Media outlets are reporting that Sen. David Vitter (R-LA) will attempt to block the confirmation of Loretta Lynch as U.S. attorney general on the grounds that the president's "illegal executive amnesty for illegal immigrants would be implemented" by the nominee. However, in reports about the January 28 hearing in which Vitter explained his "huge concern" about the "unconstitutional" executive actions on immigration, both mainstream and right-wing media failed to note that the statutory provision the senator relied on was not only the wrong one, it was out-of-date.
Lynch, the federal prosecutor for the Eastern District of New York, has been widely praised across the political spectrum, and multiple conservatives -- including current Republican senators -- support her nomination. Her credentials are so strong, even right-wing media favorites called to her confirmation hearing by GOP members of the Senate Judiciary Committee agreed she was unobjectionable. Nevertheless, from the moment President Obama nominated Lynch, conservative media have attempted to smear her -- attempts that have been riddled with spectacular mistakes.
Right-wing media are now hitching their opposition to Lynch to the positions of Vitter, who has repeatedly stated he will do his best to block the nominee's confirmation because she does not oppose the president's executive actions on immigration. On her radio show, Laura Ingraham hosted Vitter and agreed with his opposition to Lynch because of her support for "executive amnesty," repeating the debunked myth that Lynch believes there is a legal right for undocumented immigrants to work. Breitbart.com, which has struggled mightily to successfully criticize the nominee, also highlighted Vitter's obstructionist intentions toward Lynch, noting that "Lynch's outspoken support for President Obama's executive amnesty" was in part responsible for the current Republican delay on an up-or-down vote.
Mainstream outlets have reported on Vitter's antipathy toward Lynch as well, based on her support for the "reasonable[ness]" of the justification for the immigration actions. These reports have specifically noted that the senator laid out his case for the illegality of deferred action for certain undocumented immigrants at her recent hearing, where he accused the administration of flouting the law by assigning Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) to the Department of Homeland Security. As Vitter said during the hearing, "I've read the plan, and the plan as I read it is for all of that to be done in the Department of Homeland Security. So my question would be, what is the statutory basis to allow that, when under the statute -- not some order, not some legal opinion -- the statute, the law, word by word it says the attorney general is in the middle of that decision[.]" The Washington Post, for example, included a photo of the oversized copy of 8 U.S. Code § 1182(d)(5) that Vitter displayed as he repeatedly questioned the nominee for agreeing with the White House's legal defense of the immigration actions. Vitter finally remarked, "Well, again, I'll have to be following up for the fourth time, but that'll be a central question. The plan is not for the attorney general to be in the middle of this at all. The statute says that 'the attorney general is.' Why aren't we following the statute?"
Unfortunately, both right-wing and mainstream media reporting on Vitter, the January 28 hearing, and his opposition to Lynch have failed to note that Vitter's questioning was referring to the wrong part of the law, which has since been superseded.
National Review's editorial board is arguing that Senate Republicans should "resist" Loretta Lynch's nomination to become the next U.S. attorney general because the board refuses to believe that "amnesty" is not forthcoming, and it falsely claims Lynch thinks there is a constitutional right for undocumented immigrants to work.
On January 28, Lynch appeared before the Senate Judiciary Committee, where questions from Republican members focused primarily on whether Lynch believes that President Obama's immigration action was legal. Legal experts agree that the action -- which temporarily defers deportations for some undocumented immigrants who meet a series of qualifications and pass a criminal background check -- is a lawful exercise of the president's authority to use prosecutorial discretion to prioritize some deportations over others.
Nevertheless, right-wing media are playing up questions from Republican senators who believe that the immigration order is unconstitutional and attacking Lynch for her responses, even if they don't understand what she said. National Review took it further in a January 29 editorial, claiming that confirming Lynch would be "an abnegation of [Senate Republicans'] November mandate and, even more important, their constitutional duty."
The editorial also claimed that Lynch had "evaded questions" from Sen. David Vitter (R-LA) about whether Obama's "amnesty order" will allow law-enforcement agencies to make decisions case by case. The editorial went on to take Lynch's comments about whether undocumented immigrants have the right to work out of context and ignored her subsequent clarification, calling her remarks "constitutionally insupportable":
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a "case-by-case basis," as even the administration's own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama's rationale of "prosecutorial discretion," decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president's executive order is "legal and constitutional." She even went further, telling Alabama senator Jeff Sessions that "the right and the obligation to work is one that's shared by everyone in this country regardless of how they came here." Such an assertion is both ahistorical and constitutionally insupportable. But it is the president's own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department's endorsement to the president's lawlessness.
As even Fox News host Megyn Kelly has admitted, the executive action is not amnesty -- it is an exercise of prosecutorial discretion, common in all forms of law enforcement and not just in the context of immigration. According to Kelly, the word "amnesty" is "a hot-button term that the right uses to sort of get people upset."
From the January 29 edition of Fox News' The O'Reilly Factor:
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From the January 29 hearing of the Senate Judiciary Committee:
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From the January 28 edition of MSNBC's The Rachel Maddow Show:
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Breitbart.com is incorrectly claiming that Loretta Lynch "undercut the legal argument" supporting President Obama's executive action on immigration, when in reality she did no such thing.
On January 28, Lynch appeared before the Senate Judiciary Committee for her confirmation hearing to become the next attorney general of the United States. Lynch is widely considered by people on both sides of the aisle to be a well-qualified pick for the post, but she still faced tough questions from Senate Republicans who, as The New York Times put it, wanted "assurances she would break from some of the practices" of current Attorney General Eric Holder.
One line of questioning in particular centered around Lynch's thoughts on the legality of Obama's recent executive action on immigration that will defer deportation proceedings for some undocumented immigrants. Legal experts agree that the president's action, which will provide temporary administrative relief for certain undocumented parents of U.S. citizens or lawful permanent residents who pass a background check, is "clearly within his discretionary power." Immigrants whose deportations are deferred under this form of prosecutorial discretion are then eligible to apply for work authorization permits and driver's licenses (depending on the state) -- a benefit that was not introduced by Obama, but rather is permitted under the Immigration Reform and Control Act of 1986 and the Real ID Act of 2005, respectively.
Breitbart.com, a site that once spectacularly confused nominee Lynch with a completely different Loretta Lynch in its rush to smear her qualifications, made yet another error in reporting on the confirmation hearing. A January 28 post on Breitbart claimed that Lynch "[p]erhaps by accident" had "undercut the legal justification the president has given for his executive amnesty for millions of illegal aliens during her confirmation hearing." Aside from incorrectly defining the president's immigration actions as "amnesty" -- a mistake that other conservative media figures like Fox News' Megyn Kelly have avoided -- Breitbart homed in on an exchange between Lynch and Sen. Mike Lee (R-UT), who asked about limitations on using prosecutorial discretion to prioritize deportations. Breitbart quoted Lynch's response:
I think that if a prosecutor were to come to the view that they had to prioritize one crime over another, you would always still want to retain the ability -- even if it was an area that was not an immediate priority -- if for example it became one. Because if a particular neighborhood was being victimized, or again to use your issue of speeding, there were deaths resulting from that. You would want to have the ability to, if you could, take resources and focus on that issue. It might not be the first priority but you would want to have the ability to go back and deal with that issue.
Breitbart went on to argue that, in her response, "Lynch effectively admits that what Obama has done with executive amnesty -- providing legal documentation and work permits for millions of illegal aliens, thereby legalizing their status in the United States -- far exceeds any reasonable definition of prosecutorial discretion. She also said that prosecutors should keep the door open to prosecuting an illegal action that isn't currently a priority if it becomes one eventually. So even if illegal immigration isn't a priority right now for whatever reason, prosecutors need to be able to go after that crime later."
What she said does not "undercut" the policy at all. By definition, the executive actions (which are reversible themselves) that grant temporary administrative relief by deferred action "keep the door open" and allow law enforcement "to go after that crime later," as Lynch stated. The hint is in the name of the actions, which Breitbart did not cite: the "case-by-case" Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) programs.
Given the fact that it would be impossible for law enforcement to deport every person currently living in the United States without the appropriate documentation, it is essential to prioritize some removals over others. Lynch's comments do not undermine the administration's position, which she said was "reasonable" -- they simply explain how prosecutorial discretion, such as DAPA and DACA, works in practice.
The witness list for the Senate Judiciary Committee's hearing on Loretta Lynch, the highly regarded nominee for attorney general, indicates the process will be a forum for right-wing media favorites and myths but will have little to do with her qualifications.
Lynch, the U.S. attorney for the Eastern District of New York, has long been praised across the political spectrum as a model federal prosecutor. Lynch has been confirmed twice as a U.S. attorney -- including by some of the same Republican senators now in control of the Judiciary Committee -- and news of her nomination in November brought a new round of support, including from conservative law enforcement sources.
Current New York Police Department Commissioner William Bratton called Lynch "a remarkable prosecutor with a clear sense of justice without fear or favor." Former FBI director Louis Freeh wrote in a letter to Judiciary Committee leadership that he couldn't think of "a more qualified nominee" and was "happy to give Ms. Lynch my highest personal and professional recommendation." Freeh also wrote that he had spoken with "several of my former judicial colleagues who echo this support, and note that Ms. Lynch has gained a terrific reputation for effectively, fairly and independently enforcing the law." Former New York City Mayor Rudy Giuliani, who worked with Lynch on an infamous police brutality case, has said "if I were in the Senate, I would confirm her."
Fringe right-wing media outlets and figures initially ignored this broad support and attacked Lynch anyway. The effort was spectacularly unsuccessful, as they mixed up the nominee with an entirely different Loretta Lynch and then claimed that her membership in Delta Sigma Theta, one of the country's leading African-American sororities, was "controversial."
Leading Fox News figures were better informed about the New York nominee, most notably News Corp. chairman Rupert Murdoch, who immediately noted Lynch had a "reputation for fairness and strict legality." In an O'Reilly Factor segment with Megyn Kelly on November 10, Bill O'Reilly said he was "heartened" she would be the new attorney general. In response, Kelly praised Lynch:
KELLY: I have to say that I think this is the person who should be the most acceptable to the right wing or the Republicans in this country of anybody who President Obama was considering. She is a straight shooter. First of all, she would be the first black female attorney general, right? I mean, that in and of itself is a pretty amazing accomplishment. Went to Harvard undergrad, went to Harvard Law School. She has no close ties to the White House. She is not some firm ideologue or partisan. She has prosecuted Democrats and Republicans. She's been a hero on gang crime, on terrorism.
Republican senators have been similarly honest about Lynch's record, admitting that she "seems to be a solid choice" and will instead use her hearing as a forum for grievances they have with the administration and outgoing Attorney General Eric Holder. The new chairman of the committee, Sen. Chuck Grassley (R-IA), told Politico: "All I can tell you is that immigration is going to be a big part of it. ... Not because of her views on immigration, but of the president's action on immigration and the extent of what she feels he's acted in a legal way."
Unfortunately, a review of the newly released witness list reveals that the Republican choices for this "proxy war of sorts" rely heavily on right-wing media favorites who frequently spread debunked smears and myths:
Former CBS reporter Sharyl Attkisson has been invited by Republicans to testify at a hearing on President Obama's attorney general nominee, Loretta Lynch. Attkisson, who writes for the conservative Heritage Foundation's Daily Signal and has been praised by Fox News and Congressman Darrell Issa (R-CA) for her shoddy reporting, is currently involved in a lawsuit targeting the Department of Justice.
According to a report on Monday by The Hill, Senator Chuck Grassley (R-IA) announced that Attkisson "will testify during this week's Senate Judiciary Committee hearing for Loretta Lynch, Obama's nominee to replace Eric Holder as attorney general."
Attkisson recently named outgoing Attorney General Eric Holder and the DOJ in a $35 million lawsuit alleging that federal officials hacked into her computers and phones from 2011 to 2013. Although CBS News confirmed that Attkisson's then work-issued laptop had been compromised by an unknown source, Attkisson's claim of "some government tie," suggesting the hack was conducted by government officials, has been called out for egregious inconsistencies. Nevertheless, Attkisson went on to claim that the alleged government hack had caused ongoing electronic malfunctions with the phone, television and cable systems in her home.
But in fact, computer security experts said video released by Attkisson as evidence of a hack on her personal computer actually appeared to show her computer "malfunction[ing]," likely due to a stuck backspace key. Attkisson subsequently went on to walk back claims that the alleged hack affected her other home technology. Attkisson admitted that the issues "may in the end have nothing to do with the intrusion" into her work computer.
The Justice Department has denied Attkisson's allegations and a DOJ spokesperson told Business Insider in May 2013 that "to our knowledge, the Justice Department has never 'compromised' Ms. At[t]kisson's computers, or otherwise sought any information from or concerning any telephone, computer, or other media device she may own or use."
But despite her legal fight with the DOJ, the Senate Judiciary Committee, led by Iowa Republican Chuck Grassley, called Attkisson to speak on a panel of witnesses that include Catherine Engelbrecht, the president of the voter ID group True the Vote, a conservative media favorite that actively hypes virtually non-existent voter fraud. Attkisson was praised by Issa for her shoddy reporting, which has in the past been based off misleading leaks from Issa's committee. She has also been hailed as a great reporter by many of Fox News' on-air personalities, some of whom have based their Benghazi coverage on her misinformation.
Conservative media had worked to cast Murthy as a radical for his uncontroversial stance that gun violence is a public health issue and criticized his supposed lack of qualifications.
The conservative media attacks against Murthy began in early March. Coverage of his nomination focused on his past acknowledgement that gun violence affects public health, which conservative media spun as evidence Murthy is obsessed with gun regulations. (Murthy has actually said his focus as Surgeon General will not be on gun violence, but rather obesity.)
Fox contributor Katie Pavlich claimed that Murthy is "rabidly anti-gun" and "must be stopped," and Fox & Friends co-host Peter Johnson, Jr. argued that, if confirmed as Surgeon General, Murthy would make the examining room about "about party registration or about gun registration" rather than medicine. Fox hosts also worked to downplay Murthy's considerable accomplishments and suggested that he was unqualified to be "our nation's doctor" because "he hasn't done much in his career yet," all while arguing he would turn the Surgeon General role "into a hyper-partisan position." These arguments became the basis for an extended smear campaign on Fox News and conservative blogs.
In fact, Murthy's stance on firearms is common within the medical community. The American Medical Association (AMA) agrees that gun violence "has reached epidemic proportions" and has argued that the medical profession carries an obligation to combat gun violence. The Institute of Medicine has also advocated for a "public health approach" to fight gun violence. Furthermore, Murthy's credentials were endorsed by a broad array of health care groups including the American Public Health Association, American Academy of Pediatrics, American Cancer Society, American Diabetes Association, American Heart Association, and Trust for America's Health.
Conservative media outlets both nationally and in California are campaigning against Gov. Jerry Brown's nominees for the state judiciary, attacking their political leanings and complaining about their "race, gender, or sexual orientation," in a baseless effort to suggest the nominees are unqualified and selected "strictly for reasons of affirmative action."
The recent round of attacks were given a national platform in a November 26 Wall Street Journal editorial, which, while questioning the lack of judicial experience of some of Brown's nominees, largely focused on whether the ideological leanings of Brown's nominees are similar to his own. The California Supreme Court was previously dominated by judges appointed under Republican governors, but Brown's picks, Journal columnist Allysia Finley complained, "have tilted the court left."
California media were more specific, and honed in on whether the nominees were from "the right racial groups," as San Francisco Chronicle editorial writer Marshall Kilduff put it. Ignoring the fact that multiple high court jurists had not previously served as judges before their appointments (such as current Supreme Court Justice Elena Kagan and former Chief Justice and California governor Earl Warren), Kilduff also criticized Brown's nominees for a lack of experience with "sleepy jurors." But as The Los Angeles Times reported, Brown has no flat rule against trial or appellate experience with respect to his nominees -- similar to his choice for the San-Francisco-based appeals court, "Brown's picks for the Los Angeles-based appeals court were all sitting judges, suggesting he considers bench experience valuable."
The criticism of Brown's attempts to diversify the bench got uglier, however, after the Journal weighed in. The Metropolitan News-Enterprise, a Los Angeles legal newspaper, recently ran a column from Roger M. Grace, flatly concluding Brown's nominees were "bereft of credentials," and were "apt to be named ... strictly for reasons of affirmative action":
Surely, race should not be, ever, a factor in choosing judges.
It simply doesn't relate to a person's capacity to serve in a judicial role.
Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.
And so we return to young [Lamar Baker, former US Deputy Assistant Attorney General]. He is almost certain to be appointed to the state's intermediate appellate court--and would probably be under consideration for the Supreme Court were there any more vacancies. He, like [former U.S. deputy attorney general and current California Supreme Court nominee Leondra] Kruger, is an African American.
He has all the qualities that Brown is looking for in a justice.
And what he lacks -- the know-how and wisdom that can only be derived from experience -- is of no concern to the man once known as "Governor Moonbeam."
He's not called that anymore. But the lunar influences on him are as strong as ever they were.
Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He's openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment -- unless the governor views him as being too old (he's 55) or holds against him his judicial experience.
From what I've seen, Lavin is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.
From the November 14 edition of Fox News' The Kelly File:
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Right-wing media outlets are criticizing Loretta Lynch, the highly-qualified attorney that President Obama has nominated to replace outgoing Attorney General Eric Holder, by attacking her support of voting rights litigation and claiming her membership in one of the country's leading African-American sororities is "controversial."
On September 25, Holder announced that he would step down as attorney general, but would stay in office until his replacement was confirmed. The president nominated Lynch to the post on November 8, citing her extensive legal experience and stating that "it's pretty hard to be more qualified for this job than Loretta." Even conservative figures appear to agree, with Republican Senator Lindsay Graham calling her a "solid choice." News Corp Chairman Rupert Murdoch echoed Graham's sentiment, noting that the nominee has a "reputation for fairness and strict legality." Lynch is a Harvard Law graduate, has decades of experience as a successful and widely praised federal prosecutor, and has served as U.S. attorney for the Eastern District of New York since 2010, when she was confirmed by unanimous consent.
But after Obama's announcement, conservative media ignored her qualifications and began to attack Lynch anyway, falsely accusing her of partisanship. Breitbart.com was so eager to find fault in her nomination that it went after the wrong Lynch, erroneously claiming that she was involved in former President Bill Clinton's defense during the Whitewater investigation in 1992. In reality, it was a different attorney named Loretta Lynch who defended the president during the probe that cleared the Clintons; the current nominee Lynch was serving in the U.S. attorney's office at the time.
The attacks have continued even after Breitbart.com issued a correction to its story. On the November 11 edition of Lou Dobbs Tonight, host Lou Dobbs claimed Lynch's membership in one of the country's leading African-American sororities was "controversial" because Holder's wife, a classmate of Lynch's, also pledged Delta Sigma Theta.
Members of the conservative media are attempting to scandalize President Obama's Attorney General nominee Loretta Lynch by suggesting she was involved in the Whitewater investigations of the 1990s. However, the Loretta Lynch that played a bit role in Whitewater -- an investigation into fraudulent real estate deals that did not include any wrongdoing by the Clintons -- is a different person than Obama's attorney general nominee.
According to a November 8 Breitbart.com article by Warner Todd Huston, "few are talking about" the fact nominee Lynch "was part of Bill Clinton's Whitewater probe defense team in 1992." Huston pointed to a March 1992 New York Times article that "reported that Lynch was one of the Clintons' Whitewater defense attorneys as well as a 'campaign aide.'" And in a November 9 article Huston's colleague, Breitbart.com Senior Editor-at Large Joel Pollak wrote, "The connection to Whitewater ought to provide additional fodder for Republicans during Lynch's confirmation hearings":
The connection to Whitewater ought to provide additional fodder for Republicans during Lynch's confirmation hearings. It is odd that Obama chose someone so close to the Clintons--or perhaps not, given the prominent role played by Clinton insider John Podesta in the second term of the Obama White House. Lynch has been rewarded throughout her career for her political loyalty--not an unusual path up the career ladder for federal prosecutors, but certainly one that will allow the GOP, as well as Obama, to raise the political stakes.
The Loretta Lynch referred to in the New York Times article is a California based attorney who has worked on several prominent political campaigns, not Attorney General nominee Loretta Lynch. Obama's nominee is shown on the right, while the Loretta Lynch Breitbart refers to is on the left:
Conservative media figures lashed out at President Obama's appointment of Ron Klain as the Ebola response coordinator or "czar," criticizing the selection as "insane" and "dumb." Klain has been praised for his work in government and has been called "a great choice" to deal with the Ebola crisis by other media outlets.
From the October 16 edition of Fox News' The O'Reilly Factor:
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