Posts on Ed Whelan

Ed Whelan takes to the pages of the National Review to discuss the importance of the Supreme Court as it relates to the election and warn that “the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president.”

Whelan helpfully explains that everything you think you know about what might happen to the Court under either an Obama or McCain administration is mistaken:

If you’ve been paying attention to the media’s scant coverage of the impact of the presidential election on the Supreme Court, you’ve been hearing that we currently have either a “conservative” Court or a Court delicately balanced between its “liberal” and “conservative” wings. Electing Obama as president is unlikely to change anything, you’re told, because he’d probably just be replacing liberal justices. The real threat, Obama himself tells us, is that John McCain would appoint justices who would vote to overturn Roe v. Wade and thereby (supposedly) make abortion illegal.

Wrong on all counts.

So McCain wouldn’t appoint justices who would overturn Roe v. Wade?  Well, that is a relief.  Oh, wait:

I hope very much that a President McCain appoints justices who will help to overturn Roe v. Wade, and although it won’t be easy to get good nominees confirmed by a heavily Democratic Senate, I think that it’s definitely possible. Overturning Roe, of course, wouldn’t make abortion illegal. Rather, it would restore to the citizens of each state the power to establish abortion policy through their elected representatives — and to revisit that policy over time. That’s the system our Constitution established, and it’s the system that all citizens faithful to our Constitution should welcome. The democratic processes may at times be messy and contentious, but they offer the only real hope of working out a consensus on abortion policy.

Roe v. Wade has corrupted and distorted American politics and Supreme Court decisionmaking for 35 years. All Americans, irrespective of their positions on abortion policy, should welcome its long-overdue demise.

I see.  McCain will appoint justices who will overturn Roe but that is okay because it is a bad decision that has “corrupted and distorted American politics” and “all Americans” will rejoice when Constitutional protections for reproductive choice get eliminated.

And Obama’s claim that McCain would appoint justices who would vote to overturn Roe v. Wade is wrong, how?

The Supreme Court’s past term made clear its lurch to the right following the appointment of John Roberts and Samuel Alito, as outlined in a recent People For the American Way Foundation report. Awareness of this fact has spread from legal analysts to the general public: A new Washington Post/ABC poll shows less than half of Americans think the Court is balanced, and 31 percent think it’s too conservative – up from 19 percent two years ago. This was the context for Sen. Chuck Schumer’s speech at the American Constitution Society last week. “There is no doubt we were hoodwinked,” he said of the confirmation hearings.

Nevertheless, right-wing activists maintain that, despite their victory in confirming Roberts and Alito and the obvious rightward tilt of the last term, the Supreme Court remains a “bastion” of liberalism. "After decades of liberal judicial activism on so many issues, the court's position remains decidedly on the left,” said Ed Whelan, president of the Ethics and Public Policy Center.

Ever since the election of President Bush, Republicans and their allies on the Right have frequently dealt with opposition to his controversial judicial nominations by ignoring the arguments raised by those with legitimate concerns about a nominee’s record in favor of knocking down strawmen of their own creation.  

For instance, when People For the American Way and others voiced opposition to the confirmation of Miguel Estrada, right-wing groups like The Committee for Justice responded by claiming that such opposition was rooted in the fact that Estrada was Latino and claiming that it was an affront to Hispanic-Americans, ignoring the fact that the opposition was actually due to Estrada’s own refusal to reveal anything about his own jurisprudential views and the administration’s refusal to make his full legal record available to the Senate to review.  

Then, when progressive groups opposed the nominations of Priscilla Owen and Janice Rogers Brown, the Right claimed that criticism of the nominees was both sexist and, in the case of Rogers Brown, racist – again, preferring to disregard the substantive concerns about their respective legal records.  

The Right did the exact same thing when it came to the nomination of William Pryor, ignoring serious concerns about his record that displayed a blatant hostility to reproductive choice [among other things, he called Roe vs. Wade the “worst abomination of constitutional law in our history”] and accusing those who opposed his nomination of being anti-Catholic – a tactic they trotted out again when John Roberts was nominated to the Supreme Court.   

In situations where the Right couldn’t accuse a nominee’s opponents of being specifically anti-Latino, anti-Catholic, anti-woman, or straight out racist, they attempted to conflate criticism of a nominee’s legal record with false accusations that the nominee was being accused of being racist – a tactic they deployed during the fight over the nomination of Charles Pickering.  As we explained [PDF] back in 2002:

Some Pickering supporters are arguing in effect that it is impossible to criticize Judge Pickering’s public record on the principles that govern civil rights law without accusing him of being a racist.

Thus, it should come as no surprise that with a battle brewing over the nomination of Leslie Southwick to a seat on the US Court of Appeals for the Fifth Circuit – not incidentally, the very same seat for which Charles Pickering and Michael Wallace were nominated, both of whom faced significant opposition due to their disturbing records on civil rights - the Right has reverted to form and begun using both of these tactics: claiming either that opponents of Southwick’s confirmation are racist or are accusing him of being a racist.   

Writing on the National Review’s “Bench Memos” blog, Ed Whelan of the Ethics and Public Policy Center set out to rebut various statements made by Senate Judiciary Chairman Patrick Leahy at a recent confirmation hearing.

Well, two can play that game.

Whelan’s first point:  

1. Leahy states that all five of the district-judge nominees at the hearing “were among those returned to the President without Senate action at the end of last Congress when Republican Senators objected to proceeding with certain of the President’s judicial nominees in September and December last year.”  This statement is clearly designed to give the trusting listener the impression that Republican senators were responsible for the fact that these nominees weren’t confirmed last year.  But no Republican senators objected to any of these nominees.  It was Democrats who decided to hold these nominees as hostages.

What Whelan doesn’t bother to mention is that the “Democrats who decided to hold these nominees as hostages” did so in retaliation for Sen. Sam Brownback’s petty hold on the nomination of Janet Neff solely because she attended a lesbian commitment ceremony back in 2002.  As the New York Times explained:

Judge Neff’s nomination was included in a package of more than a dozen nominees whose confirmation had been agreed upon by both Democrats and Republicans. Mr. Brownback’s objections held up the whole roster of nominees.

Which plays into Whelan’s second point:

2. Leahy states:  “With the five confirmations last week we have confirmed more of President Bush’s nominations in the 18 months I have served as Judiciary Committee Chairman than in the more than two years when Senator Hatch chaired the Committee with a Republican Senate majority or during the last Congress with a Republican Senate majority.”  This comparison obscures the critical fact that Democrats, including Leahy, resorted to unprecedented measures of obstruction against judicial nominations in the last two Congresses.  In other words, Leahy and his fellow Democrats, not the preceding Republican chairmen, are largely responsible for (and I’m sure claim credit with their supporters for) the low number of confirmations over the past four years.

In the 108th and 109th Congresses, the Republican-controlled Senate managed to confirm 104 and 52 of Bush’s nominees, respectively. In the 104th and 105th Congresses, when Republicans controlled the Senate under President Clinton, they managed to confirm 75 and 101 nominees, respectively.  

As noted above, Brownback’s hold on Neff ended up holding up “more than a dozen nominees whose confirmation had been agreed upon.”  The 156 nominees the Republicans confirmed during the 108th and 109th would have included more than a dozen more if Brownback hadn’t placed a hold on Neff, and that would have given President Bush approximately 170 confirmations during that time – pretty darn close to the 176 President Clinton got during the same time in his presidency.  

So Whelan shouldn’t be blaming Democrats about the “the low number of confirmations over the past four years” since it would have been nearly the same as it had been under Clinton had Brownback allowed the dozen-plus nominees to go forward as had been agreed. 

As for Whelan’s third point, it pretty much speaks for itself:  

3. Leahy complains that President Bush “has nominated only 18 African-American judges to the federal bench, compared to 53 African-American judges appointed by President Clinton in his first six years in office.”  From the numbers I have handy, it would appear that President Bush’s 18 black nominees account for slightly more than 5% of his total judicial nominees.  Blacks account for about 4% of lawyers.  Moreover, only about one in ten blacks voted for President Bush (and I’d be surprised if the figures were substantially higher among black lawyers).  So it’s reasonable to conclude that among those lawyers who share the Administration’s judicial philosophy, the percentage of blacks is much lower than 4%—perhaps around 1%.  In short, for those who focus on such measurements (I don’t), blacks are certainly not “underrepresented” among the President’s judicial nominees.

Further, the treatment that Democrats accorded conservative black nominees like Janice Rogers Brown and Jerome Holmes would be enough to deter other qualified blacks from even thinking about becoming judges. 

In other words, there are so few African American lawyers that share the president’s judicial philosophy that it is a miracle that he’s even been able to find any to nominate. And since a couple of those that he did nominate generated opposition, it is really all the Democrats’ fault anyway.  

Activist claims justice attended funeral against supposed church-state rulings.

“With regard to judges,” the Third Branch Conference activist says. Ed Whelan calls for last-minute lame-duck up-or-down votes on controversial nominees.