Evening network news shows have largely ignored the filibuster brinkmanship of Senate Republicans in blocking President Obama's judicial nominees, as well as the resulting vacancy crisis at the important D.C. Circuit Court of Appeals.
The D.C. Circuit Court of Appeals is considered the most important court in the country after the Supreme Court, in part because many of its judges go on to become justices, and in part because it is by far the most powerful appellate check on the federal government. Since it is required to examine challenges to a wide range of federal action - from environmental regulations to consumer protections to voting rights - it has the ability to uphold or strike down law on a national level.
However, as another victim of relentless Republican filibustering and the ensuing inability to hold up-or-down votes on the president's nominees to the federal courts, the D.C. Circuit currently has nearly 40 percent of its judgeships vacant. A Nexis search of evening network news shows in the past six months indicates that this problem has been ignored by ABC, CBS, and NBC.
Fox News host Bill O' Reilly suggested President Obama is to blame for the decades-long high unemployment rate among African-Americans, ignoring other factors such as institutionalized racism, even while acknowledging his employers have used affirmative action programs.
A Wall Street Journal op-ed acknowledged the constitutionality of race-conscious law, breaking from the traditional narrative of right-wing media that touts a non-existent "colorblind" Constitution, but incorrectly described the issues in a new Supreme Court case that will examine state bans on affirmative action.
In the case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court has decided to examine whether amendments to state constitutions that ban race-conscious equal opportunity programs violate the 14th Amendment of the U.S. Constitution by impermissibly rigging a state's political process. Contrary to editorial board member James Taranto's description of the case in a recent WSJ op-ed, Schuette is not properly understood as "an opportunity to revist" the constitutionality of affirmative action in higher education admission policies.
Grutter v. Bollinger, which reaffirmed the permissible use of race-conscious admissions in furtherance of the educational benefits of diversity, is indeed at risk in the as-of-yet unreleased decision of Fisher v. University of Texas. Schuette, on the other hand, examines what political means of prohibiting race-conscious admissions are acceptable under the U.S. Constitution and what means unconstitutionally manipulate state political processes to the detriment of persons of color and others who support the use of race-conscious affirmative action.
The Wall Street Journal editorial page praised another bitterly split Supreme Court decision in which the conservative justices reached beyond the questions presented to further limit injured consumers' access to justice.
The Court released its decision in Comcast v. Behrend as the historic marriage equality cases were being argued on March 26 and 27, poor timing that resulted in the media largely overlooking the case. Nonetheless, the decision is a significant one and the case is already being described as a sequel to Wal-Mart v. Dukes, another 5-4 decision in which the conservative justices significantly restricted plaintiffs' power to hold corporations accountable for wrongdoing. From the WSJ editorial:
The other news at the Supreme Court on Wednesday was another big defeat for the trial bar. The Justices put a stop to the latest attempt to revive huge legal paydays by ruling 5-4 to reaffirm their requirements for certifying a class action.
In Comcast v. Behrend, the Justices ruled that in order for a class of plaintiffs to be certified they must demonstrate adequate commonality of harm. While the plaintiffs claimed the cable company's monopoly had let it improperly raise prices, the complaints drifted among four disparate theories of liability, with a wide array of potential plaintiffs.
The Comcast and Whirlpool [v. Glazer] cases have made it this far because both the Third and Sixth Circuit Courts of Appeal ignored the Supreme Court's 2011 decision in Wal-Mart v. Dukes that set serious limits on class actions. The current Court has taken much-needed steps to rationalize class certification, and the Justices should make it clear they expect other federal courts to honor the precedents. They should keep taking cases and overturning heedless junior courts until they get the message.
The Wall Street Journal has a long record of hostility toward the regulatory authority of the Environmental Protection Agency (EPA), but its editorial board recently praised the Supreme Court's near-unanimous decision upholding EPA action in Decker v. Northwest Environmental Defense Center.
In Decker, environmental groups challenged the EPA's interpretation of its rules that regulate the proper permitting of storm water runoff, pursuant to the Clean Water Act. According to the EPA, its regulations had never intended to require logging companies to secure federal permits for the runoff from logging roads. While the case was under consideration by the Supreme Court, the EPA issued new regulations re-confirming this interpretation and exemption practice. The Court decided in a 7-1 decision, with conservative Justice Antonin Scalia dissenting, that well-established administrative law required deference to the EPA's position.
In an editorial titled "Supreme Liberal Washout: The Justices unite against the trial bar and overzealous greens" the WSJ editorial board championed the decision and the EPA. This is a stark change for the WSJ, which is typically incessantly defamatory toward the EPA's actions and legitimacy as "a politically driven bureaucracy that wants to impose by illegal diktat" environmental law. In January, the WSJ editorial board informed its readers that the EPA's interpretation of its authority in regulating storm water was so bad that "[i]f Washington gave awards for creative regulatory overreach, the Environmental Protection Agency would sweep the field." Nevertheless, in the Decker case, the WSJ applauded the EPA's judgment and the Court's opinion.
National Review Online misrepresented the conclusions of a recent Department of Justice (DoJ) Office of the Inspector General (OIG) report on current hiring practices in the department's Voting Section in order to join the right-wing assault on the Labor Secretary nomination of Assistant Attorney General for Civil Rights Thomas Perez.
NRO's aversion to the effective enforcement of civil rights law is well-established and the outlet's wish that precedent in this area is overturned has been repeatedly stated. In addition to Section 5 of the Voting Rights Act and affirmative action, NRO has also expressed its dislike for the currently constitutional "disparate impact" doctrine. This doctrine proves impermissible discrimination against protected groups by demonstrating the disproportionate effects of challenged policies and laws, an evidence-based approach that has drawn the NRO's particular ire in the area of fair housing. A recent NRO post attempted to recycle these attacks as new ones on Perez by observing not many conservatives go to work for DoJ's Civil Rights Division (CRD).
The NRO accuses Perez of dismissing the fact that not enough conservatives serve in the Voting Section - a "disparate impact" - even though Perez enforces "disparate impact" law against banks that impermissibly discriminated against communities of color.
Fox News and Fox Business are butchering civil rights precedent and the Voting Rights Act (VRA) in their continued campaign to suggest President Obama's nominee for Labor Secretary, Assistant Attorney General for Civil Rights Thomas Perez, doesn't want to protect white people.
Following the pre-existing practice of smearing President Obama and his administration as hostile to whites and biased toward people of color, Fox has joined right-wing media in attacking Perez for his enforcement of long-standing civil rights law and advocacy for Hispanic immigrants. This right-wing campaign against Perez has focused on the Civil Rights Division (CRD), which under Perez's supervision has been very effective at using the VRA to protect historical victims of voter suppression.
The Wall Street Journal is joining the right-wing campaign against President Obama's nominee for Secretary of Labor, Assistant Attorney General for Civil Rights Thomas Perez, by uncritically pushing the unsubstantiated claim that Perez improperly colluded with the City of St. Paul, Minnesota, to withdraw a Supreme Court civil rights case.
In reporting on President Obama's official nomination of Perez to head the Department of Labor, the WSJ repeated the claim that Perez inappropriately interfered with Magner v. Gallagher, a Supreme Court civil rights case that could have provided the conservative justices with an opportunity to strike down decades of civil rights precedent. Specifically, although the City of St. Paul has clearly stated it withdrew Magner v. Gallagher because it feared a split Court might use it to strike down the established practice of proving discrimination by showing the racial effects of challenged policies - "disparate impact" litigation - the WSJ uncritically repeated the allegation that Perez was improperly involved. From the WSJ:
The nomination of Mr. Perez as labor secretary comes as some congressional Republicans have raised questions about his alleged involvement in the Justice Department's decision to stay out of two lawsuits against St. Paul, Minn., in which private plaintiffs alleged the city defrauded the U.S. in its use of housing funds.
Republicans have questioned whether the Justice Department stayed out of those cases in exchange for St. Paul dropping an appeal pending at the Supreme Court in a case that civil-rights advocates had feared would undercut enforcement of U.S. housing-discrimination law.
President Obama has nominated Thomas E. Perez as Secretary of Labor. Right-wing media used this announcement to push false attacks about Perez based on his service in the Justice Department's Civil Rights Division and other civil rights work and advocacy.
Fox News is using its lack of knowledge about the Voting Rights Act and basic civil rights law to smear the nomination of Assistant Attorney General for Civil Rights Thomas Perez for Secretary of Labor.
The Voting Rights Act (VRA) and Section 5, a provision within the law that requires jurisdictions with a history of racial discrimination in voting practices to submit election changes for federal review, has been a source of difficulty for Fox News. On the March 14 edition of America Live, Fox News host Megyn Kelly and frequent guest Jay Sekulow attacked Perez by incorrectly describing the role of race in race-conscious civil rights law, such as the VRA. In the lengthy segment about the Voting Section - a Department of Justice (DOJ) section under Perez's supervision - Kelly misrepresented a recent Inspector General report and allowed Sekulow to question Perez's competence even as he mangled civil rights law by insisting the Voting Rights Act is "colorblind."