phorwitz at hotmail.com
Thu Jan 29 19:50:12 PST 2004
As a former law clerk to Judge Carnes, I hesitate to speak out and so create
or prolong the debate. But it's worth correcting the record: (1) Judge
Carnes was not "waved through" by the Democrats. His nomination was held up
at length in committee and he was subjected to a potential filibuster,
broken by an agreed-upon cloture vote after debate. The "contrast" with
Republican treatment of Democratic judicial nominees is thus less striking
than Prof. Wildenthal's description might suggest. (2) Nor, I would venture
to say, is it accurate to call him a "right-wing extremist." Granted that
the term by its nature is both subjective and not usefully descriptive.
Without quibbling over the term, I readily concede he could be accurately
described -- and criticized, by those so inclined -- as conservative,
particularly on some issues. That does not make him a "right-wing
extremist," however, any more than -- to pick the same circuit -- one could
call Judge Barkett a "left-wing extremist" because she is reliably liberal
on some issues. His opinions in the Ten Commandments case and in the en
banc opinion in the Duval County school prayer case suggest Judge Carnes is
not so easily typed.
I don't intend this as a sweeping defense; I don't much care for the degree
of filiopiety with which most former clerks insist on treating their judges.
Just a mild correction of the record.
Visiting Assistant Professor
University of San Diego School of Law
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