Expect More Of These Legal Distortions From Right-Wing Media in 2014


In 2013, right-wing media kept busy misinforming about President Barack Obama's judicial nominees and progressive precedent such as health care reform and voting rights, all in service of spinning an unprecedented year of Republican obstructionism. 

The GOP has consistently maintained a strategy for opposing the president's agenda that represents a new sort of nullification, a scorched-earth obstructionism aimed at immobilizing the federal government. But in 2013, after an endless campaign of procedural sabotage finally led to successful filibuster reform, the right-wing media outwardly embraced Congressional Republicans' political temper tantrum.

Right-wing media spent a generous portion of this year supporting Senate Republicans in their effort to block all of President Obama's nominees to the judiciary and executive branches, even when those nominees were singularly qualified and non-controversial. At the beginning of the year, these efforts got a boost from a bizarre appellate court opinion from the U.S. Court of Appeals for the D.C. Circuit that declared recess appointments unconstitutional. Recess appointments -- where the president makes temporary executive appointments while Congress is not in session -- have been utilized for centuries by both Republican and Democratic presidents to mitigate the filibuster. But that didn't keep right-wing media from reframing this decision as a personal rebuke of the president for his purported lawlessness -- even though George W. Bush and Ronald Reagan also took advantage of recess appointments during their respective presidencies. In actuality, the D.C. Circuit's opinion was a dangerous reimagining of the Constitution that could make the democratic process even more dysfunctional, a result Senate Republicans will be defending in oral arguments before the Supreme Court in 2014.  

After initial coverage of the recess appointment decision died down, however, right-wing media reverted back to personal attacks. Two nominees in particular -- current Labor Secretary Thomas Perez and D.C. Circuit Court of Appeals judge Nina Pillard -- were on the receiving end of some of the worst smears. Continuing a well-worn tradition of attacking civil rights defenders as being the real racists, Perez was repeatedly and wrongly accused by The Wall Street Journal of insidiously discriminating against whites on behalf of persons of color. Other right-wing outlets baselessly accused "shady" Perez of dishonest behavior and "flagrant abuse" of his powers as head of the Civil Rights Division at the Department of Justice.

Pillard, on the other hand, was the victim of a barrage of right-wing  sexist attacks that seemed at times to be out of a time warp, absurdly accused of being  a radical "militant feminist," despite the fact that straight-news outlets and bipartisan legal experts called this law professor and famous civil rights litigator "exceptionally well-qualified." These gripes were based on the strained misreadings of a pair of academic articles which, among other ludicrous smears, attempted to cast her support for working mothers' family planning as "extreme." As legal reporter Dahlia Lithwick pointed out earlier this year, "Pillard's 'radical feminism' appears largely to take the form of seeking equality for women."

There's no reason to think that these right-wing smears will slow down in 2014, especially now that Senate Democrats have embraced the so-called "nuclear option," which Rush Limbaugh, among other overreactions, called the first step towards "total statist authoritarianism."

The "nuclear option," more accurately known as "filibuster reform," allows Obama's nominees to be confirmed with a simple majority vote without being subject to baseless Republican obstructionism. Right-wing media, however, adopted its own definition of this not-uncommon procedural rule change. First they tried to hide the unprecedented GOP filibustering behind false equivalency, then conveniently forgot Republicans' prior support for  "bloody-minded" filibuster reform, and then hoped that warnings of a future surge of far-right nominees would make everyone forget all the conservative ideologues already tilting the judiciary. These multiple examples of hypocrisy on the legitimacy of the "nuclear option" in the face of unprecedented obstructionism, unfortunately jumped to more mainstream outlets. Thankfully, the ridiculously inaccurate, ahistorical, and patently untrue accusation that the president's attempts to fill existing judicial vacancies on the D.C. Circuit as his predecessors had was tantamount to "court-packing" never remotely made it to similar respectability.

Aside from misinforming about the D.C. Circuit and the qualifications of judicial and executive nominees, the critical nature of this second-most important court in the nation was also highlighted by how right-wing media celebrated legally-suspect challenges to the Affordable Care Act (ACA) that threaten to eliminate the law's tax credits for middle- and low-income families. Filed by Oklahoma's Republican Attorney General Scott Pruitt and other Republicans, these dubious lawsuits challenged the IRS's authority to provide subsidies under the ACA in states that hadn't set up their own exchanges. The suit is the brainchild of Michael Cannon, a scholar at the conservative Cato Institute. While the suit has been described by legal experts as "preposterous," "incorrect," and "stupid," right-wing media nevertheless praised the move -- claiming Oklahoma "deserves our gratitude" for filing the suit, which could "drive a stake through [the ACA's] heart."

The fact that precedent overwhelmingly weighs against the viability of these ACA challenges shouldn't lull anyone into complacency about their potential to grind health care reform to a halt. Not only did right-wing media provide talking points for the last major Supreme Court challenge to the ACA, they did the exact same with the ideological challenge to the Voting Rights Act. This not only helped gut this exceedingly important civil rights law, it also provided the groundwork for more disingenuous lawsuits based on the dubious belief that the crucial protection the VRA provides against voter suppression is no longer needed. Promoting partisan gridlock in the electoral process may be no less popular in right-wing media in 2014 than it was in 2013 -- The Washington Post just reported on a new study that shows unneccesary and redundant restrictions on voting, such as limited voter ID, were products of states with large "African-American and non-citizen populations and with higher minority turnout in the previous presidential election" and "passed more frequently as the proportion of Republicans in the legislature increased or when a Republican governor was elected."

With very few exceptions, 2013 was the year right-wing media transparently and unabashedly went all in for GOP obstructionism. Accordingly, it was a long and misleading year for right-wing coverage of the courts and progressive law in furtherance of this determination to throw the kitchen sink at functioning democracy. As both an election year and another cycle of challenges to historic legislation wind their way up to the Supreme Court, 2014 is gearing up to be more of the same. 

Posted In
Justice & Civil Liberties
Courts Matter
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