Bench Memos

More Media Matters Mess

In response to my blog posts showing that, jurisprudentially speaking, Ninth Circuit judge Sidney Thomas is just Stephen Reinhardt in a cowboy hat, Media Matters has a post titled “Note to media:  Don’t trust attacks on judicial nominees by NRO’s Whelan.” 

Has Media Matters identified a single error in any of my posts?  No.  Instead, it offers two feeble lines of attack. 

First, Media Matters asserts that “Whelan’s comments [on Thomas’s general jurisprudential approach] are contradicted by statements from Thomas’ colleagues.”  But the only comments that it cites from a Ninth Circuit colleague are milquetoast statements from Chief Judge Kozinski, such as that Thomas “is respected by both sides” and is liked and trusted.  Earth to Media Matters:  How does that contradict anything I’ve written? 

Media Matters also cites a quote from a Montana district judge that Thomas “has never let his politics get in the way of sound judgment.”  What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas’s record?  And how would he explain Thomas’s far-Left rulings?

Second, addressing itself obliquely to only one of the nine cases of Thomas’s that I’ve addressed, Media Matters thinks it’s meaningful to establish that “GOP-appointed judges have given schools broad leeway to restrict derogatory speech.”  (Gee, really?)  But the distinct concern that the case raised (and that completely eludes Media Matters) is that Thomas and Reinhardt were approving of viewpoint-discriminatory restrictions.  Here’s what I wrote in my summary (point 1 of this post): 

As Judge Alex Kozinski argued in dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.”  But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

For what it’s worth, I’m not asking anyone simply to “trust” my critiques.  The reason that I carefully document what I write (with citations and hyperlinks) is so that the skeptical or hostile reader can learn for himself that my account is accurate.  Plus, as regular readers know, I openly acknowledge and correct any errors that I make.  I’m pleased to note that many in the media have learned over time that, whether or not they agree with my jurisprudential perspective, they can trust me to set forth the facts and law accurately.  I’d be surprised if anyone trusts Media Matters to do the same.

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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