Bench Memos

Clint Bolick: Richard Painter Is “Off-Base”

A follow-up to my refutation (Part 1, Part 2, and Part 3) of Richard Painter’s smears against me in his deeply defective Huffington Post defense of Ninth Circuit nominee Goodwin Liu:

Clint Bolick, whose support for Liu Painter cites repeatedly, has invited me to publish this statement of his:

Although Ed Whelan and I have taken different positions on the judicial nomination of Prof. Goodwin Liu, I believe that Richard Painter has mischaracterized a number of Ed Whelan’s arguments as “myths.” In particular, Painter’s assertions are off the mark regarding Whelan’s criticisms of Liu on the creation of welfare rights, reparations, racial balancing, and the use of foreign law. Obviously, opinions vary regarding the merits of the nomination, but Painter is off-base on several crucial assertions.

Given our bottom-line differences on the Liu nomination, I am particularly grateful to Clint Bolick, as I also am to John Yoo, for standing up against Painter’s smears. It’s striking that two of the very small number of conservatives that Painter relies on for their  support of Liu have repudiated Painter (versus zero, so far as I’m aware, who have endorsed his smears). Further, another conservative, Miguel Estrada, whose own nomination battle Painter tried to use in support of Liu, has emphatically condemned Liu’s mudslinging against the Roberts and Alito nominations.

At this point, it should be clear that it would be reckless at best for anyone to accept Painter’s propositions at face value. I am not arguing that the reader must accept my word on Painter (or Bolick’s or Yoo’s) or on Liu. Rather, the interested reader should carefully examine the competing accounts (both on the matters that Bolick identifies above and on those he doesn’t address) and determine who has argued responsibly and effectively and who hasn’t. I am confident of the judgment that the intelligent and fair-minded reader will reach.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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