Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Joan Larsen

by Ed Whelan

A second Trump Supreme Court candidate whom Andy Schlafly flatly declares to be “NOT pro-life” (his emphases) is Michigan supreme court justice Joan Larsen.

Schlafly charges that Larsen was

[1] a feminist law professor who declared recently that there is sexism in law; [2] she has repeatedly mentioned Roe v. Wade without criticizing it; she clerked for Justice Scalia but many of his clerks were not pro-life; she has no federal judgeship experience and [3] is similar to David Souter in her weakness in writing ability, which makes her susceptible to influence by the liberal media.

Let’s examine the charges I’ve numbered:

1. I’ll start with Schlafly’s reference to Larsen as a “feminist law professor who declared recently that there is sexism in law.” I’ve known Larsen for years—among other things, we were fellow deputies in DOJ’s Office of Legal Counsel in the George W. Bush administration—and I’m especially surprised to see her called a “feminist law professor.” At Michigan law school, she taught criminal procedure and legislation, not “Feminism and the Law.” And she’s written law-review articles and book reviews bearing such titles as “Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation” and “Constitutionalism Without Courts?” Her beautiful New York Times tribute to Justice Scalia sounds this very non-feminist note:

I am often asked what it was like to be a woman clerking for Justice Scalia. “Much like being a man clerking for him” is my easy answer. 

As Schlafly’s hyperlink reveals, here’s all that underlies his statement that Larsen “declared recently that there is sexism in law”: As an invited speaker at a Michigan Women’s Commission meeting, Larsen, when asked about dealing with sexism in her career, “acknowledged that sexism still exists in the career of law” and “commented that she had two choices—to get angry at a sexist comment or to laugh at it, and she chose to laugh.” She hardly sounds like the stereotypical feminist. Indeed, if you had given me that quote blind, I might have guessed that Phyllis Schlafly (Andy’s late mother) spoke it. Does Andy Schlafly really think that the belief that some “sexism still exists in the career of law” is controversial and that such a belief somehow counts as evidence that a person is “not really pro-life” or not anti-Roe?

2. I don’t know what Schlafly is referring to when he complains that Larsen “has repeatedly mentioned Roe v. Wade without criticizing it.” When and where has she “repeatedly mentioned Roe”? And if Schlafly is going to disqualify her for not having openly criticized Roe, shouldn’t there be a lot more names on his “unacceptable” list?

3. Schlafly’s charge that Larsen “is similar to David Souter in her weakness in writing ability, which makes her susceptible to influence by the liberal media” is badly confused (and poorly written). Having reviewed her work with care when we were colleagues in OLC, I can attest that she is a fine writer. Schlafly doesn’t even bother to try to provide any support for his contrary claim.

Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Steven Colloton

by Ed Whelan

Let’s jump into examining the caliber of Andy Schlafly’s attack on various of President-elect Trump’s Supreme Court candidates for supposedly not being “really pro-life” (a label that, as I discuss in my opening post, is rather confused). I’ll start with one of the three candidates Schlafly flatly declares to be “NOT pro-life” (his emphases), Eighth Circuit judge Steven Colloton.

Schlafly charges that Colloton “wrote or joined multiple pro-abortion opinions: one to eviscerate a pro-life South Dakota law, another to side with a fellow pro-abort judge against a pro-life Nebraska law, and a third to side with a pro-abort judge to come down hard on a pro-life internet activist.” For ease of presentation, I’ll address these three charges in reverse order:

1. By process of elimination, I gather that Schlafly’s charge that Colloton “side[d] with a pro-abort judge to come down hard on a pro-life internet activist” must refer to his opinion in United States v. Christenson. There are, however, a few teensy problems with Schlafly’s characterization:

(a) For starters, the defendant in the case, Chane Phillip Christenson, wasn’t “a pro-life internet activist.” Rather, he was someone who sent two horribly vile emails to the White House while (by his own account) under the influence of alcohol and marijuana. Here is the full text of his first email:

i guess obama was right “god damn the usa” i vote mass impeach every last mother fucking one of you for treason. i would kill obama if i could. i will go to jail before 1 dollar of mine goes for an abortion! illegal aliens shold be deported just like you obama you false birth record commie piece of shit. i hope some 1 kills you and stacks your head on a stick to warn any god damn commie that comes after. if you have more votes then voters someone LIED. impeach, deport or kill i do not care any more i hate my country i hate the un i hate acorn i hate mrs obama, i hate libs, i will not pay any more taxes nor will i call my self an american. if everyone can come in and no one can leave it’s a jail, berry sertero needs to have his head removed please kill him like you guys did JFK. hi hoe i hoe its off to jail i go for it the only way to stay alive in this fucked up country of mine. i used to praze the beauty of grey now it all KKK fuck you fuck you i want the with house to burn mass impeach you god damn treasonest mother fuckers. merry CHRIST mas you commie fucks! i would of died for my country now id sell it even fast then  you. i do not trust anyone that pays mils. to get a job that pays thou. please come and aresst me so i can go to court and say “i can say kill obama cuz that not even his real name’. forget the false birth record i want a blood teast and some dna. My country is evil just look at the hole “god damn” crew and now with YOUR healthcare abortion WE all must buy into. MASS IMPEACH on treason. I HATE MY COUNTRY I HATE YOU ALL you like you pay others to lie fuck you and your actors you god damn pieces of shit i want to see obama’s blood spilled all over the white house make it pink. GOD DAMN THE USA

And here is the text of his second email:

WHATS SO HARD ABOUT A BIRTH RECORD? ONLY NON AMERICAN S STILL TRUST YOU. YOU ARE A CROOK A FEAR MONGEL I HATE YOU AND I HOPE SOMEONE KILLS YOU AND YOUR FAMILY REAL SOON. TO WARN THE NEXT ILLEGAL ALIEN WHO TRIES TO TAKE YOUR PLACE. I WASNT RACISET UNTILL 2008 THANKS NIGGERS! WHITE PEOPLE CAN BE NIGGERS TOO! kill obama MRS OBAMA AND THE 2 LITTLE NIGGER BRAT KIDS!

(b) Colloton did not “come down hard” on Christenson. Christenson pled guilty to one count of threatening the life of the president (based on his second email), and the district judge sentenced him to a grand total of three years’ probation. The sole legal issue before the panel was whether there was a sufficient factual basis for the guilty plea, which Christenson was trying to walk away from. Although reasonable factfinders might differ on whether Christenson’s second email amounted to a genuine threat, the simple question before the panel was whether the email was “plainly and obviously” not a threat. Colloton and his colleagues soundly determined (as I would hope every judge in the country would) that they could not say that the email was plainly and obviously not a threat.

(c) When Schlafly contends that Colloton “side[d] with a pro-abort judge” in the case, he must be referring either to Eighth Circuit judge William Duane Benton or to Federal Circuit judge Raymond C. Clevenger, who was sitting on the panel by designation. Benton, I’ll note, was part of the majority that rejected Planned Parenthood’s challenge to an informed-consent provision of South Dakota’s abortion laws in Planned Parenthood v. Rounds (discussed more fully below). From a quick Lexis search, I gather that Clevenger has never ruled on an abortion issue. So Schlafly’s label of “pro-abort judge” appears baseless.

2. Now for Schlafly’s claim that Colloton “side[d] with a fellow pro-abort judge against a pro-life Nebraska law”:

Schlafly is evidently referring to the opinion Colloton joined in Planned Parenthood of the Heartland v. Heineman. But following the parties’ settlement in the district court, the constitutionality of the Nebraska law was not at issue on appeal. The only issue on appeal was whether a pro-life group’s motions to intervene in the case in the district court had been wrongly denied. The panel simply concluded that the district court did not abuse its discretion in denying the motions as untimely. Schlafly does not even attempt to offer a reason to dispute the panel’s conclusion.

One could have, I suppose, a legal regime in which pro-life groups benefit from a special set of procedural rules, but such a regime would not be consistent with the rule of law.

As for Schlafly’s claim that Colloton “side[d] with a fellow pro-abort judge”: One of his panel colleagues, Lavenski Smith, faced strong opposition to his nomination because of his pro-life record before taking the bench, and was also part of the majority in Planned Parenthood v. Rounds. So, consistent with his own rhetoric, Schlafly might as well say that Colloton “sided with a fellow pro-life judge.” Schlafly presumably intends his “pro-abort” epithet for Kermit Bye. But the fact that Colloton and Smith joined Bye’s opinion is entirely consistent with the fact that the legal issue had nothing to do with abortion.

3. Schlafly’s charge that Colloton “eviscerate[d] a pro-life South Dakota law” is equally baseless. In Planned Parenthood v. Rounds, Colloton, concurring in the judgment of the en banc majority, rejected Planned Parenthood’s challenge to a South Dakota provision that required doctors, in the course of obtaining informed consent to abortion, to inform the woman seeking abortion of any “[i]ncreased risk of suicide ideation and suicide” associated with abortion.

As part of its effort to invalidate the provision, Planned Parenthood argued that it must be construed to require doctors to inform women of an unproven “conclusive causal link between abortion and suicide,” a causal link that medical evidence rarely is able to establish in any context. When Schlafly contends that the majority “eviscerate[d]” the law, is he siding with Planned Parenthood on what the law supposedly means? And does he recognize that the law would likely have been struck down if it required doctors to say something that wasn’t true?

Judge Raymond Gruender, I’ll note, authored the majority opinion in this case. Gruender is also on Trump’s list of Supreme Court candidates. Why doesn’t Schlafly charge that Gruender “eviscerate[d]” the South Dakota law and isn’t “really pro-life”? To be clear, I’m of course not suggesting that such a charge would be sound; I’m just pointing out how slapdash Schlafly’s attacks are.

* * *

In sum, Schlafly’s charges against Colloton are laugh-out-loud ridiculous. I’d be tempted to rest my case against Schlafly’s email here, but I will proceed to show that his charges against the five other candidates he attacks are also baseless.

This Day in Liberal Judicial Activism—November 29

by Ed Whelan

2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

Misguided ‘Pro-Life’ Attacks on Trump Supreme Court Candidates

by Ed Whelan

It’s déjà vu all over again. Eleven years ago, in the immediate aftermath of the withdrawal of Harriet Miers’s Supreme Court nomination, I spent a very busy weekend behind the scenes beating back ill-informed attacks on Samuel Alito by some very powerful pro-life activists. Their attack was all the more exasperating because, had it succeeded, they had no good reason to think that President George W. Bush would pick a nominee who would win their approval.

Upon President Bush’s nomination of Alito, I posted my defense of Alito’s vote in a case involving Medicaid funding of abortion. I concluded with this observation:

It is tempting, of course, for those of us strongly opposed to abortion to want justices who will have pro-life values and will indulge those values in their decisionmaking. But that is not what proper judging is about, and seeking such justices would be a foolish strategy. The idea that justices may properly impose their own values and policy preferences is precisely what produced cases like Roe. Moreover, given the strong likelihood that the legal elites will always be to the left of the American people, any efforts to legitimate or excuse that illegitimate idea will help to produce similar usurpations in the future.

I have just received a copy of an email from attorney Andy Schlafly, with the subject line “veto these Sup. Ct. nominee candidates.” Schlafly (a son of the late Phyllis Schafly) signs the email in three capacities: as president of the New Jersey-based Legal Center for Defense of Life, as an attorney for the Eagle Forum Education & Legal Defense Fund, and as general counsel of the Association of American Physicians & Surgeons. 

Schlafly states that “Justice Scalia’s seat must be filled by someone who is publicly pro-life, as Scalia was.” But was Scalia himself “publicly pro-life, as Schlafly uses that phrase, at the time of his Supreme Court nomination? At his confirmation hearing, Scalia not only declined to answer whether he would vote to overturn Roe v. Wade. He also stated that he did “not recall passing moral judgment [in public] on the issue” of abortion. Scalia detested being labeled a “pro-life” justice, as that label made it seem that he opposed Roe because of his putative policy preferences on abortion rather than because it is a constitutional abomination.

Schlafly asserts that some of the individuals on President-elect Trump’s list of Supreme Court candidates “are not really pro-life” and “would not really vote to overturn Roe v. Wade.” He identifies three candidates who he flatly declares are “NOT pro-life” and three others who he says “Probably would NOT be pro-life.” (His emphases.) He provides brief statements, along with occasional hyperlinks, in support of his assertions.

I will address Schlafly’s claims about each of the six candidates in follow-on posts. 

Thank You, Donald Trump

by Carrie Severino

On Sunday my organization, the Judicial Crisis Network, launched a new ad campaign thanking President-elect Donald Trump for reaffirming his promise to nominate Supreme Court justices who will carry on the legacy of the late Justice Antonin Scalia. As readers of this blog know, Trump took the unprecedented step of issuing a list of judges from which he promised to choose his Supreme Court nominees. We look forward to working with him and his team to make the Supreme Court great again.

You can watch the ad below:

C-SPAN Discussion of the Senate’s Role in Judicial Nominations

by Ed Whelan

Texas law professor Steve Vladeck and I recently discussed the topic “Blocking Judicial Nominations: Constitutional Prerogative or Constitutional Crisis” at an event sponsored by the Constitution Project. Adam Liptak of the New York Times moderated the discussion. Here’s the C-SPAN’s video of the event.

Re: Geoffrey Stone’s Assault on the Integrity of the Supreme Court

by Ed Whelan

One additional point, as follow-up to this post:

At the end of his self-puffing opening, Geoffrey Stone declares that while he has of course disagreed with many Supreme Court decisions over the years, he had, until now, “always respected the essential legitimacy and integrity of the Supreme Court as an indispensable institution in our American democracy.”

Oh, really? I’m not going to undertake a comprehensive review of Stone’s work. But, to cite but one stark counterexample, isn’t this the same Geoffrey Stone who foolishly speculated that the Supreme Court majority in Gonzales v. Carhart ruled that the federal ban on partial-birth abortion was constitutionally permissible because “[a]ll five justices in the majority are Catholic” and they “failed to respect the fundamental difference between religious belief and morality”?  

The Electoral College’s Democratic Federalism

by Matthew J. Franck
What Lawrence Lessig Overlooks

A few days ago in the Washington Post, law professor (and briefly a candidate for the Democratic nomination for president) Lawrence Lessig made a case for the electoral college to choose Hillary Clinton over Donald Trump, because Clinton won the raw popular vote nationwide.  (President-elect Trump may profess to doubt she did, but she did.)  Orin Kerr, at the Volokh Conspiracy, has already replied to Lessig, pointing out how inconsistent Lessig’s case is, since he argues on the one hand that the framers created the electoral college as a body (actually, several bodies, one in each state) that could exercise independent judgment, and on the other hand that its members should sacrifice their judgment to a latter-day “one person, one vote” principle and follow the national popular vote tally. 

Lessig even goes so far as to say that except in the rarest cases when “the people go crazy,” the electors should not “veto the people’s choice.”  But what Lessig completely misses, and Kerr does not point out in his reply, is the federalism of the electoral college.  I can’t make the point better than Martin Diamond did, in his 1977 AEI pamphlet “The Electoral College and the American Idea of Democracy.”  With the “unit rule” or winner-take-all principle legislated in nearly every state, Diamond wrote:

In fact, presidential elections are already just about as democratic as they can be.  We already have one-man, one vote—but in the states.  Elections are as freely and democratically contested as elections can be—but in the states.  Victory always goes democratically to the winner of the raw popular vote—but in the states.  The label given to the [then-] proposed reform, “direct popular election,” is a misnomer; the elections have already become as directly popular as they can be—but in the states.  Despite all their democratic rhetoric, the reformers do not propose to make our presidential elections more directly democratic; they only propose to make them more directly national, by entirely removing the states from the electoral process.  Democracy thus is not the question regarding the Electoral College, federalism is: should our presidential elections remain in part federally democratic, or should we make them completely nationally democratic?

Whatever we decide, then, democracy itself is not at stake in our decision, only the prudential question of how to channel and organize the popular will. . . .

At Public Discourse, two essays have recently been published that rightly remind us of the constitutional independence of the electors.  On December 19, each can do as he pleases and take whatever consequences that come.  But the legislatures of 48 states, acting under their constitutional authority, have decided that slates of party-nominated electors will be chosen according to the results of statewide popular voting for presidential nominees, and the other two states have chosen a mix of statewide and House-district voting.  These choices create a legitimate presumption in favor of 306 electoral votes going to Donald Trump.  Hillary Clinton’s lead in the aggregated national popular vote (which Lessig says should not be “vetoed”) could be said to come entirely from the results in just one state, California.  If Lawrence Lessig would care to explain why the electors in all the states Donald Trump won should take their cue from the voters of California, I’m all eyes.