The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
On January 20, the day before the five-year anniversary of Citizens United, the Supreme Court will hear yet another case that could roll back campaign finance restrictions, this time for judicial elections. Here is a media guide to some of the legal briefs filed by experts in that case, Williams-Yulee v. the Florida Bar, which warn that allowing judges to solicit campaign donations directly is a recipe for disaster.
As the current Supreme Court term winds down, a number of highly anticipated cases will be released in the coming week. Here are five of the decisions right-wing media have repeatedly misinformed about, as well as the top myths and facts.
USA Today allowed a deeply misleading op-ed to endorse the conservative plaintiffs challenging the Affordable Care Act's "contraceptive mandate" before the Supreme Court in Sebelius v. Hobby Lobby, without disclosing the author's professional connections to Hobby Lobby's owners.
On March 23, USA Today published an opinion piece by Ken Starr, former Clinton-era independent counsel and current president of Baylor University, arguing in favor of Hobby Lobby, the for-profit, secular corporation currently challenging the availability of women's preventive services in health insurance under the ACA. And yet USA Today did not disclose the fact that as part of its religious mission, Baylor has a professional relationship with the owners of Hobby Lobby.
Baylor explained its partnership with the Green family, Hobby Lobby's founding owners, in its alumni magazine:
Over the past few years, the Green family has become involved with the university through Baylor's Institute for Studies of Religion (ISR) and the Green Scholars Initiative (GSI). A partnership with the family has established Baylor as a major research partner and an academic home for the GSI's primary undergraduate program. Baylor plays a leadership role in providing undergraduate and graduate coursework and research.
The website of the Green Scholars Initiative confirms this close relationship between the Greens and Baylor.
This professional connection between Hobby Lobby and the author of an op-ed supporting the business' position before the Supreme Court should have been disclosed by USA Today, especially in light of Starr's extremely biased explanation of the case and outright inaccuracies. From his op-ed:
From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of "embrac[ing]" the EEOC's "crazy" use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
On March 5, the Supreme Court will hear oral arguments in Halliburton v. Erica P. John Fund, a class action brought on behalf of investors allegedly defrauded by false disclosures of the Texas oil giant. Halliburton has fought to deny a trial on the merits for over a decade, and is now asking the conservative justices to overturn decades of precedent that allows shareholder lawsuits under the rebuttable presumption that this type of misinformation is a "fraud on the market."
In its continued opposition to the Voting Rights Act (VRA) and a proposed amendment to this historic law, The Wall Street Journal published a misleading op-ed by Hans von Spakovsky, an unreliable contributor to the National Review Online.
The op-ed of von Spakovsky, a right-wing activist who has called the "modern 'civil rights' movement" indistinguishable from "discriminators and segregationists of prior generations" and whose attempts to fearmonger about "virtually non-existent" voter fraud have been repeatedly discredited, followed a WSJ editorial that compared the bipartisan attempts of Congress to update the VRA with that of "Jim Crow era Southerners."
Although this new effort to strengthen the VRA through the Voting Rights Amendment Act of 2014 has prominent Republican support, von Spakovsky claimed "[t]his bill really isn't about the [Supreme Court's recent Shelby County v. Holder] decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates." From the WSJ op-ed, which defended the conservative justices' gutting of the VRA in Shelby County and smeared the subsequent bipartisan efforts to repair the damage:
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
In Shelby County, a radical break from precedent that has been described by experts as "on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," the bitterly divided Supreme Court struck at the heart of the VRA's efficacy by dismantling its "preclearance" process.
Even as the conservatives did so, however, Chief Justice John Roberts explicitly told Congress to fix this formula that requires covered jurisdictions with a history of racial discrimination to submit election changes for federal review before implementation. Contrary to von Spakovsky's strange assertion that "this bill really isn't about" Shelby County and is "an attempt to circumvent" the decision, this new bipartisan legislation is actually a direct response to Roberts' invitation to Congress to "draft another formula based on current conditions."
Admittedly, this new formula is more complex than von Spakovsky's preferred method of determining voter suppression by "turnout data," a confusion between correlation and causation that has been described as a rudimentary failure of "Statistics 101." Rather, Section 5 of the VRA imposes the preclearance process on jurisdictions with an incorrigible track record of suppressing votes based on race, and the formula to determine this discrimination has been changed in the new legislation to incorporate a comprehensive and rolling 15-year record.
The claim of the op-ed that the old formula led to "unwarranted objections" on the part of the Department of Justice toward alleged voter suppression is also inaccurate; this preclearance mechanism has been extremely effective at stopping racially discriminatory election changes. In fact, the two cases that von Spakovsky highlights both involved Section 5 successes.
Abandoning any pretense at understanding civil rights precedent or the bipartisan-supported Voting Rights Act (VRA), The Wall Street Journal condemned as "racial mischief" Congress' recent attempt to update this historic law pursuant to the Supreme Court's recent and explicit instructions.
In last year's bitterly split opinion of Shelby County v. Holder, the conservative justices of the Supreme Court gutted the most effective part of the Voting Rights Act - the "preclearance" formula by which jurisdictions with an incorrigible record of voter suppression must submit election changes to federal review before implementation. In his majority opinion, Chief Justice John Roberts invited Congress to "draft another formula based on current conditions."
On January 16, Congress did just that and submitted bipartisan legislation to update the previous formula, which itself was an overwhelmingly bipartisan effort signed into law by former President George W. Bush. In a February 3 editorial, however, the WSJ declared this legislation comparable to the efforts of "Jim Crow era Southerners" and declared "Congress should let it die":
Never underestimate Congress's ability for racial mischief. In the Jim Crow era Southerners blocked civil-rights progress. Now, 50 years after the Civil Rights Act of 1964, the liberal goal is to give national politicians more power to play racial politics in a few unfavored states.
Democrats and the strange bedfellow of Wisconsin Republican James Sensenbrenner have introduced a bill to revise Section 4(b) of the 1965 Voting Rights Act that the Supreme Court struck down last year. Chief Justice John Roberts wrote that the Act's coverage formula no longer made sense in light of current racial realities, and the new proposal isn't much better.
The good news is that the bill, sponsored by Democratic Rep. John Conyers and Senator Pat Leahy and endorsed in his State of the Union by President Obama, specifically exempts voter ID laws from the actions that could be counted as a demerit against the state's voting-rights record. That's a repudiation of Attorney General Eric Holder's politically motivated campaign against voter ID, and perhaps that's why Mr. Sensenbrenner came on board.
But that concession isn't worth the broader political intrusion that the new proposal would allow. The Voting Rights Act's current provisions still provide ample federal enforcement when local politicians limit minority rights. Federal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law, and the country's racial progress shows it is no longer needed. Congress should let it die.
The WSJ may be puzzled, but there is nothing "strange" about the fact that conservative Rep. James Sensenbrenner (R-WI) is leading Republican support for the latest renewal of the VRA. Support for the VRA and its preclearance mechanism - including the formula for determining covered jurisdictions - has historically been strongly bipartisan.
Sensenbrenner was the GOP's legislative leader the last time the VRA was reauthorized in 2006, when Congress passed updates to the preclearance formula by majorities of 98-0 in the Senate and 390-33 in the House. As former President Ronald Reagan had done before him with the 1982 reauthorization of the VRA (another bipartisan effort, also involving Sensenbrenner), Bush publicly and proudly signed into law the 2006 preclearance mechanism that Republicans (many still in Congress) overwhelmingly supported. The current bill is specifically crafted to repeat such long-standing bipartisan support, and House Majority Leader Eric Cantor has stated that his "experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all ... I'm hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected."
The WSJ not only botches civil rights law history, it also botches the substance of the new amendment.
Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
The New York Times profiled a highly-secretive "collection of perhaps 1,500 right-leaning players in the entertainment industry" whose belated application for non-profit status may be complicated by their seemingly partisan affiliation with political candidates and figures, possible campaign activity that is prohibited. Notably, the Times missed a significant inclusion on this list of right-wing stars: Justice Antonin Scalia.
The group's application for a 501(c)(3) designation, a tax status for non-partisan groups that would allow donors to claim deductions, is currently being scrutinized because its claim that it "has absolutely no political agenda" is at odds with its record of hosting right-wing media and officials, according to the January 22 Times article. Unmentioned by the Times, listed on his most recent annual Financial Disclosure Report (CY 2012), Scalia also gave an August 25, 2012, speech to Friends of Abe and received reimbursement for his "transportation, food, and lodging." From the Times:
[T]he Internal Revenue Service is reviewing the group's activities in connection with its application for tax-exempt status. Last week, federal tax authorities presented the group with a 10-point request for detailed information about its meetings with politicians like Paul D. Ryan, Thaddeus McCotter and Herman Cain, among other matters, according to people briefed on the inquiry.
Tax experts said that an organization's membership list is information that would not typically be required. The I.R.S. already had access to the site's basic levels, a request it considers routine for applications for 501(c)(3) nonprofit status.
Friends of Abe -- the name refers to Abraham Lincoln -- has strongly discouraged the naming of its members. That policy even prohibits the use of cameras at group events, to avoid the unwilling identification of all but a few associates -- the actors Gary Sinise, Jon Voight and Kelsey Grammer, or the writer-producer Lionel Chetwynd, for instance -- who have spoken openly about their conservative political views.
The I.R.S. request comes in the face of a continuing congressional investigation into the agency's reviews of political nonprofits, most of them conservative-leaning, which provoked outrage on the right and forced the departure last year of several high-ranking I.R.S. officials. But unlike most of those groups, which had sought I.R.S. approval for a mix of election campaigning and nonpartisan issue advocacy, Friends of Abe is seeking a far more restrictive tax status, known as 501(c)(3), that would let donors claim a tax deduction, but strictly prohibits any form of partisan activity.
While tax-exempt groups are permitted to invite candidates to speak at events, it is not uncommon for the I.R.S. to scrutinize such activities to determine whether they cross the line into partisan election activity. One issue is whether the organization invites all the qualified candidates.
"The I.R.S. would say that if you are inviting only conservative candidates, that's a problem," said Marcus S. Owens, a former director of the I.R.S.'s exempt organizations division. "But it's never really been litigated."