After Media Matters for America pointed out flaws in his argument, Ed Whelan has attempted to defend his claim that Ninth Circuit Judge Sidney Thomas' decision in Harper v. Poway Unified School District showed that Thomas was on "the far Left." Most laughably, Whelan complains that Media Matters "cites a quote from a Montana district judge that Thomas 'has never let his politics get in the way of sound judgment.' " Whelan asks: "What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas's record?" What evidence exists? Is Whelan serious?
The judge in question, Chief Judge for the U.S. District Court for the District of Montana Richard Cebull -- an appointee of George W. Bush -- has been a district judge in the Ninth Circuit for close to nine years. Before that, Cebull was a federal magistrate judge for more than two years. During that time as a magistrate and district judge, Cebull has published hundreds of decisions -- and likely presided over thousands of cases. Cebull has been applying binding precedents written by Thomas during all that time. During that time, Thomas has also presided over appeals of Cebull's cases. If Thomas was an ideologue, would it really have escaped Cebull's notice for all these years?
In addition, Media Matters showed that conservative appellate court Judge Richard Posner had ruled -- like Thomas did -- that schools have broad leeway to ban derogatory speech. Whelan's response is that unlike Posner, Thomas was "approving of viewpoint discrimination restrictions" because the school in Harper allowed -- in the words of the dissent -- "pro-gay speech" but was trying to "gag other viewpoints." Completely undermining Whelan's response, however, is the fact that Posner was also dealing with a school that had allowed "pro-gay speech" as Whelan and the Harper dissent defined it but was trying to ban statements that were derogatory about gays and lesbians.