Right-wing media continue their relentless campaign to undermine the Labor Secretary nomination of Thomas Perez, pushing the baseless claim that he acted unethically in his involvement with a withdrawn Supreme Court case that could have undone decades of civil rights precedent.
The Wall Street Journal and the National Review Online have been at the forefront of allegations, most recently made by the WSJ on May 6, that Perez perpetuated a "shady quid pro quo" with the City of St. Paul, Minnesota, because of his involvement in deliberations that resulted in a withdrawn Supreme Court case, Magner v. Gallagher, and the decision of the Department of Justice to not intervene in an unrelated False Claims Act lawsuit.
By holding a surprise hearing for the "whistleblower" who initiated the False Claims Act case against St. Paul, Congressional Republicans have used the allegations that something "awfully suspicious" occurred to push back Senate mark-up of Perez's nomination until May 8. The "whistleblower," a small business owner named Frederick Newell, may have lost a sizeable sum of money he could have been awarded if DOJ had intervened. As explained by Mother Jones, "given all the hard work he put in, it's understandable he's ticked off at Perez. But the fact that Newell didn't get his money doesn't mean Perez did anything improper."
Indeed, it's unclear if Newell could have won even if DOJ had joined the case. DOJ's top expert on these sorts of claims, Deputy Assistant Attorney General Michael Hertz, determined the case was weak, reportedly deciding "this case sucks" and to not intervene. The Magner case at the other end of this "quid pro quo," however, was of far greater significance.
Because Magner had the potential to present yet another opportunity for the conservative Justices to dismantle long-standing civil rights precedent, advocates ranging from civil rights attorneys to former Vice President Walter Mondale joined the DOJ in requesting St. Paul drop its appeal that had brought the case to the Supreme Court. In a recent op-ed for Politico, Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, explained the stakes:
As any lawyer knows, bad facts make bad law. This adage aptly applies to a fair housing case involving the city of St. Paul, Minn., that is now being unfairly used to tarnish the integrity of Tom Perez[.]
What made [Magner] so unusual was landlords' claim that by enforcing housing codes against them the city was committing a civil rights violation under the Fair Housing Act. Their argument was that bringing their buildings up to code would cost too much money, cause them to dispose of the properties and thus, affect the access of their minority tenants to housing. The district court dismissed the landlords' claims, but they prevailed on appeal.
This case represented a real threat to established civil rights laws that have protected millions of Americans from discrimination. It would be a real threat to the integrity of the Fair Housing Act if these landlords could use it to keep tenants in squalor.
St. Paul's mayor, Chris Coleman, was working with Perez on this issue and on an unrelated False Claims Act case against the city. The false claims case was relatively weak, and the Justice Department chose to dismiss it. During this same period, I was among the civil rights advocates who initiated conversations with the mayor to ask if he would withdraw the city's Supreme Court appeal in the landlords' case. Coleman's public interest background and commitment to preserving the Fair Housing Act made him uniquely sympathetic to our concerns. After due deliberation, the city dropped its Supreme Court appeal.
A Wall Street Journal columnist cited a new Urban Institute study on the increased wealth gap between communities of color and whites to both revive the debunked accusations that fair housing policies caused the subprime mortgage bubble and falsely link Assistant Attorney General Thomas Perez to these claims.
Continuing the outlet's relentless attacks on current Labor Secretary nominee Perez, editorial board member Jason Riley wrote a WSJ column claiming Perez is responsible for the racial wealth gap documented by a recent Urban Institute report by purportedly "saddl[ing] a lot of minorities with foreclosed homes, huge debt burdens and bad credit scores."
The support for this backwards allegation was that as head of the Civil Rights Division at the Department of Justice under President Obama, Perez effectively pursued lawsuits against banks that impermissibly discriminated against communities of color during the administration of former President George W. Bush. From the WSJ:
Not surprisingly, neither the Urban Institute nor the New York Times have much to say about the federal policies that pushed lenders to loan money to people unlikely to be able to repay it. But the reality is that well-intentioned housing policies aimed at low-income minorities have ultimately left those folks worse off.
President Obama's nominee for labor secretary, Thomas Perez, made a name for himself in the Justice Department by shaking down some of these lenders for "racial discrimination" if blacks and Hispanic applicants weren't approved for some loans at the same rate as whites. Other lenders got the message.
Mr. Perez is getting a promotion, and the Obama administration is patting itself on the back for pursuing these so-called fair-lending cases. Of course, all they've really done is saddle a lot of minorities with foreclosed homes, huge debt burdens and bad credit scores.
Fox News host Megyn Kelly and frequent contributor Jay Sekulow attacked Attorney General Eric Holder for a speech he gave highlighting the work of the Anti-Defamation League (ADL) in combatting threats against Muslims, a timely topic given the anti-Muslim backlash seen in right-wing media following the Boston Marathon bombings.
On April 29, Holder spoke at the centennial summit of the ADL and commended the organization for its long history fighting anti-Semitism, stating the organization would continue to "find a committed and active ally in this Attorney General." Holder closed his remarks by noting that it was two weeks to the day of the Boston bombings and praised ADL for its additional work fighting anti-Muslim bigotry, a commitment Holder assured the audience the Department of Justice shares. As explained by Holder, "just as we will pursue relentlessly anyone who would target our people or attempt to terrorize our cities - the Justice Department is firmly committed to protecting innocent people against misguided acts of retaliation."
In a "Fox News Alert" segment on America Live, Kelly attacked this speech by asking, "Has there been backlash against Muslims in the wake of Boston? And is this a time for the attorney general to be effectively scolding Americans, not to be bigoted and not to be ignorant?" Kelly also claimed that because Holder said this at the ADL's summit, "the context could be perceived by some to be somewhat offensive." In addition to pushing the argument that the bombing suspect should have been treated as an un-Mirandized "enemy combatant," Sekulow admonished Holder because "the attorney general of the United States needs to do us all a favor. Catch the terrorists. That's what he needs to be doing."
Over the objections of their own legal experts, right-wing media continue to argue the alleged Boston bomber should be denied constitutional rights unlike the hundreds of terrorists before him who have been successfully tried and convicted.
Prominent right-wing media figures have advocated a wide range of unconstitutional treatment for Dzhokhar Tsarnaev, the 19-year-old U.S. citizen accused of complicity in the Boston marathon bombing and subsequent murder of a police officer. Echoing GOP politicians from Sen. Lindsay Graham (R-SC) to Rep. Michelle Bachman (R-MN), right-wing media have called for Tsarnaev to be denied the constitutional protections regularly given to domestic or foreign terrorists in this country, both before and after the September 11, 2001, attacks.
Fox News hosts have suggested using torture on Tsarnaev because not all American citizens are "worthy of the constitutional rights that we have." The Wall Street Journal joined the dangerous clamor (fueled by Graham and Bachman) to indefinitely detain Tsarnaev in military custody as an "enemy combatant." Conservative pundit Ann Coulter told Fox's Sean Hannity she wanted authorities to "shoot up the boat" when they found Tsarnaev unarmed and "get him an automatic death penalty there."
When the Department of Justice initiated criminal proceedings against Tsarnaev, right-wing media turned their ire upon Attorney General Eric Holder and President Barack Obama for not preventing the federal judge from following the law. National Review Online's John Yoo accused the president of the "elevation of ideology over national security." Fox host Megyn Kelly continues to pretend "the public safety exception to Miranda lasts only 48 hours." A Washington Times columnist called for President Obama's impeachment because he is "unwilling" to protect America.
Fox News contributor Judith Miller wrote a highly speculative Wall Street Journal op-ed that claimed New York City police surveillance practices "may well have... prevented" the Boston bombing, ignoring that the constitutionality of these programs is currently being challenged in court and their efficacy is questioned.
In the April 24 op-ed, Miller lauded the New York Police Department (NYPD) for its blanket surveillance of American Muslim communities, which has extended beyond the jurisdiction of New York City. According to Miller, this extensive spying program "is a model of how to identify and stop killers like the Tsarnaev brothers before they strike" and should be emulated by other cities. From the WSJ:
[T]he city has developed a counterterror program that is a model of how to identify and stop killers like the Tsarnaev brothers before they strike. The 1,000 cops and analysts who work in the NYPD's intelligence and counterterrorism divisions, for instance, would likely have flagged Tamerlan Tsarnaev for surveillance, given Police Commissioner Ray Kelly's insistence on aggressively monitoring groups and individuals suspected of radicalization.
The NYPD maintains close ties to Muslim preachers and community leaders, as well as a network of tipsters and undercover operatives.
Once the department had Tamerlan under surveillance, the NYPD's cyberunit might have detected his suspicious online viewing choices and social-media postings. Other detectives might have picked up his purchase of a weapon, gunpowder and even a pressure cooker--an item featured in an article, "How to Build a Bomb in the Kitchen of Your Mom," in the online al Qaeda magazine Inspire.
Even if the NYPD hadn't been watching Tamerlan, it might have been tipped off to such suspicious purchases thanks to its Nexus program. Since the program's launch in 2002, the department has visited more than 40,000 businesses in the metropolitan area, encouraging business owners and managers to report suspicious purchases or other activities potentially related to terrorism.
Fox News is leading the right-wing media chorus baselessly claiming Dzhokhar Tsarnaev, the apparent bomber in the Boston Marathon attacks, should be indefinitely detained as an "enemy combatant," even though legal experts maintain it is unlikely he qualifies for this designation.
Militarily detaining U.S. citizens apprehended in this country as "enemy combatants" for acts of terror is extremely rare and constitutionally questionable. Former President George W. Bush transferred the last U.S. citizen held in such a fashion to federal criminal court rather than have the Supreme Court rule on the matter. President Barack Obama, while not explicitly disavowing his authority to indefinitely detain U.S. citizens as "enemy combatants," has publicly determined the practice to be unwise and contrary to American tradition and law.
Despite the legal uncertainty of the practice, Fox News host Sean Hannity declared that Tsarnaev should be held as an "enemy combatant" because "the evidence is obviously out there." From an interview with right-wing commentator Ann Coulter on the April 22 edition of Hannity:
National Review Online misrepresented civil rights precedent to attack the Environmental Protection Agency (EPA), continuing right-wing media's campaign against the validity of a long-standing civil rights doctrine that prohibits certain racial discrimination.
Right-wing media have repeatedly stated their intense dislike of the effective civil rights doctrine of "disparate impact" analysis, a type of anti-discrimination protection that can prohibit seemingly neutral law and policy that has a disproportionate effect on certain groups. For example, its use in the context of fair housing law on behalf of victims of color - unanimously recognized as legal by appellate courts - has been consistently attacked by both NRO and the Wall Street Journal, an attack that has shifted to the use of the doctrine by Assistant Attorney General Thomas Perez, current Labor Secretary nominee.
In addition to fair housing, in which the doctrine has resulted in significant settlements from banks that engaged in predatory loaning and related discrimination, compliance with disparate impact law has also been identified as a way for the EPA to ameliorate environmental actions that have a disproportionate effect on communities of color. This "environmental justice" approach was recently criticized by NRO as "wacky," dubious," and "inconsistent" with Title VI of the 1964 Civil Rights Act:
[T]he Obama administration has taken the already-wacky concept of "environmental justice" to even-wackier extremes. The basic idea here is that whether pollution is illegal or not can depend on whether its possible victims reflect a politically correct racial balance.
Now EPA has made it "significantly easier for environmental groups to establish" a violation under this dubious approach to the law....And, what's still more, the whole approach is inconsistent with the underlying statute involved, Title VI of the 1964 Civil Rights Act.
Right-wing media have a long history of leveling charges of anti-white bias at President Obama's nominees and appointees of color, smears that have now formed the basis of Republican attacks on Labor Secretary nominee Thomas E. Perez.
Wall Street Journal columnist Allysia Finley smeared "legal legend" federal Judge Thelton Henderson, the Department of Justice's first African-American civil rights attorney, and ignored Supreme Court precedent in order to attack a recent court ruling that re-affirmed California's prisons are unconstitutionally overcrowded.
On April 11, a three judge panel issued a "blistering" opinion that denied California's most recent request to be released from its court-ordered obligations to reduce unconstitutional overcrowding in its prison system, and warned the state it would be found in contempt if it continued to delay its compliance. The panel included Henderson, the judge who the state deferred to in the original class-action suit. From the WSJ, which characterized Judge Henderson as "dangerous to the constitutional system of checks and balances," Finley wrote:
Judge Henderson is perhaps best known for his infamous decision in 1996 to block California's Prop. 209, a voter approved-initiative banning affirmative action in state government and institutions, on the pretext that the ballot measure was discriminatory and likely unconstitutional.
Judge Henderson boasted to the San Jose Mercury last year that the Prop. 209 opinion was "probably as careful a decision as I've ever drawn up."
That sets a low bar for assessing a 2006 Henderson decision which held that sub-standard medical care in California prisons violated the 8th amendment's prohibition against cruel and unusual punishment.
When [Governor Jerry] Brown suggested he would appeal the panel's court order to the Supreme Court, Judge Henderson and his liberal peers on the panel (also appointed by Mr. [Jimmy] Carter) threatened to hold him in contempt and dun the state.
Mr. Brown has in the past favored using the courts to redress social inequities, but perhaps his judicial thinking will evolve after getting mugged by liberal judges and the plaintiffs bar.
The Los Angeles Times editorial board misleadingly suggested a proposed California anti-discrimination bill that would affect the Boy Scouts of America because of its anti-LGBT policy was not only unfair, but unconstitutional.
On April 10, the Los Angeles Times announced it was opposed to a new California bill that would deny a state sales and use tax exemption to any public charity youth organization that discriminates on the basis of "gender identity, race, sexual orientation, nationality, religion, or religious affiliation," thereby aligning the conditions of this exemption with other state anti-discrimination law and policy. Because the government subsidy at issue is used by the Boy Scouts of America, the LAT correctly observed that its policy of discrimination on the basis of gender identity and sexual orientation would run afoul of the proposed Youth Equality Act. The editorial board questioned whether the Boy Scouts "should be singled out from other nonprofits" and suggested this was inconsistent with Supreme Court precedent that allows the Boy Scouts to ban LGBT members because of the group's "expressive message." From the editorial:
Under [The Youth Equality Act (SB 323)], carried by Sen. Ricardo Lara (D-Bell Gardens), the Boy Scouts of America (though unnamed in the bill) would have to pay state sales taxes as well as taxes on any money it raised in California -- such as the proceeds from hawking caramel corn, Christmas trees or anything else -- unless it admitted boys who are gay or transgender.
The aims of the bill are understandable and even laudable. But the Scouts' membership policy has been upheld by the U.S. Supreme Court, which in 2000 ruled 5 to 4 that the ban on gay members is protected under the Constitution because the group's opposition to homosexuality is part of its "expressive message."
We yearn for the day when the closed-minded leaders of the Boy Scouts join the 21st century, but we also worry about the implications of SB 323. If legislators can go after the Scouts for engaging in legal (though offensive) behavior, what group will they go after next?