Ed Whelan

Conservative Groups Circle The Wagons On SCOTUS Obstruction

When the news broke of Justice Antonin Scalia’s death on Saturday, Republicans in the Senate almost immediately vowed to block the nomination of any person President Obama puts forward to fill the empty Supreme Court seat.

Conservative groups quickly followed suit, putting forward various rationales for keeping a Supreme Court seat open for more than a year in the hopes that a Republican is elected president in November.

Some of these activists made variations on the false claim that the Senate never confirms judicial nominees during election years. Others warned of dire consequences for America if the president is allowed a Supreme Court pick. One activist going so far as to claim that Scalia’s seat should be kept vacant in perpetuity until a Republican is elected president.

Conservative legal activist Ed Whelan said it would be “grossly irresponsible” to let Obama pick the next justice:

Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

Whelan also told “Breitbart News Daily” that “we are at risk of really losing the Supreme Court and losing the Constitution.”

The American Center for Law and Justice ’s Jay Sekulow said that President Obama was perfectly free to nominate a conservative to replace Scalia:

Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley are both committed to letting the American people decide at the ballot box this November, letting our 45th President appoint Justice Scalia’s replacement. While President Obama remains free to appoint a conservative committed to upholding the Constitution as his replacement, he has given us no reason to believe he would.

So the American people should get to decide.

This is a prime opportunity for all branches of government to show that we still have a “government of the people, by the people, for the people.”

Carrie Severino of the Judicial Crisis Network (formerly the Judicial Confirmation Network), said President Obama is the “last person” who should be nominating the next Supreme Court justice:

… This president, who has shown such contempt for the Constitution and the laws, is the last person who should be appointing his successor. The American people on both sides of the aisle are disgusted with the status quo in Washington and another nomination by this President would just bring about more of the same. The people’s voice should be heard in November to determine who will appoint the next Supreme Court Justice.”

Mat Staver, head of the conservative legal group Liberty Counsel (which represented Kentucky clerk Kim Davis and is now representing an anti-Planned Parenthood activist) declared that the “future of the Supreme Court and America” depends on the Senate blocking any Obama nominee:

“With the passing of Justice Scalia, the future of the High Court and the future of America is hanging in the balance. The Senate must not confirm any nominee to the Supreme Court from President Obama. The Senate must hold off any confirmation until the next President is seated. Unfortunately the presidential debates have been more theater and less substance about the real issues surrounding the Supreme Court. The election of the next President has now taken on even greater importance. The future of the Supreme Court and America now depends on the Senate blocking any nominee by President Obama and the people electing the right person to occupy the White House,” said Staver.

The Family Research Council’s Tony Perkins echoed the call to hold Scalia's seat open:

"The Supreme Court has now become the centerpiece in this presidential election. There has not been an election-year nomination in generations and the Senate must not break that trend now. With the election only 269 days away, the people should decide what president should fill this seat," concluded Perkins.

As did the American Family Association’s Buddy Smith:

We cannot allow President Obama to replace him with a judicial activist. Activist judges have mangled the Constitution almost beyond recognition, and we cannot allow Justice Scalia to be replaced by a justice who will continue to shred the Constitution rather than protect it and uphold it.

While the Constitution gives the president the right to nominate Supreme Court justices, it also gives the Senate the right to reject them. The Constitution does not even require an unacceptable nominee be given a vote on the floor.

Americans United for Life’s Charmaine Yoest said, “His loss is tragic, and we hope that when it comes time for the Senate to vote on his replacement, that a worthy successor who can pick up his banner can be found after the election.”

Alan Sears, head of Alliance Defending Freedom, hedged his bets, saying that “it is unlikely that a new justice will be installed prior to the election of our next president.

Janet Porter of Faith 2 Action declared, “The best way to honor Justice Scalia’s legacy is to make sure there is no Obama nominee confirmed by the U.S. Senate.”

Troy Newman, head of the anti-abortion group Operation Rescue and a member of Sen. Ted Cruz’s presidential campaign, warned that if Obama were to nominate the next justice, America would become a “totalitarian government”:

"With the passing of the esteemed Justice Scalia, America stands at a crossroads. Will she choose the path of fascism or freedom? We are just one Obama appointee away from a totalitarian government. Two years ago, the GOP promised the American people that, if elected, they would thwart Obama's radical leftist agenda. This is the GOP's moment. Will it shine as a light for liberty in this dark moment or will that light be extinguished by political appeasement?" asked Operation Rescue President Troy Newman.

John Zmirak, editor of James Robison’s website The Stream, went even further, saying that if the next president is a Democrat, a Republican Senate should still refuse to confirm any of their judicial nominees:

But they should go further. As long as Republicans control the Senate, there is no excuse for any pro-choice, anti-gun rights, anti-marriage justices to be confirmed to our highest court. If, God forbid, Bernie Sanders or Hillary Clinton is elected, they should face a Republican Senate — or even a GOP minority — that will obstruct their every judicial appointment, even if it means leaving key seats on national benches empty, for years at a time. As justices retire or die, the court will simply grow smaller. Big deal. America will muddle through. This is the kind of implacable determination that defeated the solidly conservative Justice Bork and got us the muddled Anthony Kennedy — and Casey v. Planned Parenthood and Obergefell. It is time for that worm to turn.

Conservatives must drop the facade of high-minded bipartisanship, which only ever cuts to the left. The courts have staggering power to change our lives, and damage our country. They can kill our nation’s unborn babies, seize our guns and punish our churches. If GOP senators aren’t willing to fight long, hard and relentlessly to stop that from happening, we should find other senators who can, back them in the next primary election, and cripple the re-election of squishy moderate turncoats. A presidential candidate who appreciates all this will get my vote. And I think he’ll earn yours.

Right Still Targeting Judicial Nominee Nina Pillard's Support For Women's Equality

Georgetown law professor Cornelia “Nina” Pillard, one of President Obama’s three nominees to fill vacancies on the influential D.C. Circuit Court of Appeals, is one of the country’s most renowned women’s rights attorneys. She crafted the argument that convinced a nearly unanimous Supreme Court to open the Virginia Military Institute to women. She worked alongside Bush administration attorneys to successfully defend the Family and Medical Leave Act in the courts. She has opposed government policies that treat men and women differently based on outmoded stereotypes that harm both sexes.

So, of course, conservative activists and their Republican allies in Congress are calling her a “radical feminist" and threatening to filibuster her nomination.

In an interview with the Family Research Council’s Tony Perkins Friday, National Review columnist Ed Whelan called Pillard a “radical feminist law professor” and insisted that she would be “the most left-wing judge in the history of the republic.”

Phyllis Schlafly – who, of course, also opposed the opening of VMI to women and the Family and Medical Leave Act  – calls Pillard a “scary feminist.”

The Family Research Council has also gone after Pillard, skewing the meaning of her words and even citing her use of a phrase that was actually written by the late Chief Justice William Rehnquist as evidence of her “militant feminism.”

And just this weekend, right-wing activist "Dr. Chaps" Gordon Klingenschmitt sent out an email to his backers attacking Pillard's support for women's rights, specifically charging that Pillard “attacked and questioned the Virginia Military Institute” when she argued that VMI should admit women. 

Senate Republicans have picked up this line of attack. In Pillard’s hearing before the Senate Judiciary Committee, the committee’s Republicans (all men) latched onto the nominee’s support of reproductive rights. When fellow nominee Robert Wilkins appeared before the committee last week, Sen. Chuck Grassley tried, unsuccessfully, to trick him into dissing Pillard’s writings.

So what exactly is it that makes Pillard such a “radical”/“militant”/“scary” feminist in the eyes of the Right?

In a series of columns last month, Whelan elaborated on what he meant. He takes particular issue with a 2007 law review article in which Pillard argues that many public school abstinence-only sex-ed curricula impose a double standard on girls – hardly a radical observation. She also specifically wrote that she took no position on the abstinence message itself. Nevertheless, Whelan and others have distorted this into the idea that she would strike down all abstinence programs as unconstitutional, which is not at all what she has said.  In Pillard’s own words,

[The article] brings into focus those curricula's  persistent, official promulgation of retrogressive, anti-egalitarian sexual  ideologies-of male pleasure and female shame, male recreation and female responsibility, male agency and female passivity, and male personhood and female parenthood. I argue for a counter-stereotyping sex education that  affirms women's and men's desire, sexual agency, and responsibility.

She explained her thoughts further in her hearing before the judiciary committee:

Let me say first, I'm a mother. I have two teenage children — one boy and one girl. If my children are being taught in sex education, I want both my children to be taught to say 'no,' not just my daughter. I want my son to be taught that, too. The article was very explicit in saying I don't see any constitutional objection … to abstinence-only education that does not rely upon and promulgate sex stereotypes.

This argument – that many government-funded sex-ed curricula promote harmful and regressive stereotypes that cheat girls – is what has made right-wing activists go ballistic.

Pillard has also made it exceedingly clear that she knows the difference between testing out legal theories in law review articles and applying them as a judge. As she said in her hearing, “Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit” – a sentiment that many Republican senators echoed when they were defending Bush nominees who had in the past expressed opinions not consistent with existing law.

To put it simply, what conservatives object to about Pillard is that she believes in women’s equality and that she’s really, really good at making the legal case for it. In 2013 in the Republican Party, that’s what it takes to qualify as a “scary,” “radical” and “militant” feminist.
 

Right Wing Follows Deceptive Script On Supreme Court

A day after news of Justice Souter's planned resignation broke in the news, "dozens" of right-wing leaders representing more than 60 groups got together for a strategy call organized in part by the Judicial Confirmation Network to get everyone fired up and on message. All you need to know about the credibility of this campaign's leaders, and the credibility of their evaluations of potential nominees, is contained in this one sentence from the Judicial Confirmation Network's Wendy Long: "The current Supreme Court is a liberal, judicial activist court."
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