Even after CBS' Lara Logan apologized for and promised to correct a retracted 60 Minutes story on the Benghazi attacks featuring inconsistent accounts from an unreliable source, the ripple effects from the delay in retracting the report continue.
On the November 10 edition of State of the Union, CNN host Candy Crowley asked Sen. Lindsey Graham (R-SC) if he would continue to block President Obama's nominees, after the false 60 Minutes report collapsed. Graham replied that he would continue blocking nominees, saying he's been requesting to talk to Benghazi survivors for a year. Crowley pushed further, explaining to Graham that "what spurred your action to block the president's nominees was the 60 Minutes report, so that's what prompted you to do this. I mean you did it the day after and you cited it."
CBS' failure to properly vet its sources and its long delay in responding to criticism of its report has created ripple effects that continue to this day. Not only has CBS' credibility taken a huge hit, but the story has led Graham to block presidential nominations. Media Matters founder and chairman David Brock explained, when asked by MSNBC host Al Sharpton "how does [Graham] justify blocking every post that the president proposes," that Republicans will continue investigating until they hear what they want to hear:
Although all of President Obama's qualified nominees for the U.S. Court of Appeals for the D.C. Circuit are currently at risk of being refused an up-or-down vote by unprecedented Republican obstructionism, right-wing media have targeted Georgetown law professor Cornelia "Nina" Pillard in particular with misguided smears.
In a report on the renewed judicial nominations struggle over three vacant seats on the D.C. Circuit Court of Appeals, Fox News' Shannon Bream incorrectly reported that the court was balanced evenly and that past Democratic opposition to highly controversial Republican judicial nominees is equivalent to the blanket obstructionism President Obama's nominees are currently facing.
Appearing on Special Report with Bret Baier, Bream advanced the right-wing myth that filling the vacancies on the D.C. Circuit would "tip the balance" ideologically and is unnecessary, given its "lighter" caseload. From the October 29 edition of Special Report:
BREAM: The problem is this is the D.C. Circuit Court. And what's important about it is it is the key appeals court for looking at federal regulations and federal agencies, things like the EPA, the IRS. So it's something that looks at administrative action that goes around Congress. So it is a real check on administrative power. Now, this is the court that looked at the NLRB recess appointments, those appointments that the president made to the National Labor Relations Board, and found them unconstitutional. So it's very important. It's balanced right now evenly between judges who were appointed by Republican presidents and Democratic presidents, so adding even one new nominee of the president to this court is going to tip the balance. By the way, four of the current Supreme Court justices served on this court. It's very important.
BRET BAIER: But Democrats rightly point out there are a lot of empty seats so why shouldn't they be filled?
BREAM: Yeah, there are three vacancies. The President has tapped three different lawyers to fill those seats, including one who is currently a judge in a lower court. And basically, there were vacancies back when President George W. Bush was fighting to fill these seats as well. Back then Democrats said the court doesn't have enough of a workload to justify filling all of these seats. It's what Republicans are saying now and they add the workload has gotten even lighter in the last eight years. One of the judges currently sitting on the bench said this, quote, "if any more judges are added now, there won't be enough work to go around." That's from one of the current folks who's on this court.
Bream's report on Republican obstruction of Obama's judicial nominees parrots repeatedly debunked right-wing talking points. Bream is correct that the D.C. Circuit Court is a significant part of the federal court system -- it is considered second only to the Supreme Court in terms of its impact on federal law. It is strange, then, that she would uncritically report on Republican efforts to prevent the court from operating at full capacity. Moreover, her characterization of Democratic opposition to George W. Bush's D.C. Circuit nominees is demonstrably false -- that opposition did not result in the elimination of any seats, and ultimately four of Bush's nominees were confirmed. And unlike Bush's judicial picks, President Obama's nominees have faced unprecedented obstruction from Senate Republicans.
Right-wing media continue to deny that President Obama's judicial nominees have faced unparalleled obstruction from congressional Republicans, and is mischaracterizing the legal philosophies of those nominees.
FoxNews.com contributor John Lott not only misled on the overwhelming hurdles President Obama's nominees have faced, he also rather bizarrely branded one nominee as "controversial," even though his legal opinions are based on well-established Supreme Court precedent.
From Lott's October 16 column:
The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama's nominee to the prestigious D.C. Circuit Court of Appeals -- the court often referred to after the Supreme Court as the "second highest court" in the country.
President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins' nomination. When Wilkins was nominated in June, Obama accused Republicans of being "cynically" engaging in "unprecedented" obstruction of judicial nominations.
Democrats claim that any fair consideration would guarantee Wilkins' quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 "without opposition."
But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits.
The president and other Democrats complain that Obama's nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in the New York Times, USA Today, and the Congressional Research Service.
But, these numbers are fundamentally flawed.
These studies don't look at what finally happens to nominees, only what happens at some arbitrary cut-off date, such as last fall or at the end of a president's first term.
In reality, many of the longest confirmation battles involve nominations made during a president's first term and not finished until some time during his second term.
A president's decision to make nominations late in a congressional cycle can also strongly influence the results.
Actually, President Obama has little to complain about.
But As Lott himself acknowledges, numerous analyses (including one by the non-partisan Congressional Research Service) have shown that President Obama's "rhetoric" is true -- his nominees have been blocked at unprecedented levels. Lott dismisses these studies by highly reputable sources because supposedly their "numbers are fundamentally flawed," a bold claim from a source whose research on gun violence has been repeatedly and seriously discredited.
As Congress returns from summer recess, right-wing media are once again helping obstruct President Barack Obama's nominees to the critical U.S. Court of Appeals for the D.C. Circuit.
Picking up where it left off, National Review Online is continuing its attacks on Georgetown Law Professor Cornelia "Nina" Pillard because of her purportedly wild-eyed academic writings on sex equality law, a mainstream part of American constitutional jurisprudence for decades.
Having seemingly failed to convince anyone beyond GOP Senators like Ted Cruz - who repeated NRO's talking points during Pillard's confirmation hearing - the NRO has now resorted to accusing Pillard of "false and deceptive" misrepresentations of one of these law review articles.
Specifically, NRO claims to know the true meaning of the article's words better than the author who wrote them, confidently concluding Pillard's law review piece was not academic, but rather an "ideologue['s]" manifesto of "extremism." From NRO:
In short, contrary to her testimony, Pillard wasn't playing the disinterested academic and merely identifying "the argument that one would make to make [her equal-protection challenge] amenable" to judicial resolution. Rather, she was affirmatively advocating the argument.[emphasis original]
In short, NRO is quibbling over whose paraphrase and characterization of a 53-page academic article was more correct during the hearing.
A Wall Street Journal editorial downplayed the vacancies on the D.C. Circuit Court of Appeals to justify Republican opposition to filling the posts, ignoring the Journal's past editorials highlighting vacancies during the George W. Bush administration as well as statements from judges on the D.C. Circuit regarding its unique workload and need for a full bench.
Fresh off of unsuccessful scare-mongering about the dangers of marriage equality, right-wing media are turning the clock back even further and attacking a highly qualified judicial nominee to the important D.C. Circuit Court of Appeals because of her academic writings on established sex equality law.
Started by Ed Whelan of the National Review Online and continued by anti-gay hate group leader Tony Perkins, a whisper campaign against veteran litigator and law professor Cornelia T.L. Pillard, President Obama's pick for the D.C. Circuit, has been spreading through right-wing media.
Whereas Whelan at least attempted to engage the legal arguments of a 2007 law review article in which Pillard explored how decades-old sex equality law is relevant to reproductive rights, other right-wing media are making even wilder and more inaccurate claims to smear the nominee as extreme when she is in fact solidly in the mainstream.
Perkins of the notorious Family Research Council, for example, made numerous errors in his attack on Pillard that, along with Whelan's rhetoric, is circulating on anti-choice websites and right-wing blogs.
Falsely ascribing a quote of conservative former Chief Justice William Rehnquist to Pillard in which he wrote for the Supreme Court that family leave policies not equally provided to both sexes are a "self-fulfilling cycle of discrimination," Perkins inaccurately described it as Pillard's condemnation of "celebrating motherhood." Where Pillard has observed that the anti-choice personhood movement could be exposed as unconstitutional by increasing awareness of the equal protection ramifications for pregnant women, Perkins fabricated the charge that Pillard "criticizes" the ultrasound. Resorting to spreading the ridiculous myth that Pillard would "declare" abstinence-only education "unconstitutional," Perkins managed to debunk such a silly charge in his very next sentence by quoting her accurate observation that a sex education class that stereotypes and disadvantages women could theoretically be "vulnerable to an equal protection challenge" under established precedent.
Finally, Perkins selectively quoted Pillard to characterize as "militant feminism" her argument that for women to have equal rights in the workplace, they need to be valued for more than their ability to bear children. From the actual full quote in Pillard's 2007 article:
A society in which women lack control to plan when they have children is one in which women must remain second-class citizens. We already know, and the Court recognized in Hibbs, that many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered "ideal worker." If impaired access to contraceptives hinders women's ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.
From the July 24 edition of Fox News' America Live:
Loading the player reg...
The National Review Online published a string of blog posts featuring sexist, hypocritical, and flawed attacks on Georgetown law professor and Supreme Court litigator Cornelia T.L. Pillard, President Obama's nominee to the critical U.S. Court of Appeals for the D.C. Circuit.
Right-wing media have repeatedly attempted to rally GOP filibusters against the president's nominees to three vacancies on the D.C. Circuit, the appellate court considered the second-most important in the nation and currently skewed to the right. NRO recently joined the attack with the first personal smear, prefaced with the "damning assessment" that an unnamed source claims Pillard is "[liberal Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate."
Obama has nominated three highly-qualified picks to fill these seats and offset the conservative imbalance of the D.C. Circuit's complement of active and senior judges. One of these choices is Pillard, graduate of Yale College and Harvard Law School, veteran of the Clinton administration, and former employee of both the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She also is an accomplished Supreme Court litigator in sex equality law (also referred to as gender equality law) and a contributor to the successful arguments in United States v. Virginia, which opened the doors of the Virginia Military Institute to women by firmly establishing the equal protection clause of the Fourteenth Amendment applies heightened scrutiny to sex discrimination.
In short, a liberal president nominated an extremely accomplished liberal to the D.C. Circuit.
NRO has responded with four posts that criticize a 2007 law review article Pillard wrote that argues reproductive rights, such as the constitutional right to an abortion, should be encompassed under equal protection grounds as well. Not only is this a decades-old concept at the root of sex equality doctrine, Justice Ruth Bader Ginsburg has made no secret of her support for this idea, even arguing for it in her successful 1993 Senate confirmation hearing.
Notably, the author of the pieces, Ed Whelan, chose an opening for criticizing Pillard that appears to go against his previous defense of then-nominee Justice Samuel Alito. In 2005, Whelan argued that Alito's past anti-choice writings on reproductive rights should not be used as a barometer for how he would rule on abortion as a justice. From the NRO:
[A Washington Post] article notes that one critic (a longtime abortion activist, as it happens) "said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion." Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito "applied his sentiments"? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.
The Post's article is simply not responsible journalism, and it does not even make any serious effort to be.
It should be noted that Alito's anti-choice writings that Whelan defended were legal memoranda penned as a Justice Department lawyer and judicial opinions. By contrast, when it comes to Pillard, Whelan is attacking her based on a law review article invoking the well-established constitutional doctrine of sex equality.
With a deal apparently sealed in the Senate that will end successful Republican filibusters on current presidential nominees to the executive branch, The Wall Street Journal revealed that its previous attacks on the proposed appointments were just an excuse to rail against long-standing progressive law.
The WSJ was an eager participant in right-wing media's attempt to bolster the GOP refusal to allow simple majority votes on President Obama's executive branch nominees. In particular, the editorial board was obsessed with smearing Thomas Perez, Labor Secretary nominee, and explicitly called upon Republicans to filibuster this cabinet pick.
In addition to calling him "tainted" because his performance as head of the Department of Justice's Civil Rights Division was purportedly "shady," a "flagrant abuse of his legal powers," "unacceptable in any government official," and part of a career of "bend[ing] the law to his ideological purposes," the WSJ also argued that the Republican opposition to him was "tepid" only because "[t]hey don't want to be seen opposing someone with a Spanish surname." On the eve of the bipartisan deal that finally curtailed the filibusters on seven nominees, the WSJ's last-ditch attempt to egg on continued GOP opposition to Perez was a reference to supposed "disdain" he has for the House Oversight Committee under Rep. Darrell Issa (R-CA).
Now that a vote and confirmation seems assured, however, the WSJ's latest discussion of Perez is notable for the lack of the baseless attacks on his qualifications and character that were frequent in previous editorials. Instead, the WSJ confirms that their opposition was always to effective and long-standing civil rights law that recognizes discrimination can be illegal not only in intent but also because of its impact.
Dropping its villainous characterization of Perez, the WSJ now makes clear that what it really hates is the fact that multiple banks have been punished for predatory lending and other racially discriminatory behavior under civil rights precedent, which even its own editors admit is recognized by all 11 appellate courts. From the July 16 editorial page:
The courts are the last line of defense against the Obama Administration's regulatory onslaught, and the latest legal challenge comes from the insurance industry. The home insurers sued late last month to overturn the Department of Housing and Urban Development's new rule using disparate-impact theory to prove housing discrimination.
Disparate impact lets regulators charge discrimination merely by showing that some racial or ethnic groups received fewer housing loans than other groups. There's no need to show intent to discriminate or even prove racial bias in a specific case. In practice, this means lenders and insurers must impose de facto racial quotas or risk costly lawsuits.
HUD rolled out the new rule in February to rubber-stamp Thomas Perez's campaign at the Justice Department to accuse banks of racism before the Supreme Court could rule on disparate impact's legality in a pending case.
Meanwhile, we reported last month that the Supreme Court agreed to hear a disparate-impact housing case, Township of Mount Holly v. Mount Holly Gardens Citizens. But we now hear the parties are in settlement talks, which no doubt thrills HUD and Mr. Perez.
Fox News falsely suggested that Senate Republicans have blocked Richard Cordray from heading the Consumer Financial Protection Bureau (CFPB) due to legitimate fears about how he would handle the agency, when in fact Senate Republicans have, in unprecedented fashion, said they would oppose any nominee whatsoever until changes are made to the structure of that agency.
On July 16, the Senate will be voting on several executive branch nominees that Republicans have opposed. Senate Majority Leader Harry Reid has said that if Senate Republicans refuse to allow an up-or-down vote on those candidates, he will push a change to Senate rules that will prevent the minority from filibustering executive appointments.
Previewing that action on the July 16 edition of Fox News' Fox & Friends, Fox News contributor Laura Ingraham said that Cordray's nomination had been blocked for "good reason." Ingraham explained that Cordray has been blocked because he is a "good friend" of Sen. Elizabeth Warren (D-MA), who proposed the creation of the CFPB, and that "a lot of people [are] very concerned about what he'll do in the regulatory process."
In fact, Cordray's potential actions as head of CFPB are irrelevant to the discussion as Republicans have said they would oppose any candidate for that office whatsoever.
In February of 2013, 43 Republican senators sent a letter to President Obama saying that they would block "any nominee, regardless of party affiliation," to the CFPB until structural changes were made to the agency. This is the first time in the history of the Senate that a nomination has been blocked for no reason other than a political party disagrees with the structure of the agency.
Cordray's qualifications include serving as Ohio's Attorney General where he recovered more than $2 billion for Ohio citizens and worked to protect consumers from fraudulent foreclosures and financial predators. Cordray also served as Ohio's State Treasurer.
Unless there is a dramatic change of course, Senator Majority Leader Harry Reid is likely to move forward today with the "nuclear option," changing the rules of the Senate to permit the approval of Executive Branch appointments by a simple majority vote.
After four and a half years of unprecedented obstruction -- encouraged by an incentive structure in which the media has rewarded Republicans for helping to stall the workings of our federal government -- this turn might have been inevitable.
Formally, even Senate Minority Leader Mitch McConnell articulated the principle that these appointments, except in rare circumstances, should be confirmed without delay. The Kentucky Republican has previously said that for "over 200 years," the president's selections were given "up-or-down votes" regardless of "who the president is, no matter who's in control of the Senate," adding, "That's the way we need to operate."
During the presidencies of Harry Truman through George W. Bush, executive appointments faced cloture in the Senate on only 20 occasions. During the Obama administration, the Senate has been forced to take 16 such cloture votes, unduly holding up nominations.
By blocking nominees to run vital federal agencies, Republicans not only disrupt the careers of these public servants, but they interfere with the president's ability to effectively govern. Very often, though, that is their goal. Sen. Lindsey Graham once issued a press release declaring that an "inoperable" National Labor Relations Board "could be considered progress." Indeed, the Republican filibuster of NLRB nominees has meant the lack of a quorum, eliminating the board's ability to enforce labor standards.
Fox News senior judicial analyst Andrew Napolitano summed up this strategy on the July 11 edition of Fox's Special Report, telling host Bret Baier: "From my worldview, it means fewer nominees, fewer laws passed, and that's a good thing."
So far in 2013, the conservative media have cheered on the obstruction, or attempted obstruction, of numerous Obama nominees including Tom Perez at the Department of Labor, Gina McCarthy to head the Environmental Protection Agency, and Chuck Hagel at the Pentagon.
The rewards and punishments for Republican senators are clear: Toe the conservative media's line and gain access to a base willing to provide funding and on the ground support for your campaigns; stray and you just might end up with a primary opponent, dooming your chances at re-election.
Fox News contributor Erick Erickson made this transaction clear, writing on his RedState website to demand that the GOP filibuster Hagel and accusing Republicans John McCain and Lindsay Graham of "going wobbly," asking his readers to "Call your Senator. Tell him or her to join the Republicans in their filibuster of Chuck Hagel."
Fox's Sean Hannity described a first vote that temporarily blocked Hagel's nomination as "the first time a filibuster of a cabinet nominee has been used, and needless to say, this marks a major win for the GOP."
And while a partisan media rewards those disrupting the system with adulation, non-ideological publications do their best to put a pox on both houses in their reporting.
During Hagel's confirmation fight, Politico suggested even bringing the former senator up for a vote "could damage the [Armed Services] committee's longtime bipartisan spirit." Hagel was eventually confirmed with 58 votes.
Others have simply ignored Republican intransigence to blame the president for not magically forcing a change in the opposition party.
The rare exception this brand of reporting include Michael Grunwald at Time magazine, who has extensively reported on GOP attempts to disrupt the Obama administration; Greg Sargent of The Washington Post; and Norman Ornstein of the American Enterprise Institute and Thomas Mann of the Brookings Institution, whose Washington Post op-ed "Let's just say it: The Republicans are the problem" and related book It's Even Worse Than It Looks squarely place the blame where it belongs. But most of the media seemed uninterested in Ornstein and Mann's thesis.
With the conservative media cheerleading for obstruction and the nonpartisan media adamantly refusing to place any accountability on the responsible parties, Republican senators are being rewarded for obstruction and punished for constructive engagement.
This perverse incentive structure leaves Harry Reid no choice other than to try and change the Senate's rules.
Fox News has repeatedly misrepresented Senate Majority Leader Harry Reid's proposal to reform the filibuster and is conflating his current plan with a broader one that Reid clearly rejected.
Reid has announced he will confront current GOP filibusters on seven presidential nominees, including leadership positions for the Department of Labor, Environmental Protection Agency, and the Consumer Financial Protection Bureau (CFPB), in addition to the Democratic members of a bipartisan slate to staff the National Labor Relations Board (NLRB). If Republicans continue to refuse to allow an up-or-down vote on these nominees to the executive branch, Reid has indicated he has backing from his caucus to change Senate rules and eliminate this specific type of filibuster.
Chief National Correspondent Jim Angle, however, continued Fox News' recent misleading coverage on the topic and confused the proposal with one that would also require up-or-down votes for judicial nominees, a change Reid has currently ruled out. During the segment, Angle repeated GOP talking points that President Obama "is getting faster nominations than [President George W.] Bush did" and that the proposed rule change resembles one that Senate Minority Leader Mitch McConnell floated in 2005. From the July 15 edition of America Live:
Fox News is continuing to baselessly claim that Senate Majority Leader Harry Reid's proposal to eliminate the ability of the GOP minority to filibuster executive branch nominations is unwarranted.
On the July 12 edition of America Live, Fox News guest host Alisyn Camerota brought on Fox contributors Joe Trippi and Ed Rollins to discuss Reid's announcement that his caucus will enact limited filibuster reform, perhaps as early as next week.
The proposal currently being floated would change Senate rules so a president's picks to fill leadership positions in his cabinet and the executive branch automatically receive up-or-down votes, as opposed to being held hostage to GOP filibusters. Although this proposal wouldn't affect the unjustified filibusters of judicial nominations, this limited reform would finally allow simple majority votes on the nominees for labor secretary, Environmental Protection Agency administrator, Consumer Financial Protection Bureau director, and the bipartisan slate for the National Labor Relations Board.
Camerota and her guests, however, adopted Senate Minority Leader Mitch McConnell's argument that because many of President Obama's nominees were eventually confirmed, not only is there no problem, but disallowing subsequent filibusters on these cabinet and agency selections will result in the death of the institution.
In advance of the increasingly likely event of filibuster reform, Fox News is repeating the GOP spin that Senate Majority Leader Harry Reid is only considering this "drastic" change because of pressure from unions.
Reid has announced that Senate Democrats will meet on Thursday in order to decide whether the unrelenting GOP obstruction of every facet of President Barack Obama's agenda - legislation, executive policy, judicial nominees, cabinet picks, agency leadership - requires changes to Senate rules so that this governing body can actually govern.
According to America Live guest host Martha MacCallum and Fox News personalities Chris Stirewalt and Stuart Varney, however, Reid's response to this "post-policy nihilism in which sabotaging the Obama agenda has become its only guiding governing light," as explained by The Washington Post's Greg Sargent, is merely political payback for unions that supported his last campaign against tea party candidate Sharron Angle, who bragged about her fundraising from "friendly press outlets" like Fox News. From the July 10 edition of America Live:
Due to an unprecedented decision issued by a currently rightward skewed appellate court, the president's last two nominees to the National Labor Relations Board (NLRB) will have their legitimacy decided before the Supreme Court next term. Because of this legal challenge, in conjunction with a previous Court ruling that prevents the NLRB from functioning with less than three active members, the president has submitted three Democrats and two Republicans for confirmation so the NLRB can continue to mediate disputes between labor and management.
Fox News is correct that unions would prefer that the NLRB, the sole avenue of recourse for many labor disputes in accordance with federal law established over 75 years ago, not be nullified by filibuster as currently threatened. And if Reid is able to get his caucus to agree to eliminate the GOP's ability to block an up-or-down vote on nominations to the executive branch - the limited reform being floated - a simple majority in the Senate will indeed decide the fate of the NLRB.
But to pretend that this is the only impetus behind Senate Democrats' possible and reluctant change to the rules is ridiculous.