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."
The National Review has attempted to distract from Rep. Paul Ryan's (R-WI) and Rep. Todd Akin's (R-MO) support of the extreme "Sanctity of Human Life Act" -- legislation that equates abortion and contraception to murder -- by neglecting to mention its relevance to Akin's rape comments and falsely asserting potential bans on abortion aren't a concern. But it is the act's radical redefinition of a fertilized egg as a person that Akin was defending with his imaginary claim that "legitimate rape" does not lead to pregnancy, and the fact that voters in conservative states have rejected similar "personhood" laws merely demonstrates how far outside the mainstream Ryan and Akin are.
In their move to distance conservative media from Akin's comments, the editors of the National Review called for Akin to withdraw his candidacy for the U.S. Senate. However, this calculated abandonment of Akin for announcing a right-wing view that the National Review acknowledges, but prefers kept under wraps, ignores the resurgent movement to criminalize all forms of abortion. By omitting the relevance of the Sanctity of Human Life Act to Akin's comments and the editorial's claim that "no state is going to ban abortion in the case of rape even if Roe v. Wade is overruled," the editorial is perpetuating frequent contributor Ramesh Ponnuru's attempts to gloss over Ryan and Akin's hostility to reproductive rights.
Indeed, the National Review's misdirection is even more apparent now that it appears the 2012 Republican platform will once again support a so-called "human life amendment" to the Constitution that would criminalize abortion in all circumstances. Furthermore, not only is the National Review's reassurance on state abortion bans irrelevant if reports on the GOP platform are accurate, it is wholly misrepresentative of recent state efforts to infringe on women's constitutional rights. In fact, conservative-leaning states have seen multiple attempts at "personhood" bills similar to Ryan and Akin's legislation. This fall, Colorado will likely again have a "personhood" ballot initiative presented to its voters, even though the unconstitutional measure just failed in Mississippi and was held "void on its face" in Oklahoma by the state Supreme Court.
Accordingly, it is unsurprising that Akin's apology for becoming "nationally notorious...for saying something stupid" was specifically only for the "words I said" in reference to rape and not for "the heart I hold," wherein presumably all abortion is criminalized pursuant to "personhood" legislation. A radical criminalization that, the National Review fails to mention, could also apply to in-vitro fertilization, stem-cell research, most forms of contraception, and even miscarriage.
In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.
In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.
Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to "reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest."
As conservative media scramble to defend Congressman Paul Ryan (R-WI) from charges that his proposed overhaul of Medicare would negatively affect seniors, one point is noticeably absent from their discussion: Ryan's plan imposes a Medicare "mandate" remarkably akin to the requirement to purchase insurance under the Affordable Care Act. Fox News and other conservative media are apparently ignoring this similarity, despite their two-year campaign against the highly similar provision in the Obama-supported health care reform law.
Fox News' Dana Perino asked on the August 13 edition of Fox & Friends, "who wouldn't want" Ryan's plan for Medicare? Left unsaid is that the health care reform law's constitutional choice of obtaining a private health insurance plan or paying a health insurance tax and Ryan's choice of obtaining a private Medicare plan or paying a Medicare tax are essentially the same.
Health care law expert Simon Lazarus wrote in Slate that:
Republicans' proposal to replace Medicare with partially subsidized private insurance also operates to "compel" people to pay for private health insurance policies. Moreover, this mandate is not even a pay-or-play option; Medicare taxes are mandatory, whether workers want to buy eligibility for old-age vouchers or not.
Matching the inflammatory rhetoric about health care reform's elimination of cost-sharing for women's contraception, conservative media outlets are currently misrepresenting a preliminary court order in a private company's challenge to this policy. Contrary to the right-wing narrative that crudely oversimplifies the complex legal issues at stake and ignores the need to balance the constitutional rights of employers with those of their female employees, the questions in the case are neither easy nor clear.
When the popular requirement went into effect that most insurance plans -- including employee plans sold to employers -- could no longer charge women co-pays or deductibles for prevention or wellness care, conservative media figures declared a national disaster. On August 1, the Editors of the National Review Online intoned that "[t]his day...is a dark one for religious freedom in the United States." Sean Hannity mirrored this solemnity on Fox News and announced "today is the day that religious freedom in America, in many ways died" (Fox Hannity Show, 8/1/12, via Nexis).
This reaction was unfortunately unsurprising. Despite the fact that many religious believers and institutions and most voters support insurance coverage of contraceptives, birth control has conflicted with the religious concerns of some since the 1960s. Recognizing this, the law provides an exemption from the contraceptive coverage requirement to "a nonprofit church or close church affiliate if it primarily employs and serves persons who share its religious tenets, and the purpose of the institution is the inculcation of religious values." [National Health Law Program, 8/12]
The exemption is similar to those used on the state level, and twenty-eight states currently have contraceptive insurance equity acts. The administration may also accommodate non-exempted non-profit organizations by allowing them to opt-out of the provision of insurance coverage for contraception, but instruct insurance companies to meet the preventive and wellness requirements directly. Nevertheless, claiming that these exemptions and accommodations do not go far enough, a for-profit, secular, Colorado-based company filed a lawsuit alleging it too should be treated like a church and be exempted from offering female employees plans with contraception coverage.
The case is one of first impression. As such, the judge issued a preliminary injunction, temporarily halting this company's compliance with the law until the court could consider the merits of the case. The Heritage Institute's Foundry said the company "demonstrated the strength of the religious liberty challenge to Obamacare." Ed Whelan of the National Review Online said "it's clear that the HHS mandate tramples [religious] protections[.]"
It's not that simple.
In a July 30 editorial opposing the implementation of the Affordable Care Act, the Wall Street Journal opined that planning for the new health insurance marketplaces called Exchanges belongs on a "fiasco list." However, the editorial misrepresented the pace of exchange planning, downplayed the catalyst of Republican "civil disobedience" in implementation slow-downs, and obscured the role that right-wing media and advocates have in this intransigence.
States That Have Attempted Exchange Implementation Are Actually "Well Underway"
Many of the nation's leading health policy organizations are closely monitoring implementation of health care reform and exchange progress is one of their metrics. The National Academy for State Health Policy (NASHP) is one such example, and the WSJ editorial cited them for the proposition that "by and large the states aren't" building exchanges. However, the editorial did not mention NASHP's most recent report on exchange implementation that instead notes in the opening paragraph that "many states are well underway in planning for and establishing their exchanges." Rather, without indicating the source, the WSJ used NASHP's "State Refor(u)m" project that is a user-generated "online network." That is, the metrics that the WSJ cited for the alleged "fiasco" of exchange implementation is a measurement of documents voluntarily uploaded to a wiki. State Refor(u)m does not claim to be a comprehensive progress measurement, but rather a clearinghouse reliant on user submissions.
Thus, the editorial's listing of "liberal leader" states who score low on this "milestone" measure of State Refor(u)m does not support its thesis. These "milestones" are not an accurate barometer of the difficulties in exchange planning - or even of completion of these actual metrics - but rather of the success of this network at attracting policy documents. Indeed, several of the states that the WSJ specifically lists as laggards - Massachusetts, California, Oregon, West Virginia, Colorado, Washington, Vermont, New York - actually have fully established exchanges, the first two of which were established by Governors Mitt Romney and Arnold Schwarzenegger, respectively.
On July 29 The Heritage Foundation published a post on its blog, The Foundry, that called for the filibuster of Oklahoma Judge Robert Bacharach's bipartisan-supported nomination to the U.S. Court of Appeals for the Tenth Circuit. However, as the post noted, the unwritten Senate procedure that is the "Thurmond Rule" typically blocks a sitting president's judicial nominations at some point prior to a presidential election only if they are "cronies and ideologues." As a consensus pick, Judge Bacharach is clearly neither.
The Thurmond Rule is named after the late segregationist Senate Judiciary Committee Chairman Strom Thurmond (R-SC) and generally refers to the long-standing practice of the opposition party in the Senate blocking most judicial nominees after a certain date in the run-up to a presidential election. A successful filibuster tonight of Judge Bacharach's consensus bipartisan-supported nomination could well be an unprecedented and extreme extension of the practice at a time when judicial vacancies have become a crisis.
This so-called rule is nothing more than an unwritten and unrequired historical practice that has been used by both parties. But CQ Today reported on July 27 (via Nexis), "[n]o appeals court nominee who received bipartisan support in committee has ever been successfully filibustered on the floor." This inapplicability of the Thurmond Rule to consensus nominees has support in an analysis of the rule's application in a much-cited 2008 Congressional Research Service report that noted:
[T]he Senate is more likely to move forward late in presidential election years with what they view as "consensus" nominees. Some Senators have suggested that a nominee could be considered as a consensus choice if he or she has the support of both home state Senators.
While there may be disagreement as to which nominees are "consensus" nominees, the support of both home-state Senators (particularly if the Senators are of the opposition party) is an important indicator of the President's willingness to work with individual Senators when making nominations. [Congressional Research Service, 8/13/12]
Because the Foundry post appeared to recognize this point by stating the Thurmond Rule applies to "cronies and ideologues," it is peculiar that the post simultaneously called for Senate Republicans not to "hold their manhood cheap" and instead filibuster Judge Bacharach. The judge was not only rated to be unanimously "well-qualified" by the American Bar Association due to his "stellar professional qualifications," but also has the support of both of his conservative home-state Senators, Republicans James Inhofe and Tom Coburn. Considering Republican Senators Susan Collins and Olympia Snowe have already committed to voting to end the filibuster and his nomination "sailed through the Senate Judiciary Committee last month," criticism of the judge as a crony or an ideologue is unfounded. Senator Coburn has already gone on the record with his home-state paper as claiming application of the Thurmond Rule to Judge Bacharach would be "stupid" and:
"I believe that Judge Bacharach will uphold the highest standards and reflect the best in our American judicial tradition by coming to the bench as a well-regarded member of the community," Coburn said. "At a time when our country seems as divided as ever, it is important that citizens respect members of the judiciary and are confident they will faithfully and impartially apply the law." [NewsOK, 6/8/12]
On July 27, the Wall Street Journal published an op-ed by former Reagan and George H.W. Bush officials, David B. Rivkin Jr. and Lee A. Casey, which accused President Obama of a "pattern of lawlessness" behind the administration's recent actions on welfare reform, immigration, and education policy, "designed to appeal to the president's liberal base." The op-ed did not note that these actions -- described by the authors as "tak[ing] a hatchet" to the relevant laws -- were authorized by Congress or consistent with long-standing bipartisan practice and precedent.
Welfare Reform Waivers Were Requested To Improve Work Requirements
Rivkin and Casey accused the administration of "unilaterally gutt[ing]" welfare reform, repeating a right-wing media refrain begun immediately after the administration announced it would allow state flexibility for work requirement documentation processes under Temporary Assistance for Needy Families (TANF). Not only is the administration not "waiv[ing] the central tenet of the Clinton welfare-reform law -- the requirements that recipients work or prepare (through approved education or training) to do so," as charged in the op-ed, the administration has explicitly pointed out that waivers will only be granted to proposals that "move at least 20% more people from welfare to work."
Furthermore, although the WSJ op-ed blamed "progressives" for not accepting the principle of work requirements, it did not mention that the immediate waivers requested were put forth by the current Republican governors of Utah and Nevada. The op-ed also failed to inform that the waivers currently under contemplation in response to Republican requests are reported to be less significant than those requested by notable Republican figures in 2005, including Governor Rick Perry, Governor Tim Pawlenty, Governor Jeb Bush, Governor Haley Barbour, and critics of the current waiver proposal Mitt Romney and Mike Huckabee.
Right-wing media have marked the 40th Anniversary of Title IX by attacking equal opportunity efforts for women in the "STEM" fields of science, technology, engineering, or math. The historic civil rights law prohibits discrimination in federally-funded education programs or activities on the basis of sex.
Conservative media has not only argued that such affirmative action is unconstitutional, but has gone farther and argued that the law does not apply beyond scholastic sports and requires quotas. They also insist that women simply do not want to study or work in science-or math-related fields. The first three claims are demonstrably incorrect; the fourth assertion contradicts numerous studies and cannot satisfactorily explain the disproportionate under-representation of women in these educational fields.
On the July 25 edition of Fox & Friends, Gretchen Carlson hosted a segment that touched on all of these discredited arguments in an interview with Hans Bader, Counsel for Special Projects for the right-wing Competitive Enterprise Institute. Bader concluded the interview by asserting that women are heavily underrepresented in the STEM fields because they naturally choose "organic subjects like people, plants, animals, biology, psychology." Carlson then ended the interview, noting that there "could be" a counter argument to this last claim.
Bader's Fox and Friends appearance is only the most recent example of conservative attacks on the Obama Administration's efforts to utilize Title IX for the promotion of equal opportunity in science and math education.
For example, Sabrina Schaeffer and Carrie Lukas of the conservative Independent Women's Forum did the same on June 18 and June 22 in the Huffington Post and U.S. News, respectively, Fox News Political Analyst Kirsten Powers took aim at sex-based affirmative action on July 17 in USA Today, and New York Post columnist Kyle Smith used the front page to launch a July 14 op-ed that was particularly reliant on sex stereotypes.
These conservative commentators repeated Bader's false claims: that Title IX's scope is limited to athletics, the Obama administration is proposing quotas, equal opportunity efforts disregard women's aversion to science and math, and affirmative action on the basis of sex is unconstitutional.
All of these conservative critiques are incorrect or unsubstantiated.
Last week, two new reports -- released by the Brennan Center of Justice at the NYU School of Law and the University of Delaware's Center for Political Communication, respectively -- further undermined the conservative media's discredited claims that voter ID laws do not have a discriminatory impact on persons of color and are not intended to be discriminatory on the basis of race. These reports are timely because as restrictive voting rules in conservative-leaning states increasingly materialize, civil rights advocates are noting that these state laws look very much like poll taxes- voter suppression tactics long prohibited. In response, the right-wing media has recycled multiple messages to disavow the impermissible racial discrimination of these laws.
Right-wing media try many different smokescreens in addition to just denying the racial effect of voter ID laws and redistricting altogether. For example, they have disputed the veracity of data to the contrary, argued that these tactics are not in fact barriers, and raised the specter of voter fraud, which experts have demonstrated is practically non-existent. However, it is still the first defense -- that these efforts have no racial effect -- which feeds most effectively into the right wing's preferred "colorblind" narrative.
This right-wing media denial of the racial effect usually has two components in an attempt to whitewash voter suppression, claiming that whatever effect these laws have on communities of color is wholly incidental. That is, there may be a discriminatory impact, but there is no discriminatory intent. Although the editorial page of The Wall Street Journal may have been the most recent mainstream purveyor of this message -- condemning any criticism of the recent wave of conservative-backed voter ID laws as "racial politics" -- they are far from alone in the right-wing media.