The Corner

Law & the Courts

Sotomayor and Ginsburg Channel the SPLC

As Maajid Nawaz, Ben Carson, Charles Murray, and many others can tell us first-hand, the Southern Poverty Law Center loves to poison the well. It’s a simple argumentative technique — introduce one’s target opponents as so extreme that nothing they proceed to say or do can be trusted. Normally this takes the form of slapping together past quotes from the target without any attempt to summarize his or her positions fairly. The quotes may or may not be in context and may or may not be valid points. It doesn’t matter so long as the target appears unreasonable.

Sadly, the Sotomayor-Ginsburg dissent in Trump v. Hawaii engages in exactly this kind of well-poisoning, seeking to discredit the administration’s review process that justified the travel restrictions:

The majority next contends that the Proclamation “reflects the results of a worldwide review process undertaken by multiple Cabinet officials.” At the outset, there is some evidence that at least one of the individuals involved in that process may have exhibited bias against Muslims. As noted by one group of amici, the Trump administration appointed Frank Wuco to help enforce the President’s travel bans and lead the multiagency review process. According to amici, Wuco has purportedly made several suspect public statements about Islam: He has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country from Muslim nations in a blanket type of policy,’” “that Muslim populations ‘living under other-than-Muslim rule’ will ‘necessarily’ turn to violence, that Islam prescribes ‘violence and warfare against unbelievers,’ and that Muslims ‘by-and-large . . . resist assimilation.’”

I had never heard of Frank Wuco before now, but he sounds like an extremist! Clearly any administration that relies on him will be biased. But wait — those quotes are awfully cut up, and none of the ideas expressed there is particularly egregious. Might it be possible that this man’s “bias” is actually his informed opinion?

I don’t know Wuco, but I do know that once judges are allowed to dismiss people’s views because of their alleged “bias” or “animus,” then anything goes. A case in point is the circular reasoning reflected in the quoted passage. The travel ban is tainted by animus because there is no good reason for it. And how do we know there is no good reason for it? Because the review process was tainted by animus. Got that?

Let’s hope the SPLC approach to judging does not spread beyond this term.

Jason Richwine is a public-policy analyst and a contributor to National Review Online.

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