New DOJ Hire Brings History of Fact Fudging, Outdated View of Court

Late December brought news of new blood in the troubled Civil Rights Division of the Department of Justice in the person of Stanford professor Pamela Karlan. Ms. Karlan will become the deputy assistant attorney general for voting rights, and will presumably take the lead in managing high-profile government cases against North Carolina and Texas.

Ms. Karlan will avoid the scrutiny of a Senate-confirmation battle due to the position’s subordinate status. But her assignment to such a pivotal role within DOJ does warrant examination. Critics have dismantled her previous academic writings as imprecise and factually inaccurate. And her views of the Supreme Court and constitutional interpretation are anachronistic in all but elite academic institutions.

Back in 2009, Bush bashing was all the rage in leftist academic circles. Ms. Karlan contributed to the zeitgeist with a law review article condemning the Republican administration for failing to protect the rights of minority voters. Beyond the usual demagoguery, Ms. Karlan purported to offer damming facts: “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 statement is demonstrably false. J. Christian Adams proved as much by linking to cases on DOJ’s own website. In fact, 2004 was the only year DOJ did not bring a Section 2 VRA suit, and in that year they brought no less than five suits under Section 203. Thus, the supposedly racially insensitive Bush-era DOJ brought cases to protect minority voters in all eight years. Ms. Karlan has never corrected the record on this point.

And that is not the only time she has played fast and loose with facts. National Review’s Ed Whelan exposed a video where she blatantly mischaracterized an opinion by Justice Kennedy from 2007.

Perhaps more troubling is Ms. Karlan’s view of constitutional interpretation. She makes no secret of her desire for a return to the halcyon days of the Warren Court, where Justices specialized more in social engineering than law. And where the liberal position always won because the Constitution, as interpreted, was a living, evolving document, subject to the whims of the nine “men in black.”

But the backlash against such Warren-era value-driven judging, which started in 1970s and exploded under former Attorney General Ed Meese has never subsided. Today adherence to the text and history of the Constitution is ingrained in the legal culture and even liberals strain to bring originalist arguments to support their side of important cases.

Ms. Karlan’s views may remain conventional in the elite academy, but the rest of the legal world has moved on. Her hiring speaks to a wobbly Justice Department stung by recent Supreme Court decisions and stuck in the past. 

By Paul Jossey, these are his opinions