Affirmative action policies that will come before the Supreme Court in the upcoming Fisher v. University of Texas case have long been the target of right-wing misinformation that distort the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.
Fox News' Stuart Varney and Charles Krauthammer have accused the Obama administration of breaking the law for advising federal contractors not to issue warnings of layoffs that may occur in the wake of budget "sequestration." But the administration is in fact correctly following the WARN Act, which explicitly disallows blanket notices to all Department of Defense (DOD) contractors before Congress specifies what contracts are to be cancelled.
The Worker Adjustment and Retraining Notification (WARN) Act requires federal contractors to inform their employees of the impending loss of their jobs 60 days prior to layoffs. Both Varney and Krauthammer misrepresent the law's requirements by arguing DOD contractors must issue sequestration layoff warnings before the presidential election, contrary to the legal advice of the Department of Labor (DOL), Office of Management and Budget (OMB), and independent experts. In fact, because budget cuts mandated by sequestration are not currently specified and would not take place immediately, WARN Act layoff warnings would be inappropriate at this juncture and are not "the law...written in stone," as erroneously asserted by Varney on the October 2 edition of America's Newsroom, nor is the administration's position "absolutely lawless," as claimed by Krauthammer on the October 2 edition of Special Report.
As explained by the nonpartisan Center on Budget and Policy Priorities (CBPP), under the Budget Control Act of 2011, Congress' inability to negotiate a long-term budget plan triggers "sequestration -- a form of automatic cuts that apply largely across the board -- [which] is now scheduled to occur starting in January 2013 and to cover the period through 2021." The CBPP has also pointed out that these automatic cuts to the federal budget include unspecified cuts to DOD spending -- including payments to defense contractors - which even after sequestration is formally triggered, would not be clear until months later. According to CBPP, "[w]hile the limit on spending authority will be imposed at the beginning of the year, the actual reductions in spending will occur over the course of the year and into subsequent fiscal years."
Therefore, as The New York Times has reported, "no one knows what 'sequestration,' the term for the automatic cuts, will look like, not lawmakers, not the military." Contractors are even more unlikely to know what the cuts will look like, as they won't be alerted by their agency until after Congress acts in January. Because no one knows which programs will be cut, and thus, which employees will be laid off when -- or if -- sequestration occurs, defense contractors cannot send out notices to those affected without notifying their entire workforce, a type of blanket alarm explicitly disallowed by the WARN Act.
In the aftermath of the health care reform case, in which conservative Chief Justice John Roberts cast a surprising vote to uphold the law, some Supreme Court observers, including Adam Liptak of The New York Times, have asked whether Roberts has permanently moved to the Court's ideological center. But a new report by the nonprofit advocacy organization Alliance for Justice indicates that the Roberts Court remains "far from apolitical," especially in cases concerning corporate power, a point often overlooked in the media.
In an article previewing the Supreme Court's upcoming term, Liptak writes that "[e]very decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court's conservative wing, has moved toward the ideological center of the court." The article recognizes the possibility that the health care reform decision, rather than presaging a move to the center, may have given Roberts room to maneuver even further to the right:
The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.
But Roberts' strongly conservative record on corporate power is an even more powerful argument against the notion that he may have shifted in a significant way toward the Court's ideological middle. The Roberts Court remains possibly the most conservative Supreme Court in history in many areas, and its favoritism toward corporate interests is unprecedented. In the coming term, the Court will have multiple opportunities to build on recent decisions joined by Roberts that have made it harder for workers, consumers, and investors to pursue class actions, and there is little basis for supposing that Roberts will alter his views in corporate power cases.
As summarized by the Alliance for Justice in their preview of the upcoming term, if Roberts and the other conservative justices continue their trend of favoring powerful corporate interests in sharply split opinions, the Court could:
Provide a shield for corporations and other actors committing human rights abuses abroad (Kiobel)...Close the courtroom doors to class actions seeking redress for corporate malfeasance (Symczyk, Behrend, and Amgen)...Immunize employers who create a hostile work environment for women and racial minorities (Vance)...Allow lower federal court judges to punish debtors who go to court to challenge debt collectors' abusive practices (Marx) [and] Undermine the federal government's power to regulate water pollution (Georgia-Pacific, Decker, and LA County) [.]
Bill O'Reilly and Fox News legal analysts Kimberly Guilfoyle and Lis Wiehl dismissed and mischaracterized a lawsuit alleging that a citizenship question on certain Michigan ballot applications illegally burdens the right to vote. But the "citizenship checkbox" may keep citizens from voting, as the state's Republican Governor anticipated when he vetoed an earlier attempt to implement the practice.
The ACLU of Michigan has filed a lawsuit accusing Michigan Secretary of State Ruth Johnson (R) of once again violating state and federal law by including a checkbox to re-determine a voter's citizenship on absentee and election-day ballot applications. Although supporters defend the practice as a means to prevent noncitizens from voting, election experts have pointed out redundant citizenship verification is a solution to an almost non-existent problem, contrary to the claims of Johnson and Fox's Guilfoyle.
O'Reilly characterized the ACLU lawsuit seeking to eliminate the citizenship checkbox as "madness and stupidity," and threatened that if a "crazy judge" granted the injunction, he would "put the judge's face on the screen and then send [Fox's Jesse] Watters out to see him." Fox's legal analysts not only agreed with O'Reilly's evaluation of the facts and law, but also his unsupported allegation regarding the motive behind the lawsuit:
What the ACLU wants is they don't want people committing perjury when they register. They do want people voting, who are not American citizens, to advance. They believe that most of those people would vote for the Democratic candidate in Michigan. That's exactly what's going on here.
No one acknowledged the actual arguments behind the lawsuit, namely that including a checkbox for citizenship affirmation on these ballot applications violates state and federal law and suppressed voters in Michigan's most recent primary election. It was this concern that led Governor Rick Snyder (R) to veto the proposed citizenship checkbox law in July. In his veto message, Snyder, a conservative Republican, stated the citizenship question could impermissibly "create voter confusion."
Voting by noncitizens is not a problem nationally or in Michigan. Indeed, according to the authoritative and exhaustive News21 study of thousands of alleged instances of voter fraud in the U.S., voter fraud such as noncitizen voting is "virtually non-existent." With respect to Michigan, an analysis by Wayne State University Law Professor Jocelyn Benson of the Michigan Center for Election Law demonstrates that:
[Secretary of State] Johnson has irresponsibly declared that 4,000 noncitizens vote in Michigan's elections, falsely claiming that the federal government is forcing her employees to register ineligible voters.
Her data is incomplete and unverified. The 4,000 number is no more than a general estimate of how many of Michigan's 7.5 million registered voters are not citizens.
In reality, she claims to have discovered 54 noncitizens who may have voted in Michigan's elections in the past decade, and as many as 900 others who are registered but have not voted. Yet the secretary of state is able to provide details on only two noncitizens who have recently voted. That's a far cry from 4,000.
State efforts, such as Michigan's, duplicate federal law that already prohibits and punishes ineligible voting and place excessive burdens on eligible voters. A recent Advancement Project report indicates that the Latino vote in particular is susceptible to the low turnout caused by redundant citizenship screens. According to the Michigan Election Coalition, this sort of unconstitutional burden was precisely what occurred during the 2012 Michigan primary election when poll workers across the state gave contradictory and erroneous instructions to eligible voters about the voluntary nature of the checkbox. It was this inconsistent treatment of voters across the state that led the ACLU to challenge the checkbox as a violation of the federal equal protection clause of the U.S. Constitution, not the due process clause as Fox's Wiehl incorrectly stated.
Furthermore, Johnson may not even have the power to place the citizenship question on the ballot. The state legislature originally tried to pass the election change in a bill, and Michigan law does not appear to allow the Secretary to unilaterally adopt this failed legislation. Even if it did, there does not appear any justification for the Secretary to then ignore the standard administrative notice and comment procedure behind the introduction of new state rules. Finally, the Secretary appears to have passed an election practice change statewide, despite the fact that the federal Voting Rights Act -- in order to prevent illegal racial or national origin discrimination -- requires certain townships in Michigan to pre-clear any such changes with the U.S. Department of Justice before they are put into effect.
Primetime news has largely overlooked the future ideological direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide vitally important issues.
Other news outlets have acknowledged the significance of Court nominations for the next president. The New York Times has reported that "[t]he winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact if he gets to replace a justice of the opposing side." The Associated Press has added that "[d]ecisions on many of the hot-button issues in recent years have been by 5-4 votes. These include upholding Obama's health care overhaul, favoring gun rights, limiting abortion, striking down campaign finance laws, allowing consideration of race in higher education and erecting barriers to class-action lawsuits." Both articles note that because four justices are currently in their seventies, the next president's prospects for appointing multiple justices are very real.
Some media outlets have accepted uncritically a U.S. Chamber of Commerce Institute for Legal Reform survey on "state lawsuit climates" for businesses, even though the survey is wholly based on interviews with lawyers and executives for large corporations. Experts have for years critiqued the survey, which claims to rank states on how "fair and reasonable" their tort liability systems are, as "lack[ing] elementary social scientific objectivity" and "substantively inaccurate and methodologically flawed."
Mitt Romney's embrace of rejected right-wing Supreme Court nominee Robert Bork received another pass in the media on Sunday when David Gregory, host of NBC's Meet the Press, failed to ask Romney about Bork and his outside the mainstream view of the Constitution in the course of a lengthy interview.
Bork serves as one of three co-chairs of Romney's "Justice Advisory Committee," which, according to his campaign, advises the candidate on "the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues." Bork's nomination to the Supreme Court was rejected by a bipartisan Senate majority in 1987 because his positions on the Constitution were so far outside the mainstream.
GREGORY: I want to ask you one question on the social issue and that is abortion. You were on this program in 2007 and you said that you would fight to overturn Roe v. Wade. I know you said this is an issue for the courts. I ask you now would a President Romney fight to overturn Roe v. Wade? And what would you do in that fight to achieve that goal?
MR. ROMNEY: Well, there are a number of things I think that need to be said about preserving and protecting the life of the unborn child. And I recognize there are two lives involved: the mom and the unborn child. And I believe that people of good conscience have chosen different paths in this regard. But I am pro-life and will intend, if I'm president of the United States, to encourage pro-life policies. I don't--
GREGORY: Just encourage or fight for it to be overturned?
MR. ROMNEY: Well, I don't actually make the decision the Supreme Court makes and so they'll have to make their own decision. But, I will, for instance, I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country. Those things I think are consistent with my pro-life position. And I hope to appoint justices to the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.
Gregory asked Romney one question which touched on the courts and the Constitution: "would a President Romney fight to overturn Roe v. Wade?" But that question falls short in addressing many other vitally important legal issues - from environmental regulation to racial justice, from women's equality to corporate power - that would come before judges nominated by Romney. Bork presumably advises Romney on these "judicial matters."
Romney's embrace of Bork is especially relevant and worthy of media scrutiny because the next president will almost certainly be in a position to appoint three or more Supreme Court justices. Four of the current justices are over 70 years of age, and Justice Ruth Bader Ginsburg will turn 80 next year. If Romney is elected and is able to confirm justices with views similar to Bork, he will shift the Roberts Court -- already one of the most conservative in history -- even farther to the right.
Despite the tremendous importance of the next President's ability to reshape the Supreme Court, major media outlets have for the most part ignored Romney's embrace of Bork and its implications for the future of the Court. The Washington Post, Wall Street Journal, Los Angeles Times, and the three major broadcast networks have all failed to address the issue. Only The New York Times has provided substantial coverage of Bork's role in Romney's campaign.
Joining others in right-wing media, Fox News is using the GOP convention as an opportunity to push preferred candidates for Mitt Romney's cabinet. For example, on the August 29 edition of Fox & Friends, Gretchen Carlson promoted the prospect of Rudolph Giuliani serving as Attorney General in a Romney administration. However, in their endorsement of Giuliani for the position of the nation's chief law enforcement officer and legal advisor, the Fox News hosts did not mention Giuliani's patronage of convicted former Department of Homeland Security nominee Bernard Kerik, or Giuliani's questionable record on the protection of civil rights and liberties as Mayor of New York City.
While guest hosting The O'Reilly Factor on August 24, Monica Crowley praised SB 1070 architect Kris Kobach's filing suit against the Obama administration's "deferred action" policy, which allows young undocumented immigrants to temporarily remain in the United States. But Crowley failed to mention that the deportation policy is the continuation of long-standing prosecutorial discretion, and also neglected to report the lawsuit's basic procedural flaws.
Instead, Crowley ignored the weaknesses of the lawsuit and alleged the policy is "illegal," accused the administration of acting "extra-constitutionally," and finally commended Kobach for "fighting the good fight" against a "banana republic."
The lawsuit was filed in district court by Kobach on August 23 on behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents and is underwritten by controversial "immigration-restriction" group NumbersUSA, despite the Supreme Court's recent reminder that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Nevertheless, the lawsuit challenges the administration's policy of deferred action in deportation proceedings for undocumented youth - a continuation of standard immigration discretion also practiced by George W. Bush - and further undermines its credibility through its choice of plaintiffs.
A Boston Globe editorial noted that by the end of his first term, President Obama will have appointed far fewer lower court judges than either of his two predecessors, and chided him for "fail[ing] to make the most of an opportunity to shape the federal judiciary." The editorial referenced a recent New York Times article that highlighted unprecedented Republican obstruction of President Obama's nominees but does not actually mention this fact. By ignoring Republican obstruction, the Globe gives its readers far less than half the story.
The federal judiciary currently has so many vacancies that more than half of Americans are living in a "judicial emergency." That is, as district judges are increasingly faced with disproportionately large dockets, attention to individual cases falls, resolution is delayed, and access to justice for everyone suffers. As The New York Times reported, as of August 17, "Mr. Obama has appointed just 125 such judges, compared with 170 at a similar point in Mr. Clinton's first term and 162 for Mr. Bush."