Wall Street Journal columnist Peggy Noonan attempted to join other right-wing media in attacking a New Republic article on Republican nullification efforts, but failed to address the article's main points in her rebuttal.
Noonan skips over the substance of the article to instead misrepresent the controversy around photo voter IDs and ignores the fact that rejections of federal authority through an appeal to "states' rights" are now commonplace in the Republican Party. This increase in attempts at nullification extend from unconstitutional state laws to filibusters of President Obama's nominees.
The article Noonan criticizes, "Why The GOP Is And Will Continue To Be The Party Of White People" by Sam Tanenhaus, argues that the Republican Party has built itself on the myth that states can lawfully resist federal laws with which they disagree. Rather than engage the theory - a concept that originated with John Calhoun's resistance to anti-slavery efforts - Noonan dismisses the argument because she never hears this 19th-century originator of nullification mentioned by name in conservative circles.
Instead, Noonan completely mischaracterizes the recent Republican push for government-issued photo voter ID, which is one of Tanenhaus' examples of the GOP's embrace of nullification. Contrary to Noonan's description, which explains that "vote rigging is part of our history" and "vote fraud happens," these laws are redundant and unnecessary layers of additional identification for a problem of in-person voter impersonation that is virtually non-existent.
Rush Limbaugh recently bragged that conservative Justice Antonin Scalia should be "honored to be compared" to the radio host for disparaging the Voting Rights Act as a "perpetuation of racial entitlement" during the Shelby County v. Holder oral arguments. Other conservative justices also repeated right-wing media talking points as they considered the fate of this historic civil rights law.
Section 5 of the Voting Rights Act requires jurisdictions with a history of racially-based voter suppression to "pre-clear" election changes with federal officials or judges. By dismissing as a "perpetuation of racial entitlement" the fact that a bipartisan majority in Congress voted to reauthorize the law in 2006 - after reviewing thousands of pages of evidence that race-based threats to voting rights still exists in the covered jurisdictions - Scalia adopts the arguments of right-wing media.
A Wall Street Journal editorial used a little noticed Supreme Court decision on wiretapping to attack the liberal justices for engaging in an imagined "liberal legal war against U.S. antiterror policy," while ignoring how the decision could further shut out plaintiffs from litigating against more powerful defendants.
The case, Clapper v. Amnesty International, involved a constitutional challenge to the U.S. Government's secret global wiretapping under the Foreign Intelligence Surveillance Act and the Protect America Act. This legislation, broadened as part of the past two administration's counterterrorism efforts, now enables warrantless surveillance of American citizens participating in international communications with a person of interest. However, the challenge never made it to the constitutional merits of these laws.
Instead, the courts focused on whether the collection of lawyers and journalists who worked on topics of interest to the government's counterterrorism efforts were sufficiently affected - whether they had legal "standing" - to challenge the law. From the WSJ explanation of the ensuing ideologically split opinion in which the five conservative Justices prevailed:
The liberal legal war against U.S. antiterror policy continues, most of the time out of public sight. But on Tuesday Americans were able to see how small their margin of safety really is as a narrow majority of five Supreme Court Justices rejected an especially outrageous attempt to challenge wiretapping of foreign terrorists.
In Clapper v. Amnesty International, anti-antiterror journalists and activists claimed they had legal standing to sue the U.S. government to stop the surveillance of foreign terrorists. Though they aren't the intended targets of such wiretaps, and explicitly cannot be under the language of the law, the activists claim they are nonetheless harmed because they might communicate with foreigners who are targets and so be overheard.
This isn't even a close call, as Justice Samuel Alito explained for the majority. The Supreme Court's traditional standard is that a plaintiff must show evidence of actual harm or at least that the "threatened injury must be certainly impending to constitute injury in fact." Yet the plaintiffs in this case can't even show evidence that their communications have been overheard, much less that they were harmed.
The Wall Street Journal ran an editorial praising the right-wing effort to gut the Voting Rights Act in Shelby County v. Holder and focused on the claim of Chief Justice John Roberts that Mississippi has the best African-American voter participation in the country. But the editors' claim that such turnout is evidence that Section 5 of the Voting Rights Act is no longer necessary is directly refuted by Mississippi itself.
Section 5 of the Voting Rights Act requires certain jurisdictions with a past and present history of voter suppression on the basis of race or language to submit election changes for federal review before enactment. Although the historic law overall prohibits racial discrimination in election practices across the country, Section 5's power to stop proposed voter suppression before it goes into effect originally focused on the worst offenders, since updated to reflect recent evidence of disenfranchisement. As a member of the Old Confederacy with a sordid Jim Crow history, Mississippi is one of those bad actors.
Nevertheless, ignoring the fact that jurisdictions can choose to "bail-out" of Section 5 if they prove they no longer discriminate against voters of color, the WSJ editors held up Mississippi as a bizarre example of how the best way to "honor American racial progress" is to strike down the heart of the Voting Rights Act:
Is the American South--and for that matter the South Bronx--still so uniquely racist that it requires special supervision by the federal government over its election laws? That's the nub of the Supreme Court case that, judging by Wednesday's oral argument, could be another watershed in the American march toward racial equality.
[W]hy should Mississippi be treated differently than Massachusetts if its practices show better racial outcomes? Chief Justice John Roberts made this point forcefully Wednesday when he asked Solicitor General Donald Verrilli: "Do you know which state has the worst ratio of white voter turnout to African American voter turnout?"
Mr. Verrilli: "I do not."
Chief Justice Roberts: "Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi."
Fox News host Megyn Kelly began the network's substantive coverage of oral arguments in Shelby County v. Holder, the current Voting Rights Act case before the Supreme Court, by incorrectly reporting the reach of the Voting Rights Act as limited to select states, while also appearing entirely unaware that this historic law has prevented voter suppression against limited-English proficient speakers since 1975.
On the February 27 edition of America Live, Kelly hosted a segment on the constitutional challenge to Section 5 of the Voting Rights Act, the provision that requires certain jurisdictions with histories of racial discrimination to federally "pre-clear" election changes prior to enactment, reminding viewers it's the "biggest civil rights case in decades." However, both Kelly and Fox News reporter Shannon Bream neglected to inform viewers that the constitutional challenge is only to the "pre-clearance" provision and repeatedly reported the Voting Rights Act as limited to those Section 5-covered jurisdictions. Fox also ran a map of those states covered by Section 5 (mistakenly labeled as "Covered By Voting Act Entirely") and Kelly asked "Alaska? Is that right?"
The Wall Street Journal published an op-ed on the Voting Rights Act by Edward Blum, founder of the in-house legal project of the right-wing's Donors Trust, but failed to disclose his ties to the Supreme Court's VRA case, Shelby County v. Holder. The op-ed, which identifies Blum as a fellow at the conservative American Enterprise Institute and director of the Donors Trust-supported Project on Fair Representation, recycles misinformation about the challenge that has been extensively and widely debunked.
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.