In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
Fox News is promoting another legal challenge to the Affordable Care Act that originated in a right-wing think-tank and was hyped by conservative blogs. The State of Oklahoma filed a lawsuit based on a problematic theory that alleges tax credits within federally-run health insurance marketplaces called "exchanges" are unauthorized, which was developed by Michael Cannon, Director of Health Policy Studies at the Cato Institute, and National Review Online contributing editor and Case Western Reserve University School of Law professor Jonathan H. Adler. But Fox News has not only failed to report the extensive debunking of this tax credit theory, it has also mischaracterized this challenge to tax credits offered in exchanges as a "serious" constitutional one, although the new constitutional arguments are even more far-fetched than the original statutory claims.
As Chief Justice John Roberts receives end-of-year accolades for not striking down health care reform, The Wall Street Journal is mocking this "strange new respect" on its editorial page. But the WSJ's criticism is a thin veil for its clear preference that Roberts return to his conservative ideology, while failing to acknowledge Roberts' record as a clear conservative on issues like corporate power and civil rights.
The WSJ has already called Roberts' refusal to join his conservative colleagues on the Court and declare the Affordable Care Act unconstitutional "misbegotten." It is no surprise that a November 20 WSJ editorial treated with disdain the praise for Roberts's late switch, mocking his place on Atlantic Monthly's list of "Brave Thinkers" and being named one of Esquire's "Americans of the Year" along with actress Lena Dunham. From the editorial:
Chief Justice Roberts shares the Esquire honor with Lena Dunham, the star of an Obama campaign ad and the creator and star of the HBO series about 20-something sexual angst called "Girls."
She and the Chief Justice also make the Atlantic Monthly's list of "Brave Thinkers" of 2012, by which they mean thinkers who agree with the Atlantic's liberal editors. Ms. Dunham is praised for taking "the soft glow off the 'chick flick,'" for instance when her character acts "like an underage street hooker to turn her boyfriend on," while the Chief Justice gets credit for "maintaining the Court's legitimacy" with a ruling "both brave and shrewd." President Obama probably has Time's "Person of the Year" nailed down, but expect the Chief to finish a close second.
Such is the strange new respect a conservative receives for sustaining liberal priorities. Our own view is less effusive, and to expiate his ObamaCare legal sins, a fair punishment would be that he hire Ms. Dunham as a clerk.
Yet Roberts' conservative bona fides are well established, which makes the editorial seem like an exercise in "ref-working," essentially haranguing the Chief Justice to ensure future conservative behavior. In Roberts' case, this would not be a stretch. On issues of corporate power, the Roberts Court is unprecedented in its well-reported conservatism and has given the WSJ much to celebrate.
Similarly, Roberts' record on civil rights is sufficiently right-wing. With cases addressing affirmative action, voting rights, and marriage equality in the pipeline, the current docket gives him ample opportunity to return to the conservative fold. Excepting same-sex marriage (which has yet to be accepted for review), Roberts' positions on the other two issues - presented in Fisher v. University of Texas and Shelby County v. Holder - clearly parallel those of the WSJ.
The WSJ has characterized precedent affirming the constitutionality of race-conscious admissions policies in school desegregation efforts a "large legal mistake," and has called enforcement of the Voting Rights Act the "grossest kind of racial politics." The editorial board appears to have an ally in Roberts, who has already recorded his opposition to both affirmative action and the Voting Rights Act as Chief Justice. As Supreme Court expert Joan Biskupic has reported:
[T]he kinds of social policy issues that play to Roberts' true conservatism, such as affirmative action and other race-based remedies are on the agenda for the term that starts in October.
From his early days in the Reagan administration, Roberts has sought to roll back the government's use of racial remedies.[As Chief Justice, in] a 2006 case involving the drawing of "majority minority" voting districts to enhance the political power of blacks and Latinos, Roberts referred to "this sordid business (of) divvying us up by race." The following year, in a case involving school integration plans, he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
On marriage equality, Roberts' position is more unpredictable, as he "has not yet voted in a major gay rights case." The WSJ, on the other hand, has already preemptively declared as "activist" any Court decision finding unequal restrictions on same-sex marriage unconstitutional. But both liberal and conservative reporting has questioned whether Roberts would join the WSJ's aversion to a constitutional right to marriage for all, irrespective of sexual orientation. Perhaps this is where the WSJ's pressure is most directed, out of fear that Roberts does not want to be on the wrong side of history.
Ultimately, regardless of the reasons behind the WSJ's attempt to embarrass the Chief Justice of the Supreme Court, it might consider the reflections of conservative federal Judge Richard Posner on the "serious mistake" of right-wing media attacks against Roberts. From an interview with NPR:
"Because if you put [yourself] in his position ... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, 'What am I doing with this crowd of lunatics?' Right? Maybe you have to re-examine your position."
Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.
Three Fox hosts have allowed Congressman Allen West (R-FL) to repeat his unsubstantiated allegations that election official wrongdoing led to his failing bid to retain his seat. The Fox hosts not only failed to push back on West's legally unfounded position, but neglected to report that these complaints are about Florida election system problems that have been ignored or exacerbated by the state GOP.
In support of his refusal to concede the race to represent Florida's 18th Congressional District - despite the fact that the state has already certified Democrat Patrick Murphy's victory - West has been complaining that "irregularities" in county officials' performance during the ballot tabulation process, the change in voting tallies as the tabulation proceeded, the outcome of a partial recount, and the accounting of more ballots than voters, requires another partial recount of all votes cast during the early voting period. On the November 12 edition of Fox's Hannity, West made all of these accusations to host Sean Hannity, who responded that he thought a vote shift away from West to Murphy during the counting process was "unbelievable."
West repeated these claims to Fox host Greta Van Susteren on the November 13 edition of On The Record, and again on November 14 in a recorded interview with Fox host Martha MacCallum for America's Newsroom. Like Hannity, these Fox hosts did not press West on his insinuations of election malfeasance. The most obvious example was Van Susteren, who referenced West's second lawsuit filed in a Florida state court seeking an early vote recount in defiance of state law, but made no mention of his first failed lawsuit. That lawsuit, which also sought to "count paper ballots and to impound voting machines," had been denied on November 9 by a state judge. In addition to noting that West's motion had "woefully failed to establish a proper demand for injunction," the judge scolded West for contesting the election results in court when "the Supreme Court of Florida 30 years ago has said the courts should not get involved in the election process under facts and circumstances which we have here today."
More significantly, Hannity, Van Susteren, and MacCallum all failed to report that West's unsubstantiated complaints about the dysfunctional Florida election process is partly attributable to recent voter suppression efforts. As reported by the Orlando Sentinel, the incoming Republican House Speaker has already "conceded" that Florida's difficult election process and its "embarrass[ing]" irregularities may have been caused by early voting and registration changes pushed through by Republicans in the state legislature. In conjunction with budget cuts that targeted county election offices, recent GOP attempts to restrict opportunities for voting resulted in the predictable and widely reported chaos that West now complains about.
The swing in vote tallies, however, is an old problem and one that none of the Fox hosts addressed. Not only is West complaining about a losing margin more than three times that of Gore's for the entire state of Florida in the presidential election of 2000, West is also complaining about a swing in votes from himself to Murphy that is only about a quarter of the infamous Volusia County swing in votes away from Gore for Bush. Further, the optical-scan voting machines at the center of West's complaints are of the same make as those used in Volusia in 2000, as reported by election integrity expert and Salon contributor Brad Friedman, but that important context was absent from Fox's segments on the issue.
The make of the voting machines is also relevant to West's challenge of the partial recount of early votes in St. Lucie County. The election supervisor there has already explained the partial recount of some votes was necessary because of an electronic memory cartridge failure. Hannity, Van Susteren, and MacCullum not only failed to report this fact, they also failed to report such memory cartridge failure is an extremely common problem in Florida, as was extensively detailed by the Daytona Beach News-Journal.
Finally, the discrepancy between voters and votes tallied that West references has already been explained by multiple outlets as a consequence of tabulation machines erroneously counting two-page individual ballots as multiple ballots. This too was unreported by Fox News as it continues to give Allen West a platform to advance his unproven reasons for refusing to concede, without challenging the problems with his claims and providing the necessary context of a Florida election system badly in need of reform.
In the wake of the presidential election, National Review Online's Ed Whelan made it clear that the country can expect more of the unprecedented right-wing opposition of the past four years to President Obama's judicial nominees. However, news outlets often neglect this obstructionism and ignore the role of the GOP and conservative media in creating "judicial emergencies" where courtrooms across the country suffer from vacancies on the bench, an omission highlighted by a prominent judicial nominations expert.
Fresh off of ascribing a lack of virtues to the majority of the nation who re-elected the president, conservative legal analyst Ed Whelan urged the Republican party on November 8 to redouble its efforts in blocking judicial picks by expanding the obstruction to any and all Supreme Court nominees. In the NRO blog, Whelan wrote:
I'm surprised to see, in [a November 8] Wall Street Journal article, that one conservative legal commentator has opined (according to the article's paraphrase and internal quote) that "[b]ecause Republicans lost the presidential election and a couple of Senate seats, ... Mr. Obama was entitled to 'a lot of deference' should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee."
I think that this view is badly misguided.
[C]onservatives shouldn't set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn't embrace those principles is unfit for the Court.
This sentiment serves as a reminder of just how intransigent the right-wing has become in objecting to judicial nominees who aren't conservative ideologues. Although the named WSJ article at least referenced the prospect that Republicans would filibuster anyone left of centrist U.S. Court of Appeals for the District of Columbia Judge Merrick Garland for the Supreme Court, it ignored the rampant obstructionism that has ground the lower court confirmations process to a halt. The unprecedented nature of this bottleneck could become even more apparent this week, when multiple stalled nominations will be sent to the lame-duck Senate floor in hopes of receiving the due consideration of an up-or-down vote that was accorded President George W. Bush's nominees exactly ten years ago. As recounted by the Constitutional Accountability Center's Doug Kendall:
There is certainly precedent for a big crop of lame-duck confirmations--in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
This precedent may be overlooked, as it has become unfortunately common for the news media to downplay the GOP's role in blocking the President's nominees. But as judicial nominations expert and University of Richmond Professor of Law Carl Tobias has repeatedly noted, ignoring obvious obstructionism and instead claiming the administration fails to prioritize nominations - "overstat[ing] Democratic responsibility, and understat[ing] Republican" - does not adequately explain the unacceptably high number of vacancies in the federal judiciary. From Tobias' November 11 editorial in the Baltimore Sun:
Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees -- inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.
Whelan's post is not only an excellent reminder that the Republican obstructionism highlighted by Tobias may continue unabated, but also that Republican Senators have refused to be cooperative on centrist choices. Indeed, the prospect of Republicans only filibustering those "to the left of Merrick Garland," as suggested by the WSJ article, is highly suspect in light of the treatment of similarly centrist nominees this past Congressional session.
Future coverage of federal court nominees should thus look to the influential Whelan as to why these vacancies are not being confirmed. Whatever responsibility the administration may have in not offering nominees in a timely manner, the real reasons lie in Whelan's admitted goal of a Supreme Court with a "supermajority" of conservative Scalia clones.
Fox host Brian Kilmeade announced on the November 8 edition of Fox & Friends that he doesn't "blame the gougers" who are jacking up prices for gasoline in the wake of superstorm Sandy. But price gouging after a natural disaster not only takes advantage of humanitarian crises, it's also illegal in both New York and New Jersey.
Kilmeade's expression of sympathy for price gougers occurred in a discussion of the difficulties victims of Sandy and the current "nor'easter" face in obtaining gas, which many desperately need for transportation, electricity, and heat. As reported by CBSnews.com:
Six days after a superstorm devastated parts of the northeast, the recovery -- and frustration -- continues.
At least 111 people are known dead. Nearly two million homes and businesses remain without power, down from a peak of over eight million -- most of them in New Jersey and New York.
There's still a scramble for gas and housing as temperatures drop.
Along the coast in Rumson, N.J., an old fashioned iron hand pump is the only way to get gasoline out of its underground tank.
The gas is fueling generators in a town largely without electricity.
One person in line said they were using the gas to power their house, take hot showers, feed their family -- in other words "the real basics like 100 years ago."
In the face of this demand - described by co-host Steve Doocy as "gas-amageddon" - some vendors in possession of gas and gas cans are charging exorbitant prices. This windfall, however, is clearly illegal under both New York and New Jersey law that prohibits such price gouging, a fact unmentioned by Kilmeade. Both the Republican Governor of New Jersey and the Democratic Attorney General of New York have warned that this practice, described by the conservative New York Post as "sleazy," will be prosecuted to the fullest extent.
From the New York law:
During any abnormal disruption of the market for consumer goods and services vital and necessary for the health, safety and welfare of consumers, no party within the chain of distribution of such consumer goods or services or both shall sell or offer to sell any such goods or services or both for an amount which represents an unconscionably excessive price.
From the New Jersey law:
It shall be an unlawful practice for any person to sell or offer to sell during a state of emergency or within 30 days of the termination of a state of emergency, in the area for which the state of emergency has been declared, any merchandise which is consumed or used as a direct result of an emergency or which is consumed or used to preserve, protect, or sustain the life, health, safety or comfort of persons or their property for a price that constitutes an excessive price increase.
Kilmeade is not the only Fox personality offering sympathy for those who are engaging in illegal price gouging at the expense of victims of this natural disaster. Fox contributor Judge Andrew Napolitano took the same extreme "free market" stance on Fox Business' Varney & Co, and announced that as a "practicality," he "doesn't believe in any government regulation of the economy." As reported by Fox Insider:
[Fox's] Stuart [Varney] believes if the stations were allowed to charge what they wanted, there would be a revolution, and Judge Napolitano thinks that is the practical way to go. "If buyers were willing to pay what they agreed to pay, there would be enough gas to go around," said Napolitano.
"The free market can allocate resources better than the government can," according to the judge, and gas station owners should be able to charge what they want.
Judicial Crisis Network chief counsel Carrie Severino praises her organization's last-minute television attack advertisement against Michigan Supreme Court candidate Bridget McCormack for assisting in the representation of Guantanamo detainees. But Severino's article, which appeared in the National Review Online, failed to mention that the right to counsel for the detainees, such as the one McCormack represented, has been defended by prominent conservative lawyers and the federal courts.
The ad in question began running the week before the election and has been heavily criticized both locally and nationally for attacking McCormack's participation in the legal proceedings for accused detainees at Guantanamo. The 30-second ad features a mother whose son was killed while serving in the military in Afghanistan, who asks "how could" McCormack "help free a terrorist"? In fact, McCormack was part of a Bush-era legal system set up to represent Guantanamo detainees, many of whom were found to be improperly detained. In defense of the ad, Severino writes that the Judicial Action Network was "proud of the service we performed by exercising our constitutional rights and bringing these facts to the people of Michigan." But this attack on the provision of attorneys for detainees - regardless of their guilt - is not new and has been repeatedly discredited by prominent conservatives.
For example, Severino recycles the argument that the detainees should not have access to counsel based on their status as "foreign enemy combatants." As conservative Professor of Law Orin Kerr has noted, this argument is "simply incorrect," as evidenced by the Bush administration's abandonment of such a claim and Supreme Court and subsequent rulings that established the constitutional right of detainees to "go to federal court to challenge their continued detention," a right not contingent on citizenship.
Kerr offered this analysis in the wake of similar attacks on Justice Department attorneys who - like McCormack - had provided representation for detainees prior to entering government service, describing the attacks as "ridiculous." Also in response to this earlier incarnation of the current smear, a "group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a 'shameful' effort." From the 2010 letter, which included prominent conservative attorneys David Rivkin, Lee Casey, Kenneth Starr, and Viet Dinh, among others:
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
The right to counsel has been repeatedly reaffirmed by the courts. Most recently, the respected Chief U.S. District Judge Royce Lamberth, who was nominated to the bench by President Ronald Reagan and is in charge of Guantanamo proceedings, reminded the government in September that the constitutional right to access to the courts for detainees "means nothing without access to counsel" because they "are inseparable concepts and must run together." In fact, this fundamental constitutional concept is the exact point of the op-ed penned by McCormack in 2005 that the Judicial Action Network mischaracterized in their ad campaign against her as "an opinion piece in the Detroit News where she encouraged other attorneys to represent suspected terrorists." From McCormack's June 16, 2005, Detroit News op-ed (via Nexis):
The success of the emerging democracy in Iraq, which hundreds of American men and women have lost their lives fighting for, will depend on whether the rule of law takes full root. Of course, our commitment to the rule of law here at home underlies our own system of government.
That commitment in turn requires unwavering respect for due process for the accused -- to be informed of charges, to have genuine access to legal counsel and to be given an opportunity to present or contest evidence. Our commitment to such basic rights extends to our most serious transgressors, and it is upheld during our most difficult times. Such a commitment most distinguishes us from our enemies.
The urge to cut constitutional corners when fighting an evil enemy is understandable. But it is a visceral urge, and we should resist it.
Abandoning the rule of law betrays our most fundamental commitments, our noble side. America has fought and won its most important battles without abandoning the values that most define it, including most especially due process and the rule of law.
In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
Sunshine State News, Florida's self-proclaimed "only center-right news source," has dedicated extensive coverage to the conservative charge of "judicial activism" against three state Supreme Court justices facing a retention election in November. The author of a Federalist Society report on the justices' records debunked the charge on Wednesday, telling The Miami Herald that opponents of the justices will "have a hard time" making the "activism" label "stick."
On Election Day, voters in Florida will vote on the merit retention of three justices on their state Supreme Court. The three justices, Barbara Pariente, R. Fred Lewis, and Peggy Quince, have drawn the ire of the Florida Republican Party and conservative activists for a series of decisions on state ballot initiatives, criminal procedure, and property taxes.
The Sunshine State News has extensively covered the issue in a way that promotes the right-wing case against the three, which centers on the accusation of "judicial activism." Over the past month, the Sunshine State News has published multiple articles in a series titled, "How Activist Are Florida Supreme Court Justices Pariente, Lewis, and Quince?"
The "judicial activism" framing of the issue mirrors the charges leveled by right-wing political opponents of the justices. Conservative super PAC Americans for Prosperity is leading an ad campaign accusing the justices of acting in an "activist manner." The state Republican party took the unprecedented step of formally opposing the justices' retention because the "collective evidence of judicial activism amassed by these three individuals is extensive." Although the Sunshine State News articles in the series purport to allow readers to review court documents and "decide for themselves" on the accuracy of the "activism" charge, its promotion of the issue has contributed to the cause of the justices' opponents.
But a new report commissioned by the Federalist Society, an organization previously hailed by the Sunshine State News as the "nation's premier fellowship for conservative and libertarian lawyers and law students," undercuts these right-wing accusations. After analyzing the three justices' "nine most controversial cases," the report concluded the justices were not engaged in "unprincipled" behavior. This Federalist Society report now adds to the extensive bipartisan opposition to removing the three Florida justices from office.
From The Miami Herald's reporting on a conference call with the report's author, Florida International University Professor of Law Elizabeth Price Foley:
A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.
Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings "are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning."
Opponents who want to accuse them of judicial activism, she said, are "going to have a hard time making that label stick.''
Unsurprisingly, opponents of the justices were upset by the conclusions of the report, but Professor Foley has remained firm in her findings, according to the Herald:
Americans for Prosperity Florida, the conservative advocacy group affiliated with the Koch brothers, were not too happy with a Federalist Society report issued Wednesday that concluded some of the most loaded charges used against the justices up for merit retention were unfounded.
[Professor Foley still] disagrees with opponents to the justices who call them activists just because their decisions may be formed by a liberal ideology rather than a conservative one.
"That is ridiculous,'' she said, noting that under that logic justices whose decisions are formed by a conservative ideology could also be called "activist." She also assiduously avoids use of the term "activist" because, she said, it has been so overused everyone has a different definition of it.
She added that she may have been too subtle in her conclusions that the justices, like all humans, inform their decisions by their ideology "but they are not in fact acting in an unprincipled way,'' she said.