Untruths: Vox’s Matt Yglesias Smears Ed Whelan
[guest post by Dana]
As readers here know, Ed Whelan is a stand-up guy. Principled, insightful and one from whom everyone can learn something. So when I read Matt Yglesias’s recent smear of him, I thought I would bring it to your attention.
Yglesias’s made two false accusations today. First, he claimed that President Trump promised that he would create a whiter judiciary. He does not provide any quotes from the president to support this claim because the president never said this. Apparently, Yglesias believes that Trump’s disparaging smear of Judge Gonzalo Curiel, when Trump called the judge overseeing his Trump University case a “hater,” as well as calling into question his ethnicity, provides the necessary proof. The second inaccurate comment Yglesias made was that President Trump has since delivered on his promise of a whiter judiciary – with the enthusiastic and explicit support of Ed Whelan.. (Since his declaration that Trump promised a whiter judiciary is untrue, it goes without saying that his conclusion of Trump having delivered on this promise is also false. You can’t deliver that which you haven’t promised. That’s not to say he hasn’t selected white nominees. We know he has. But instead of jumping to a racial accusation, Yglesias should consider that it is the judicial philosophy of the individual that has landed them a nod. Yglesias is correct that, as far as I know, Trump has not apologized to Curiel for his ugly comments.)
Yglesias points to Whelan’s Bench Memoes post, Trump’s Judicial Picks And ‘Diversity,’ published in May of this year to back up his accusations.
In his post, Whelan opts to lay out his “stand-alone account” of his views on the subject of judicial selection and where diversity fits in. He does some “bean counting,” using the the left’s own approved diversity statistics:
Of Trump’s confirmed nominees, 76% are male and 24% are female. Of his other nominees (both pending and withdrawn), 74% are male and 26% are female. Combining the numbers yields an aggregate of 75% male and 25% female.
According to AFJ’s numbers, for their confirmed nominees over the entirety of their presidencies, Barack Obama had a 58/42 split, George W. Bush had a 78/22 split, and Bill Clinton had a 71/29 split. So Trump’s numbers are in the same ballpark as Bush’s and Clinton’s—a slightly higher percentage of women than Bush and a slightly lower percentage than Clinton.
On race/ethnicity: Of Trump’s confirmed nominees, 9%—three “Asian Pacific American” appointees—are minorities. Of his other nominees, 9% are minorities: three Hispanics, two Asian Pacific Americans, and one African American (who, by the way, has been awaiting a Senate floor vote since December).
Nearly 36% of Obama’s judicial appointees were minorities. The figure for Bush was 18% and for Clinton 25%. So Trump’s percentage of minority nominees is only half of Bush’s figure and far below Obama’s and Clinton’s.
Then Whelan looked at the “diversity” question itself, in light of the Trump presidency:
hat “diversity statistics” should we expect in a president’s judicial nominations? Well, some with a very robust quota mentality (like this law professor and—surprise!—former clerk to Justice Sotomayor) seem to think that the goal should be to have different subgroups “represented on the bench” in accordance with their numbers in the population. I won’t join argument on that position here, but will instead note it and set it aside.
He expands on his views of what a president should be able to take into consideration, and have leeway in when making his selection of a judicial nominee:
My own take is that a president is entitled to select nominees who share his Administration’s judicial philosophy and who are supporters of—or, at the very least, who are not critics of—the president. Further, I’d expect candidates to be broadly in the age range of 40 to 55 and to have the sort of professional qualifications that would generate a favorable rating from the American Bar Association.
So far I don’t see any place where Whelan has supported any purported intentional creation of a whiter judiciary, not enthusiastically, and certainly not explicitly. Let’s look further at his examination of the selection of the judiciary. Acknowledging that it’s difficult to be completely accurate about where a pool of candidates would land on the diversity scale, he nonetheless sticks to the known quantities:
According to 2018 data from the ABA, 64% of active attorneys are male and 36% are female. Further, 85% are white and only 15% are minorities. (I haven’t found a breakdown by age. Perhaps the female and minority numbers are somewhat higher in the 40-to-55 age bracket, but it seems at least as plausible that the higher numbers are in the younger age bracket.)
One study concludes (see figure 3 here and accompanying text) that female lawyers are “significantly more liberal” than male lawyers, “even when controlling for a number of other salient characteristics like years since bar passage.” (I’d guess the same is true for minority lawyers versus white lawyers.)
Women lawyers “are much more likely [than male lawyers] to exit the workforce in order to focus on childcare.” It’s a safe bet that the disparity is even greater between conservative women lawyers and conservative men lawyers.
In the 2016 election, 52% of men voted for Trump, while only 41% of women did; 57% of whites voted for Trump, while only 8% of African Americans, 28% of Hispanics, and 27% of Asians did.
Again, it’s too complicated a matter for me to try to integrate all these statistics to estimate the demographics of the Trump judicial-candidate pool. But I’d be surprised if any serious effort would yield numbers higher than 25% female and 9% minority.
Again, I’m not seeing any sort of endorsement for a whiter judiciary.
Whelan addresses what some may have seen as an “indictment of conservative judicial philosophy”. Pfft! says Whelan:
Some on Twitter imagine that these numbers are somehow an indictment of conservative judicial philosophy. Take Ian Millhiser—please! But this is a massive non sequitur. Set aside the oddity that Millhiser seems to think that the only women whose views count are liberal women. The soundness of an idea or of a philosophy does not turn on the number of people who embrace it.
Further, the percentage of women in the hypothetical candidate pool does not speak meaningfully, if at all, to the percentage of highly educated women lawyers (or of women more generally) who support conservative judicial philosophy. As noted, conservative women are much more likely than conservative men to take time off in the formative years of their careers to give birth and to raise their kids. They also might well be more likely to pursue fields with predictable or flexible hours and little out-of-town travel. They might be more likely to face discrimination from legal academia. I’m not going to try to quantify the cumulative effect of such factors. I’ll limit myself to the observation that even if one were to assume an even male-female split among proponents of conservative judicial philosophy, there is ample reason to expect a much more skewed candidate pool.
Whelan concludes by sharing with readers that from what he’s heard, this White House is making a concerted effort for female and minority candidates. And he reminds readers that the statistics don’t contradict this.
Yglesias is a fool to make such false accusations against someone with a stellar reputation of honesty and precision. I will assume it’s the Vox way: manipulate and manufacture smears as necessary. By making the judicial selection of individuals about race and diversity, it detracts from the more basic and important matter of a nominee’s judicial philosophy. Bright, shiny object and all that.
For his part, Whelan came out swinging. I’ll just leave his Twitter exchange with Yglesias here. It’s what we would expect from Whelan, measured and to the point:
(Cross-posted at The Jury Talks Back.)
–Dana
I don’t feel I did this matter justice, but it’s what I can do right now.
Dana (023079) — 8/2/2018 @ 6:34 pmi think the snowflakes are all kinda snowflakey about this
all the comments Mr. Trump made on the subject are at the link and they don’t make me pee myself even a little
happyfeet (28a91b) — 8/2/2018 @ 6:43 pmQuestion: what id the difference between a white lawyer from Yale and a black lawyer from Yale?
Answer: the white one is likely a liberal, the black one might be Clarence Thomas.
Kevin M (5d3e49) — 8/2/2018 @ 7:07 pmObama did great damage to the judiciary and elsewhere with his PC appointments. Sotomayor is one, but the Latino moron who he promoted over all the whites to head the Office of Personnel Management was a worse choice than W and Brownie. A million people — all of whom had filled out the intrusive security clearance forms — had their identities stolen by the Chinese because of gross neglect and criminal negligence.
If ONLY they’d gone for competence over color.
Kevin M (5d3e49) — 8/2/2018 @ 7:13 pmNot to cross threads unnecessarily but Thomas
narciso (d1f714) — 8/2/2018 @ 7:14 pmdissent in elonis, was more in keeping with jeongs
Complaint, but if she realized that her head would ecplodem
In modern Leftism, more conservative is synonymous with whiter. So Trump promised more conservative judges, ergal he promised more white judges. And Whelan’s article confirms that.
Whelan of course does not speak modern Leftist, so Whelan does not say that, but Yglesias filters that out.
I haven’t bothered with MY for years, ever since I noticed that when he wanted to defend regulation of any kind, he first proclaimed that regulation didn’t always work but this was different….
kishnevi (c338bc) — 8/2/2018 @ 7:16 pmTrump HAS nominated at least 3 Hispanic-surnamed persons to US District courts. Also, there are about 75 District court nominees who have not yet had Senate votes. More of the Democrats’ filibuster-by-delay.
Kevin M (5d3e49) — 8/2/2018 @ 7:21 pmI appreciate President Trump’s commitment to diversity while I also praise him for the quality of the appointments he’s made.
America’s becoming world famous all over the world and it’s because our president, President Donald Trump, has brought a renewed emphasis on quality to all levels of goverment, and that’s something the American people aren’t going to turn their backs on any day soon.
happyfeet (28a91b) — 8/2/2018 @ 7:42 pmoopers i mean *government*
happyfeet (28a91b) — 8/2/2018 @ 7:43 pmIt’s difficult to nominate minority conservatives to the bench. They get Estrada’d.
NJRob (b00189) — 8/2/2018 @ 8:13 pmTrump’s initial crib-sheet of 11 supreme court nominees contained no minorities. Since the present Supreme Court contains a black man and a latina, that was effectively a promise to create a whiter judiciary (you can’t get any whiter than “all white”).
He later released 10 more names, among whom were three minorities. 3/21 (14%) is still whiter than the composition of the present Supreme Court (22%) although not by as much.
Clearly Trump’s ethnic slur against Judge Curiel (an American citizen) was intended to energize the racist elements of his base and assure them that he would reduce their chances of ever coming before a judge who didn’t look like them.
Whelan is inclined to give Donald Trump the benefit of the doubt, but that ignores Trump’s many openly racist and hateful statements and utter contempt for American values.
Trump does not deserve the benefit of the doubt on this, or anything else. He is a wicked, evil man who revels in his own iniquity.
Dave (445e97) — 8/2/2018 @ 8:18 pmPresident Trump is the best president of all of them in the whole list of presidents.
He inherited a huge fiasco with a lackluster military and bad finances.
But he’s making great strides at turning this tugboat around for the American way that’s for sure. Plus he’s doing lots of phenomenal trade deals.
happyfeet (28a91b) — 8/2/2018 @ 8:42 pmBy his own words, Yglesias is a hack, a dishonest hack.
Paul Montagu (84878a) — 8/2/2018 @ 8:54 pmDave once again jumps to the defense of a leftist to smear a conservative. So CONservative.
NJRob (b00189) — 8/2/2018 @ 9:30 pmDonald Trump is no conservative.
Dave (445e97) — 8/2/2018 @ 9:45 pmWhelan is and your strawman is noted and dismissed.
NJRob (b00189) — 8/2/2018 @ 9:50 pmhe’s a lot more conservative than a coward-trash torture-turd like John McCain or a pedophile like Mitt Romney that’s for sure
happyfeet (28a91b) — 8/2/2018 @ 9:50 pmI don’t disagree. When he says “I think fighting dishonesty with dishonesty is sometimes the right thing for advocates to do,” he is basically reciting the creed of Trumpism.
But you see, Rob, I didn’t “smear” Whelan. I said I disagreed with him about giving Donald Trump the benefit of the doubt. There’s a difference.
Dave (445e97) — 8/2/2018 @ 9:58 pmPop quiz time!
Who publicly offered the following endorsement?
“I know Hillary, and I think she’d make a great president”
1) Me
Dave (445e97) — 8/2/2018 @ 10:10 pm2) John McCain
3) Mitt Romney
4) Donald Trump
there’s no danger of hillary ever being president
thank you President Trump
happyfeet (28a91b) — 8/2/2018 @ 10:22 pmcowardly navy disgrace john mccain couldn’t stop her
pedophile child-raper mitt romney couldn’t stop her
our salvation?
God and President Trump!
we come a long long way together through the hard times and the good
happyfeet (28a91b) — 8/2/2018 @ 10:25 pmIn other news:
https://www.breitbart.com/jerusalem/2018/08/02/caroline-glick-trumps-offer-to-talk-to-iran-was-shrewd-move-in-complicated-showdown/
narciso (d1f714) — 8/3/2018 @ 5:11 amI would offer some additional statistical sources supporting Ed Whelan’s comments of conservative legal pools being skewed by various factors, thus affecting the demographics of the candidate pools themselves:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3224508
jim2 (9cf91b) — 8/3/2018 @ 5:21 amspeaking of hot takes,
https://foreignpolicy.com/2018/07/16/thank-you-jimmy-carter-obama-soviet-union-foreign-policy/
narciso (d1f714) — 8/3/2018 @ 6:34 amyou see how narrow their filter is:
https://twitter.com/SeanTrende/status/1025086156671803394
narciso (d1f714) — 8/3/2018 @ 6:53 amMaybe Iglesias can address the NYT’s recent hire–Sarah Jeong is a minority and an attorney–is she the kind of minority he thinks Trump should nominate?
Rochf (877dba) — 8/3/2018 @ 8:58 am4. Kevin M (5d3e49) — 8/2/2018 @ 7:13 pm
And don’t forget the PC (and also patronage) appointments to being in charge of computer security at the Democratic National Committee in 2015/2016.
Sammy Finkelman (02a146) — 8/3/2018 @ 9:22 amOne thing that struck me about Trump’s slur against Judge Curiel was that I knew, as a conservative, why it was ugly and wrong, but why would a progressive be upset? If progressives are right when they tell me identity is destiny and your ethnicity, gender, race etc should dictate your ideological beliefs, then Trump was justified in making his comments. After all, a progressive would respond, “damn right Judge Curiel will rule against you, as he should because of his membership in an oppressed group!”.
The Other One (a690ee) — 8/3/2018 @ 12:51 pmthe vast majority of judges in america’s laughingstock justice system are deeply trashy, narcissistic, and out of touch with real america
and this has nothing to do with race
happyfeet (28a91b) — 8/3/2018 @ 1:03 pm28. Because it was Trump, they were hypocritical, and besides Trump was saying the judge was wrong.
Sammy Finkelman (02a146) — 8/3/2018 @ 1:29 pmI read everything Trump said about Curiel. His statements were offensive, and an un-called for smear on the judge’s ability to be impartial (because he provided no actual evidence).
On the other hand, nothing he said remotely suggested that “mexicans” should not be, or couldn’t be, judges. In fact, in the part where he mistakenly identified Curiel as “mexican”, he said THAT WAS FINE. He did not once say the judge shouldn’t be allowed to be a judge because of his heritage, only that the judge was biased against him and should recuse himself FROM THE CASE.
Now, can someone point us to ANY other statement Trump ever made that said “mexicans can’t be judges”?
Charles Wayne (41d24a) — 8/3/2018 @ 2:23 pmYes it was shorthand for his deep connection to Maldef a significant conflict of interest
https://vault.fbi.gov/hillary-r.-clinton/Hillary%20R.%20Clinton%20Part%2024%20of%2024/view
Narciso (f851ba) — 8/3/2018 @ 6:48 pmMy wife used to work for a Mexican Bureaucracy (Pemex) and has no idea why this would be called a slur.
She has a deep distrust for activist “Mexican” jurists and assumes they will not be fair
steveg (a9dcab) — 8/3/2018 @ 7:48 pmTo the point she thinks people are simple minded for defending judge curiel
steveg (a9dcab) — 8/3/2018 @ 7:50 pm