The National Review Online smeared class action lawsuits in its attack on a recent report on forced arbitration by Public Citizen, the prominent consumer advocacy organization.
The conservative wing of the Supreme Court has been on a tear in recent years, issuing one big-business opinion after the other that strengthens corporate immunity against civil justice. Right-wing media have cheered this trend, especially those decisions that rewrite precedent to make it harder for consumers and small businesses to vindicate their rights. From NRO, which dismissed class actions as "a cash cow for trial lawyers [that] don't usually help consumers":
Earlier this month, Public Citizen released a report that praised the work of private consumer lawsuits to make parallel state enforcement efforts possible. The report cites the tobacco litigation and various insurance abuse cases, and calls for strictly limiting arbitration by, among other things, banning forced arbitration clauses in consumer and employment cases, the subject of the Arbitration Fairness Act. Not surprisingly, this report distorts the truth, which is that trial lawyers, not consumers, would benefit from such a radical campaign against arbitration.
But Public Citizen was not objecting to arbitration in general, rather to forced arbitration and class action bans. From the report, which examined how arbitration law too often disfavors state consumer protections, a posture that has allowed businesses to begin a "widespread practice of inserting forced arbitration clauses into consumer contracts":
These clauses require that any potential disputes must be settled through private arbitration. Consumers are harmed by these clauses because they are denied the opportunity to have their case heard in a neutral court of law that is subject to public oversight. In forced arbitration, the company selects the arbitration firm that will conduct the hearing, giving the arbitration firm a financial incentive to favor the business. Moreover, arbitration proceedings are often conducted in secret, may be adjudicated in a manner that does not follow the law, and frequently limit many common legal principles, including the use of discovery. Also, there is scant opportunity to appeal an arbitrator's ruling.
The Supreme Court's 2011 ruling in AT&T Mobility LLC v. Concepcion compounded the effects of [previous anti-consumer rulings] by permitting companies to insert language banning the use of class actions into arbitration clauses. Class action bans often have the practical effect of preventing consumers from seeking redress of any sort, whether in arbitration or in court, because the alleged harms to individual consumers often are not large enough to make it economically feasible to bring a case.
This is not a "radical" position and arbitration voluntarily entered into is not the issue. In addition to consumer advocates and the liberal Supreme Court justices who disagree with the anti-class action decisions NRO defends, even arbitrators have joined groups like Public Citizen in criticizing forced arbitration clauses combined with bans on class actions.
In his efforts to pretend a proposed state law enforcement bill in California was "extreme" and unconstitutional, Fox News host Bill O'Reilly accidentally explained why it was legal.
California is currently contemplating the TRUST Act, a new bill that would clearly delineate the responsibility of state enforcement officials when they participate in the federal Secure Communities program, a joint effort that processes immigration status information taken at the local level through national databases.
Even though O'Reilly correctly noted Secure Communities is a cooperative program between state and federal officials, he still erroneously insisted the TRUST Act "subvert[s] federal law" in an interview with the former head of Immigration and Customs Enforcement (ICE). From the September 25 edition of The O'Reilly Factor:
O'REILLY: Here is how extreme things are. A proposed new law in California would prevent -- prevent police from even cooperating with the federal government on illegal alien criminal cases. Democratic politicians in California obviously doing this to strengthen their base among immigrants from south of the border. Joining us now from Washington: Julie Myers Wood, former head of Immigration and Customs Enforcement. So obviously California is subverting federal law or am I wrong Ms. Wood?
O'REILLY: Shouldn't the attorney general though go in and say to California you can't do this. You can't not cooperate with federal people, ICE, when you have a criminal situation and if -- and we'll sue you if you continue this policy. Shouldn't the attorney general do that?
O'REILLY: But what are the odds of [Attorney General Eric] Holder doing that, you know the game in D.C. You know the players. What are the odds of the attorney general as you rightly pointed out did sue Arizona, same -- same issue. Your countermanding federal law, you can't do that. What are the odds of him saying the same thing to Jerry Brown and the people in California?
O'REILLY: All right. We're going to call the attorney general's office and see when the federal lawsuit will be filed against the state of California for failing to cooperate with federal officials.
But O'Reilly is flatly incorrect that the TRUST Act interacts with federal law in the same manner that the anti-immigrant Arizona law SB 1070 did.
The New York Post continued right-wing media fearmongering about the consequences of discontinuing unconstitutional policing methods and electing a Democratic mayor.
Leading up to the federal court decision that held the New York City Police Department (NYPD) unconstitutionally and systematically misapplied the common police tactic of stop-and-frisk, right-wing media repeatedly warned that following the law would send crime rates spiraling up.
Specifically, right-wing media argue that if the NYPD is forced to perform stop-and-frisk constitutionally like other jurisdictions, New York City will revert to its crime rates of the early 1990s, prior to the administrations of the last two Republican mayors. The editorial board of the Post continued this trend, adapting it as an argument against the election of the current Democratic candidate for mayor and prominent critic of the illegal application of stop-and-frisk, Bill De Blasio. From the editorial, which attacked The New York Times for pointing out its previous doomsaying was "nonsense":
The New York Times is doing the city a favor. An editorial Monday declared that New Yorkers need not worry about a return of the violence that ravaged Gotham in the pre-Bloomberg/Giuliani days. In so doing, the paper crystallized the competing messages of this vital election year.
On one side are those who believe there's nothing inevitable about the historically low crime levels New York enjoys today. This side believes that safe streets are the fruit of tough decisions taken by Mayors Giuliani and Bloomberg, and innovative tactics under Police Commissioners Bill Bratton and now Ray Kelly. This is the side of The Post, the police and mayoral candidate Joe Lhota.
On the other side are those who pretend we've solved this problem forever and the ugliness can never return. This side includes the Times and the man it seems likely to endorse for mayor, Bill "Tale of Two Cities" de Blasio.
That's what's at stake in this election. Back in the days when more than six people a day were killed in New York, versus about one a day today, even the Times worried that New Yorkers "think twice about where they can safely walk." The city felt like "a New Beirut."
Accompanying the Post editorial was a photograph of a man in police custody, with the following bizarre caption: "Here's a scene from your two cities, Bill: In July 1985, Mark Campbell, 26, was charged with second-degree murder for delivering a fatal karate chop to his girlfriend's 17-month-old son -- because the baby's crying kept him awake."
Of course, this tragic murder as described is utterly irrelevant to a discussion of stop-and-frisk tactics, which the Post itself described as a way "to go after bad guys, especially the ones carrying guns." Indeed, a simple Google search quickly reveals that shocking child murders - with or without guns - continued during the administrations of Republican mayors.
Media outlets are ramping up their pushback against a highly questionable PolitiFact Virginia analysis of the proposed elimination of no-fault divorce law supported by Ken Cuccinelli, the Republican candidate for governor of Virginia and favorite of "father's rights" groups.
Obsessed with an uncontroversial 2007 academic article she wrote on reproductive rights, National Review Online continues to smear judicial nominee Cornelia Pillard, whose approval vote before the Senate Judiciary Committee is today.
Nominated to the second-most important court in the nation, Pillard should be voted out of committee on her way to a Senate confirmation vote based on her stellar qualifications for the U.S. Court of Appeals. Because of right-wing media attacks started by National Review Online and repeated almost verbatim by GOP Senators on the committee, the vote is expected to be straight down party lines.
In anticipation of the vote, last night the editorial board of the NRO regurgitated the same smears.
Pivoting off of a sliver of her academic work while misrepresenting it, right-wing media have attacked Pillard for her mainstream support of family planning, comprehensive sex education, and overall adherence to established sex equality law.
Right-wing media have been so desperate to pretend her legal writings are "extreme" that not only have they dismissed the inconvenient fact that half of the Supreme Court agreed with her perspectives on reproductive rights and abortion, but her invocation of the relevance of "sex stereotypes" that NRO and others like Tony Perkins condemn was endorsed by arch-conservative former Chief Justice William Rehnquist.
But the attacks are not really about Pillard.
Rather, they are a reflection of how much the right-wing apparently loathes the decades-long development of sex equality under Fourteenth Amendment law. Make no mistake- most of these Pillard smears have nothing to do with fidelity to precedent. Right-wing media like NRO apparently desire nominees who don't support civil rights precedent.
Cornelia "Nina" Pillard is President Obama's pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.
She is also a "feminist."
A "feminist" insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's "radical feminism" appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.
In an interview with libertarian media outlet Reason.com, columnist George Will spoke out in defense of right-wing "judicial activism," highlighting civil rights precedent as particularly problematic.
While other right-wing media outlets - most notably National Review Online - twist themselves into knots pretending efforts to roll back decades of progressive law that emanated from the New Deal, civil rights era, and Great Society are paradoxically a form of restraint, Will has taken the opposite approach. As noted in a recent interview with Reason.com, Will has "increasingly kind words for what used to be derided by conservatives as 'judicial activism.'"
Will's admission as to what the current right-wing legal movement is supporting in its quest to overturn critical progressive precedent has been criticized as hypocritical from both the right and the left.
In the Reason.com interview, Will continued his unapologetic defense of judicial activism on behalf of right-wing goals, by arguing "someone has to say what the Constitution means." Will subsequently listed federal programs that he thought were suspect, including the interstate highway program, federal funding for state education, and affirmative action. Linking all three programs as unnecessary examples of government overreach, Will also explained that the time for state action against systematic racism was over because "routine daily insulting of African-Americans by white Americans is now completely unacceptable. That's an astonishing improvement."
In addition to repeating this right-wing media claim that the problems of structural racism are a thing of the past and the fight for civil rights is over and "won," Will recycled debunked right-wing media claims that affirmative action "is really not helping people, it's really hurting a lot of people," dismissing it as only a way to "make elite universities feel virtuous." In fact, this was not one of the many "substantial" benefits that conservative former Supreme Court Justice Sandra Day O'Connor relied on to uphold the continued constitutionality of affirmative action in Grutter v. Bollinger.
Will's refusal to honestly describe this race-conscious program to ensure equal opportunity in education, however, illustrates that whatever term right-wing media use to describe the current conservative legal assault on half a century of civil rights precedent, the end goal is the same.
National Review Online attacked "contemporary progressivism" because it is "led by radical lawyers," a dubious proposition that ignores the fact that the right-wing legal movement is currently attempting to overturn decades of Supreme Court precedent.
Without any acknowledgment of the recent wave of conservative challenges to long-standing law that underpins the successes of the New Deal and the civil rights movement, NRO condemned progressives for approaching the legal profession "as a kind of revolutionary instrument." From NRO:
Perhaps the most alarming fact about contemporary progressivism is that it is a movement led by radical lawyers. The use of the law to undermine our constitutional tradition is in effect the use of the law to undermine itself. But worse than that, it is the use of the legal profession as a kind of revolutionary instrument. That is a particular problem because the legal profession has always had a special role in the Anglo-American common law tradition as precisely an anti-revolutionary instrument--a repository of cautionary precedent and prudent mulishness. "The English or the American lawyer inquires into what has been done, the French lawyer into what one ought to wish to do," Alexis de Tocqueville wrote in 1835.
As the more nuanced essay that NRO relied on noted, organizations like the NAACP did in fact have to challenge racist precedent in order to overthrow Jim Crow, a form of "radical lawyer[ing]" that has inspired practitioners since.
What the NRO failed to acknowledge, however, is that if challenging "what has been done" is "undermin[ing] our constitutional tradition," it is contemporary conservatism that is currently taking its turn, with its relentless assault on modern constitutional law.
Spurred on by right-wing media, the conservative legal movement has steadily increased its challenges to established precedent on topics ranging from the ability of the federal government to regulate the economy, the protection of the right to vote from racial discrimination, the ability for workers to effectively advocate, access to justice for plaintiffs other than well-funded corporations, prohibitions on the corruptive influence of money on elections, the ability of the country to offer equal opportunity in education for all, and the president's centuries-old power to appoint officials during recesses, just to name a few.
And then, of course, there is abortion.
As Congress returns from summer recess, right-wing media are once again helping obstruct President Barack Obama's nominees to the critical U.S. Court of Appeals for the D.C. Circuit.
Picking up where it left off, National Review Online is continuing its attacks on Georgetown Law Professor Cornelia "Nina" Pillard because of her purportedly wild-eyed academic writings on sex equality law, a mainstream part of American constitutional jurisprudence for decades.
Having seemingly failed to convince anyone beyond GOP Senators like Ted Cruz - who repeated NRO's talking points during Pillard's confirmation hearing - the NRO has now resorted to accusing Pillard of "false and deceptive" misrepresentations of one of these law review articles.
Specifically, NRO claims to know the true meaning of the article's words better than the author who wrote them, confidently concluding Pillard's law review piece was not academic, but rather an "ideologue['s]" manifesto of "extremism." From NRO:
In short, contrary to her testimony, Pillard wasn't playing the disinterested academic and merely identifying "the argument that one would make to make [her equal-protection challenge] amenable" to judicial resolution. Rather, she was affirmatively advocating the argument.[emphasis original]
In short, NRO is quibbling over whose paraphrase and characterization of a 53-page academic article was more correct during the hearing.
A National Review Online editorial compared Attorney General Eric Holder to a notorious Jim Crow official for blocking a Louisiana school voucher program and accused the Obama administration of dehumanizing children of color, failing to mention the Department of Justice is acting pursuant to long-standing desegregation orders.
Continuing a right-wing media campaign against the DOJ's current attempts to ensure Louisiana remains in compliance with valid court orders still in effect to prevent the re-segregation of its public schools, the NRO followed the lead of Fox News and completely ignored the law in order to champion a Republican school voucher plan.
The NRO also accused the Obama administration of "inhumane" treatment of public school students of color, comparing the attorney general to George Wallace, the infamous Alabama governor who attempted to illegally maintain school segregation.
Finally, the editorial assumed its readership was unaware of Nixon's "Southern Strategy" and the well-known switch on race relations between the two parties because of federal civil rights law, ahistorically concluding "[w]ould that [Wallace's] fellow Democrats should have a similar change of heart and give up their half-century stand in the schoolhouse door." For a publication with an ugly and well-documented history of past and present racism, such smears are wildly audacious.
From the September 4 editorial:
It was 50 years ago this June that George Wallace, the Democratic governor of Alabama, made his infamous "stand in the schoolhouse door" to prevent two black students from enrolling at an all-white school. His slogan was "Segregation now, segregation tomorrow, segregation forever!"
These many years later, Democrats still are standing in the schoolhouse door to prevent black students from enjoying the educational benefits available to their white peers, this time in Louisiana instead of Alabama. Playing the Wallace role this time is Eric Holder, whose Justice Department is petitioning a U.S. district court to abolish a Louisiana school-choice program that helps students, most of them black, to exit failing government schools.
The Obama administration is a serial offender on this issue, and its cynicism is startling.
Setting aside the naked political cronyism that is in fact at the heart of this dispute, consider the DOJ's case on its merits: The government is arguing that the choices of actual black students and their families must be constrained in the service of preserving certain statistical measures of how black certain schools are. Put another way, this case really turns on the question: Are black children human beings?
Continuing right-wing media attacks on the Department of Justice's attempts to protect school integration in Louisiana, Fox News host Bill O'Reilly completely ignored the multiple federal court orders blocking a school voucher plan that may cause re-segregation.
Recently, right-wing media have been ignoring their proclaimed fidelity to the rule of law and the U.S. Constitution by dismissing violations of civil rights law, supposedly out of sympathy for other persons of color unaffected by the racial discrimination in question.
The most prominent example of this paradoxical stance has been right-wing media's strenuous defense of the New York Police Department's (NYPD) stop and frisk policy on behalf of crime victims of color, despite the fact that federal courts have found it unconstitutionally discriminates against millions on the basis of race. This selective disregard for legal requirements when discussing significant civil rights holdings reemerged this week, with the announcement that the Department of Justice agrees with a recent federal court decision that found the school voucher program in Louisiana was not in compliance with a decades-old court order.
On August 27, the editorial board of The Wall Street Journal responded by attacking the Department of Justice's attempt to bring Louisiana back into compliance with multiple desegregation orders potentially violated by the voucher plan, and accused Attorney General Eric Holder of betraying the principles of Martin Luther King Jr. According to the WSJ, "[a] black Attorney General ought to be applauding this attempt to fulfill MLK's dream of equal educational opportunity. His lawsuit turns racial justice on its head."
Fox News has followed this lead by offering ill-informed explanations of the Department of Justice's actions and Louisiana's integration requirements. On the August 29 edition of The O'Reilly Factor, O'Reilly didn't even bother to mention the current court orders or the fact that Louisiana could easily seek authorization from the relevant federal courts for its voucher plan, instead accusing Holder and President Barack Obama of "siding with the left."