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.
In a USA Today article on the absence of the Supreme Court as a campaign issue in the presidential election, reporter Richard Wolf claimed the "most important" explanation is that the next president will be unlikely to nominate a justice who could significantly tilt the court. Not only is Wolf's reasoning at odds with that of journalists, advocates, and experts across the political spectrum, in his discussion of the aging justices, Wolf cites facts about Supreme Court retirements that undercut his thesis.
In addition to his surprising conclusion that the next president will not be able to change the ideological direction of the Court "very far," Wolf also claimed it has not become an issue in the campaign because Democrats were "satisfied" with the health care reform ruling, and Republicans can't "criticize" a conservative Court. From the October 24 article:
The Supreme Court could be transformed by the man elected president Nov. 6, but you wouldn't know it from the campaign the candidates are waging.
The reasons are many: Democrats were satisfied with the court's ruling in June that upheld Obama's health care law. Republicans can't really criticize a court still dominated by conservatives. Most voters are more focused on jobs and the economy. And those who care deeply about judicial issues likely chose a candidate long ago. Perhaps most important, the chance that Obama or Romney could tilt the court very far in one direction or the other is remote. That's because most justices choose to retire when their party is in power, and no retirements are immediately forecast.
But many progressives were not satisfied with the Court's ruling that upheld health care reform. Supporters of the law were certainly glad that it was not struck down, but conservative Chief Justice John Roberts' opinion itself, if not the holding, was widely criticized for its conservative rationale. A New York Times editorial, "The Radical Supreme Court," condemned the Chief Justice's reasoning that unified the conservative wing of the Court in a "stunning" limitation of Congress' future power to regulate the national economy, and referred to the conservative justices as "radical innovators, aggressively stepping into political issues to empower the court itself."
Conservatives have also freely criticized the Court -- despite its strong leaning in their favor -- in particular the Chief Justice, who was vilified by right-wing media after the health care reform decision. In fact, Wolf confirmed this dislike was widespread in Republican ranks in a previous article, writing that according to a Gallup poll taken soon after the ruling, "Republicans have turned against the Supreme Court and Chief Justice John Roberts with a vengeance[.]"
Further, Wolf's assumption that justices will only retire during the administration of an ideologically like-minded president is flawed. With the notable exception of progressive Justice Thurgood Marshall, who chose to step down due to advanced age and declining health during a Republican administration, it is true that in recent times justices have tended to retire during administrations of the same party as the president who appointed them. The next presidential term, however, could very well provide a Marshall-like exception to the rule. As Wolf himself observes, progressive Justice Ruth Bader Ginsburg will be 80 years old next year (and is a cancer survivor), while liberal Justice Stephen Breyer will approach that age by the end of the next presidential term.
The retirement of frequent swing vote Justice Anthony Kennedy -- who will also turn 80 years old during the next presidential term -- could also significantly tilt the court, regardless of the political affiliation of the next president. Although Wolf noted the previous swing vote Justice Sandra Day O'Connor was replaced with conservative Justice Samuel Alito, Wolf failed to report how much more conservative this replacement made the Court. As noted by The New York Times on those changes to the Court:
[O]nly one change -- Justice Alito's replacement of Justice O'Connor -- really mattered. That move defines the Roberts court. "That's a real switch in terms of ideology and a switch in terms of outlook," said Lee Epstein, who teaches law and political science at Northwestern University and is a leading curator and analyst of empirical data about the Supreme Court.
The point is not that Justice Alito has turned out to be exceptionally conservative, though he has: he is the third-most conservative justice to serve on the court since 1937, behind only Justice Thomas and Chief Justice Rehnquist. It is that he replaced the more liberal justice who was at the ideological center of the court.
Though Chief Justice Roberts gets all the attention, Justice Alito may thus be the lasting triumph of the administration of President George W. Bush. He thrust Justice Kennedy to the court's center and has reshaped the future of American law.
Other conservative and liberal experts and advocates have pointed out the importance of Supreme Court appointments as an election issue, some of whom Wolf quotes as expressing this view. In fact, the print media has stepped up its reporting on this matter of late, and the Associated Press published an article the day before Wolf's entitled "Why It Matters: 1 New Justice Could Change A Lot." Thus, it is peculiar that USA Today would choose now to play the contrarian and downplay the importance of Supreme Court appointments. As Media Matters previously reported, lack of coverage of this important issue has been a consistent problem in broadcast news. USA Today should not join this trend.
In addition to repeating the debunked claim that Mitt Romney supported the government bailout of the auto industry, Fox News contributor Karl Rove mischaracterized the bankruptcy plan that saved millions of jobs, falsely asserting that the treatment of unions as part of the restructuring was "unprecedented."
The morning after the third presidential debate, Rove recycled right-wing media misinformation that Romney's call in 2008 to "Let Detroit Go Bankrupt" was in fact a call for the type of plan that ultimately saved the country's auto industry:
This false claim has been repeatedly debunked. The plan that rescued the auto industry through Chapter 11 reorganization bankruptcy was entirely dependent on the immediate "bailout" that the federal government provided. Romney condemned this intervention and wanted to rely on non-existent private financing. Contrary to Rove's explanation, Romney's proposal that the government should come to the industry's aid after it went bankrupt would have resulted in a Chapter 7 liquidation bankruptcy of General Motors and Chrysler, leading to the rippling loss of millions of auto-related jobs across Ohio and Michigan. As reported by The New York Times:
To go through the bankruptcy process, both companies needed billions of dollars in financing, money that auto executives and government officials who were involved with Mr. Obama's auto task force say was not available at a time when the credit markets had dried up. The only entity that could provide the $80 billion needed, they say, was the federal government. No private companies would come to the industry's aid, and the only path through bankruptcy would have been Chapter 7 liquidation, not the more orderly Chapter 11 reorganization, these people said.
In addition, Rove inaccurately claimed that the eventual Chapter 11 bankruptcy was "unprecedented," because creditor claims were reorganized. But as Moody's Mark Zandi explained, a Chapter 11 reorganization plan that restructures a failing company's debt requires consensus from "all stakeholders," including those of unionized employees:
Given the economic costs, allowing the Big Three to go bankrupt without government help would thus be a serious mistake. Congress should instead encourage the automakers to begin a pre-packaged bankruptcy, with Washington guaranteeing the  financing for the Big Three in bankruptcy. The government guarantee would enable an orderly restructuring and prevent liquidation. All stakeholders--management, creditors, suppliers and the unionized workforce--would be forced by the bankruptcy to make the tough choices they have thus far been unable to confront.
Thus, any reorganizing of debt claims was negotiated and agreed upon by all necessary stakeholders, pursuant to standard practice. Unions' claims may have changed during reorganization negotiations, but collective bargaining strength is not uncommon in bankruptcy proceedings, and others - such as hedge funds -- emerged with new claims as well. Indeed, as noted by the lead adviser of the President's auto task force, the reorganization plan was approved by multiple courts:
Among Mr. Romney's grievances -- and to be fair, those of other opponents of the auto rescue -- is that the auto task force trampled on bankruptcy precedents and even the law to effect President Obama's plan of "shared sacrifice" by all stakeholders.
What he conveniently ignores is that the president's plan was litigated throughout the federal court system -- all the way to the Supreme Court, in the case of Chrysler -- without so much as a nod to the opponents from a single judge.
In retrospect, I recognize the emotions surrounding the decision to give members of the United Auto Workers company stock in exchange for resolving their health care claims. But the courts were emphatic that what we did was legal, because we remained true to a core principle of bankruptcy reorganization: every stakeholder received more from our plan than if the companies had been left to go bankrupt on their own.
Mitt Romney revealed his gender-conscious hiring policies as governor of Massachusetts -- based on "binders full of women" -- during the October 16 presidential debate, a comment that was immediately recognized as an endorsement of affirmative action by several commentators in the media. But The Wall Street Journal editorial page and other conservative media outlets that have harshly condemned such affirmative action policies have yet to fully address Romney's statement.
In Tuesday's debate, an audience member asked the presidential candidates, "[i]n what new ways do you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?" In response, Romney described his past utilization of inclusive hiring practices, also known as affirmative action:
ROMNEY: Thank you. And -- important topic and one which I learned a great deal about, particularly as I was serving as governor of my state, because I had the -- the chance to pull together a Cabinet and all the applicants seemed to be men. And I -- and I went to my staff, and I said, how come all the people for these jobs are -- are all men?
They said, well, these are the people that have the qualifications. And I said, well, gosh, can't we -- can't we find some -- some women that are also qualified?
And -- and so we -- we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women's groups and said, can you help us find folks? And I brought us whole binders full of -- of women. I was proud of the fact that after I staffed my cabinet and my senior staff that the University of New York in Albany did a survey of all 50 states and concluded that mine had more women in senior leadership positions than any other state in America.
Mark Shields of PBS immediately recognized the significance of Romney's statements in post-debate analysis:
MARK SHIELDS: Can I tell you what the lead is -- OK -- what the lead is? Women in binders.
I mean, that is -- that will be the clip that will be seen around the world, Mitt Romney. And the interesting thing about that is, he told the story about the women in his Cabinet, was that was affirmative action. That is affirmative action.
He got all these men. And he said, no, no, can't we find some women? Go out and find some women. That's the definition of affirmative action.
MARK SHIELDS: And I will be interested to see The Wall Street Journal editorial page attack him on that tomorrow.
Like everyone else, I had several good laughs over the GOP candidate's "binders full of women" quote from last night's town-hall debate.
But then I realized that, creepy as that imagery is, the country would be better off if more powerful men took a cue from Romney on this one. He says that, as governor, he made "a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet." This is a pretty big statement, especially coming from a Republican candidate. We talk a lot about how diversity matters and how equal representation is important. But in most corners of society, especially the upper echelons of power, we haven't figured out the best way to walk that talk. Usually when advocates suggest that we need policies in place to ensure our elected officials and CEOs and college admission boards are making a concerted effort to go out and find women and people of color, all political hell breaks loose. Just look at conversation surrounding the Supreme Court's recent reconsideration of the University of Texas's affirmative action policies.
Watching Romney tout his appointment record at the town-hall debate last night, I couldn't help but feel a little bit proud of him. Seriously! With the binders anecdote, he was essentially describing affirmative action: He realized he needed more diversity in his cabinet, and so he sought out qualified women he may not have otherwise considered. This is laudable. Shocking, even! Especially when you consider that, also in the first year of his governorship, Romney tried to quietly roll back the state's affirmative action laws.
Contrary to Mark Shields' joking "prediction," The Wall Street Journal editorial board has not commented on Romney's support of affirmative action as of this posting, even though it recently called on the Supreme Court to "reclaim [its] constitutional and moral bearings" by rejecting a University of Texas Law School admissions policy which takes race into account in order to promote student body diversity.
The National Review Online also ignored the substance of Romney's debate comments and instead claimed the anecdote was unremarkable, in contrast to their past objection to affirmative action on the basis of both gender and race. National Review Online and The Wall Street Journal should note that Kerry Healey, Romney's Lieutenant Governor from 2003 to 2007 and a current surrogate for his campaign, further told Fox News that the "binders full of women" program amounted to a so-called quota system in which hiring targets were linked to the percentage of women in the Massachusetts population. From America Live:
MEGYN KELLY: He was claiming that he made a commitment to fill his cabinet positions in Massachusetts with more than just men, he said most of the applicants were men, and most of the guys, the candidates were men.
KERRY HEALEY: That's right. The back story here is that a women's organization, a bipartisan women's organization, the Massachusetts Women's Political Caucus, came to both candidates in the race and said if you're elected will you pledge, will you promise to put as many women in your cabinet as there are percentage of women in Massachusetts, which is about 50 percent. Both candidates said yes. So when Governor Romney was elected he set out to fulfill that promise. One thing you can know about Governor Romney is that when he makes a promise while he's campaigning, he's going to fulfill that promise. And so...
MEGYN KELLY: How did the numbers work out?
KERRY HEALEY: 50 percent. And it was the highest in the nation.
National Public Radio (NPR) recently recycled a false narrative fueled by right-wing media that the powerful U.S. Court of Appeals for the D.C. Circuit neutrally reviews regulatory agencies. But NPR fails to mention that the court, which hears appeals on environmental, health, safety, and other regulations, is dominated by conservative judges, and is under increasing criticism for substituting its ideological opinions for scientific and technical expertise.
In an article detailing the difficulties the next president would encounter if he sought to take "a hard right turn on an environmental rule," NPR downplayed the D.C. Circuit court's importance and ideological composition. The article uncritically presented the conservative perspective that "strict constructionist" judges would prevent a weakening of bipartisan environmental law in such a scenario:
"If you take a hard right turn on an environmental rule -- or for that matter, a hard left turn -- you've got strict constructionist judges who are going to say no, and they're on the federal courts today," says Kevin Book, director of ClearView Energy Partners, a Washington-based energy consulting firm.
Book says the federal judges who oversee EPA rules most likely would prevent big changes, regardless of who wins the election.
That's because the pollution rules at the center of this debate aren't just ideas Obama and his EPA came up with. They can be decades in the making or ordered by the federal courts. They're called for in environmental laws passed by bipartisan majorities in Congress -- laws such as the Clean Air Act, which was first signed by President Nixon and strengthened by the first President Bush, both Republicans.
As described by federal courts expert Professor Carl Tobias of the University of Richmond School of Law, the D.C. Circuit court is known as the "second most important court" in the country not only because it is often the last word on appeals from federal administrative agency determinations, but because its judges are often nominated to the U.S. Supreme Court. Its prominence is one reason it is currently suffering three vacancies, despite the Obama administration's attempts to appoint qualified jurists to a court whose Republican-appointed members outnumber their Democratic counterparts 5 to 3.
The NPR article fails to recognize that this federal court has demonstrated a clear preference for crafting "hard right" policy that defers to business interests, regardless of the bipartisan pedigree of legislation before it. Indeed, The Wall Street Journal's Law Blog has described the D.C. court's view of the Environmental Protection Agency (EPA) as consistent with that of the broader anti-environmental movement, where "[t]he EPA...is a frequent bête noire for conservatives, who feel the agency is strangling industry with excessive regulation." The editorial page of the WSJ, for example, praised a recent opinion that struck down the Cross-State Air Pollution Rule, which it referred to as "another illegal Obama regulation." The op-ed went on to celebrate that:
According to a scoreboard by the American Action Forum, Tuesday's rebuke from the D.C. Circuit marks the 15th time that a federal court has struck down an Obama regulation, and the sixth smack-down for the Obama EPA. This tally counts legally flawed rules as well as misguided EPA disapprovals of actions by particular states.
Unlike the recent coverage in NPR, other media outlets have increasingly noted the ideological bent of this court willing to substitute its scientific and technical analysis for that of the experts. For example, Floyd Norris, The New York Times' chief financial correspondent, has reported on how the D.C. court has stuck down many of the new rules promulgated to prevent a recurrence of the recent financial meltdown:
[The D.C. Circuit Court] may yet be the institution that dooms many or even most of the Dodd-Frank financial reforms that Congress passed in 2010 and that regulatory agencies have been struggling to put in place since then.
In the area of regulatory law, that court, the United States Court of Appeals for the District of Columbia, reigns supreme, and it is now controlled by judicial activists who seem quite willing to negate, on technical grounds, any regulations they do not like. The Securities and Exchange Commission has suffered a series of defeats there, defeats that it has chosen to accept rather than risk an appeal to the Supreme Court.
And Steven Pearlstein, The Washington Post's business and economics columnist, explicitly attributes the recent decision striking down the Cross-State Air Pollution Rule to tea party politics, consistent with the D.C. court's pro-business tilt:
The dirty little secret is that dysfunctional government has become the strategic goal of the radical fringe that has taken over the Republican party. After all, a government that can't accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?
Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.
The prospect that some balance might be restored to the nation's second-most powerful court has long since faded after Senate Republicans successfully filibustered every nominee put forward by President Obama for the three vacant seats on the D.C. Circuit. The only hope now is that Chief Judge David Sentelle and some of the court's more intellectually honest conservatives will move to rein in the judicial radicals before they turn the courts into just another dysfunctional branch of a dysfunctional government.
The EPA recently appealed the D.C. Circuit's recent pollution decision arguing the court had "developed 'regulatory policy out of whole cloth' in violation of their role of review." Media outlets should note this trend when evaluating whether "hard right" environmental policies can pass judicial review. This frame buys into the conservative myth of a "monster" regulatory state and misses the bigger picture: the D.C. Circuit is crafting "hard right" regulatory policy on its own.
A Wall Street Journal editorial asserted the recent federal court decision allowing South Carolina's voter ID law to go into effect in 2013 proved that claims of racial discrimination in voter ID laws are "specious." But the Journal - and other conservative media echoing this claim - fail to note that the court was required to hear the case because of uncontroverted evidence that the voter ID law was initially racially discriminatory. In fact, the South Carolina law was only approved because state election officials have sworn to implement it without racial discrimination.