Bench Memos

Painter Shouldn’t Distort Whelan’s Arguments

I’ve seen Richard Painter’s post criticizing Ed Whelan for his posts on the nomination of Goodwin Liu. Painter accurately reports that I’ve said that Liu (a colleague of mine at Berkeley Law) is a good nominee to the Ninth Circuit for a Democratic president. However, I don’t want that to be thought of as endorsing, in any way, what Painter says about Ed’s writings on Liu.

What bothers me about Painter’s post is that he accuses Ed of distorting Liu’s record, but I believe that that’s what he has done to Ed. He should provide in full or link to Ed’s criticisms of Liu and let the reader decide, rather than describing (or misdescribing) and dismissing Ed’s posts in a short sentence or two. I don’t think the Painter post is fair on this point. To me, such posts actually may hurt Liu if it appears that his supporters are not fully engaging his critics and their best arguments.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.

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