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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  April 16, 2010
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Topic category:  Constitution/Constitutional Crises

SCOTUS Nomination War Report: Constitutionalist Ed Whelan Responds to "Centrist" Tom Goldstein's Attack

Goldstein's fundamental flaw is his premise that Whelan's opposition to General Kagan as a SCOTUS Justice is based on different personal political preferences instead of judicial philosophy differences. But Whelan's opposition to Kagan is based on his objection to judicial activism and that objection reflects constitutional fidelity, not conservatism or liberalism. The personal political views of justices should not influence their judicial actions, because they are obligated to follow the law, not to formulate it.

The impending nomination of Solicitor General Elena Kagan to succeed retiring United States Supreme Court Justice John Paul Stevens involves Tom Goldstein attacking Ed Whelan for describing General Kagan as a liberal judicial activist on his SCOTUS Blog and Whelan responding in a post at National Review Online's Bench Memos titled "Tom Goldstein, Objective Centrist Poseur."

When the Obama administration announced that it was considering a diverse group of candidates to succeed retiring Justice John Paul Stevens, Goldstein told the Wall Street Journal that the White House was sending a signal by not floating the names of any of the most liberal potential candidates because "[t]hey don't want to give red meat to the other side" (www.law.stanford.edu/news/details/3615/White%20House%20Floats%20Diverse%20List%20for%20Court%20/).

Goldstein received an AB from the University of North Carolina, Chapel Hill, in 1992 and a JD from American University, Washington College of Law in 1995 and clerked for Judge Patricia M. Wald (1995-96).

Whelan graduated with honors from Harvard University in 1981, earned a law degree magna cum laude from Harvard Law School in 1985 and served on the Board of Editors of the Harvard Law Review. He clerked for Judge J. Clifford Wallace (1985-86) and Justice Antonin Scalia (1986-87).

Wikipedia on Goldstein: "Thomas C. Goldstein (Tom Goldstein) is an American attorney famous as an advocate before and blogger about the Supreme Court of the United States. He was a founding partner of Goldstein and Howe, a Washington, D.C. firm specializing in Supreme Court litigation, and is presently a partner at Akin Gump where he is co-head of litigation and Supreme Court practice. In 2003, he co-founded SCOTUSblog, one of the most widely-read blogs covering the Supreme Court, and continues to be a contributing editor, providing analyses and summaries of Supreme Court decisions and cert petitions."

Wikipedia on Whelan: "Martin Edward Whelan III (born 1960), known professionally as M. Edward Whelan III but known in the blogosphere as Ed Whelan, is an American lawyer and a prominent conservative legal analyst. He currently serves as President of the Ethics and Public Policy Center, a conservative think tank and formerly was an official in the United States Department of Justice."

Goldstein followed up his depiction of President Obama's prospective nominees as mainstream with a SCOTUS Blog post titled "Internet Commentary and the Nominations Process Attacks on Elena Kagan from the right and left" (www.scotusblog.com/2010/04/internet-commentary-and-the-nominations-process/). In it, he tried to mainstream General Kagan by equating Whelan's criticism of her as a judicial activist with Glenn Greenwald's criticism of her as not "liberal" or "progressive" enough (www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan).

Goldstein:

"[General Kagan] is obviously not a hard-core conservative or liberal. She is equally obviously qualified to serve as a Justice."

"On the attack side, the person most caught in the cross-fire today is Solicitor General Elena Kagan. She’s taking both barrels from bloggers who are arch-conservative (Ed Whelan) and arch-liberal (Glenn Greenwald). And those extreme views are starting to leak into the media, reported as if they were objective commentary."

Juxtaposing Whelan and Greenwald is clever, but unjustifiable.

Goldstein:

"...Whelan is saying that Kagan will be like other Democratic nominees to the Supreme Court, whom he (as an exceptionally conservative author) finds objectionable....without the context of knowing that Ed Whelan is as committed a conservative author on these questions as there exists in America, the reader can get the misimpression that there is a reason to believe that Elena Kagan is the second coming of arch-liberalism in this country – the reincarnation of her former boss, Thurgood Marshall."

"Glenn Greenwald criticizes Elena Kagan’s nomination on the ground that she is too conservative. But he is writing from the progressive fringe; almost every potential nominee would be insufficiently left-leaning for his taste."

Goldstein's fundamental flaw is his premise that Whelan's opposition to General Kagan as a SCOTUS Justice is based on different personal political preferences instead of judicial philosophy differences. But Whelan's opposition to Kagan is based on his objection to judicial activism and that objection reflects constitutional fidelity, not conservatism or liberalism. The personal political views of justices should not influence their judicial actions, because they are obligated to follow the law, not to formulate it.

When it comes to judicial activism, Goldstein is in denial.

Goldstein: "Whelan writes that 'there is no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist.' There is no less substantive phrase in the law today than 'judicial activist'; it just means someone who reads the law differently than you. Conservatives think liberals are 'activists' for Roe v. Wade; liberals think conservatives are activists for Citizens United. And so on. 'Doctrinaire liberal' is the phrase that Whelan uses to refer to essentially the entire left of the Supreme Court – Stevens, Sotomayor (presumptively, though these are early days), Ginsburg, and Breyer."

The phrase fits perfectly (and Justice Sotomayor was appointed because a Latina "doctrinaire liberal" was thought to be good politics).

Team Obama needs criticism of General Kagan from the Far Left and Greenwald provided some.

Team Obama also needs to dismiss Whelan's substantive criticism of General Kagan as a judicial activist and Goldstein was Tommy-on-the-spot with assurance that General Kagan is liberal, not "arch-liberal," and SCOTUS will be a bit more conservative with her, but it's not her fault.

Goldstein:

"Because of my own curiosity, I’ve also tried reaching out to [Elena Kagan's] more liberal colleagues at Harvard. I was particularly struck by the impressions of Professor Carol Steiker, who has known Kagan the longest – since they served as law clerks together at both the court of appeals and the Supreme Court – and has had hundreds of conversations with her in the time since. While Professor Steiker doubts that Kagan would be an arch-liberal, she feels confident that Kagan would fit comfortably on the Court’s left and that Kagan’s capacity to bring together conflicting views would be an extraordinarily powerful force on the Court.

"In general, I think that Greenwald is right in his prediction that Elena Kagan would not be as liberal as he is, including on questions of executive power, but that is a very far cry from the suggestion that she would move the Court to the right. The reason the Supreme Court is about to become more conservative is that Justice Stevens is its most liberal member, its intellectual leader, and as the senior associate justice has a significant assignment power. It’s not because Elena Kagan is going to be appointed."

Whelan was displeased with being quoted out of context as well as juxtaposed with Greenwald.

Whelan:

"In a ridiculous post, Goldstein complains that my 'extreme views' on Elena Kagan 'are starting to leak into the media, reported as if they were objective commentary.' (He pairs me with Glenn Greenwald, whom I’ll leave to fend for himself.) What are my 'extreme views' on Kagan that Goldstein objects to? And where have they been reported as 'objective commentary' (whatever Goldstein imagines that phrase to mean)?

"Goldstein alleges that I’ve been going after Kagan with 'both barrels.' I think that I’ve done a grand total of four posts on Kagan since Justice Stevens announced his decision to retire. Goldstein doesn’t trouble himself to link to more than one of my new or archived posts on Kagan (some of which include favorable material), and the only passage of mine that he quotes (without noting my express exceptions for national-security and executive-power issues)—'there’s no reason to believe that Kagan would be anything other than a doctrinaire liberal judicial activist'—is from a post yesterday dedicated to highlighting the Left’s criticism of Kagan. Goldstein ends up saying that my assessment of Kagan in that passage is 'probably exactly right.' So what’s he complaining about?

"Goldstein contends that '[t]here is no less substantive phrase in the law today than "judicial activist"; it just means someone who reads the law differently than you.' As it happens, I debated Goldstein on this very topic at Stanford last fall, and I offered and defended my substantive understanding of the phrase. I certainly don’t recall Goldstein making headway in establishing the proposition that he so breezily asserts in his post."

Thus Goldstein's blog post is notable for what he didn't mention.

Whelan concluded: "Goldstein spends most of his post trying to discredit Greenwald’s critiques of Kagan from the Left, so perhaps he’s trying to build credit with the Left—and to seem evenhanded to centrists—by engaging in his empty attacks on me."

In order to appear centrist and to serve the interests of President Obama and General Kagan, Goldstein needed to attack a prominent conservative critic of General Kagan. It was Goldstein's mistake to pick Whelan.

Wikipedia states: "Notably, [Goldstein] served as second chair for Laurence Tribe and David Boies on behalf of Vice President Al Gore in Bush v. Gore. He also served as second chair for Laurence Tribe on New York Times Co. v. Tasini (decided in 2001)." (http://en.wikipedia.org/wiki/Thomas_Goldstein).

So much for Goldstein as centrist or objective.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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