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."
From wildly offensive treatment of civil rights history to routine mendacity on voter ID, Fox chose to mark the 50th Anniversary of the March on Washington by smearing the ongoing struggle for voting rights.
Over the past week leading up to President Barack Obama's commemoration of the anniversary on August 28, Fox News has been at the forefront of right-wing media attempts to discredit links between the progressive community and the civil rights legacy of the March on Washington. Voting rights, in particular, have attracted a significant amount of misinformation and ignorance, some of it quite shocking.
On June 12, 1963, Medgar Evers, a Battle of Normandy veteran and the NAACP's first field secretary for the state of Mississippi, was assassinated in his driveway. Shot in the back, his murder was the culmination of an extensive white supremacist terror campaign against the voting rights and desegregation advocacy of the NAACP, a cause that President John F. Kennedy championed the very night of Evers' death as both a moral and constitutional issue to ensure "American citizens of any color [can] register and  vote in a free election without interference or fear of reprisal."
Evers' widow, Myrlie Evers-Williams, was invited to speak at the original March on Washington that took place two months later, an invitation that she was finally able to accept this past weekend at the 50th anniversary events. She warned about ongoing "efforts to turn back the clock" on the civil rights movement.
Congressman John Lewis, another veteran of the voting rights struggles, was more explicit. Also the victim of brutal violence due to his efforts to protect the right to vote, Lewis referenced the infamous Shelby County v. Holder Supreme Court decision and told the crowd, "I gave a little blood on that bridge in Selma, Alabama, for the right to vote. I am not going to stand by and let the Supreme Court take the right to vote away from us...We must say to the Congress, fix the Voting Rights Act."
On the August 26 edition of her radio show, Fox News contributor Laura Ingraham chose to follow up a recording of Lewis' call to Congress to both fix the Voting Rights Act and pass immigration reform with a gunshot sound effect. As Joan Walsh of Salon observed, even "[a]fter the assassinations of Medgar Evers, John F. Kennedy, Bobby Kennedy and Dr. King, after the gunning down of so many civil rights workers over the years, Ingraham thought it was funny, or clever, or provocative, to 'symbolically' cut off Lewis' speech with the sound of a gun."
Fox News downplayed Colin Powell's objections to strict voter ID laws and ignored the fact that Texas not only has a long history of illegal racial discrimination in its election practices, a federal court already found its voter ID measures to be impermissible voter suppression.
On the August 26 edition of America's Newsroom, Fox News host Martha MacCullum and correspondent Mike Emanuel reported on the Department of Justice's new legal challenge to the voter ID law Texas immediately enacted after the Supreme Court struck down a crucial provision of the Voting Rights Act (VRA) in Shelby County v. Holder:
Fox News failed to mention, however, that Texas is being accused of illegally suppressing the vote through a voter ID law that has already been found to be racially discriminatory by a federal court.
Writing for a three-judge panel in 2012, a circuit judge dismissed Texas' evidence that its voter ID law was not impermissibly discriminatory as "unpersuasive, invalid, or both." As explained by the Constitutional Accountability Center's Doug Kendall:
[I]n Texas v. Holder, a three-judge court unanimously blocked Texas' new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic. The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available - a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card - and making it costly to obtain a so-called "free" election ID for use at the polls. For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, "imposing an implicit fee for the privilege of casting a ballot." The "very point" of the Voting Rights Act, the court explained, was to deny "states an end-run around the Fifteenth Amendment's prohibition on racial discrimination in voting."
On August 12, a federal court judge ruled that the New York Police Department (NYPD) was improperly performing the common police tactic of "stop and frisk" by unconstitutionally targeting persons of color without reasonable suspicion. The New York City Council agreed, and passed legislation over a mayor's veto on August 23 to safeguard against future unconstitutional applications of this long-standing enforcement tactic. Right-wing media responded by ignoring the constitutional violations and instead defended the NYPD's actions for "establishing a sense of order."
Fox News hosts repeatedly attacked a federal court opinion that found that the New York Police Department's (NYPD) version of stop and frisk was unconstitutionally applied by arguing stop and frisk in general is constitutional, a misleading conflation of the NYPD's enforcement tactics and proper stop and frisk procedure.