Bench Memos

Pamela Karlan, Anti-Textualist Fantasist

Stanford law professor Pamela Karlan is a favorite candidate of the Left for a Supreme Court seat, in large part because (as this 2009 New York Times article put it) the Left “hungers for a full-throated, unapologetic liberal torchbearer.” I don’t think that there’s any dispute that Karlan—who puts herself in a category of “[s]narky, bisexual Jewish women”—fits that bill.

I happened yesterday to run across this YouTube video of Karlan’s criticism of Justice Kennedy’s majority opinion in Gonzales v. Carhart, the 2007 ruling that rejected a facial challenge to the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. I can’t say that it bears favorably on her fitness for any position of trust.

Karlan complains that the “tone” of Justice Kennedy’s opinion is “extraordinary”:

The decision is written in a tone in which the pregnant woman is referred to almost entirely as the mother, although these women have made the decision that they do not want to be mothers now. The fetus is always referred to as the unborn child. The doctors are not referred to as physicians but as abortionists. [Video, 0:45-1:05]

Let’s compare the actual text of Kennedy’s opinion to Karlan’s assertions about it:

1. Kennedy uses the word woman or women some 38 times to refer to the pregnant women. By contrast, he uses the word mother 15 times. Of those 15 uses, eight are direct quotations from the Act at issue, and three more use the term in repeating key phrases from the Act. But whether the proper statistic is 15 out of 53, or four out of 42, Karlan is wildly off, and has things very much backwards, in claiming that Kennedy’s opinion “almost entirely” refers to the pregnant woman as the mother.

2. Kennedy uses the word fetus 106 times. He uses the term unborn child only eight times, and six of those eight times are in quoting the Nebraska statute at issue in Stenberg v. Carhart. Karlan’s assertion that the “fetus is always referred to as the unborn child” is wildly false.

3. Kennedy uses the term doctor 70 times, the term physician 19 times (including eleven times when not quoting statutory language), and the term abortion doctor six times. (As I discussed, here and here, in response to Justice Ginsburg’s bizarre complaint, the term abortion doctor is a euphemism that pro-abortion groups developed and use as an alternative to the term abortionist.) How many times does Kennedy use the term abortionist? Zero.

In sum, Karlan either is hallucinating about an imaginary text or is lying.

(For my word counts, I’ve copied-and-pasted Kennedy’s opinion into Word and used Word’s “find” function.)

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