A Reckless False Alarm

National Law Journal's Supreme Court Insider | Published on

By Edward Whelan

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In her commentary Monday (“Burning Down the House“), Meryl Chertoff attacks me for arguing that Justice Sandra Day O'Connor's politicking in support of a Nevada voter initiative on judicial selection violates the canon that federal judges should refrain from political activity. Oddly, Chertoff doesn't respond at all to the substantive argument that I've offered. Instead, she tries to discredit me by wildly inventing a supposed motive for my criticism (and for my imagined “ire”):

[Whelan] doesn't seem to like the way that O'Connor has ruled on some of the cases that she has sat on by designation, most notably the decision in the U.S. Court of Appeals for the 9th Circuit case, Gonzalez v. State of Arizona, 08-17094, in which O'Connor sided with one other judge (over a dissent by the Circuit's chief judge) to hold that an Arizona statute that requires voters to show proof of citizenship at the poll is pre-empted by the National Voter Registration Act.

From that invented motive, Chertoff completes her straw man by condemning me for purportedly being “willing to burn down the house [because I] don't like the outcome in a particular case.”

There are a few difficulties with the motive that Chertoff would impute to me:

1. I've mentioned the Gonzalez ruling a grand total of one time, in a brief update that I added to a post on October 26, the day that ruling was issued. I have never expressed a view on whether Gonzalez (whose holding Chertoff gets wrong) was rightly decided, and I indeed haven't even begun to form a position on the question, as I've only skimmed the majority opinion and dissent. I instead cited the possible political effects of the ruling as “just one illustration why the ethics rules bar [O'Connor] from engaging in political-campaign activity while still sitting as a federal judge.” That point does not depend at all on whether the ruling was right or wrong.

2. So far as I can recall, I've never criticized the substance of any opinion that O'Connor has written or joined when sitting by designation on the courts of appeals. Apart from my skimming of Gonzalez, I don't recall that I've even read any.

3. Chertoff faults me for a “series of blog posts … going back to the beginning of October.” (Emphasis added.) As my powers of time travel are limited, I don't understand how the October 26 ruling in Gonzalez could be the secret motivation for my series of blog posts (or for my October 26 post criticizing O'Connor's robo-calls, the body of which I published before I learned of the Gonzalez ruling).

The fact of the matter is that a longtime federal judge — one who, incidentally, is a Democratic appointee and who agrees with O'Connor's position on judicial selection — contacted me in response to my October 1 post and passed along his strongly held view that O'Connor's politicking on that cause (which hadn't yet sunk to robo-calls) was “totally inappropriate.” I had wondered why there had been no red flags raised about O'Connor's activity, and the judge's complaint ignited my interest in the matter. That's why I turned to it on October 26, when the news broke of O'Connor's 1 a.m. robo-calls to Nevada voters.

I invite interested readers to review my posts on the question whether O'Connor's politicking on judicial selection is consistent with the Code of Conduct for United States Judges as well as my posts on the discrete question whether O'Connor actually remains eligible to continue to sit on cases (these are the main ones). I am confident that the reader will discover that nothing in Chertoff's commentary has any bearing on my arguments and that her inflammatory rhetoric is a reckless false alarm evidently designed to divert attention from her failure to engage my arguments.

Ed Whelan, a former law clerk to Justice Scalia, is president of the Ethics and Public Policy Center and a regular contributor to National Review Online's Bench Memos blog on constitutional law.