repeatedly debunked, continue to pervade media coverage of opposition to Garland's nomination.

    Fox Figures Have Parroted Debunked Claims, Reporting Misinformation As Fact To A Wider Audience

    Fox News figures have predictably latched onto conservative talking points to oppose Garland, broadcasting already debunked claims about Garland's record.

    On March 16, Bret Baier, host of Fox's Special Report With Bret Baier, claimed in an interview with White House Press Secretary Josh Earnest that Garland "opposed Justice Scalia's take on the Second Amendment in the Heller case," misrepresenting both Garland's 2007 vote to rehear the D.C. handgun case and the case's relationship to a Supreme Court decision issued the following year. On Fox's The O'Reilly Factor, host Bill O'Reilly further distorted JCN's talking point, incorrectly stating that Garland had "voted to keep the guns away" from private citizens in D.C., another claim about the Supreme Court nominee that PolitiFact labeled false.

    The NRA Has Launched An Opposition Campaign Based On These Recycled Talking Points

    As Media Matters warned, the National Rifle Association (NRA) quickly began pushing these right-wing media claims to justify its involvement in obstruction efforts and to fearmonger about Garland.

    Immediately following Garland's nomination on March 16, the NRA declared him "bad on guns." In a series of tweets reacting to the nomination, the NRA linked to the debunked March 11 Severino post on Bench Memos to claim that Garland would "vote to reverse" the Heller decision, and a Washington Times article pushing the same discredited claims with quotes from Severino, a spokesperson from the opposition research group America Rising Squared, and the extremist group Gun Owners of America.

    Later that day, the NRA formally announced its opposition to Garland's nomination. The move predictably mirrored the NRA's efforts to distort Sonia Sotomayor's record and to launch an unprecedented and largely ineffective ploy to threaten senators' records over their votes to confirm Sotomayor to the Supreme Court in 2009. Days later, the executive director of the NRA's Institute for Legislative Action explained the group's opposition in an op-ed in The Washington Post, regurgitating JCN's dishonest claims about Garland's 2007 en banc vote in the Parker case to fearmonger about the moderate judge.

    The NRA's opposition to Garland helped elevate JCN's long-debunked talking points on Garland all the way to Senate Republicans leading the obstruction efforts. In a March 20 appearance on Fox News Sunday, Senate Majority Leader Mitch McConnell (R-KY) explicitly cited the NRA's opposition to Garland as a sticking point for ongoing Senate obstruction, explaining that he "can't imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association."

  • Conservatives Have Been Praising Merrick Garland For Years

    ››› ››› PAM VOGEL

    On March 16, President Obama announced his nomination of Judge Merrick Garland to the United States Supreme Court. Garland has faced misleading and false attacks, as well as a concerted push for continued obstruction of any Supreme Court nominee chosen by Obama. However, some of the same conservative officials and pundits have previously lavished Garland with praise arguing that he would be a "consensus nominee" representing "the best scenario" for bipartisan support.

  • Here Are The Big Players In The Inevitable Smear Campaign Against Judge Merrick Garland

    ››› ››› PAM VOGEL

    As President Obama reportedly prepares to announce Judge Merrick Garland to fill the vacancy on the Supreme Court, media should be prepared to hear from several right-wing groups dedicated to opposing the nominee, no matter who it is. These advocacy groups and right-wing media outlets have a history of pushing misleading information and alarmist rhetoric to launch smear campaigns against Obama's highly qualified Supreme Court nominees, using tactics including, but not limited to, spreading offensive rumors about a nominee's personal life, deploying bogus legal arguments or conspiracy theories, and launching wild distortions of every aspect of a nominee's legal career.

  • Smears And Obstruction: How Right-Wing Media Are Teaming Up With GOP For A Supreme Court Blockade

    Blog ››› ››› ERIC BOEHLERT

    President Obama hasn't even named his nominee to fill the current Supreme Court vacancy, and already the toxic right-wing media attacks have begun on jurists thought to be under consideration for the highest court in the land.

    Sizing up federal district judge Ketanji Brown Jackson, an African-American woman who graduated magna cum laude from Harvard-Radcliffe College and cum laude from Harvard Law School, National Review's Ed Whelan this week suggested Jackson just isn't smart enough to sit on the Supreme Court in the seat once occupied by the late Justice Antonin Scalia.

    And last week, National Review smeared Eighth Circuit Court of Appeals Judge Jane Kelly, another judge reportedly under consideration to fill the vacancy. The attack centered around the fact that Kelly, who served as a federal public defender in Iowa for nearly 20 years, once arranged a plea deal for a client charged with receiving and possessing child pornography. National Review suggested that's disqualifying for Kelly.

    Note: Public defenders are paid to advocate for clients and sometimes those clients are guilty. (The whole point of the job is written into the Constitution.) Attacking a jurist for previously serving the state by providing accused criminals their constitutionally mandated right to legal representation is, of course, a duplicitous cheap shot.

    We've seen this guilt-by-association playbook used before when conservatives try to demean jurists promoted by Democrats. And according to Republicans, who have already vowed to block Obama's nomination and to not even hold hearings, the ugly attacks are only going to intensify when Obama's pick is announced. "I think they will bear some resemblance to a piñata," Sen. John Cornyn (R-TX) said of the soon-to-be nominee. (A day after Cornyn's "piñata" remark, video was unearthed of Cornyn saying in 2006, "The current regime treats Supreme Court nominees more like piñatas than human beings. And that's something none of us should be willing to tolerate.")

    Early indications are those piñata attacks will be specious, mean-spirited, and detached from reality. And yes, Republicans will surely be working behind the scenes with the conservative media in an attempt to degrade the next high court nominee. So while Republicans obstruct in the Senate, the Fox News-led noise machine will likely be blaring out attacks and misinformation.

    The third leg of the attack apparatus is made up of conservative groups like the Judicial Crisis Network and America Rising, which churn out hit pieces on Obama judicial picks that are repeated endlessly by the right-wing media. "Top Republican senators are also expected to meet with conservative groups involved in the strategy," Politico recently reported.

    True story: Under President George W. Bush, Judicial Crisis Network's name was Judicial Confirmation Network and its guiding principle was to "ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote."

    Today, not so much.

    It's clear that with the GOP's radical blockade surrounding this nomination, we've already entered uncharted political waters. With the Republicans' refusal to even meet with Obama's nominee, the GOP has opted to systematically shred more than 100 years of Washington, D.C. protocol for Supreme Court nominations. But that doesn't mean the press should allow the conservative media to also rewrite the norms of the nomination process. And that shouldn't give the far-right press the power to dictate the public debate that will soon unfold.

    Yet we're already seeing indication they are: "Obama's pick, in short, will get all the drawbacks of heightened scrutiny that comes with the nomination, but with little chance of actually getting the job," according to Politico, mirroring GOP talking points that any Obama nominee faces a lose-lose scenario. (Note that Obama's pick could certainly get the job if a Democrat wins the White House in November and then re-nominates the same judge.) 

    The right-wing media smears are designed to generate controversy and throw nominees off-message. But politically, the campaigns only work if the Beltway press embraces and legitimizes them.  Just look back at Obama's two previous Supreme Court nominations, we recall the 2009 nomination of Sonia Sotomayor, which was tarred by ugly smears launched by the far-right press and rather irresponsibly echoed in the Beltway media.

    That controversy revolved around a then-seven-year old comment Sotomayor made in a speech about how a "Latina woman" judge might reach a "better conclusion" on the bench than her white male counterparts. But context was key: She was referring only to discrimination cases and stressing how diversity expands perspective.

    Nonetheless, Rush Limbaugh immediately dubbed Sotomayor a "reverse racist" and the media adopted the storyline, but only by completely ignoring the "Latina woman" context.

    As Media Matters noted at the time, Politico failed to provide context for the quote here, here, here, here, here, here, here, and here. So did Time, The Economist, Congressional Quarterly, The Dallas Morning News, USA Today, The New York Times, The Boston Globe, and the San Francisco Chronicle, among others.

    On and one it went. The media pile-on got so bad that CBS's Bob Schieffer wondered if Sotomayor's quote would "keep her from being confirmed as a justice on the Supreme Court." (She won her confirmation by a wide margin.)

    But also recall the 2010 nomination of Elena Kagan, where underhanded conservative attacks were often ignored or dismissed by the D.C. press. The same GOP-driven attack machine tried to spin the tale that Kagan "banned" military recruiters from the Harvard Law School campus during her tenure as dean, which wasn't true. Rather than echoing the right-wing lie, the press provided important context that exposed conservatives' falsehoods about Kagan's record. 

    So yes, the good news was the Kagan smear campaign sputtered and wasn't echoed by the mainstream media. But in today's truly poisonous environment created by the GOP's Supreme Court blockade, who knows what claims and attacks will be unfurled in coming weeks.

    Let's hope the trend continues towards responsibility and away from treating smears as news. It would be media malpractice to allow the conservative press to dictate the contours of this Supreme Court debate.

  • Conservative Legal Pundit: Woman Of Color On Reported SCOTUS Shortlist Isn't Very Smart

    Blog ››› ››› MATT GERTZ

    Ketanji Brown JacksonFederal district Judge Ketanji Brown Jackson, a possible nominee for the Supreme Court, would represent only the second woman of color ever to serve on the high court. She graduated with honors from Harvard College and Harvard Law School before clerking for three judges (including a Supreme Court Justice). Yet, a leading right-wing pundit on judicial issues would like you to think that she isn't actually very smart, claiming that unnamed sources would say she is not regarded "among the leading lights of the federal district court in D.C."

    Jackson was named by The Washington Post as a candidate under consideration to fill the vacancy opened by Justice Antonin Scalia's death. Ed Whelan, the president of the Ethics and Public Policy Center, responded in a March 7 National Review post:

    It's very odd to see federal district judge Ketanji Brown Jackson on the White House's supposed short list for the Supreme Court vacancy. As any reporter would quickly discover, she is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C. And, no, that's not just because she hasn't been on that court for very long. 

    Here's how Jackson's "impeccable" credentials were described by Tom Goldstein, a lawyer who regularly argues before the Supreme Court and is the publisher of SCOTUSblog:

    Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice. She was confirmed to her current position in 2013 by unanimous consent -- that is, without any stated opposition. She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).

    She is a young -- but not too young (forty-five) -- black woman. Her credentials are impeccable. She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School. She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.

    Whelan's source-free critique echoes similar attacks based on gender and racial biases that were leveled at Justice Sonia Sotomayor when she was the first woman of color to be nominated for the Supreme Court. Based on reported anonymous criticism, Sotomayor was smeared as "a lightweight" who was "not that smart," and "not that intellectually bright." As noted racist Pat Buchanan put it, "That lady up there is a Scalia? Come on!"

  • NRO Accuses VA Attorney General Of Playing Politics For Refusing To Defend Same-Sex Marriage Ban

    ››› ››› MEAGAN HATCHER-MAYS

    National Review Online is pushing an accusation that Virginia attorney general Mark Herring is "politicizing" his office because he has refused to defend that state's same-sex marriage ban in court. In reality, Herring's decision is a common one -- state officials on both sides of the political aisle have frequently refused to defend laws they consider to be unconstitutional, and he is not alone in his legal analysis.

  • Right-Wing Media Mistakenly Declare Victory For Nuns' Challenge To Affordable Contraception

    Blog ››› ››› MEAGAN HATCHER-MAYS

    Right-wing media are misinforming about a recent Supreme Court injunction that allows the non-profit charity Little Sisters of the Poor to continue its objection to the Affordable Care Act's (ACA) contraception mandate, as they appeal a lower court opinion that rejected their legal challenge.

    In its January 24 order, the Court pointed out that the ruling "should not be construed as an expression of the Court's views on the merits." In other words, the nuns haven't won their lawsuit  -- the Court has not issued an opinion regarding whether or not their First Amendment rights have been violated. Interestingly, although the order stipulated that the nuns would no longer have "to use the [original] form prescribed by the Government," in order to register their objection, they still must "inform the Secretary of Health and Human Services in writing that they ... have religious objections to providing coverage for contraceptive services."

    But this preservation of the status quo hasn't stopped right-wing media from framing the case as a big win for Little Sisters. In a January 27 segment on Fox's Special Report, host Bret Baier "chalk[ed] one up for David against Goliath." National Review Online at least acknowledged the meaning of the Court's order, but still crowed about the nuns' "big procedural victory." In a recent editorial, The Wall Street Journal went further, not only calling the case a "victory" for Little Sisters, but also  a "rebuke to the Obama Administration's bullying conception of religious liberty":

    [T]he permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still -- and a rebuke to the Obama Administration's bullying conception of religious liberty.

    The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.

    The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.

  • NRO Warns That Filibuster Reform Will Bring About Right-Wing Jurists. Too Late.

    Blog ››› ››› MEAGAN HATCHER-MAYS

    National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.

    NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the "nuclear option," which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):

    I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.

    [...]

    It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.

    Whelan's NRO colleague, Carrie Severino, joined the "make my day" chorus in a similar post on Reid's decision to invoke the nuclear option, saying, "I hope he does conservatives the favor." Severino later reiterated that point on PBS Newshour with Gwen Ifill:

    I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.

    But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.

    It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the "nuclear option" just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.

  • NRO Frantically Spinning As Legal Rationale For Voter Suppression Disappears

    Blog ››› ››› SERGIO MUNOZ

    The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.

    In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.

    Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.

    Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged "solution" to the virtually non-existent "problem" of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had "been taken in" by the "Left's well-oiled propaganda machine." NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.

    Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.

    Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."

  • The Retrograde Right-Wing Media Campaign Against Judicial Nominee Cornelia Pillard

    Blog ››› ››› SERGIO MUNOZ

    Pillard, ObamaFresh off of unsuccessful scare-mongering about the dangers of marriage equality, right-wing media are turning the clock back even further and attacking a highly qualified judicial nominee to the important D.C. Circuit Court of Appeals because of her academic writings on established sex equality law.

    Started by Ed Whelan of the National Review Online and continued by anti-gay hate group leader Tony Perkins, a whisper campaign against veteran litigator and law professor Cornelia T.L. Pillard, President Obama's pick for the D.C. Circuit, has been spreading through right-wing media.

    Whereas Whelan at least attempted to engage the legal arguments of a 2007 law review article in which Pillard explored how decades-old sex equality law is relevant to reproductive rights, other right-wing media are making even wilder and more inaccurate claims to smear the nominee as extreme when she is in fact solidly in the mainstream.

    Perkins of the notorious Family Research Council, for example, made numerous errors in his attack on Pillard that, along with Whelan's rhetoric, is circulating on anti-choice websites and right-wing blogs.

    Falsely ascribing a quote of conservative former Chief Justice William Rehnquist to Pillard in which he wrote for the Supreme Court that family leave policies not equally provided to both sexes are a "self-fulfilling cycle of discrimination," Perkins inaccurately described it as Pillard's condemnation of "celebrating motherhood." Where Pillard has observed that the anti-choice personhood movement could be exposed as unconstitutional by increasing awareness of the equal protection ramifications for pregnant women, Perkins fabricated the charge that Pillard "criticizes" the ultrasound. Resorting to spreading the ridiculous myth that Pillard would "declare" abstinence-only education "unconstitutional," Perkins managed to debunk such a silly charge in his very next sentence by quoting her accurate observation that a sex education class that stereotypes and disadvantages women could theoretically be "vulnerable to an equal protection challenge" under established precedent.

    Finally, Perkins selectively quoted Pillard to characterize as "militant feminism" her argument that for women to have equal rights in the workplace, they need to be valued for more than their ability to bear children. From the actual full quote in Pillard's 2007 article:

    A society in which women lack control to plan when they have children is one in which women must remain second-class citizens. We already know, and the Court recognized in Hibbs, that many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered "ideal worker." If impaired access to contraceptives hinders women's ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.

  • NRO's Hypocritical, Sexist Attack On A Qualified Judicial Nominee

    Blog ››› ››› SERGIO MUNOZ

    Nina PillardThe National Review Online published a string of blog posts featuring sexist, hypocritical, and flawed attacks on Georgetown law professor and Supreme Court litigator Cornelia T.L. Pillard, President Obama's nominee to the critical U.S. Court of Appeals for the D.C. Circuit.

    Right-wing media have repeatedly attempted to rally GOP filibusters against the president's nominees to three vacancies on the D.C. Circuit, the appellate court considered the second-most important in the nation and currently skewed to the right. NRO recently joined the attack with the first personal smear, prefaced with the "damning assessment" that an unnamed source claims Pillard is "[liberal Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate."

    Obama has nominated three highly-qualified picks to fill these seats and offset the conservative imbalance of the D.C. Circuit's complement of active and senior judges. One of these choices is Pillard, graduate of Yale College and Harvard Law School, veteran of the Clinton administration, and former employee of both the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She also is an accomplished Supreme Court litigator in sex equality law (also referred to as gender equality law) and a contributor to the successful arguments in United States v. Virginia, which opened the doors of the Virginia Military Institute to women by firmly establishing the equal protection clause of the Fourteenth Amendment applies heightened scrutiny to sex discrimination.

    In short, a liberal president nominated an extremely accomplished liberal to the D.C. Circuit.

    NRO has responded with four posts that criticize a 2007 law review article Pillard wrote that argues reproductive rights, such as the constitutional right to an abortion, should be encompassed under equal protection grounds as well. Not only is this a decades-old concept at the root of sex equality doctrine, Justice Ruth Bader Ginsburg has made no secret of her support for this idea, even arguing for it in her successful 1993 Senate confirmation hearing.

    Notably, the author of the pieces, Ed Whelan, chose an opening for criticizing Pillard that appears to go against his previous defense of then-nominee Justice Samuel Alito. In 2005, Whelan argued that Alito's past anti-choice writings on reproductive rights should not be used as a barometer for how he would rule on abortion as a justice. From the NRO:

    [A Washington Post] article notes that one critic (a longtime abortion activist, as it happens) "said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion." Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito "applied his sentiments"? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.

    The Post's article is simply not responsible journalism, and it does not even make any serious effort to be.

    It should be noted that Alito's anti-choice writings that Whelan defended were legal memoranda penned as a Justice Department lawyer and judicial opinions. By contrast, when it comes to Pillard, Whelan is attacking her based on a law review article invoking the well-established constitutional doctrine of sex equality.