No Retraction or Apology to the National Review is in Order

The National Review has demanded that I retract or apologize for the following paragraph in my post on Huffington:

“Liu is not the first nominee to go through a barrage of unfair attacks. Louis Brandeis, the first Jewish American to join the Supreme Court, had a nasty Senate confirmation hearing in 1916. The Clarence Thomas confirmation hearing was another debacle; Senators caricatured and attacked the nominee instead of discussing his ideas about judging. President George W. Bush's nominee to the D.C. Circuit, Miguel Estrada, was attacked by critics who had preconceived notions about how a Hispanic jurist should think about the law. He eventually withdrew.”

For Liu, I simply say the attacks are unfair.  Liu also is Asian American.  I do not say the attacks on Liu that I critique are because Liu is Asian American.  Nowhere in this paragraph do I mention the attacks from Ed Whelan or anyone else at the National Review.  I am not accusing them of bias.

A lot of the attacks on Liu are about topics of race, but this is largely because Liu has written about race in addition to many other topics.  The false accusation that Liu endorses reparations for slavery has been given enormous play in the press, including the National Review.  I do question the rationale for this because (i) Liu never did endorse reparations and (ii) the reparations issue – if it is an issue anywhere except in the imagination – is very unlikely to come before the federal courts.  It is also an issue likely to inflame those segments of our population where bias still does exist. 

My point is that all nominees should be treated fairly.  I am concerned that too many minority nominees have a rough go of it in confirmation hearings, and particularly in the press.  During Republican administrations when we want our own nominees confirmed this phenomenon is something we complain about – including in the pages of the National Review.  When Democratic Administrations want their nominees confirmed, are we really supposed to say that this phenomenon does not exist and attack anybody who says it might?  History tells us otherwise.   

For Brandeis, there is abundant evidence that bias against Jews did play a part.  The National Review played no part in that and has no grounds to be offended.

As for Clarence Thomas, the person most likely to be offended by what I have said is the Vice President of the United States, who presided over these hearings as Chairman of the Senate Judiciary Committee.  I do not believe that he or any other member of the Committee was biased, but they did allow the hearings to take a turn that was hurtful for many African Americans.  One can debate whether that turn of events had to transpire anyway, but it was hurtful nonetheless.  We remember Judge Bork’s hearings for discussion of constitutional law; we remember Justice Thomas’s hearings for something else.  Justice Thomas himself found the entire episode hurtful, and if the National Review wants to tell him that his hearing was race neutral, they should tell him that.

The National Review itself discussed the role of ethnicity in the Estrada hearing:

“It is worth remembering how the Democrats treated Estrada, whom they not only filibustered, but treated demonstrably differently than other non-minority nominees, and whom they viciously attacked as being insufficiently Hispanic.  I wrote about the shameful treatment at the time here, explaining how the disparate treatment to which Democrats subjected Estrada compared to then-Judge Roberts would violate anti-discrimination law if Title VII applied to confirmations, and Byron York wrote about how congressional Democrats went so far as to say that he was not a “true” Hispanic.” 

Robert Alt, Hatch and Graham Remember Miguel Estrada, July 13, 2009

http://www.nationalreview.com/bench-memos/49766/hatch-and-graham-remember-miguel-estrada/robert-alt

The National Review thus accused Democratic Senators of bias that violates civil rights laws.  At the time, the National Review and many other conservative publications brought the bias issue up over and over again. 

My own view is more nuanced.  I did not say, and I do not believe, that Democratic Members of the Senate were themselves biased.  I do believe that some segments of our population and of the press were uncomfortable with a conservative – perhaps very conservative – nominee who happened to be Hispanic.  If the National Review wants everyone who brings up the possibility of bias in public debate on judicial nominations to retract and apologize, perhaps now is a good time to start.  And I would start with those who selectively overstate the case instead of raise it as a problem we should be aware of.

Comments

[Monroe Freedman]

Lest we forget, the Thomas hearings were most hurtful to Anita Hill, who is also a member of a minority group. I am one who believes that Thomas got what he deserved in that regard, and his claim of a legalized lynching was opportunistic and worse. I think it's called playing the race card.

What did not come up in the Thomas hearings was his seriously unethical conduct when he was in the D.C. Circuit, which I did raise with the Committee. That is the kind of issue that should be a principal factor in Senatorial confirmation hearings; it is the best and most practical way to deal with (that is, head off) unethical conduct on the part of Supreme Court justices.

[John]

By "National Review" do you mean a single blogger on a single blog at the National Review? http://www.nationalreview.com/bench-memos/261219/richard-painter-beyond-pale-matthew-j-franck

Aren't you a lawyer?

[Monroe Freedman]

The following is from a column that I wrote in the Legal Times when Thomas was nominated.

A serious ground for doubting Thomas' fitness to sit on the Supreme Court is that just last year he wrote an opinion for the U.S. Court of Appeals in violation of a federal statute that required him to disqualify himself on ethical grounds. The Federal Disqualification Statute, 28 USC 455, requires a federal judge to disqualify himself in any proceeding in which the judge's impartiality "might" reasonably be “questioned.”

In Liljeberg v. Health Services Acquisition Corp., the Supreme Court recognized that “people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." To discourage such suspicions and doubts, the Court held, "[t]he very purpose of sec. 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible."

The congressional mandate of sec. 455(a) that judges avoid "even the appearance of impropriety" was well established in 1990 when Circuit Judge Clarence Thomas sat in Alpo Pet Foods Inc. v. Ralston Purina Company, 913 F.2d 958. In the Ralston Purina case, the person who had a significant interest in the outcome was Senator John Danforth of Missouri. Judge Thomas' debt to Danforth is considerable, beginning with Thomas' first job after graduation from law school in 1974 and continuing to this day. Danforth, as Missouri's Attorney General, hired Thomas out of law school as assistant attorney general. When Danforth went to the U.S. Senate in 1979, he brought Thomas with him as a legislative assistant. Danforth was then instrumental in moving Thomas up the career ladder, helping to get him appointed to the Reagan transition team, to the U.S Department of Education, and to the top position at the U.S. Equal Employment Opportunity Commission.

At each stage, Danforth testified publicly and effusively in Thomas' favor and lobbied for him behind the scenes. This sponsorship included Thomas' appointment to the circuit judgeship, when Danforth described Thomas in testimony as his "personal friend." Also, it is no secret that Danforth's role was crucial in gaining Thomas' nomination to the Supreme Court.

Danforth's connection to Ralston Purina is also a significant one. The company is identified with the Danforth family name. It was founded by the Senator's grandfather, and the Danforth family remains the company's largest shareholders. The Senator himself owns more than $7.5 million of Ralston Purina stock. His brothers, William and Donald, are members of the company's board of directors and are also heavy holders of stock, and brother William is chancellor and a trustee of Washington University, which also has large holdings in Ralston Purina.

These facts regarding Thomas' relationship to Danforth and Danforth's relationship to Ralston Purina were set forth more than a month ago in a report by Supreme Court Watch based upon reporting in the Columbia (Mo.) Daily Tribune. They have not been challenged.

The Alpo v. Ralston Purina case involved cross-charges of false advertising. After a two-month bench trial, Judge Stanley Sporkin found both companies in the wrong, but found that Ralston Purina alone had acted wilfully. Indeed, he found that the Danforth family firm had "perpetrated a cruel hoax" on dog owners in its false claims that its dog food could cure a serious ailment. 720 F.Supp. at 213. He therefore assessed a penalty of $10.4 million against Ralston Purina. In addition, Judge Sporkin’s finding could be used as collateral estoppel in actions by consumers against Ralston Purina seeking substantial damages.

Only a few weeks after having been confirmed as circuit judge, Clarence Thomas heard Ralston Purina's appeal--a case in which his patron's family firm was challenging not only a severe penalty but also a finding of deliberate dishonesty in its advertising. Was there not a sufficient "appearance of impropriety" to require Thomas to recuse himself in order to avoid "suspicions and doubts"? Or, in the words of the statute, "might" a reasonable person “question” Thomas' impartiality in Ralston Purina, in which event he "shall" disqualify himself?

Note that the statutory phrasing is not whether a reasonable person "would" question Thomas' impartiality with regard to a case in which his chief sponsor had a significant stake. Rather, it is whether his impartiality "might" reasonably be questioned. Unless no reasonable person might raise a question, recusal is mandated.

Judge Thomas ignored the statutory command. Indeed, he wrote a lengthy opinion for the court overturning the $10.4 million penalty against Ralston Purina and specifically disapproving the trial court's finding that Ralston Purina had perpetrated a "cruel hoax" by running advertisements that it knew lacked support. Defending the honor of the Danforth family firm against Judge Sporkin's finding of bad faith toward its customers, Thomas wrote that Ralston Purina's protestations of innocence can reflect "an honest difference of scientific opinion, rather than a specific intent to mislead consumers."

In reaching this conclusion, Thomas acknowledged that it was necessary to hold that Judge Sporkin's finding of bad faith on the company's part was "clearly erroneous." Thomas further recognized that the Supreme Court has described the deference to trial judges under the "clearly erroneous" standard "in expansive terms," making such findings extremely rare, particularly in lengthy bench trials. Nevertheless, Ralston Purina won its reversal on issues of both money and honor. And within a week, Ralston Purina stock went up four points.

And that, of course, is irrelevant. Thomas would have been wrong in failing to recuse himself even if he had ultimately held against Ralston Purina. The statute looks to the outset of the proceeding, not to its result.

In the Ralston Purina case, Thomas showed no regard for his ethical obligations as a judge and no respect for the statutory mandate that he recuse himself. On both counts, Thomas is unfit to sit on the Supreme Court of the United States.

[Richard Painter]

Bench Memos is National Review Online's "Home for Judicial News and Analysis" The latest post is yet one more there with a lot of personal attack and no analysis. Also not much news. Ed Whelan, the author of the previous posts, is a constitutional law expert of high reputation. He is just plain wrong on this. I don't know anything about the latest blogger.

If National Review now wants to run away from these posts, so much the better. The National Review at least used to be a highly regarded publication, even among people who disagreed with it.

RWP

[Paul Zummo]

"The latest post is yet one more there with a lot of personal attack and no analysis."

This is just a bald-faced lie. Whelan provided many substantive rebuttals to each of your points, and you simply refuse to address them, waving them away with a simple declaration that they are nothing more than personal attacks. That you can't be bothered to address those responses shows that you're an intellectual coward.

"The National Review at least used to be a highly regarded publication"

It certainly doesn't hold a candle to that bastion of integrity known as the Huffington Post, or this blog - almost 400 visits per day. How . . . quaint.

[John Steele]

Paul,

It is a small blog, yet there are those who love it.

[Richard Painter]

The other blogger has also attacked President Bush's former Solicitor General Ted Olson in a Bench Memos post titled "The Gay Gettysburg Address"

http://www.nationalreview.com/bench-memos/49379/gay-gettysburg-address/matthew-j-franck

There is not much analysis here either. Ted Olson is a man who does what he believes is right for his Country. He deserves a lot better than cheap shots like this.