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Conservative attacks on potential Supreme Court nominees don’t hold water

Posted in Main Blog (All Posts) on April 18th, 2010 4:45 am by HL

Conservative attacks on potential Supreme Court nominees don’t hold water

Conservatives appear ready to attack anyone President Obama nominates to the Supreme Court as suggested by a New York Times article that quoted conservative activist Richard Viguerie signaling that he will affix the “radical” label to anyone Obama nominates. Furthermore, the specific attacks on potential nominees cited by the Times do not hold up to scrutiny.

Conservatives signal attack on anyone Obama nominates

Conservative activist Viguerie signals that conservatives will paint any nominee as “radical.” The New York Times reported in an April 16 held 2-1 in FAIR v. Rumsfeld that the Reagan appointee, joined the majority opinion in the case. Stapleton had previously been appointed to a federal district court judgeship by President Nixon. Kagan subsequently reinstated the ban against military recruitment through OCS for one semester in 2005 after the 3rd Circuit held that the law was unconstitutional. As Kagan explained in a September 2005 letter to her colleagues:

The Law School’s anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.

[…]

I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.

Reality: Dozens of other law professors, other law schools, and the Cato Institute argued against the government’s interpretation of the Solomon Amendment. As Media Matters for America has detailing their law schools’ attempts to restrict military recruiters’ access to career services offices. Following the 3rd Circuit’s decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters. In addition, at least one other school had a more restrictive policy than Harvard. According to the FAIR v. Rumsfeld complaint, from 1989-2002, at Whittier Law School, “[m]ilitary recruiters were not permitted to post recruiting information, speak at school-sponsored events, sit at tables, access student/alumni addresses, leave material visible in any library area, or interview on campus. If a student expressed interest in a military JAG [Judge Advocate General] career, the director of career services would refer the student to a recruiting office.”

Conservatives make ridiculous claim about Garland’s quote on Blackmun papers

Conservative claim: It’s “alarming” that Garland called the release of Blackmun’s papers a “great gift to the country.” The Times reported that “while [D.C. Circuit] Judge [Merrick] Garland has not often dealt with social issues, at a 2005 book event, he reportedly described the release of the papers of the late Justice Harry Blackmun — the author of the 1973 Roe v. Wade abortion rights decision — as a ‘great gift to the country.’ Phillip Jauregui, the president of the conservative Judicial Action Group, said that remark sent an alarming signal to social conservatives. ‘The fact that he would use those words to describe Harry Blackmun’s papers is cause for concern,’ he said.”

Reality: People from across the spectrum have used the “great gift” of justices’ papers in their research. The National Right to Life Committee has used reports on Blackmun’s papers to attack the Roe decision and the doctrine of a constitutional right to abortion. In addition, news outlets have used the Blackmun papers to shed light on the Roe decision and on the Supreme Court as a whole. Furthermore, abortion rights opponent and law professor Douglas Kmiec reported that he had researched some of former Justice Thurgood Marshall’s papers and used his research to attack Roe v. Wade.

Attack on Garland’s deference to federal regulations does not hold water

Conservative claim: Garland often votes to uphold the decisions of federal agencies. The Times reported: “Because the District of Columbia Circuit hears all challenges to federal agency regulations, Judge Garland also has a long record of voting to uphold such federal authorities – an issue that could resonate with the libertarian sentiment on display in the Tea Party movement.”

Reality: Based on a decision by Stevens, Supreme Court requires courts to give great deference to agency decisions. In the 1984 case of Chevron, USA, Inc. v. National Resources Defense Counsel, the Supreme Court held in a decision written by Justice Stevens that federal courts should give great deference to agency regulations. Stevens wrote in a 6-0 decision (with three justices recused):

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

Reality: Justice Scalia has argued for strong judicial deference to agency decisions. Scalia has been a staunch supporter of the doctrine that federal courts must give great deference to agency decisions. Indeed, in United States v. Mead, a case decided 8-1, Scalia was the lone dissenter from a decision finding that an agency decision was not entitled to “Chevron deference.” Scalia argued that the federal courts should enforce a “general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce.”

Garland, like the Supreme Court, has often ruled in favor of detainee rights

Conservative claim: It’s potentially problematic that Garland has “several times side with the rights of detainees.” Finally, the Times identified as a potential conservative line of attack against Garland the fact that he “has also several times sided with the rights of detainees. He voted to overturn the military’s determination that a Chinese Muslim detainee at Guantánamo Bay prison in Cuba was an ‘enemy combatant.’ He also voted to allow former detainees who had been held at the Abu Ghraib prison in Iraq to sue private contractors accused of being involved in abuses.”

Reality: Supreme Court repeatedly overturned Bush detainee policies, including on decision by Garland. The Supreme Court has repeatedly overturned Bush administration policies relating to “enemy combatants” and Guantanamo Bay, including in the 2004 cases of Hamdi v. Rumsfeld and Rasul v. Bush, the 2006 case of Hamdan v. Rumsfeld, and the 2008 case of Boumediene v. Bush. In each of these cases Stevens was in the majority, except for Hamdi, a case in which Stevens and Scalia argued that the Court had not gone far enough in striking down the government’s policy. Furthermore, in Rasul, the Supreme Court actually overturned a decision by Garland in favor of the government and against the detainees.

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