Conservative media's Charlotte Allen recently wrote an extensive cover piece for The Weekly Standard that relies on discredited right-wing activists Hans von Spakovsky and J. Christian Adams to attack the Department of Justice's renewed focus on properly enforcing the Voting Rights Act. But while conservative media typically advances these sources and their debunked myths, it is disturbing that mainstream coverage of the Supreme Court case of Shelby County v. Holder is relying on von Spakovsky and not disclosing his highly unreliable background.
Allen, responsible for a piece dubbed "The Stupidest Thing Anyone Has Written About Sandy Hook" by lamenting in National Review Online that no men or "huskier 12-year-old boys" were available to protect the "feminized" victims of the Newtown massacre, takes on the "politiciz[ed]" DOJ under President Obama in her story for the The Weekly Standard. In the article, Allen manages to repeat most of von Spakovsky's and Adams' stale misinformation of years past, ranging from the non-scandalous New Black Panther fiasco and non-existent Fast and Furious conspiracy, to DOJ's "belligerent stances" on enforcement of the Voting Rights Act. Allen also successfully writes over 6,500 words on the alleged "politicizing" of DOJ without divulging von Spakovsky and Adams were poster children for such conduct when they worked for the DOJ under George W. Bush, disparages U.S. Attorney General Eric Holder because his "people" are not black enough to claim civil rights history, and finally undermines her main thesis by admitting that - under any presidency - DOJ follows the policy preferences of the White House.
Ultimately, however, that Allen uses the collected works of von Spakovsky and Adams is unsurprising. What is troublesome is that mainstream outlets are also publishing the opinions of von Spakovsky and Adams as the "conservative" perspectives on Shelby without disclosing their extremist background.
Right-wing media have been looking to anyone for talking points about the purported "unconstitutionality" of gun violence prevention. Frequent Wall Street Journal contributor David Rivkin Jr. recently took his turn in an op-ed, and his junior associate repeated the argument on a NRA news show. But Supreme Court precedent does not support their confused generalizations and multiple legal experts have explained how current proposals are constitutional under District of Columbia v. Heller.
Former Reagan and Bush I White House official Rivkin now publishes regular attacks on the Obama Administration in the editorial pages of The Wall Street Journal. Frequently debunked, even by other conservative media, his claims of President Obama's "lawlessness" now extend to the gun violence prevention measures under consideration in response to the Sandy Hook massacre.
In a recent WSJ op-ed with colleague Andrew Grossman, Rivkin called these attempts to prevent future violence uninformed and claimed: "what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled. The president and his allies seem to have missed the message[.]" Grossman then appeared on the NRA's televised news show, Cam & Company, to defend this misinformation about the Supreme Court's decision in Heller and misrepresent case law on exceptions to fundamental rights. On the show, Grossman claimed a renewed assault weapons ban and capacity limits for magazines were not permitted by Heller:
Conservative media are gearing up to target Caitlin Halligan - President Obama's nominee to the D.C. Circuit Court of Appeals - in their ongoing campaign to block the administration's judicial nominees, a practice that has led Justice Ruth Bader Ginsburg to lament "we are destroying the United States' reputation in the world as a beacon of democracy."
Right-wing media have a long history of insisting that the Republican Party filibuster and otherwise obstruct judicial nominees who are insufficiently conservative. The resulting court vacancies have led to "judicial emergencies," but right-wing media have made it clear they will not let up as the Senate considers President Obama's nominees to the crucial D.C. Circuit.
Directly after President Obama was re-elected, National Review Online's Ed Whelan urged the Republican Party to block the president's Supreme Court nominees because those without "conservative judicial principles" are "unfit for the Court." On February 14th, the Senate Judiciary Committee once again sent to the full Senate the nomination of former New York Solicitor General Halligan to the second most important court in the country, the D.C. Circuit, which is considered the last stop on the way to the Supreme Court. Whelan has consistently and prolifically joined the right-wing media opposition to Halligan's nomination, and recently made clear he will continue to extend his right-wing litmus test to the entire federal judiciary.
The New York Times highlighted Republican efforts to prevent the Consumer Financial Protection Bureau from functioning, in part by leveraging a recent DC Circuit Court of Appeals' decision that drastically limits the president's power to make recess appointments. But the Times understated the decision's role in continuing GOP obstructionism, even as the corporate lobby appears ready to take advantage of it to undo consumer and labor protections.
In Noel Canning v. National Labor Relations Board, a panel of the extremely conservative judicial circuit responsible for reviewing checks on corporate power issued a decision that rolled back decades of case law on presidential recess appointments. Although the case was nominally about one company's challenge to an adverse NLRB decision through a claim that the recess appointments of two board members were illegitimate, the ensuing opinion was so overbroad that the threat to other recess appointments - such as that of the current CFPB director - was immediately apparent.
In reference to Noel Canning's effect on the CFPB, the Times editorialized:
The bureau cannot operate without a director. Under the Dodd-Frank law, most of its regulatory powers -- particularly its authority over nonbanks like finance companies, debt collectors, payday lenders and credit agencies -- can be exercised only by a director. Knowing that, Republicans used a filibuster to prevent President Obama's nominee for director, Richard Cordray, from reaching a vote in 2011. Mr. Obama then gave Mr. Cordray a recess appointment, but a federal appeals court recently ruled in another case that the Senate was not in recess at that time because Republicans had arranged for sham sessions.
That opinion, if upheld by the Supreme Court, is likely to apply to Mr. Cordray as well, which could invalidate the rules the bureau has already enacted. The president has renominated Mr. Cordray, but Republicans have made it clear that they will continue to filibuster, using phony arguments to keep the agency from operating.
Rush Limbaugh promoted the accusation that Democrats were using The New York Times to pressure the Supreme Court into rejecting the current constitutional challenge to the Voting Rights Act in Shelby County v. Holder, which he claimed would fuel Democratic voter fraud. But Limbaugh ignored the fact that support for the Voting Rights Act has historically been, and currently is, bipartisan and the odds of in-person voter fraud are rarer than getting "struck by lightning."
During the February 5 edition of his show, Limbaugh aired a segment titled, "Democrats Move to Make Voter Fraud Easier," in which he declined to get into the "specifics" of the actual case, instead alleging a partisan conspiracy was underway to "facilitate Democrats winning elections" through "fraud." Among other inaccuracies, Limbaugh apparently was unaware of the accounts of voters unable to exercise the franchise, the eleven states that already permit election day voter registration, the "correlation-causation" fallacy of assuming greater turnout means voter suppression does not exist, and the fact that in-person voter fraud - the rationale behind requiring unnecessary and redundant photo ID - is a myth.
Instead, he attacked a New York Times article that reported a recent Massachusetts Institute of Technology analysis of the 2012 election that concluded "blacks and Hispanics waited nearly twice as long in line to vote on average than whites":
RUSH: So what is this all about? Well, you have come to the right place. This article is motivated by three things. First, the Supreme Court is about to rule on the Voting Rights Act in a few weeks, so the New York Times is leaning on them. The New York Times knows that the justices of the Supreme Court value the opinion of reporters and editors at the New York Times. And so the Times is getting its marker down on what it wants the court to do in relationship to this Voting Rights Act case that's coming up. And without getting into specifics, what they want the justices to do is find it possible, make it possible for more Democrats to vote, make it easier for more Democrats to vote.
Notice there's nothing here about Republicans being in these long lines. The whole premise of the story, long lines equal long waits, equals people leaving the line and going home and not voting, which equals lost votes for the Democrats, which equals, "We can't have that." And so the Voting Rights Act case, without getting into specifics of it, the New York Times is putting down a marker for the justices so that they can keep in mind what's really important about the Voting Rights Act, and that is to do whatever is necessary in their ruling to make it possible for fraud to continue, to make it possible for registration and voting on the same day, same place, to take place, to happen, or whatever is necessary to facilitate Democrats winning elections.
The media should be aware of the Voting Rights Act's historic importance for all communities of color, particularly the "awakened" Latino vote, and not simply report that it is a black and white issue of importance only to African-Americans. While a significant number of amicus (friend of the court) briefs filed in Shelby County v. Holder - the Voting Rights Act challenge that the Supreme Court will hear February 27 - focus on the struggle for African-Americans' right to vote, a diverse range of civil rights advocates have joined the effort to uphold the law.
Hispanic civil rights advocates - in addition to advocates for Asian Americans and Indian Nations - are briefing the Supreme Court on the continued importance of the Voting Rights Act in the face of well-documented voter suppression against their communities. Section 5 of the Voting Rights Act requires jurisdictions with a history of voter discrimination to "pre-clear" changes to their election practices with the U.S. Department of Justice or a federal court. Led by a small Alabama county, Southern states are challenging Section 5's constitutionality - arguing, in part, that it unfairly singles them out and is outdated - despite their long history of voter suppression on the basis of race and national origin.
USA Today recently reported on the pushback against this ahistorical claim, noting that in response to Shelby County's attempt to strike down "the heart" of the Voting Rights Act, long-time African-American participants in the struggle for the right to vote in Alabama filed multiple amicus briefs in support of the law. USA Today did not, however, report the perspectives of other voters of color, despite the fact that the Southern and Southwestern Latino population has not only skyrocketed, but has also been the victim of extensive state-sponsored discrimination.
National media tend to assume conservative Justice Antonin Scalia's vote in the upcoming Voting Rights Act case - Shelby County v. Holder - is a foregone conclusion because of his decisions on other questions that involve race, such as school desegregation. But Scalia's approach to remedies for impermissible racial discrimination, the harm that the Voting Rights Act addresses, has respected prior rulings and Congressional action, a noteworthy position considering the constitutionality of the Voting Rights Act has been repeatedly upheld.
To be clear: traditional swing-vote Justice Anthony Kennedy is more amenable to legislation and policies that take race into account than Justice Scalia. Unlike Scalia, Kennedy has explicitly disavowed Chief Justice John Roberts' radical request that the Court refuse to approve any government recognition of race, ever. Therefore, it is understandable that the media focuses on Kennedy when speculating over which conservative Justice might uphold the "preclearance" provision within the Voting Rights Act - Section 5 - that requires states with a history of racial discrimination submit election practice changes for federal review and approval.
For example, The New York Times reported the reasons that Kennedy, who has rejected the ahistorical "colorblind" approach to constitutional law even as he struck down specific school integration plans, might also reject the challenge to the constitutionality of Section 5:
The issue in Shelby County is whether Section 5 of the Voting Rights Act, viewed as the nation's most effective civil rights law, remains necessary to prevent racially biased voting laws in nine states and parts of seven others with egregious histories of discrimination against minority voters.
In the Shelby County case, as a federal trial court and a federal appeals court found, there is no room for equivocation [as in recent school desegregation cases]. If Justice Kennedy votes to strike down Section 5, he will be calling a halt to an unfinished effort to end what the Supreme Court once called "an insidious and pervasive evil."
Congress gathered an enormous amount of evidence in 2006 about the persistence of voting discrimination in covered jurisdictions. It found that discrimination was still heavily concentrated in those places and so widespread that case-by-case litigation -- what Justice Kennedy has called "very expensive," "very long" and "very inefficient" -- is inadequate.
Without Section 5, from 1968 through 2004 more than 1,500 discriminatory voting changes would have gone into effect. And last year, Section 5 blocked attempts to discriminate against voters in many parts of the country.
In an interview with former Secretary of State Colin Powell, Fox News host Bill O'Reilly ignored key legal problems for photo voter ID laws under the Voting Rights Act and dismissed concerns of voter suppression, claiming in-person voter fraud was a problem.
On the January 29 edition of the O'Reilly Factor, O'Reilly hosted Powell to discuss "racial politics," voter suppression, and voter fraud, but failed to provide important context, including any mention of a crucial Voting Rights Act case set to be argued before the Supreme Court on February 27. In part, this case will turn on the historic civil rights law's efficacy at preventing the type of race-based voter suppression Powell described.
The problem that recent photo voter ID laws purport to address - voter fraud committed in person - is "virtually non-existent." Nevertheless, in the past two years, state Republican legislators and right-wing allies have aggressively pushed such laws that add another identification requirement for voting, even though voter identification is already required across the country. Under the Voting Rights Act, federal courts have recently confirmed that new voter ID laws in jurisdictions with a history of voter suppression have a prohibited effect on African-American and Hispanic voters.
O'Reilly refused to acknowledge any of these facts in his interview with Powell, even as Powell tried to explain them to him:
The Wall Street Journal recently joined Fox News in attempting to rewrite a radical and unprecedented federal appellate court opinion to fit their caricature of a "lawless" President Obama. But even as a WSJ editorial picks up Fox News' misrepresentation of the appellate court's sweeping decision on the constitutional legitimacy of presidential recess appointments as a narrow swipe at Obama, the Fox-fueled version is starting to unravel.
On January 29, the WSJ published an editorial that claimed "the latest disdain for the Constitution's checks and balances" was the Obama administration's response to a recent outlier opinion of the D.C. Circuit Court of Appeals. This decision broke with centuries of practice and case law by holding presidents can only make recess appointments when both a vacancy and appointment occur in-between congressional sessions. Specifically, the WSJ was offended that the National Labor Relations Board accurately pointed out the opinion was technically limited to the party that brought the case - despite its serious implications for all other similarly situated plaintiffs - and not only was it not currently in effect, it might be overturned on appeal. From the WSJ editorial, which accused the NLRB of planning to "ignore" the opinion:
So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.
Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.
In their rush to frame a federal appellate court opinion as a personal rebuke of President Obama, Fox News host Megyn Kelly and frequent guest Jay Sekulow misrepresented the truly radical and unprecedented nature of a decision of the U.S. Court of Appeals for the District of Columbia on presidential recess appointments. Although Kelly and Sekulow erroneously reported that the opinion only affects Obama's recess appointment of members to the National Labor Relations Board, it actually casts doubt on hundreds of presidential appointments and subsequent actions since the 1940s.
On the January 25 edition of America Live, Kelly repeatedly reported that the DC Circuit "clipped President Obama's wings" by holding the Republican-controlled Senate was actually in session when Obama made recess appointments to the National Labor Relations Board, pursuant to long-standing presidential powers. The NLRB is, of course, a frequent bogeyman for both right-wing media and corporate interests because of its perceived favorability to unions. Kelly and Sekulow, who filed an amicus brief in the case as Chief Counsel for the American Center for Law and Justice, claimed the decision's holding depended on the fact that the Senate was technically in session because of a new parliamentary trick that gavels the Senate into "pro forma session" even though no business is conducted. This is inaccurate.