Ed Whelan

Ed Whalen is back with another nonsensical article, arguing in the National Review that since Judge Vaughn Walker, who was appointed by George H. W. Bush, is openly gay, his decision to overturn Proposition 8 should be vacated and he should have been disqualified from ruling on the case in the first place. Using Whalen’s logic, white judges should be barred from ruling on cases involving white people, female judges should not be allowed to rule on cases involving women, and Jewish judges should be prohibited from ruling on cases involving Jews or Judaism:

In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

…

Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit — or, if necessary, the Supreme Court — to vacate Walker’s judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp. (1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is “appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.” In that case, the losing party did not learn of the facts requiring disqualification until ten months after the court of appeals had affirmed the district court’s judgment, so the question was whether the judgment that had become final on appeal should nonetheless be set aside. The Court found the request for relief to be timely, as the delay was attributable to the judge’s failure to disclose the facts requiring disqualification. A request now by Prop 8 proponents to vacate Walker’s judgment would indisputably be timely (and would clearly not involve any unfairness to the Perry plaintiffs), as the appeal on the merits is still pending, and Walker has only now revealed the information requiring his disqualification.

When I saw that Ed Whelan of the Ethics and Public Policy Center and Carrie Severino of the Judicial Crisis Network had spent nearly an hour discussing Elena Kagan's nomination to the Supreme Court with Terry Jeffrey, editor in chief of CNSNews.com, I certainly wasn't expecting it to be exciting.

But I didn't expect it to be downright painful ... but that is exactly what it was, as Jeffrey tried to use the Citizen's United decision, which he held up as a fundamental victory for the First Amendment, to make the case that Kagan should have resigned her position as Solicitor General rather than try to strip Americans of their basic rights.

To their credit, both Whelan and Severino repeatedly shot down Jeffrey's claims ... but it didn't matter, as every explanation they offered just seemed to further convince Jeffrey that government lawyers and Supreme Court justices and basically all lawyers are morally unfit to hold public office on the grounds that they are willing to argue positions with which they might not agree.

All of this eventually leads Jeffrey to start asking random hypothetical questions about whether an anti-choice Solicitor General who worked for a pro-choice administration would be morally fit to hold the office ... as if that is relevant to anything at all. 

So if you want to see the single least informative discussion of Elena Kagan's Supreme Court nomination, jump ahead to the 5:00 mark of this video and watch as Whelan and Severino struggle to deal with Jeffrey's never-ending stream of nonsense:

Here's a quick collection of early right-wing reactions to the news that Justice David Souter will be retiring from the Supreme Court at the end of this term - it will continue to be updated as new statements are released:

Wendy Long (Judicial Confirmation Network):

1. The current Supreme Court is a liberal, judicial activist court. Obama could make it even more of a far-left judicial activist court, for a long time to come, if he appoints radicals like Diane Wood, Sonia Sotomayor, and Elena Kagan. A new Justice in this mold would just entrench a bad majority for a long time.

2. If Obama holds to his campaign promise to appoint a Justice who rules based on her own "deepest values" and what's in her own "heart" — instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.

3. The President and Senators need to be careful about, respectively, nominating and appointing a hard-left judicial activist. Americans who elected Obama may have done so out of fear for the economy or other reasons, but they did not elect him because they share his views on judges. By a margin of more and 3 to 1, Americans want Supreme Court Justices who will practice judicial restraint and follow the law, not jurists who will indulge their own personal views and experiences in deciding cases.

4. As Senate Republican Leader Mitch McConnell has pointed out, a judge who decides cases based on her personal and political views, instead of what the law says, will have a hard time fulfilling her oath to dispense justice impartially. Senators have a constitutional duty to rigorously scrutinize the nominee on this score, and vote "no" if the nominee cannot establish that she will follow the law, rather than her own values and beliefs, as the President has suggested.

Ed Whelan:

Souter has been a terrible justice, but you can expect Obama’s nominee to be even worse. The Left is clamoring for “liberal lions” who will redefine the Constitution as a left-wing goodies bag. Consider some of their leading contenders, like Harold Koh (champion of judicial transnationalism and transgenderism), Massaschusetts governor Deval Patrick (a racialist extremist and judicial supremacist), and Cass Sunstein (advocate of judicial invention of a “second Bill of Rights” on welfare, employment, and other Nanny State mandates). Or Second Circuit judge Sonia Sotomayor, whose shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling). Or Elena Kagan, who led the law schools’ opposition to military recruitment on their campuses, who used remarkably extreme rhetoric—“a profound wrong” and “a moral injustice of the first order”—to condemn the federal law on gays in the military that was approved in 1993 by a Democratic-controlled Congress and signed into law by President Clinton, and who received 31 votes against her confirmation as Solicitor General. Or Seventh Circuit judge Diane Wood, a fervent activist whose extreme opinions in an abortion case managed to elicit successive 8-1 and 9-0 slapdowns by the Supreme Court.

...

American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation. And President Obama, who often talks a moderate game, should be made to pay a high price for appointing a liberal judicial activist who will do his dirty work for him.

The American Center for Law and Justice:

“The reported retirement of Justice Souter marks the beginning of President Obama’s legal legacy – a legacy that will move this country dramatically to the left,” said Jay Sekulow, Chief Counsel of the ACLJ. “With reports that Justice Souter will step down at the end of the term, President Obama now has a green light to begin reshaping the federal judiciary. Based on the appointments at the Department of Justice, it’s clear that President Obama will name a Supreme Court nominee who will embrace an extremely liberal judicial philosophy. There’s no illusion here – President Obama is poised to reshape the nation’s highest court. Once a nominee is named and the confirmation process begins, it’s important that the nominee faces full and detailed hearings – with specific focus on the nominee’s judicial philosophy including how the nominee views the constitution and the rule of law. The American people deserve nothing less.”

Operation Rescue:

"Operation Rescue will actively oppose any nominee to the U.S. Supreme Court that will disregard the lives of the pre-born and uphold the wrongly-decided case of Roe v. Wade.

"Obama received greater than expected opposition to his nomination of extremist pro-abort Kathleen Sebelius to HHS. He can only expect that opposition will continue to grow if he has the poor sense to appoint a justice that will promote abortion from the bench.

Susan B. Anthony List:

"Elections have consequences, and the upcoming Supreme Court confirmation battle is likely to further entrench President Obama's dedication to the abortion agenda. The President has said he would like 'common ground' on abortion policy. This is an especially relevant objective when you consider yesterday's release of public opinion data by the Pew Research Center showing a sharp decline in support for legal abortion. Choosing a judicial nominee who wants to enshrine the right to an unrestricted abortion in the United States Constitution would certainly be a step in the wrong direction. Appointing an abortion extremist to replace Justice Souter on our nation's highest court will continue the trend of activist court decisions do little reduce abortion in our nation."

Americans United for Life:

Charmaine Yoest, the president of Americans United for Life, promised her group would help lead the charge against any pro-abortion activist Obama may name to the high court.

“We will work to oppose any nominee for the Supreme Court who will read the Freedom of Choice Act into the Constitution in order to elevate abortion to a fundamental right on the same plane as the freedom of speech," she told LifeNews.com.

Yoest said the jurist Obama names to the Supreme Court will tell the American public whether he is serious about reducing abortions or keeping it an unlimited "right" that has yielded over 50 million abortions since 1973.

“This nomination represents a test for a President who has expressed a public commitment to reducing abortions while pursuing an aggressive pro-abortion agenda," she said. "Appointing an abortion radical to the Court -- someone who believes social activism trumps the Constitution -- further undermines efforts to reduce abortion."

Priests for Life:

Upon hearing news reports of Justice David Souter's retirement from the US Supreme Court this June, Fr. Frank Pavone, National Director of Priests for Life, commented, "This will unleash a Supreme battle. Judicial activism in our nation has given us a policy of child slaughter by abortion throughout all nine months of pregnancy. Now the left will scream about 'no litmus tests' on abortion, but the fact is that all of us observe litmus tests at all times. If a racist or terrorist is unfit for the highest court in the land, why would a supporter of child-killing be any more fit? This is the question we will pose again and again during the process of replacing Justice Souter."

Richard Land:

Land told Baptist Press, "This retirement will, of course, not impact the court's balance. President Obama will undoubtedly nominate someone who is as liberal as, if not more liberal than, liberal David Souter, and thus you will just have an old liberal replaced by a young one. President Obama's ability to sell himself to the American people as a centrist will be hampered severely by his nomination of what will inevitably be a radically liberal justice."

Committee For Justice:

Given the economic crisis, your ambitious legislative agenda, and your promises to rise above partisanship, one would think you would eschew a bitter, distracting confirmation fight and a sparking of the culture wars by naming a consensus nominee that moderate Republicans and Democrats can embrace. While we remain open to evidence to the contrary, it is our belief that potential nominees such as Sonia Sotomayor, Kathleen Sullivan, Harold Koh, and Deval Patrick are so clearly committed to judicial activism that they make a bruising battle unavoidable.

We realize that, in the past, you have said that you want judges who rule with their hearts and you have even expressed regret that the Warren Court “didn’t break free” from legal constraints in order to bring about “redistribution of wealth.” But now would be a good time for you to clarify if you feel that you may have gone too far by endorsing judicial activism. For example, you could make it clear that you agree with Attorney General Eric Holder’s recent statement that “judges should make their decisions based only on the facts presented and the applicable law” (response to written question from Sen. Arlen Specter).

We also hope that you resist the pressure you will inevitably face from the various identity groups that dominate the Democratic base. It would be a shame if you chose a nominee based on their race, gender, or sexual identity, rather than focusing exclusively on qualifications and judicial philosophy.

We remind you of your opposition to gay marriage, your commitment to individual Second Amendment rights, your support of the death penalty, and the great value you place on the role of religion in society. We hope you will not contradict those positions by choosing a Supreme Court nominee who has questioned the constitutionality of the death penalty, expressed an extreme view of the separation of church and state, or wavered on the questions of whether there is a constitutional right to same-sex marriage and an individual right to own guns. Also, given your promise to move the nation “beyond race,” it would be hard for you to explain the
nomination of someone who has expressed support for racial preferences, which polls indicate are now even more unpopular as a result of your election.

While many Americans – including some conservatives – are willing to give your experiment in using honey to coax cooperation from other nations a chance, the public is also looking for reassurance that our nation’s interests and sovereignty will always come first. Thus, now would be an awful time to choose a Supreme Court nominee who believes that American courts should put greater reliance on foreign law.

Finally, we remind you that, in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Now would be the perfect time for you to match the previous President’s gesture by renominating three unconfirmed Bush appeals court nominees who have bipartisan support – Peter Keisler, Judge Glen Conrad, and Judge Paul Diamond. Such a gesture would engender good feelings among Senate Republicans and would set a positive tone heading into what might otherwise be a bitter confirmation fight.

Concerned Women for America:

"The anticipated retirement of David Souter from the U.S. Supreme Court launches a national debate over the proper role of judges," stated Wendy Wright, President of Concerned Women for America. "President Obama stated during the campaign that judges should rule according to 'empathy' for preferred classes of people, such as homosexuals and some ethnic groups, but not others. America, however, is a nation founded on the belief that we are all created equal and that the rule of law provides justice for all by following a written Constitution, not the whims and feelings of judges. Senators must live up to their constitutional duty to fully examine any nominee to determine if they respect the Constitution above their own opinions."

Mario Diaz, Esq., CWA's Policy Director for Legal Issues, said, "If President Obama's nominee is in the mold of his recent choices, Senators and citizens must be engaged now more than ever in the confirmation process. Several of President Obama's nominees put forth as 'moderates' by the White House have turned out to be outside the mainstream upon careful review. This is why Senators must be diligent and take the time to closely examine whether each candidate will abide by the Constitution or make the Court their personal fiefdom."

Family Research Council:

In the speech that catapulted Barack Obama to fame in 2004, the young Democrat said, "There is not a liberal America or a conservative America. There is a United States of America." Five years later, the same man will face his biggest test to prove it: the nomination of a U.S. Supreme Court Justice. Since the election, Washington has been prepared for a vacancy on the high court, most likely from the aging, Left-leaning justices. Yesterday, reports confirmed that Justice David Souter, 69, will be the first to exit, giving the new President his first crack at reshaping the Supreme Court. Will he plow ahead with a pro-abortion, anti-faith radical (as he did with 7th Circuit Court nominee David Hamilton) this early in his presidency--or will he bide his time on a full-blown congressional war and nominate a judge that both sides can agree on?

As a candidate, Barack Obama prided himself on his ability to work with conservatives. His first 100 days, however, have been a case study in unilateralism. When asked why he moved away from bipartisanship, the President dodged the question and said, "Whether we're Democrats or Republicans, surely there's got to be some capacity for us to work together, not agree on everything, but at least set aside small differences to get things done."

On Wednesday, President Obama decided his best way to "get things done" was to use congressional rules to block any meaningful participation by Republicans on controversial policies like health care reform and education. While those decisions can be overturned, lifetime appointments cannot. As both sides are painfully aware, nothing in this administration's legacy will withstand the test of time like President Obama's judicial nominees.

To that point, the White House would be wise to take into account the growing public consensus on the sanctity of human life. While some people are pointing at social conservatives as the cause of the Republicans' woes, a new poll suggests that the GOP's platform on life may be its biggest appeal. According to the most recent Pew Research Center poll, American support for abortion is experiencing its steepest decline in at least a decade. Since last August, the proportion of people who believe that abortion should be legal in most or all cases has dropped from a small majority--54%--to 46%. The drop is particularly noticeable in the youngest generation (18-29) whose support for abortion dropped by five points (from 52% to 47%) in just nine months. The conservative trend is even affecting women. Fifty-four percent said abortion should be legal in most or all cases last summer, while less than half (49%) feel that way today.

 Traditional Values Coalition:

The U.S. Supreme Court is on the verge of taking a huge lurch to the far left with the exit of Justice Souter from the Court. Souter is certainly no loss for Constitutionalists, but he will most likely be replaced with someone far worse. During the election, President Obama stated that he wanted to appoint judges who had “empathy” and who understood what it was to be poor, black or gay. He clearly stated that he wanted judges who would not confine themselves to the Constitution or to the original intent of the Founding Fathers.

From Obama’s public statements, it is clear that he will appoint a Justice who views the U.S. Constitution like a Wikipedia entry that can be edited, revised and distorted for the political agenda of the Justice. Obama wants a Supreme Court nominee who will ignore the Constitution; use his “feelings” to determine legal decisions; use foreign law to impose a liberal political agenda; and use the power of the Court to redistribute the wealth. The President has stated that he believes the Courts should be used to promote “economic justice,” – code for judge-ordered income distribution.

President Obama once mentioned former Chief Justice Earl Warren as the ideal person to serve on his Supreme Court. Warren was one of the most notorious left-wing judicial activists in our nation’s history. The President is likely to appoint a Justice who believes in the use of foreign law in interpreting cases that come before the Court. The use of foreign law in issuing rulings in American court cases will undermine self-government and destroy our Constitutional government. Republicans and Democrats on the Senate Judiciary Committee have an important role in advising and consenting to such nominations. They must seriously challenge the political views of anyone chosen by Obama for this lifetime appointment to the Supreme Court. No nominee who believes in using foreign law in making court decisions has any place on the Court. Our self-government depends upon it.

World Magazine has a good article on President Obama and the issue of judicial nominations ... and by "good" I mean an exhaustive listing of all of the complaints and concerns Republicans and right-wing judicial activists have about the process and the future of the judiciary:

Conservatives say Obama missed an opportunity to usher in a more conciliatory start to the often contentious judicial nominating process by naming [David] Hamilton ... In nominating Hamilton, Obama ignored a letter from all 42 Republican senators, asking the president to get the process off to a bipartisan start by renominating several of President George W. Bush's blocked nominees. Bush renominated two of President Bill Clinton's stalled choices soon after taking office ... GOP senators had also hoped to use the "blue slip" tradition, which holds that no judicial nominee can come before the Senate without agreement (in the form of a blue slip) from both senators representing that nominee's state. Republicans have at least one senator in 27 states. But the two GOP senators from Texas are already losing a battle to hold onto this privilege as the White House recently signaled its intention to include that state's 12 House Democrats in the screening process.

So it was Obama who missed the opportunity to be conciliatory by not nominating rather than, say, all the Republicans in the Senate who had pre-emptively threatened to filibuster all of Obama's judicial nominees? Nice try.

Furthermore, Obama did not "ignore" their letter - in fact, he obviously took into consideration their demand that the White House "consult with us as it considers possible nominations to the federal courts from our states" because he obviously did so with Republican Senator Richard Lugar, who immediately praised the nomination:

"I enthusiastically support the Senate confirmation of David Hamilton for U.S. 7th Circuit Court of Appeals. Judge Hamilton has served the Southern District of Indiana with distinction as U.S. District Court Judge," U.S. Sen. Dick Lugar said.

Thirdly, how exactly are the Republican Senators from Texas "losing the battle" to use the "blue slip"?  As we pointed out before, in situations where the President is of one party and both of a state's Senators are from the other, tradition has generally dictated that opposing party Senators play a secondary role in the judicial nomination selection process - and that is what is happening in Texas. If they don't like Obama's nominees, they are still free to refuse to return their blue slips, so in no way can it be said that they at risk of losing this privilege.

In essence, as the article explains, all of these sorts of gripes are aimed primarily at ginning up opposition to Obama's judicial nominees in order to set the stage for a Supreme Court battle and rally Republican forces leading into the mid-term elections:

The ultimate hope among conservative lawmakers is that if Obama overreaches in his judicial picks, then Democrats may face a backlash in the polls during the 2010 Senate races. Such political costs could force Obama to make marginally more moderate picks in future openings, says Ed Whelan, president of the Ethics and Public Policy Center.

The article features quotes from a variety of right-wing groups that work on the issue, including Whelan, as well as representatives of the Alliance Defense Fund, Judicial Watch, the Committee for Justice, and the Heritage Foundation ... so if you are looking for a good run-down of just about every right-wing talking point on the judiciary and judicial nominees, this article offers one-stop shopping.