On July 29 The Heritage Foundation published a post on its blog, The Foundry, that called for the filibuster of Oklahoma Judge Robert Bacharach's bipartisan-supported nomination to the U.S. Court of Appeals for the Tenth Circuit. However, as the post noted, the unwritten Senate procedure that is the "Thurmond Rule" typically blocks a sitting president's judicial nominations at some point prior to a presidential election only if they are "cronies and ideologues." As a consensus pick, Judge Bacharach is clearly neither.
The Thurmond Rule is named after the late segregationist Senate Judiciary Committee Chairman Strom Thurmond (R-SC) and generally refers to the long-standing practice of the opposition party in the Senate blocking most judicial nominees after a certain date in the run-up to a presidential election. A successful filibuster tonight of Judge Bacharach's consensus bipartisan-supported nomination could well be an unprecedented and extreme extension of the practice at a time when judicial vacancies have become a crisis.
This so-called rule is nothing more than an unwritten and unrequired historical practice that has been used by both parties. But CQ Today reported on July 27 (via Nexis), "[n]o appeals court nominee who received bipartisan support in committee has ever been successfully filibustered on the floor." This inapplicability of the Thurmond Rule to consensus nominees has support in an analysis of the rule's application in a much-cited 2008 Congressional Research Service report that noted:
[T]he Senate is more likely to move forward late in presidential election years with what they view as "consensus" nominees. Some Senators have suggested that a nominee could be considered as a consensus choice if he or she has the support of both home state Senators.
While there may be disagreement as to which nominees are "consensus" nominees, the support of both home-state Senators (particularly if the Senators are of the opposition party) is an important indicator of the President's willingness to work with individual Senators when making nominations. [Congressional Research Service, 8/13/12]
Because the Foundry post appeared to recognize this point by stating the Thurmond Rule applies to "cronies and ideologues," it is peculiar that the post simultaneously called for Senate Republicans not to "hold their manhood cheap" and instead filibuster Judge Bacharach. The judge was not only rated to be unanimously "well-qualified" by the American Bar Association due to his "stellar professional qualifications," but also has the support of both of his conservative home-state Senators, Republicans James Inhofe and Tom Coburn. Considering Republican Senators Susan Collins and Olympia Snowe have already committed to voting to end the filibuster and his nomination "sailed through the Senate Judiciary Committee last month," criticism of the judge as a crony or an ideologue is unfounded. Senator Coburn has already gone on the record with his home-state paper as claiming application of the Thurmond Rule to Judge Bacharach would be "stupid" and:
"I believe that Judge Bacharach will uphold the highest standards and reflect the best in our American judicial tradition by coming to the bench as a well-regarded member of the community," Coburn said. "At a time when our country seems as divided as ever, it is important that citizens respect members of the judiciary and are confident they will faithfully and impartially apply the law." [NewsOK, 6/8/12]
On July 27, the Wall Street Journal published an op-ed by former Reagan and George H.W. Bush officials, David B. Rivkin Jr. and Lee A. Casey, which accused President Obama of a "pattern of lawlessness" behind the administration's recent actions on welfare reform, immigration, and education policy, "designed to appeal to the president's liberal base." The op-ed did not note that these actions -- described by the authors as "tak[ing] a hatchet" to the relevant laws -- were authorized by Congress or consistent with long-standing bipartisan practice and precedent.
Welfare Reform Waivers Were Requested To Improve Work Requirements
Rivkin and Casey accused the administration of "unilaterally gutt[ing]" welfare reform, repeating a right-wing media refrain begun immediately after the administration announced it would allow state flexibility for work requirement documentation processes under Temporary Assistance for Needy Families (TANF). Not only is the administration not "waiv[ing] the central tenet of the Clinton welfare-reform law -- the requirements that recipients work or prepare (through approved education or training) to do so," as charged in the op-ed, the administration has explicitly pointed out that waivers will only be granted to proposals that "move at least 20% more people from welfare to work."
Furthermore, although the WSJ op-ed blamed "progressives" for not accepting the principle of work requirements, it did not mention that the immediate waivers requested were put forth by the current Republican governors of Utah and Nevada. The op-ed also failed to inform that the waivers currently under contemplation in response to Republican requests are reported to be less significant than those requested by notable Republican figures in 2005, including Governor Rick Perry, Governor Tim Pawlenty, Governor Jeb Bush, Governor Haley Barbour, and critics of the current waiver proposal Mitt Romney and Mike Huckabee.
Right-wing media have marked the 40th Anniversary of Title IX by attacking equal opportunity efforts for women in the "STEM" fields of science, technology, engineering, or math. The historic civil rights law prohibits discrimination in federally-funded education programs or activities on the basis of sex.
Conservative media has not only argued that such affirmative action is unconstitutional, but has gone farther and argued that the law does not apply beyond scholastic sports and requires quotas. They also insist that women simply do not want to study or work in science-or math-related fields. The first three claims are demonstrably incorrect; the fourth assertion contradicts numerous studies and cannot satisfactorily explain the disproportionate under-representation of women in these educational fields.
On the July 25 edition of Fox & Friends, Gretchen Carlson hosted a segment that touched on all of these discredited arguments in an interview with Hans Bader, Counsel for Special Projects for the right-wing Competitive Enterprise Institute. Bader concluded the interview by asserting that women are heavily underrepresented in the STEM fields because they naturally choose "organic subjects like people, plants, animals, biology, psychology." Carlson then ended the interview, noting that there "could be" a counter argument to this last claim.
Bader's Fox and Friends appearance is only the most recent example of conservative attacks on the Obama Administration's efforts to utilize Title IX for the promotion of equal opportunity in science and math education.
For example, Sabrina Schaeffer and Carrie Lukas of the conservative Independent Women's Forum did the same on June 18 and June 22 in the Huffington Post and U.S. News, respectively, Fox News Political Analyst Kirsten Powers took aim at sex-based affirmative action on July 17 in USA Today, and New York Post columnist Kyle Smith used the front page to launch a July 14 op-ed that was particularly reliant on sex stereotypes.
These conservative commentators repeated Bader's false claims: that Title IX's scope is limited to athletics, the Obama administration is proposing quotas, equal opportunity efforts disregard women's aversion to science and math, and affirmative action on the basis of sex is unconstitutional.
All of these conservative critiques are incorrect or unsubstantiated.
Last week, two new reports -- released by the Brennan Center of Justice at the NYU School of Law and the University of Delaware's Center for Political Communication, respectively -- further undermined the conservative media's discredited claims that voter ID laws do not have a discriminatory impact on persons of color and are not intended to be discriminatory on the basis of race. These reports are timely because as restrictive voting rules in conservative-leaning states increasingly materialize, civil rights advocates are noting that these state laws look very much like poll taxes- voter suppression tactics long prohibited. In response, the right-wing media has recycled multiple messages to disavow the impermissible racial discrimination of these laws.
Right-wing media try many different smokescreens in addition to just denying the racial effect of voter ID laws and redistricting altogether. For example, they have disputed the veracity of data to the contrary, argued that these tactics are not in fact barriers, and raised the specter of voter fraud, which experts have demonstrated is practically non-existent. However, it is still the first defense -- that these efforts have no racial effect -- which feeds most effectively into the right wing's preferred "colorblind" narrative.
This right-wing media denial of the racial effect usually has two components in an attempt to whitewash voter suppression, claiming that whatever effect these laws have on communities of color is wholly incidental. That is, there may be a discriminatory impact, but there is no discriminatory intent. Although the editorial page of The Wall Street Journal may have been the most recent mainstream purveyor of this message -- condemning any criticism of the recent wave of conservative-backed voter ID laws as "racial politics" -- they are far from alone in the right-wing media.
A new infographic titled "We The Plaintiffs" is popping up around the Internet. Calling itself "A Closer Look at America's Obsession with Lawsuits," the chart could more accurately be described as the distilled essence of the tort reform movement's difficult relationship with the truth. As with so much of the tort reform disinformation common in the media, it deploys misleading statistics and deceptive anecdotes to paint a distorted portrait of a nation in which rogue plaintiffs run wild. An exhaustive debunking of "We the Plaintiffs" by the Center for Justice & Democracy demonstrates that a chart accurately reflecting the current state the justice system might better be titled "We The Corporations."
The "We The Plaintiffs" chart has already made its way from the blog of the pro-tort reform organization Common Good to the legal gossip blog "Above the Law," and seems destined, like so many collections of urban legends on this topic, to be periodically recycled by tort reform supporters. "We The Plaintiffs" gets many things large and small wrong. Below are three big ones.
Debt collection by banks and other businesses accounts for much of the total number of lawsuits.
The picture "We the Plaintiffs" attempts to paint of what it calls a "sue-happy nation" (emphasis in original) is contradicted by data on who actually files lawsuits. According to the National Center for State Courts, personal injury and other tort cases account for only five percent of new cases, with debt collection and other suits based on contracts accounting for 70 percent of caseloads. A closer look at caseloads in Kansas, a state that closely tracks data on the kinds of cases in its court system, shows that, in 2009, 80 percent of new cases were contract disputes, and 75 percent of those were debt collections.
The chart's estimate of costs is wildly overinclusive, and pulls in costs having nothing to do with lawsuits.
The infographic includes a graph which claims that, in 2003, $251 billion, or 2.2 percent of GDP, "went to tort costs." According to the Center for Justice & Democracy, the data underlying the study cited by the infographic "actually have no connection whatsoever to the costs of lawsuits, litigation or the courts." The study, by insurance industry consulting firm Towers Watson, actually looked at all payouts on insurance claims (such as routine "fender bender" auto accidents), even if no lawsuit was filed, and also includes the insurance industry's administrative overhead, including salaries, executive bonuses, advertising, rent and commissions paid to agents.
The chart plays up "frivolous" lawsuits and the costs associated with them, even though four of the five cases cited were dismissed.
In the American legal system, judges have the power to dismiss cases that they believe to be without merit, and even punish lawyers who bring frivolous suits. "We The Plaintiffs" cites five cases as evidence of frivolous lawsuits, but acknowledges that three of them were "dismissed," "rejected," or "unsuccessful," and one even "never made it to court." The chart is thus arguing with itself, by presenting evidence that the system worked in support of its claim that the system somehow isn't working.
Opponents of health care reform have opened up a new front in their relentless campaign, receiving extensive media attention for their claim that only state-created exchanges can legally offer tax credits for health insurance. This contested reading of the health care reform law would leave consumers in states with federal exchanges -- the default marketplace for states that decline to set up their own exchanges -- without access to affordable health insurance.
Exchanges have become the latest bogeyman in the right-wing media, but a just-released report by the Center on Budget and Policy Priorities explains why a legal challenge to them is unsupported by both the clear language of the Affordable Care Act and relevant case law.
As described in a June 25 USA Today op-ed, opponents of exchanges are claiming that their reading of the health care reform law reveals that "[c]redits are [legally] available only in states that create an exchange themselves. The federal government might create exchanges in states that decline, but it cannot offer credits through its own exchanges." Right-wing activist groups have jumped on this argument and are already clamoring for lawsuits to be filed over the administration's interpretation of the law to the contrary. A July 9 article in Congressional Quarterly Today (subscription required) reported the director of policy at the Koch-backed Americans for Prosperity as adamant that litigation would "absolutely" ensue.
The idea of suing to block exchange implementation and hamstring affordability programs designed to help low- and moderate-income persons afford coverage in the private insurance market appears to have originated with two frequent National Review Online contributors, Jonathan Adler, Professor of Law at Case Western Reserve University, and Michael Cannon, Director of Health Policy at the Cato Institute. Long-time opponents of the Affordable Care Act and authors of the USA Today op-ed, the two first presented this questionable theory to the mainstream press through a November 16, 2011, op-ed in The Wall Street Journal. Cannon, in particular, seems to have made exchanges his personal target, barnstorming the country along with other Koch-backed organizations.
Experts on health care law and policy are highly critical of the proposed anti-exchange lawsuits. However, although the challenge might be a long shot due to its debatable reading of the statute and disregard of congressional intent, even far-fetched legal challenges have legs in today's increasingly conservative courts. Remember broccoli? Amplified by the increasing synergy between right-wing academics and media, the "broccoli" and "inactivity/activity" argument in the health care reform cases rocketed from the fringe to the mouths and pens of Supreme Court Justices.
Judith Solomon, vice president for health policy at the Center on Budget and Policy Priorities, wrote the report yesterday that rebuts Adler and Cannon's claims:
Opponents of health reform apparently intend to file a legal challenge to the law on behalf of one or more employers who are penalized for not providing coverage in a state with a federal exchange, based on the claim that the federal exchange was not authorized to provide the subsidies. A court considering such a claim would almost certainly defer to the Treasury Department interpretation that subsidies are fully available through federally operated exchanges.
In providing for a federal exchange, Congress clearly intended that it substitute for a state exchange. One of the primary functions of an exchange is to determine eligibility for, and the amount of, advance premium tax credits so that people can afford to buy coverage. The language of section 1321 of the ACA establishing the federal exchange is clear on that point, as is the reference in section 36B of the Internal Revenue Code to credits being provided through a federally operated exchange. But even if the statute were ambiguous, a court examining whether the Treasury regulations are valid would certainly defer to the agency's interpretation of the statute because it is both permissible and reasonable. [Center on Budget and Policy Priorities, 7/16/12]
Fox News reported Thursday that "two pro-gun advocates who reported extensively on the Fast and Furious scandal" have filed a complaint against Attorney General Eric Holder with the District of Columbia's Office of Bar Counsel. Somehow the network never got around to mentioning that one of those "advocates" is Mike Vanderboegh, the ex-militia blogger infamous for urging his readers to commit vandalism against Democrats and for inspiring an alleged terrorist plot to kill federal employees.
Last year, Fox News featured Vanderboegh in two separate reports on Fast and Furious, identifying him as an "online journalist" and an "authority on the Fast and Furious investigation." The network did not disclose Vanderboegh's past ties to the militia and Minuteman movements, history of conspiratorial rantings, or the fact that he made headlines in 2010 for telling his readers to respond to the passage of health care reform by breaking the windows of Democratic offices, then took credit after that occurred.
Fox ceased to cite Vanderboegh on-air after prosecutors in Georgia said that one of four alleged members of a militia group in that state had repeatedly cited Vanderboegh's novel Absolved as the source of their alleged plot to kill numerous government officials. In Vanderboegh's novel, which was self-published online, underground militia fighters declare war on the federal government over gun control laws and same-sex marriage, leading to a second American revolution.
In June, Vanderboegh predicted that if health care reform were found to be constitutional, it would trigger a violent insurrection against "government tyranny," stating, "You may call tyranny a mandate or you may call it a tax, but it still is tyranny and invites the same response."
But Fox correspondent William La Jeunesse included none of this context in passing on Vanderboegh's allegations on Happening Now:
After Chief Justice John Roberts wrote the opinion upholding health care reform, the right-wing media have attacked his conservative credentials. Despite experts' statements that the opinion might have cleared the way for more rulings restricting federal power and progressive legislation, media conservatives are using this as a pretext to demand even more conservative judicial nominees. There is evidence their pressure is having an effect.
From the July 10 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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From the July 10 edition of CNN's Starting Point:
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Fox News regular Jay Sekulow claimed that voting is a privilege as he went to bat in support of the Texas voter ID law today, and denied that such laws disenfranchise eligible voters. In fact, Americans are constitutionally protected from having their vote denied on the basis of race - which the Department of Justice has said would happen under Texas' law -- and voter ID laws have already disenfranchised hundreds of voters, and could prevent millions more from voting in this year's elections.
Sekulow was on Fox's America Live, debating the Texas voter ID law that was passed in May 2011, but was blocked by the Department of Justice because:
As a state with a history of voter discrimination, Texas must get preclearance from the Department of Justice for changes in election law. The DOJ blocked Texas' law under Section 5 of the 1965 Voting Rights Act, declaring that it would disproportionately affect Hispanic voters.
In his defense of Texas' voter ID law, Sekulow said: "Look, voting is a privilege. I mean, there are things you have to do to vote." He also suggested that he didn't find "asking for identification to make sure you're the person that's actually casting the vote" at all problematic.
But Sekulow is in the wrong here - the Justice Department found that the Texas law would disproportionately affect minorities, which is unconstitutional. As the Department of Justice notes, the Voting Rights Act:
[C]odifies and effectuates the 15th Amendment's permanent guarantee that, throughout the nation, no person shall be denied the right to vote on account of race or color.
Throughout the Fox segment, Sekulow repeatedly denied that voter ID laws disenfranchise eligible voters and said that in some cases the IDs are available free of charge. However, not only can voters incur significant costs for the underlying documents needed to get those supposedly free IDs, but existing voter ID laws have already been found to have disenfranchised hundreds of voters during the 2008 election cycle.
Fox is promoting the falsehood that the Justice Department concluded that Texas' voter ID law was discriminatory and blocked the law based solely on the research of "a liberal group that promotes progressive ideas." In fact, DOJ stated that the law was discriminatory based on data compiled by the state of Texas itself.
In today's Washington Post, Michael Gerson became the latest right-wing media figure to join the hysteria surrounding last week's health care reform decision, impugning Chief Justice Roberts' conservatism by accusing him of "deferring whenever possible" to Congress and the Executive. Perhaps he should look closely at the U.S. Chamber of Commerce's recent successes before the Supreme Court. If the Chamber's record is any indication, Gerson's charge is quite off.
A new analysis from the Constitutional Accountability Center (CAC) points out that the Chamber has a historic win average in the Roberts Court as it continues to push back on government regulation in fields such as labor, environmental, civil rights, and consumer protection policy. And the Roberts Court isn't only siding with big business' attacks on public interest law for the easy questions. In ideologically divided cases, the current right wing of the Court is in near lockstep with the Chamber, with Chief Justice Roberts and Justice Alito taking the pro-business side the most (84% and 92%, respectively). That's a peculiar form of institutional deference.
This escalating trend was just capped with a stellar 7-0 finish in the most recent term, bringing the Chamber's success percentage in the Roberts Court to an unprecedented 68%, as calculated by CAC. And when it comes to challenging the Obama Administration's defense of duly enacted legislation, the Chamber has shredded the U.S. Government's traditional advantage by notching five of those wins over the Solicitor General, who in normal times is considered the "Tenth Justice." That title for the SG might no longer be apt.
In a 2009 article, Robin S. Conrad, head of the U.S. Chamber of Commerce's high-powered litigation shop, offered her contrarian perspective on what was apparent only three years into John Roberts' tenure. Claiming that her employer, the National Chamber Litigation Center, "clearly lost five out of seven" of its labor cases and went on to lose "nearly half the cases that it participated in during the 2007 Term," Conrad bemoaned the "myth of a pro-business bias" that stuck to the Roberts Court even before Citizens United unleashed a flood of corporate money into the country's elections. The Chamber's top lawyer did allow, however, that "time will offer more opportunities to understand the Roberts Court's take on business issues." It turns out she was right: time did tell about the Roberts Court's pro-business tilt.
Marc Thiessen's recent attack on Chief Justice John Roberts for his opinion upholding the health care reform law attempts to move the right's ideological goal posts for the Court from the strongly conservative part of the field into what Reagan Administration Solicitor General Charles Fried has called "radically reactionary" territory. Thiessen, a former George W. Bush speechwriter, expressed his discontent in a July 2 Washington Post op-ed that criticized Roberts - a Bush appointee - for agreeing with the court's liberal members in an opinion upholding the Affordable Care Act. He framed his attack as a lament over the supposed difficulties Republican presidents have had in confirming dependably conservative justices.
But in doing so, Thiessen downplayed Roberts' extensive record of voting similarly to his fellow conservatives, especially Samuel Alito, whom Thiessen identified as a reliable conservative. Thieseen also ignored the well documented shift in the court's ideological center in recent years: the four "liberal" justices are much closer to the center than William Brennan, Thurgood Marshall and other justices on the court's left only a few decades previously. In this way, Thiessen paints a picture of liberal triumph and conservative frustration which bears scant relationship to reality, which is the most conservative Supreme Court in modern times.
Thiessen grouped Roberts with justices who disappointed conservatives (Sandra Day O'Connor and David Souter, both of whom are no longer on the court) as opposed to acknowledged right-wing successes Antonin Scalia, Clarence Thomas, and Samuel Alito. He attempted to make this case by focusing solely on the health care decision, and downplaying the rest of Roberts' record as a justice.
That record is clear. Roberts is, to use Thiessen's expression, a "rock-ribbed conservative." In the just-completed 2011 Supreme Court term, he voted with the Thiessen-approved Justice Alito in 90.5 percent of cases, after voting with him 96.2 percent of the time in the 2010 term. Roberts also voted with Justice Thomas in 87.8 percent of cases and Justice Scalia in 86.5 percent of cases in the most recent term. In other words, in the overwhelming majority of cases, Roberts votes with the justices whom Thiessen acknowledges to be acceptably conservative.