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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.

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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.

People want this woman on the Supreme Court?

Of course they do. There is a budding movement of respectable gangsters to whom dishonesty is no disqualifier as long as the perp is ideologically correct. Gone are the days when dishonesty kept you from the ranks of respectability, let alone higher office.

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Karlan's Bush-bashing is especially absurd given the total dormancy of Obama administration Voting Rights Act enforcement.

After I filed US v. Lake Park in March 2009 (a case started and almost completed by the Bush DOJ), the Obama Voting Section went into hibernation. No Section 2 cases were brought over the next four years. Naturally, Karlan won't be publishing a law review article titled: "Lessons Learned: The Sorry History of Voting Rights Enforcement of the Obama Administration."

Karlan's attack on the Bush Justice Department was part of the academy's contribution to a broad, coordinated effort to create a false alternative history about the Bush civil rights record. Whelan describes the rancid pedigree of this tactic in another National Review article, titled "The American Constitution Society’s Purge?":

In doing research for my post on Pamela Karlan’s textual hallucinations, I was surprised to discover that the hyperlinks on this American Constitution Society page to Karlan’s “insightful -- and witty -- reflections” at the ACS’s 2006 convention and to the video of her remarks both led nowhere (or, more precisely, to “Page Not Found”). A Google search of the site fared no better.

I had thought that Stalinist airbrushing had fallen out of fashion on the Left, but I think that it’s fair to ask whether ACS, in order to advance the prospects of individuals whom it would like to see nominated and confirmed to judicial office.

No Ed, airbrushing hasn't fallen out of favor. Sometimes they airbrush out inconvenient transcripts, other times they airbrush out cases filed in United States District Court to protect minority civil rights. Stalin's airbrush tactics are alive and well.

Couldn't Karlan's dishonesty offer the academic left a chance to redeem itself in a small way? Couldn't responsible left-of-center law professors publicly toss Karlan overboard to demonstrate that intellectual honesty survives on the left side of law schools? Couldn't Karlan's dean at Stanford demand that she correct her false scholarship?

Of course not. That's not how they play ball. When rank academic dishonesty among one of their own is spoken of as a justification to disown her, Karlan's allies and sycophants call the scrutiny "bizzaro world." When an esteemed leftist law professor is called out for dishonesty, less-esteemed leftist law professors can't even begin to process the  possibility. That's the state of the academy today: dishonesty is processed depending on the political persuasion of the liar. Such evil compounds Karlan's original lies.

Karlan will still get invited to speak at ACS events.  She will still get calls from Wall Street Journal reporters. Her articles in barely read publications will still be blogged about by left-wing professors. Narrative, uninterrupted.

Perhaps there is still enough credibility and honesty on both sides of the aisle in the United States Senate to ensure that Pam Karlan has hit her career ceiling. Hopefully Democrats and Republicans alike can agree that it is best to keep a dishonest academic in her position as a dishonest academic. Her corrosive and bitter worldview is best kept in the insular world of academia, where her damage can be contained to corrupting scores of would-be lawyers who don't have a clue about who is really standing at the lectern; where deans like Elizabeth Magill turn a blind eye to outright scholarly dishonesty on their faculty.

Confining her to a life in the academy will limit the damage Karlan could do to the Constitution and the rule of law compared to if she were ever nominated to the federal bench.