The Dangerous Dishonesty of Possible Supreme Court Nominee Pam Karlan

Once upon a time, Democrats were giddy about the prospects of Stanford Law Professor Pam Karlan joining the Supreme Court of the United States. She had all the right qualifications: partisanship, militancy, and -- most importantly -- belief in a radical, muscular, transformative government.

Karlan provides intellectual fuel for the most fringe elements of the progressive legal and political machine. She is quoted in the Wall Street Journal, appears on NPR, and is revered by academics on the left -- who refuse to lay a finger on her when she misbehaves.

Karlan's misbehavior most frequently arises as rank dishonesty and dishonest scholarship. You'd think that might disqualify her from teaching at Stanford Law School, but these days, demonstrably false scholarship seems to be no barrier to helping churn out legions of new lawyers from elite schools like Stanford. There are students of Karlan's -- perhaps reading this now -- who have nothing but admiration for her despite her scholarly lies.






Before I detail her scholarly lies, lets first consider those that Ed Whelan catalogs at National Review today in an article titled "Pamela Karlan, Anti-Textualist Fantasist." Whelan documents Karlan's utterly dishonest description of an opinion by Justice Anthony Kennedy. I quote Whelan below at length because the range of Karlan's dishonesty is so broad:

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.

So here we have a law professor dishonestly attacking Kennedy's word choices. Karlan's is the standard feminist dogma so cozy in campus classrooms: man bad, feminist good, man hates feminist. Repeat.

Karlan's dishonesty goes beyond womyn's issues, and extends to the election system. She falsely attacked the Bush administration's Justice Department for not protecting racial minorities. This is a favorite and well-worn tactic; it's what old segregationists like Coley Blease and Woodrow Wilson used to do -- stoke racial division by lying about opponents.  Unfortunately, Karlan's lies were published with an air of respectability in the Duke Journal of Law and Public Policy (4 Duke J. Const. L. & Pub. Pol’y 17, 2009). She writes:

For five of the eight years of the Bush Administration, [they] brought no Voting Rights Act cases of its own except for one case protecting white voters.

This is demonstrably false; any visit to the DOJ website demonstrates this. Karlan says the Voting Section brought no cases to protect minorities under the Voting Rights Act in five of eight years -- let's look at the record:

2001  (1 of 1)

United States v. Alamosa County, CO, (D. Colo. 2001)

United States v. Crockett County, TN, (W.D. Tenn. 2001)

United States v. Charleston County, SC, (D.S.C. 2001)

2002 (2 of 2)

United States v. Osceola County, FL, (M.D. Fl. 2002)

2003 (3 of 3)

United States v. Berks County, PA, (E.D. Pa. 2003)

2004 (3 of 4)

No Section 2 case.

2005 (4 of 5)

United States v. City of Boston, MA, (D. Mass. 2005)

United States v. Osceola County, FL, (M.D. Fla 2005)

United States v. Ike Brown and Noxubee County, MS, (S.D. Miss 2005) (Karlan's dreaded case to "protect white voters.")

2006 (5 of 6)

United States v. Village of Port Chester, NY, (S.D.N.Y. 2006)

United States v. City of Euclid, et al. OH, (N.D. Ohio 2006)

United States v. Long County, GA, (S.D. Ga. 2006)

2007 (6 of 7)

United States v. City of Philadelphia, PA, (E.D. Pa. 2007)

2008 (7 of 8)

United States v. Euclid City School District Board of Education, OH, (N.D. Ohio 2008)

United States v. Salem County and the Borough of Penns Grove, NJ, (D.N.J. 2008)

United States v. The School Board of Osceola County, FL, (M.D. Fla. 2008)

United States v. Georgetown County School District, et al. SC, (D.S.C. 2008)

Even if Karlan were to claim she meant only "vote dilution cases" (commonly thought of as "redistricting" cases), she is still lying. Dilution cases were brought in four of the eight years, not three of the eight, as she falsely claims. In any event, it's impossible to claim she only meant dilution cases: she made the bold, broad statement that the Bush DOJ "brought no Voting Rights Act cases of its own" in five of eight years. Taken literally, Karlan's claim is especially false, as cases under Section 2 of the Voting Rights Act were brought -- as we see above -- in every year except 2004.

Perhaps in 2004 the DOJ lawyers were too busy suing Ventura County (CA), Yakima County (WA), Suffolk County (NY), San Diego County (CA) and San Benito County (CA) under Section 203 of the same Voting Rights Act that Karlan claims the Bush administration didn't enforce in five of eight years.

The truth: Karlan claimed that no cases were brought by the Bush DOJ under the Voting Rights Act to protect racial minorities in five of eight years (except of course to protect those undeserving whites).  Yet the record shows that cases were brought under the Voting Rights Act to protect non-white racial minorities in all eight of the eight years of the Bush administration.