Ed Whelan
Edward Whelan is the President of the Ethics and Public Policy Center. He directs EPPC’s program on The Constitution, the Courts, and the Culture. His areas of expertise include constitutional law and the judicial confirmation process. As a contributor to National Review Online’s Bench Memos blog, he has been a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law. He has written essays and op-eds for leading newspapers (including the Wall Street Journal, the New York Times, and the Washington Post), opinion journals, and academic symposia and law reviews.
In 2011, the National Law Journal named Mr. Whelan among its “Champions and Visionaries” in the practice of law in D.C. The National Law Journal praised Mr. Whelan for “pioneer[ing] the field of legal blogging” and for offering “commentary [that] infuses national debates over judicial nominees, Supreme Court ethics and appellate court decisions—so much so that, when a Senate Republican cites outside research into the record of an Obama nominee, it’s more likely than not that the handiwork is Whelan’s.”
Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia, has served in positions of responsibility in all three branches of the federal government. From just before the terrorist attacks of September 11, 2001, until joining EPPC in 2004, Mr. Whelan was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel’s Office, the Attorney General and other senior DOJ officials, and Departments and agencies throughout the executive branch on difficult and sensitive legal questions. Mr. Whelan previously served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. In addition to clerking for Justice Scalia, he was a law clerk to Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit.
In 1981 Mr. Whelan graduated with honors from Harvard College and was inducted into Phi Beta Kappa. He received his J.D. magna cum laude in 1985 from Harvard Law School, where he was a member of the Board of Editors of the Harvard Law Review.
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In a cogent ruling filed yesterday (in Monaghan v. Sebelius), federal district judge Lawrence P. Zatkoff of the Eastern District of Michigan granted Thomas Monaghan and his for-profit property management company a temporary restraining order against the HHS ... -
This Day in Liberal Judicial Activism—December 30
2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead ... -
Seventh Circuit Enjoins HHS Mandate
In an order yesterday overturning the district-court ruling that I criticized a week ago, a divided panel of the Seventh Circuit granted the owners of a for-profit corporation an injunction pending appeal against the HHS mandate. The panel majority succinctly ... -
Re: Hobby Lobby's Emergency Application to Supreme Court
Away on vacation, I’m sorry to see that Justice Sotomayor, in her capacity as Circuit Justice, for the Tenth Circuit, yesterday denied the emergency application by which the members of the Green family sought an injunction, pending appellate review, ... -
This Day in Liberal Judicial Activism—December 25
1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the ... -
Incoherent Ruling in Favor of HHS Mandate in Illinois
In five of seven cases, the owners of for-profit businesses have obtained injunctive relief against the HHS mandate. Of the two cases that have gone wrong, I’ve already discussed the Tenth Circuit’s mess-up yesterday in the Hobby Lobby ... -
Tenth Circuit Wrongly Denies Injunction Against HHS Mandate
A two-judge motions panel in the Tenth Circuit today issued an atrocious order denying Hobby Lobby’s motion for an injunction against the HHS mandate pending appeal. The order conflicts with a recent Eighth Circuit order and with Supreme Court ... -
This Day in Liberal Judicial Activism—December 20
1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the ... -
Robert H. Bork, R.I.P.
I am very saddened to learn that Judge Bork died this morning. Roger Kimball provides a fitting tribute here. May Judge Bork rest in peace, and may Mary Ellen and his children and grandchildren be comforted in this time of ... -
This Day in Liberal Judicial Activism—December 18
1997—Best is worst—Best v. Taylor Machine Works, that is. In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages ... -
Idiotic Claims for Scalia’s Recusal in Marriage Cases
In another bout of ASDS (Anti-Scalia Derangement Syndrome), some folks on the Left are insisting that Justice Scalia should recuse himself from the marriage cases—and even be impeached—because of his recent Princeton remarks in which, in response to ... -
This Day in Liberal Judicial Activism—December 14
2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood ... -
What’s at Stake in the Marriage Cases
In an essay for the National Catholic Register, I provide a brief overview of the DOMA and Prop 8 cases and offer this warning about the consequences if the Court messes up: The collapse of our marriage culture in ... -
This Day in Liberal Judicial Activism—December 11
2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years previously—when it first ruled that Ohio’s existing system of financing its ... -
The Basics on the DOMA Case
Here is an overview of why the Supreme Court ought to hold that section 3 of the Defense of Marriage Act is constitutionally permissible—and of why it can’t invalidate section 3 without inventing a constitutional right to same-sex marriage: 1. The ... -
The Marriage Cases: A Quick Initial Observation
It’s a good thing for supporters of traditional marriage that the Court granted review both in the Prop 8 case and in one of the Defense of Marriage Act cases. For starters, the rulings below were both adverse to traditional ... -
This Day in Liberal Judicial Activism—December 8
1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude. In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that ... -
This Day in Liberal Judicial Activism—December 5
1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider now-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona. Florida’s speedy-trial rule generally provided ... -
This Day in Liberal Judicial Activism—December 2
2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “... -
Eighth Circuit Injunction Against HHS Mandate
I’m pleased to pass along that an Eighth Circuit panel has, for now, overridden the badly confused decision (O’Brien) from Missouri that denied a Catholic employer injunctive relief against the HHS mandate. As David French noted ... -
This Day in Liberal Judicial Activism—November 30
1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit. 1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. ... -
This Day in Liberal Judicial Activism—November 29
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 ... -
Today’s Routine Supreme Court Order in Obamacare Case
Today the Supreme Court granted the rehearing petition that Liberty University had filed regarding the Court’s previous denial of its certiorari petition, and it provided Liberty the GVR order that it requested—that is, the Court Granted the petition, ... -
This Day in Liberal Judicial Activism—November 24
2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth ... -
This Day in Liberal Judicial Activism—November 22
2006—It’s monkey business as usual at the Ninth Circuit. A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” ... -
Wobbly Hobby Lobby Ruling in Favor of HHS Mandate
In a ruling yesterday in Hobby Lobby Stores, Inc. v. Sebelius, federal district judge Joe Heaton of the Western District of Oklahoma (a Bush 43 appointee) denied a motion for a preliminary injunction against the HHS mandate. The plaintiffs who filed ... -
What Next?
In the new post-election issue of National Review (available on newsstands and to digital subscribers here), I take a look at the damage that President Obama might inflict on the Supreme Court in his second term. A couple of excerpts: [... -
This Day in Liberal Judicial Activism—November 16
1993—In Steffan v. Perry, a trifecta of Carter appointees on theD.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone ... -
This Day in Liberal Judicial Activism—November 13
1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate ... -
This Day in Liberal Judicial Activism—November 10
1961—Phony cases make silly law. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and Lee Buxton, a Yale medical school professor who doubles as medical director of the League’s New Haven facility, contrive to get themselves ... -
This Day in Liberal Judicial Activism—November 9
1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially ... -
Going Sailing
My blogging will be very light next week, as I will have the pleasure of taking part in National Review’s post-election cruise. I hope that Bench Memos readers on the cruise will say hello. The grim election results will ... -
This Day in Liberal Judicial Activism—November 6
2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on ... -
This Day in Liberal Judicial Activism—November 4
1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“... -
New Jersey Event
If the recovery from the terrible storm permits it, I will be in Morristown, New Jersey, next Monday evening, November 5, to speak to the New Jersey lawyers chapter of the Federalist Society on the 2012 elections and the future of the ... -
This Day in Liberal Judicial Activism—October 31
1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a ... -
Re: Personalizing Animals
Wesley: I don’t seem able to find the quote, so perhaps I’m mistaken, but I thought that it was Chesterton who observed that a society that starts treating animals as people ends up treating people as animals. -
This Day in Liberal Judicial Activism—October 25
1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for ... -
Dispute over Anti-DOMA Rulings
Over at the Federalist Society’s SCOTUSreport blog, I take issue with law professor Dale Carpenter’s claim there that the First Circuit’s ruling invalidating the Defense of Marriage Act is “more limited and incremental” than the Second Circuit’... -
This Day in Liberal Judicial Activism—October 22
1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support ... -
This Day in Liberal Judicial Activism—October 20
2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona ... -
Second Circuit’s Highly Suspect Invalidation of DOMA
A divided panel of the Second Circuit ruled today (in Windsor v. United States) that section 3 of the federal Defense of Marriage Act, which defines “marriage” for purposes of provisions of federal law as “only a legal union between one ... -
NYT Commits Itself Against Judicial Filibusters?
Having documented the New York Times editorial board’s opportunistic changes of position on the filibuster of judicial nominees, I’m surprised to see this new house editorial in which the NYT straightforwardly declares: “In the ... -
This Day in Liberal Judicial Activism—October 16
1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota. (See This Day entry for April 4, 1939, for Judge Richard A. Posner’s colorful summary of Douglas’s ... -
Re: Biden’s Abortion Idiocies
I don’t mean to divert attention from Joe Biden’s more scandalous misstatements and deceptions in last week’s vice presidential debate, including his (ludicrously parsed-after-the-fact) claim that the Obama administration somehow didn’t know that the American consulate ... -
This Day in Liberal Judicial Activism—October 15
1956—So much for basing Supreme Court selections on short-term political calculations. Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints ... -
Obama vs. Romney on the Supreme Court—Part 2
Continuing from my Part 1 post: Second: The president will have the upper hand in getting his Supreme Court nominees confirmed. It now seems likely that neither a re-elected President Obama nor a newly elected President Romney would enjoy a large ... -
This Day in Liberal Judicial Activism—October 12
1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many ... -
This Day in Liberal Judicial Activism—October 11
1990—More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “... -
Rick Klein and the Infield-Fly Rule
The infield-fly rule exists for the simple purpose of discouraging infielders from deliberately dropping pop flies in order to double up base runners on force plays. That’s of course why the rule comes into play only when there are ...
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This Day in Liberal Judicial Activism—December 31
2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business ... -
Status Report on HHS Mandate
By my count, in six of eight cases, the owners of for-profit businesses have obtained injunctive relief against the HHS mandate. (According to this report, there has also been a temporary restraining order entered in a ninth case.) That’s ... -
Re: Hobby Lobby’s Emergency Application to Supreme Court
Having been away, I’ll catch up quickly on Wednesday’s order by Justice Sotomayor, in her capacity as circuit justice for the Tenth Circuit, denying the emergency application by which the individual members of the Green family and their ... -
This Day in Liberal Judicial Activism—December 27
1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a ... -
Emergency Application to Supreme Court in Hobby Lobby Case
The plaintiff-appellants in the Hobby Lobby case challenging the HHS mandate—the individual members of the Green family and the two closely-held family businesses they own and operate—have filed an emergency application to the Supreme Court for an injunction ... -
Victory Against HHS Mandate in Missouri
Yesterday a federal district judge in Missouri entered a preliminary injunction against the HHS mandate on behalf of Paul Griesedieck, Henry Griesedieck, and the businesses they own and run (which are engaged in wholesale scrap metal recycling and the manufacturing ... -
My NR Essay on Federalism and Marriage
The new issue (cover dated Dec. 31) of National Review includes my essay—“Federalism and Marriage: The Supreme Court should stay out of the way”—on the Defense of Marriage Act and Prop 8 cases now before the Supreme Court. ... -
D.C. Circuit Victory for Challengers of HHS Mandate
In an important procedural ruling yesterday, the D.C. Circuit reversed two lower-court orders that dismissed lawsuits against the HHS mandate brought by Wheaton College and Belmont Abbey College. The D.C. Circuit took “as a binding commitment” a Department ... -
This Day in Liberal Judicial Activism—December 19
2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to ban same-sex marriage. Brown ... -
Sixth Circuit’s Non Sequitur on Sexual Orientation
If you don’t believe that a person’s sexual orientation is immutable to the same extent that a person’s race and sex are, then you must believe that gays and lesbians are not entitled to civil-rights protections on ... -
Facebook, Twitter, and More
Just a reminder: My Facebook page is at facebook.com/EdWhelanEPPC, and my Twitter account is @EdWhelanNRO. You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well ... -
This Day in Liberal Judicial Activism—December 13
1971—The initial Supreme Court oral argument in Roe v. Wade takes place. The case ends up being carried over to the next term and re-argued in October 1972. In the meantime, the Court issues its ruling in Eisenstadt v. Baird, which ... -
Re: Rank Milbankery
In addition to the smear that Matt exposes, and amidst lots of snark, Dana Milbank’s primary claim is that Justice Scalia’s stated principle that gay rights should be pursued “through normal democratic means” somehow requires that Scalia vote ... -
Taranto Nods
“The Tenth Amendment, which protects states’ rights, is the strongest argument against Section 3 of the 1996 Defense of Marriage Act,” writes the usually insightful James Taranto of the Wall Street Journal. Quoting with approval a confused passage from Chief Judge Dennis ... -
Crashing Left
I have a lot of respect for Adam Liptak, the Supreme Court reporter for the New York Times, but his column today on the Supreme Court’s grant of review in the marriage cases is a hilarious example ... -
This Day in Liberal Judicial Activism—December 9
1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing ... -
Cert Petitions Granted in Prop 8 Case and DOMA Case
Per SCOTUSblog, the word is that the Supreme Court has granted review (as it should have) both in the Prop 8 case and in one of the DOMA cases. (It will surely hold the other DOMA cases pending resolution of the ... -
DOJ’s Politicized and Illegal Bailouts?
The easier it is for a covered jurisdiction to escape from the preclearance provision of the Voting Rights Act—Section 5—via a “bailout,” the less onerous Section 5 would appear to be. In order to bolster Section 5 against the constitutional challenge ... -
Beyond Parody
According to this National Law Journal article, UCLA’s law school will soon offer an LL.M. in Law and Sexuality that will prepare students to “practice and perform scholarship in gender-identity and sexual-orientation law.” -
HuffPost Live on HHS Mandate and Corporations
What religious-liberty rights do individuals have in the way they run their businesses have? I just took part in this half-hour HuffPost Live segment that addresses these and related issues, particularly in connection with the HHS contraception mandate. -
Obama’s Second Term
My essay in the post-election issue of National Review on what President Obama might do to the Supreme Court during his second term is now available here. -
This Day in Liberal Judicial Activism—November 28
1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to ... -
Crazy Sixth Circuit En Banc Ruling Against Racial Preferences
Still catching up on developments while I was away, I’ll briefly highlight the sharply divided ruling of the en banc Sixth Circuit in Coalition to Defend Affirmative Action v. Regents of the University of Michigan. By an 8 ... -
This Day in Liberal Judicial Activism—November 23
1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights ... -
Justice Alito vs. the New York Times on Citizens United
At last week’s Federalist Society convention, Justice Alito offered some comments in defense of the Court’s Citizens United ruling on campaign-finance restrictions. The Wall Street Journal’s James Taranto has a very nice smackdown of this NYT house ... -
Another Victory for Challengers of HHS Mandate
The HHS contraceptive mandate suffered another loss last Friday—its third loss in the four decisions that have addressed the merits of the claim that the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA). In a thorough opinion ... -
This Day in Liberal Judicial Activism—November 18
2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of ... -
This Day in Liberal Judicial Activism—November 14
2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge ... -
This Day in Liberal Judicial Activism—November 12
1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day ... -
Re: A Brief Note on the Elections
I’m surprised, and perhaps I should be flattered, to see that in today’s Washington Post two columnists quote parts of my brief morning-after reflection on the election. But: Insofar as the broader context of her column might suggest ... -
Fighting Obama’s Next Supreme Court Nominee
In the wake of President Obama’s re-election, there are a lot of articles about Obama’s possible opportunity to transform the Supreme Court during his second term. That possibility is a very real one, as I’ve discussed. I’... -
A Brief Note on the Elections
Great nations rise and fall. Anyone who takes for granted our country’s continued vitality is a fool. As I see it, last night’s elections confirm my fear that the great American experiment in constitutional republicanism is in grave ... -
This Day in Liberal Judicial Activism—November 5
1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on ... -
This Day in Liberal Judicial Activism—November 2
2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah ... -
Preliminary Injunction Against HHS Mandate in Michigan Case
I’m pleased to learn that Judge Robert H. Cleland of the Eastern District of Michigan yesterday granted an individual and his family-owned “secular, for profit” company a preliminary injunction against the HHS mandate. The ruling rests on the federal ... -
This Day in Liberal Judicial Activism—October 30
2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” ... -
University of Wisconsin Event on Religious Liberty
Next Tuesday, October 30, I will be in Madison to speak at the University of Wisconsin on the sorry history of “Religious Liberty Under President Obama.” The event will take place in the Great Hall of Memorial Union at 6:30 p.m. ... -
Rehabilitating Goodwin Liu?
The Left’s predictable campaign to rehabilitate failed Ninth Circuit nominee Goodwin Liu is underway. Supposedly his first year on the California supreme court demonstrates (at least to one lefty law professor) that Liu is a “paragon of judicial restraint.” ... -
This Day in Liberal Judicial Activism—October 23
1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr. -
This Day in Liberal Judicial Activism—October 21
1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1983, a ... -
Sanity Check on Marriage
Is there anyone out there on either side of the marriage debate who actually believes both (1) that the Constitution bars the federal government from defining marriage, for purposes of provisions of federal law only, as a male-female union, <... -
George Mason Symposium on Marriage Debate
Next Tuesday, October 23, I will be taking part in a symposium on “Issues in the Marriage Debate” at George Mason University School of Law in Arlington, Virginia. The symposium, which begins at 5:30 pm, is jointly sponsored by the George Mason ... -
Re: Steven Pearlstein’s Smear of Judge Kavanaugh
As Brent Kendall and Peter Landers of the Wall Street Journal’s Law Blog put it, “If Judge Brett Kavanaugh is a ‘partisan shock trooper in a black robe waging an ideological battle’”—Steven Pearlstein’s outrageous smear—“... -
Steven Pearlstein’s Smear of Judge Kavanaugh
To Washington Post business columnist Steven Pearlstein, D.C. Circuit judge Brett Kavanaugh “is nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.” What might invite such extravagant rhetoric? It turns ... -
Re: Biden’s Abortion Idiocies
I don’t mean to divert attention from Joe Biden’s more scandalous misstatements and deceptions in last week’s vice presidential debate, including his (ludicrously parsed-after-the-fact) claim that the Obama administration somehow didn’t know that the American consulate ... -
This Day in Liberal Judicial Activism—October 14
1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (... -
Biden’s Abortion Idiocies
Joe Biden says that he won’t “impose” on others the Catholic Church’s understanding that the life of a human being begins at conception. But, contrary to what Biden maintains, the Catholic Church’s understanding rests on science, not ... -
Obama vs. Romney on the Supreme Court—Part 1
The topic of the Supreme Court has received very little attention in the presidential race. Neither Barack Obama nor Mitt Romney referred to it at all in his convention speech, nor did the matter come up in the first presidential ... -
This Day in Liberal Judicial Activism—October 10
2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, ... -
This Day in Liberal Judicial Activism—October 9
1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several ...