Right-wing media appear stunned as Justice Anthony Kennedy refused to join his more radical conservative colleagues on the Supreme Court and strike down affirmative action in higher education, instead reaffirming modern civil rights law that holds race-conscious admissions policies remain necessary for equal opportunity in today's society.
Kennedy's 7-1 majority opinion in Fisher v. University of Texas at Austin is essentially the reiteration of his controlling analysis in Parents Involved v. Seattle School District No. 1 (2007), which affirmed the constitutionality and continued necessity of race-conscious programs that seek to prevent the resegregation of public education.
In lockstep with conservative activists who are using the closely split Supreme Court as an opportunity to overturn decades of civil rights law, right-wing media have been repeatedly clamoring for the opposite of what just occurred in Fisher. So far, right-wing media coverage has been muted or is incorrectly pretending Kennedy's opinion breaks significant new ground.
Fox News host Megyn Kelly on America Live - in addition to dredging up the myth that the plaintiff in question was rejected in the admissions process because of her race - was shocked at Fisher's utterly unsurprising reminder that government's use of race typically requires strict scrutiny from the courts. From University of California Irvine School of Law Dean Erwin Chemerinsky's leading treatise, Constitutional Law, Principles and Policies, most recently updated in 2006:
It now is clearly established that strict scrutiny is used to evaluate all government affirmative action plans. In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court said: "[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." The Court reaffirmed that strict scrutiny is the test for affirmative action programs in its most recent cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
In Fisher, Kennedy wrote for a near-universal Supreme Court that has now sent a challenge to the University of Texas' affirmative action program back down to the U.S. Court of Appeals for the Fifth Circuit because it had not correctly applied the Court's precedent in this area of equal protection law. As has been the law since 1978, upheld most recently in 2003, the use of race as one factor among many in individualized and holistic considerations of applicants to institutions of higher education remains both necessary and constitutional to ensure the diversity of America's future leaders.
In less than one week, the Supreme Court has issued four decisions immunizing corporate defendants from liability for their wrongdoings and closing the courthouse door to individuals seeking redress. The Court handed victories to the pro-corporate U.S. Chamber of Commerce, which has an unprecedented success rate before the Roberts Court and which filed amicus briefs in all of the cases.
As The Wall Street Journal reported before the Court issued three pro-corporate decisions on June 24:
While business litigants often found themselves on the winning side of cases under the tenure of former Chief Justice William Rehnquist, they have made advances since Chief Justice John Roberts took the helm in 2005.
On June 20, the Court ruled in American Express v. Italian Colors Restaurant that class action waiver provisions would be enforced even if doing so would make it impossible for small businesses to protect their rights under federal law. In spite of the fact that the decision could have a serious impact on individuals' ability to hold corporations accountable for wrongdoing, media coverage was scant.
On June 24, the Supreme Court handed down three more decisions that roll back individual rights to redress for corporate wrongdoing.
In an opinion by Justice Samuel Alito in Vance v. Ball State University the Court gave made it more difficult for an employee to hold an employer liable for workplace harassment under Title VII of the Civil Rights Act of 1964. As Justice Alito explained:
Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "super- visor," however, different rules apply.
The majority opinion in Vance defined "supervisor" narrowly, leaving Vance, an African-American woman who sued her employer for creating a racially hostile work environment, without redress.
In her dissent, Justice Ginsburg wrote:
Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ.
The Court struck another blow to enforcing civil rights laws with its decision in University of Texas Southwestern Medical Center v. Nassar. In an opinion by Justice Anthony Kennedy, the Court limited employees' ability to prevail in cases alleging retaliation under Title VII.
In her dissenting opinion in Nassar, Justice Ruth Bader Ginsburg drew attention to the Court's results-oriented decision-making in favor of employers:
In this endeavor, the Court is guided neither by precedent, nor by the aimsof legislators who formulated and amended Title VII. In-deed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers.
Justice Ginsburg also delivered a statement about Vance and Nassar from the bench:
Both decisions dilute the strength of Title VII in ways Congress could not have intended. . . . Today, the ball again lies in Congress' court to correct this Court's wayward interpretations of Title VII.
Finally, the Court ruled against a woman who was severely injured by a generic drug and sued the manufacturer. In Mutual Pharmaceutical Co. v. Bartlett, the Court ruled that federal law related to pharmaceuticals preempts a plaintiff's right to sue the drug company under state law. The plaintiff, Karen Bartlett, had suffered severe injuries after she took a generic pain drug.
As Sen. Elizabeth Warren (D-MA) noted one week before the Court handed down its decision in Am Ex:
Data on the Supreme Court in recent years shows a heavy pro-corporate tilt.
Follow this pro-business trend to its logical conclusion, and sooner or later you'll end up with a Supreme Court that functions as a wholly owned subsidiary of the Chamber of Commerce.
These decisions continue the Roberts Court's track record of pro-corporate decisions. The question is, will the media cover this trend or allow the decisions to go unnoticed?
Right-wing media are repeating the wildly inaccurate claims of a political advertisement opposing a new police reform bill under consideration in New York City that attempts to bring the city's stop-and-frisk policy into constitutional compliance.
The captains union for the New York Police Department (NYPD) is currently promoting a ludicrous ad in opposition to the proposed Community Safety Act of the City Council of the City of New York. Upon release, the ad was immediately used as the June 19 front page of the New York Post, which dedicated an "exclusive" to the union's false claims that the police reform bill would "ban cops from identifying a suspect's age, gender, color or disability."
In fact, this bill would re-affirm the existing ban on illegal racial profiling by police, expand the class of protected groups, and provide previously unavailable avenues to litigation for civil rights abuses in state court. What the bill by its own terms explicitly would not do - contrary to the ad's depiction of a blindfolded police officer - is prohibit police from continuing to use race or any of the other protected group characteristics as part of a suspect's description. Rather, race and these other criteria cannot be the sole "determinative" factor proffered for a police stop of an individual, consistent with existing law. Absent other reasonable suspicion for the encounter, utilizing race alone as the reason for the police stop has long been illegal.
Following in the footsteps of the New York Post and CNN, however, right-wing media seemingly have not bothered to read the bill - or otherwise research the issue - and instead continue to base their entire analysis on the false ad.
Incorrectly describing the bill's rationale to be "identifying people by their identifying marks is offensive," the National Review Online quoted the Post's write-up of the ad and sarcastically wondered:
So, if a white male in his mid-thirties with a beard and a limp is wanted on suspicion of a crime, the police will be unable to broadcast that fact. Instead, they would have to say that they're looking for a person of undefined age, race, ability, and pogonic status -- and then describe his clothes. In a city of 7 million people, this will presumably work out perfectly, and it certainly won't lead to an increase in the frisking that the bill aims to reduce.
Fox News also repeated this blatant lie as straight news.
Forbes magazine's coverage of a Supreme Court case that sharply limits consumers' and small businesses' rights focuses on a supposed victory over trial lawyers, ignoring its impact on enforcement of federal statutory rights.
On June 20, the Supreme Court released its opinion in American Express v. Italian Colors Restaurant. In a sharply divided opinion by Justice Antonin Scalia, the Court ruled that class-action waiver provisions in arbitration clauses are enforceable even when denying plaintiffs the right to proceed as a class would make it functionally impossible to litigate to protect their rights under federal law.
Although consumer advocates, 22 states led by Ohio Attorney General Mike DeWine, the United States, and even arbitration professors wrote briefs to urge the Court to protect consumers' ability to vindicate their federal statutory rights, Forbes chose to characterize Am Ex as a case about plaintiffs' attorneys' business model:
Class-action lawyers took a major hit to their business strategy today at the U.S. Supreme Court when a conservative majority led by Justice Antonin Scalia rejected an antitrust lawsuit against American Express [...] on behalf of thousands of merchants.
Class-action opponents say the procedure itself has become hopelessly corrupt, with lawyers pursuing claims with the main objective of negotiating a settlement that returns their "clients" pennies but generates meaningful fees for themselves.
With this decision, the justices in the conservative majority made it clear which side they're on.
The case involves a claim by small businesses, led by Italian Colors - an Oakland, California-based restaurant--that American Express's policy of requiring merchants to accept all of its cards violated federal antitrust laws. Pursuing antitrust claims is so expensive that the cost of arbitrating cases individually would exceed what plaintiffs could recover. However, to accept American Express cards, businesses must agree to waive their right to pursue claims against the company through class actions. The U.S. Court of Appeals for the Second Circuit held that a class-action waiver would not be enforced where doing so would prevent a plaintiff from vindicating its rights under federal antitrust laws.
In a stunning blow for plaintiffs and consumers, the Supreme Court reversed this decision. Justice Scalia acknowledged that the Court might refuse to enforce an explicit waiver of statutory rights, writing
As we have described, the exception [to the requirement that class action waivers are enforceable] finds its origin in the desire to prevent "prospective waiver of a party's right to pursue statutory remedies," Mitsubishi Motors, supra, at 637, n. 19 (emphasis added). That would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights.
Although he agreed that an explicit agreement not to enforce antitrust laws might be invalid, Scalia nonetheless closed the courthouse door to plaintiffs whose agreement effectively immunized corporate defendants:
But the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.
In plain English, that means it's okay if the rules make it impossible to win as long as they don't make it impossible to play.
First, if the Court embraces Petitioners' position and severs the link between arbitration and effective vindication of rights, statutes intended by Congress to protect weaker parties against stronger parties will essentially be gutted. Small businesses might as well move to a different country where they no longer enjoy the protection of the antitrust laws. At the whim of an employer, workers could be required to prospectively waive their Title VII rights. Consumer protection laws such as the Truth in Lending Act could be silently, but inescapably, repealed by corporations with the stroke of a pen.
Forbes gave short shrift to its implications for real consumers, choosing instead to style the issue as a battle between powerful lawyers and big corporations. Taking advantage of pro- corporate Supreme Court decisions, corporations are increasingly forcing consumers to accept class-action waivers. If you purchase a cruise ticket, a car, or a cell phone contract, chances are you are subject to a class-action waiver too.
Now, under the Supreme Court ruling, those corporations who forced you to forego your rights could be immunized from liability for violating the law.
Justice Elena Kagan summarized that outcome in her dissent:
The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is the nutshell version of today's opinion, admirably flaunted rather than camouflaged: Too darn bad.
Fox News analyst Bernie Goldberg railed against long-standing employment discrimination law, mangling a civil rights doctrine to incorrectly claim the Equal Employment Opportunity Commission (EEOC) is seeking to prevent companies from screening job applicants for misdemeanor or felony convictions.
The EEOC recently filed complaints against a BMW facility in South Carolina and the retailer chain Dollar General because they allegedly conducted improper background checks that disproportionately affected workers and applicants of color, a possible violation of Title VII of the Civil Rights Act of 1964. This type of racial discrimination has been held to be impermissible by the Supreme Court since 1971 and was most recently acknowledged to be good law by conservative Justice Antonin Scalia in 2010.
Goldberg, however, attacked the complaints, claiming "to most regular folks out there listening to us, this has to sound crazy, because there is no racial discrimination in any traditional sense." From the June 18 edition of America Live:
As mentioned by Goldberg, EEOC is using the disparate impact enforcement approach of Title VII, which can prohibit employment policies that have a disproportionate effect on the basis of race without an acceptable employer justification. Not only has the Supreme Court affirmed this antidiscrimination enforcement under Title VII since 1971, Congress explicitly codified the doctrine in 1991. Nevertheless, right-wing media continue to pretend this type of statistical analysis is improper and have repeatedly smeared the Department of Justice for utilizing this area of civil rights law.
The Wall Street Journal is using the Supreme Court's decision to hear a Fair Housing Act case as a springboard to resume its attacks on Assistant Attorney General for Civil Rights Thomas Perez, who has been nominated to be Secretary of Labor.
On June 17, the Supreme Court agreed to hear Mt. Holly v. Mt. Holly Gardens Citizens in Action, Inc., a Fair Housing Act (FHA) challenge to a town's redevelopment plan, which would eliminate houses occupied by low-income, predominantly African-American residents. The U.S. Court of Appeals for the 3rd Circuit ruled, consistently with every federal court of appeal that has considered the issue, "The FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class."
Nonetheless, in a June 18 editorial, the WSJ used the Court's accepting the case to revive an unfounded and oft-repeated right-wing attack on Perez--that he acted unethically in handling a prior Fair Housing disparate impact case--and resume its campaign to undermine effective enforcement of civil rights laws through disparate impact litigation.
Specifically, WSJ repeated the unfounded right-wing accusation that Perez struck an unethical "quid pro quo" deal with the plaintiff in Magner v. Gallagher, another FHA disparate impact case. From the editorial:
On Monday, the Justices agreed to hear a case that bears directly on the legal theory that the Justice Department's civil-rights chief has used to allege discrimination in housing. This is good news for businesses that need the law clarified, though perhaps not for Mr. Perez, who has stretched the ethical boundaries of his office to prevent such a ruling.
But Mr. Perez maneuvered to have the case withdrawn by striking a quid pro quo with the plaintiff in the case, the city of St. Paul, Minnesota.
The Administration may now also lean on Mt. Holly officials to drop the case the way Mr. Perez leaned on St. Paul. But at least the Justices are signalling that they'll make up their own mind rather than let an Administration official mess with their docket for his own political purposes.
On its opinion pages, the Wall Street Journal has been hammering St. Paul's decision to withdraw Magner vs. Gallagher from the Supreme Court as a costly way to extend a lawsuit at taxpayer expense. It has pointed to phone calls reportedly made by Assistant Attorney General Thomas Perez, who works in the Justice Department's civil rights division, to Coleman and Grewing.
The Justice Department wasn't acting alone. Many groups that typically advocate for minorities and the poor argued in written briefs that St. Paul was going down a path that could inadvertently gut the Fair Housing Act. Among them were more than a dozen state attorneys general. The Leadership Conference on Civil and Human Rights, a coalition of 200 civil rights groups, has applauded St. Paul's decision.
The WSJ also renewed its attack on disparate impact litigation, an effective tool for enforcing civil rights laws.
The case will focus on so-called disparate-impact theory, which uses statistics to allege discrimination. Mr. Perez has used the theory to shake down banks for not lending enough to minorities, despite having no evidence of discriminatory purpose.
In a video interview posted on June 17, WSJ editorial page editor Paul Gigot referred to disparate impact as "his [Perez's] theory," and asserted that the drafters of the civil rights laws "didn't want quotas, which is where we lead with this kind of things, you say, 'a-ha, we must have x percent of people get a loan. That's not the way the civil rights statutes were written." The WSJ has associated disparate impact litigation with quotas before:
Magner was the Supreme Court's first chance to rule on whether "disparate-impact analysis," which uses statistics to prove discrimination and sometimes impose racial quotas, can be used under the 1968 Fair Housing Act.
This is patently false. Disparate impact litigation enables plaintiffs to challenge apparently neutral policies that disproportionately affect one group: "For example, an employer's policy requiring all employees have the ability to lift 50 pounds could disproportionately affect women."
Both the editorial and Gigot's interview ignore the fact that disparate impact litigation is a well-established tool for enforcing civil rights laws.
Nonetheless, right-wing media have been attacking its use in the fair housing context and have shown particular hostility to disparate impact cases brought against banks engaging in discriminatory lending practices.
The June 18 editorial claims that "Perez has used the theory to shake down banks for not lending enough to minorities." In fact, the Department Of Justice secured settlements against lenders, including Wells Fargo and Countrywide, who had charged minority borrowers higher fees and rates.
Finally, the WSJ alleges that "[t] he Department of Housing and Urban Development then rubber-stamped Mr. Perez's power play by issuing a regulation sanctioning disparate impact in housing enforcement."
In fact, as the Solicitor General explained in its brief opposing Supreme Court review in Mt. Holly,
HUD's recent rule reaffirmed its longstanding interpretation of the FHA, as embodies in formal adjudications of FHA complaints. See 42 U.S.C. 3610 and 3612 (Granting HUD broad authority to conduct formal adjudication of FHA complaints.
HUD...has interpreted the FHA--including section 804(a)--to encompass disparate-impact claims in every adjudication to address the issue.
Fox Business host Stuart Varney baselessly suggested non-citizens will now be compelled to vote as the "end result" of the Supreme Court's decision that Arizona cannot trump federal election law and make it harder for its citizens to register to vote.
In its 7-2 decision in Arizona v. Inter Tribal Council, the Supreme Court rejected Arizona's argument that its state registration law is immune to the federal National Voter Registration Act (NVRA) of 1993, an "open and shut" decision authored by conservative Justice Antonin Scalia that was handed down only three months after oral arguments.
Varney, however, responded to the breaking news that the Court had struck down yet another unconstitutional Arizona law by claiming the decision would not only allow non-citizens to vote, they will now go forth and do so. His guest, Fox News senior legal analyst Andrew Napolitano, while admitting Arizona has a terrible record at enacting constitutional legislation, added to the misinformation by incorrectly asserting "the states decide what the standards are for voting." From the June 17 edition of Varney & Company:
National Review Online continues to hype and misrepresent a dubious lawsuit against the current deferred action policy for certain undocumented immigrants who entered the country as children, trying to insert it into the Congressional debate on immigration reform.
NRO has repeatedly and uncritically promoted this legal challenge underwritten by the nativist "immigration-restriction" group NumbersUSA, filed in federal court last summer by the anti-immigrant movement's attorney of choice and Arizona SB 1070 author, Kris Kobach (also an NRO contributor).
On behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents, the lawsuit claims that the deferred action policy implemented to formalize prosecutorial discretion for qualifying undocumented students and veterans who came to the U.S. as children - also referred to as "DREAMers" - requires them to violate immigration law. From NRO, which calls out "most Republicans [who] have expressed little interest in the ICE agents' lawsuit":
U.S. District Judge Reed O'Connor has already indicated that the ICE agents "are likely to succeed on the merits of their claim." If that proves true, it would mean that the agents' request for a temporary injunction would be granted, and the policy ultimately struck down, barring a successful appeal. Judge O'Connor's ruling is likely come in the next week or two, as the Senate debates and considers amendments to the immigration-reform bill. "It could definitely affect things in Congress," says Kris Kobach, the attorney representing the ICE agents in the case (and a contributor to National Review). "If Congress doesn't take notice of what's going on in this case, and the shocking facts that have been revealed, then Congress is not looking at the full picture."
Kobach, who opposes the Gang of Eight bill, says such a ruling would significantly undermine proponents' claims with respect to border security and law enforcement. "All we really have on the law-enforcement side, with the bill in the Senate, is the Obama administration's promise to enforce the law," Kobach says. "Well, they've already shattered that promise, as demonstrated by this case. They're ordering ICE agents to break the law, which is pretty extraordinary. They're not engaging in any serious law enforcement."
[The Obama] administration has demonstrated a casual disregard for the rule of law. Even if the DREAM Act is good policy -- and even a number of Republicans think it is -- certainly the fact that the president lacks the legal authority to implement it by executive fiat is a "good reason" to stop him from doing so.
If for no other reason than the fact that the anti-immigrant activism practiced by NumbersUSA and Kobach has become toxic for a Republican Party trying to fix its overwhelming unpopularity with voters of color, the GOP's noticeable aversion to this challenge is unsurprising. However, in seeking to justify the automatic deportation of these non-criminal undocumented immigrants, NRO also fails to recognize the other reason Kobach is not getting much support.
Contrary to NRO's presentation, the lawsuit is seriously struggling.
Fox News host Martha MacCallum and guest Dr. Manny Alvarez misrepresented the science behind Plan B and ignored the legal reasons behind the pending over-the-counter availability of this emergency contraceptive.
Leading her segment by incorrectly describing the contraceptive as an abortifacient for use "after sex they think may have resulted in a pregnancy," MacCallum hosted Alvarez, Fox's senior managing editor for health news, to repeat his discredited claims about Plan B's alleged dangers. Specifically, Alvarez claims that "from a scientific point of view," Plan B is only "safe for women." Both MacCallum and Alvarez professed ignorance as to the real reasons the one-pill form will soon be available without a prescription. From the June 11 edition of America's Newsroom:
ALVAREZ: From a scientific point of view I know, yes, Plan B is safe for women. But since when is a 10-year-old a woman? All the advocates that say oh this is a great success for women's health rights and all of that, I get the whole thing if you want to say women, fine, but a 10-year-old, an 11-year-old, a 12-year-old - those are kids. They're not even teenagers.
MACCALLUM: I sent my daughter to buy, you know, the d-level of allergy medicine the other day at CVS and they wouldn't sell it to her without an ID that showed she was 18. You can't buy cold medicine, you can't get your appendix taken out without your parents standing right by your side at the hospital. But you can do this with no problem. Explain what kind of world we live in when that is the situation.
ALVAREZ: The rationale is really something that I can't put my head around it.
National Review Online called upon Republican state officials to "create a 30-state united front with Oklahoma" and join a challenge to the legality of new insurance marketplaces set up under health care reform, without mentioning that the theory behind this lawsuit is not new and has been widely criticized.
Claiming Republican Attorney General Scott Pruitt of Oklahoma has "found an ingenious way to call a halt to the Obamacare project," NRO failed to note that the administrative law challenge is neither new nor of Pruitt's creation, but rather represents his last-ditch attempt to salvage his previous constitutional challenge to the Affordable Care Act, rendered irrelevant by the Supreme Court's historic rejection of similar arguments in 2012.
Not credited by NRO, Pruitt's lawsuit is based on a novel theory of two libertarian conservative scholars and long-time and persistent Affordable Care Act critics, one of whom is an NRO contributing editor. Their highly contentious argument is that the new health care reform marketplaces, otherwise known as "exchanges" managed by either the federal or state governments, can only offer crucial tax credit subsidies for purchasing private insurance if the system is state-run. From NRO's description of the challenge:
Oklahoma attorney general Scott Pruitt has found an ingenious way to call a halt to the Obamacare project: Hold the federal government to the letter of that misbegotten law. His fight is a lonely one: While a majority of states signed on to the 2010 lawsuit opposing Obamacare on constitutional grounds, Oklahoma is standing largely alone today.
The tax credits apply only to those using exchanges created by the states. The federal government can create its own exchanges within states; however, it has no authority under the law to use them to offer subsidies and inflict the accompanying taxes.
But there was an unforeseen development: Some 33 states have refused to create those exchanges, Oklahoma among them. If a state's residents are not eligible for exchange subsidies, then its employers are not subject to the associated punitive tax. Contra the administration's amen corner in the media, this was not a rookie drafting error in the legislation -- it was an intentional feature of the bill. The law is explicitly written to deny subsidies to states that refuse to create exchanges. The president and congressional Democrats simply failed to anticipate that the majority of states would refuse to create exchanges.
NRO incorrectly characterizes the widespread debunking of this argument as merely an "inventive legal theor[y]" of the Department of Justice in service of the Obama administration's "habitually cavalier disregard for the rule of law."
Right-wing media are continuing to follow GOP talking points opposing filibuster reform by pretending President Obama's attempts to fill judicial vacancies are dangerously unprincipled.
By shamelessly repeating Sen. Chuck Grassley's debunked analogy that the president's current nominations to the important U.S. Court of Appeals for the D.C. Circuit are a "type of court-packing reminiscent of FDR's era," right-wing media appear to be running out of excuses for rampant Republican obstructionism. Consequently, this "radical and different" treatment of the president's nominees as opposed to that of past Republican presidents has led to the real possibility that Senate rules will be changed in July to require up-or-down votes for executive and judicial nominees.
GOP insistence on clinging to an ahistorical characterization of the president's moves to fill existing seats on the D.C. Circuit as tantamount to former President Franklin Roosevelt's proposal to create new seats on the Supreme Court has been dismissed as "silly on its face" and incapable of "passing the laugh test" by multiple experts.
Nevertheless, The Weekly Standard has parroted the false line, declaring that the "nominations are simply a power play" so the court will "vote in his administration's favor all the time." The Wall Street Journal similarly warned that the president wanted judges who "rubber stamp liberal laws," leading him to his "flood-the-zone strategy" for the D.C. Circuit, "a liberal power play that shows contempt for traditional political checks and balances." Breitbart.com is breathlessly proclaiming the nominations show "Obama has declared war on judicial independence" and is "trying to declare law by executive fiat."
Ironically, Grassley and now Rep. Tom Cotton have introduced bills that would block the president's nominations by eliminating the vacant seats -- literally court-packing in reverse. In a companion move to their bad sense of history, the GOP is relying on bogus numbers to claim the D.C. Circuit doesn't need the president's nominees because of its workload, an assertion refuted not only by the nonpartisan Judicial Conference of the United States (which recommends the size remain the same), but also by the court's former Chief Judge and the Chief Justice of the Supreme Court. Right-wing media are nonetheless repeating this discredited spin, in support of the unprecedented Republican blockade of judicial nominees.
The additional GOP threat of filibusters of the president's executive nominees to head the Labor Department, the Environmental Protection Agency, and the Consumer Financial Protection Bureau has led Senate Majority Leader Harry Reid to warn he will demand a simple majority vote for all of the president's nominees in July.
Right-wing media are continuing to claim Attorney General Eric Holder lied under oath because of a a search warrant request that included Fox News reporter James Rosen, a myopic smear conservative legal experts are warning is baseless.
Picking up where Fox News and Washington Post blogger Jennifer Rubin left off, The Wall Street Journal is repeating Republican politicians' attack that either Holder perjured himself in a May 15 statement before Congress as to whether journalists were improperly surveilled or a 2010 affidavit in a search warrant request for the criminal investigation of a State Department employee's leak of classified information was "false." From a June 2 WSJ editorial:
In its 2010 affidavit seeking a warrant to search the email of Fox News reporter James Rosen, Justice said there was "probable cause" to believe Mr. Rosen "has committed or is committing a violation" of the Espionage Act "as an aider and abettor and/or co-conspirator." That sounds like a serious criminal charge, and Mr. Holder personally approved the warrant request.
Yet now, amid a media uproar, Mr. Holder's spinners are saying Justice never intended to prosecute Mr. Rosen. But if that's true, then the Department's warrant affidavit contained false claims about Mr. Rosen. Prosecutorial dishonesty is more common than it should be, but Justice officials don't usually cop to it as a way of defending an Attorney General. Should judges assume that the "probable cause" and "co-conspirator" claims in Justice's next warrant request are also a ruse?
Right-wing media continue to push the incorrect and narrow claim that Holder perjured himself by testifying that "[i]n regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy," although Rosen had been previously named as a possible "co-conspirator" for soliciting classified information from a government official who was allegedly violating the Espionage Act.
Beyond the credibility problems of this selective outrage, conservative and libertarian legal experts are now raising another issue that this scandal-mongering is missing: right-wing media's cries of perjury are completely unsupportable.
Right-wing media are wildly distorting facts and criminal procedure to pretend Attorney General Eric Holder "lied" to Congress when he testified about government surveillance of journalists and prosecutorial discretion at a May 15 hearing.
Now that the possible chilling ramifications of legal searches of reporters' work product have been widely condemned not only by the press, both political parties, and President Obama and Holder, right-wing media have resorted to misrepresenting search warrant procedure, criminal law, and basic facts of what the Department of Justice (DOJ) actually did in their investigation of how a State Department employee may have violated the Espionage Act of 1917.
Specifically, right-wing media claim Holder's May 15 testimony is inconsistent with a two-year-old affidavit DOJ filed in support of a search warrant request for an email account associated with Fox News' James Rosen, as part of their investigation into the government official's unauthorized disclosure of classified information. Fox News host Sean Hannity was the most recent example, who showed a clip of the testimony on his May 29 show and then stated "what you just witnessed was the United States Attorney General lying while under oath before Congress."
Continuing in a vein set by Fox News host Megyn Kelly on the May 28 edition of America Live when she complained "it is one thing for the DOJ to go into a courtroom and try to get your records, your phone records, your email records. It's quite another for them not to give you any notice[,]" right-wing media is complaining that the underlying legal rationale behind the warrant request was incorrect. In support of this argument, the Drudge Report has been pushing claims made on Breitbart.com that Holder went "judge shopping" in pursuit of approval for this supposedly flawed search warrant.
The Washington Times attempted to recycle misinformation about Senate Majority Leader Harry Reid's warning that GOP obstructionism of President Obama's nominees is unsustainable, but published an inaccurate argument that doesn't support its own rhetoric.
In a May 24 editorial, The Washington Times claimed Reid's announcement that he would revisit filibuster reform in July because of the unprecedented obstructionism of the president's executive and judicial nominees "disturbed the peace of the Senate" and was a "variant" of court-packing analogous to former President Franklin Roosevelt's famous threat to expand the number of seats on the pre-war Supreme Court. From the editorial:
Senate Majority Leader Harry Reid doesn't like the direction the federal judiciary is heading, so he has come up with a variant of court-packing to achieve his results. He took the Senate floor Wednesday to defend the use of the "nuclear option" to bypass Senate rules and force through President Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
That would be the same court whose three-member panel in late January ruled, unanimously, that Mr. Obama's faux "recess appointments" of Big Labor-approved nominees to the National Labor Relations Board were unconstitutional. "You have a majority in that court that is wreaking havoc in the country," Mr. Reid complained, citing only the NLRB ruling. "For the first time in 230 years, they ruled the president can't make a recess appointment."
The three judges accused of havoc-wreaking merely made the point, obvious to English-speakers everywhere, that the president is obliged to wait for a recess before he can make a recess appointment.
Mr. Reid's rant disturbed the peace of the Senate amid debate over how quickly to proceed with the nomination of Deputy Solicitor General Sri Srinivasan to the 11-member D.C. appeals court, which currently has four vacancies. Mr. Reid's claim that the vacancies must be filled at once to restore ideological "balance" to the court is patently false, given that four of its seven judges are appointees of Republican presidents and three were appointed by Democrats. Four more liberal judges would likely guarantee a rubber stamp for Mr. Obama's agenda. Some "balance."
Mr. Reid is trying to follow the example of Franklin D. Roosevelt, who dreamed up the concept of outcome-based adjudication with his 1937 attempt to pack the U.S. Supreme Court.
Contrary to The Washington Times' description that Reid is trying to "bypass Senate rules," Reid is actually adopting a GOP proposal that was floated when Republicans were in the majority, which was to change Senate rules to allow filibusters to be broken by majority vote. Although a handful of longer-tenured Democratic Senators have been hesitant at such a move - the so-called "nuclear option" - the stark realization that GOP opposition to the president's agenda has extended to blanket opposition of his nominees is reportedly causing a change in position.
Fox News contributor and National Review columnist John Fund fabricated a link between voter suppression and IRS employees inappropriately singling out tea party and conservative groups' applications for tax-exempt status, claiming that such scrutiny by the IRS is the "real" form of voter suppression.
Fund still claims that voter suppression as commonly understood - attempts to prevent certain members of the public from voting - did not take place during the 2012 elections, despite widespread reports of such efforts fueled by restrictive voter ID laws.
On the May 21 edition of Lou Dobbs Tonight, Fund stated that "there was a lot of ridiculous charges about voter suppression in the last election even though black turnout was higher than white turnout." Fund again denied the existence of voter suppression in a May 23 editorial in the National Review Online, stating that allegations of voter suppression"proved to be twaddle."
In fact, research shows that there were widespread attempts to suppress the vote in the 2012 elections. Supporters of voter ID laws, the most common voter suppression measures, claimed that they would combat "voter fraud." However, such fraud is virtually non-existent.
Acknowledging that concern for voter fraud is a pretext, some state officials admitted that voting restrictions were enacted to influence the outcome of the election. For example, Florida officials acknowledged that efforts to curb access to early voting were intended to decrease Democratic votes:
Wayne Bertsch, who handles local and legislative races for Republicans, said he knew targeting Democrats was the goal.
"In the races I was involved in in 2008, when we started seeing the increase of turnout and the turnout operations that the Democrats were doing in early voting, it certainly sent a chill down our spines. And in 2008, it didn't have the impact that we were afraid of. It got close, but it wasn't the impact that they had this election cycle," Bertsch said, referring to the fact that Democrats picked up seven legislative seats in Florida in 2012 despite the early voting limitations.
Another GOP consultant, who did not want to be named, also confirmed that influential consultants to the Republican Party of Florida were intent on beating back Democratic turnout in early voting after 2008.
In 2008 Democrats, especially African-Americans, turned out in unprecedented numbers for President Barack Obama, many of them casting ballots during 14 early voting days. In Palm Beach County, 61.2 percent of all early voting ballots were cast by Democrats that year, compared with 18.7 percent by Republicans.