Obsessed with an uncontroversial 2007 academic article she wrote on reproductive rights, National Review Online continues to smear judicial nominee Cornelia Pillard, whose approval vote before the Senate Judiciary Committee is today.
Nominated to the second-most important court in the nation, Pillard should be voted out of committee on her way to a Senate confirmation vote based on her stellar qualifications for the U.S. Court of Appeals. Because of right-wing media attacks started by National Review Online and repeated almost verbatim by GOP Senators on the committee, the vote is expected to be straight down party lines.
In anticipation of the vote, last night the editorial board of the NRO regurgitated the same smears.
Pivoting off of a sliver of her academic work while misrepresenting it, right-wing media have attacked Pillard for her mainstream support of family planning, comprehensive sex education, and overall adherence to established sex equality law.
Right-wing media have been so desperate to pretend her legal writings are "extreme" that not only have they dismissed the inconvenient fact that half of the Supreme Court agreed with her perspectives on reproductive rights and abortion, but her invocation of the relevance of "sex stereotypes" that NRO and others like Tony Perkins condemn was endorsed by arch-conservative former Chief Justice William Rehnquist.
But the attacks are not really about Pillard.
Rather, they are a reflection of how much the right-wing apparently loathes the decades-long development of sex equality under Fourteenth Amendment law. Make no mistake- most of these Pillard smears have nothing to do with fidelity to precedent. Right-wing media like NRO apparently desire nominees who don't support civil rights precedent.
Cornelia "Nina" Pillard is President Obama's pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.
She is also a "feminist."
A "feminist" insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's "radical feminism" appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.
Despite increasing evidence of a pro-corporate slant in recent Supreme Court decisions, right-wing media continue to insist that there is no such bias.
In a Bloomberg View editorial, National Review Online senior editor Ramesh Ponnuru accused Sen. Elizabeth Warren (D-MA) of "hyperbolic" grandstanding because she accurately cited a comprehensive study that showed that the current Supreme Court of the United States is one of the most pro-business in history. Ponnuru's September 16 editorial called Warren's statements the result of "flawed thinking":
Citing "a recent study"... she said: "The five conservative justices currently sitting on the Supreme Court are in the top 10 most pro-corporate justices in a half-century -- and Justices Alito and Roberts are numbers one and two -- the most anti-consumer in this entire time."
The study doesn't tell us what Warren thinks it does, or anything we should care about. It gives equal weight to every vote by a justice, even though decisions plainly vary in importance for businesses, and for everyone else. It ignores decisions that matter a great deal for businesses but don't have business litigants.
Jonathan Adler, a law professor at Case Western University, notes that the study excludes Massachusetts v. Environmental Protection Agency, one of the two or three most important Supreme Court cases for business of the past decade. The court ruled that the Clean Air Act authorizes the EPA to fight global warming. Because neither named party in the case was a business, the study excludes it.
The study that Ponnuru dismisses, "How Business Fares in the Supreme Court," analyzed nearly 2,000 Supreme Court decisions over the last 65 years. Although Ponnuru doesn't say so, the study was co-written by esteemed--and conservative--federal judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. It has been described, even by its detractors, as "the most comprehensive examination of the Supreme Court's handling of business-related cases in the post-New Deal era."
In an interview with libertarian media outlet Reason.com, columnist George Will spoke out in defense of right-wing "judicial activism," highlighting civil rights precedent as particularly problematic.
While other right-wing media outlets - most notably National Review Online - twist themselves into knots pretending efforts to roll back decades of progressive law that emanated from the New Deal, civil rights era, and Great Society are paradoxically a form of restraint, Will has taken the opposite approach. As noted in a recent interview with Reason.com, Will has "increasingly kind words for what used to be derided by conservatives as 'judicial activism.'"
Will's admission as to what the current right-wing legal movement is supporting in its quest to overturn critical progressive precedent has been criticized as hypocritical from both the right and the left.
In the Reason.com interview, Will continued his unapologetic defense of judicial activism on behalf of right-wing goals, by arguing "someone has to say what the Constitution means." Will subsequently listed federal programs that he thought were suspect, including the interstate highway program, federal funding for state education, and affirmative action. Linking all three programs as unnecessary examples of government overreach, Will also explained that the time for state action against systematic racism was over because "routine daily insulting of African-Americans by white Americans is now completely unacceptable. That's an astonishing improvement."
In addition to repeating this right-wing media claim that the problems of structural racism are a thing of the past and the fight for civil rights is over and "won," Will recycled debunked right-wing media claims that affirmative action "is really not helping people, it's really hurting a lot of people," dismissing it as only a way to "make elite universities feel virtuous." In fact, this was not one of the many "substantial" benefits that conservative former Supreme Court Justice Sandra Day O'Connor relied on to uphold the continued constitutionality of affirmative action in Grutter v. Bollinger.
Will's refusal to honestly describe this race-conscious program to ensure equal opportunity in education, however, illustrates that whatever term right-wing media use to describe the current conservative legal assault on half a century of civil rights precedent, the end goal is the same.
The Wall Street Journal editorial board suggested that the decline in union membership over the last 30 years is due to lack of employee interest, but ignored the impact of aggressively anti-labor "right-to-work" laws and a string of pro-business Supreme Court decisions.
The WSJ claimed that the overall decrease in union membership is indicative of the irrelevance of unionism in the modern workplace. From the September 16 editorial:
The promise of joining a union has always been that it will deliver better pay, benefits and job security. That proposition long ago stopped being true for most workers, and now even the AFL-CIO is tacitly admitting its loss of relevance in the private American workplace. At last week's annual convention in Los Angeles, labor delegates voted to expand AFL-CIO membership, inviting even non-union members to join their flagging consortium.
[A]s dues-paying membership declines, the AFL-CIO is essentially trying to attract the equivalent of donations from the larger public. Send in whatever "dues" payments the AFL-CIO requires for membership, and in return you get--what exactly? At least if you donate during one of those PBS pledge drives, you get a tote bag and maybe a CD of Yanni at the Acropolis. It isn't clear what non-union members will get for their cash, other than the pleasure of knowing they've helped AFL-CIO chief Rich Trumka stay in a better class of hotel. Will he throw in a T-shirt?
What the WSJ neglects to mention is a series of anti-union and pro-business Supreme Court decisions over the last 20 years that have drastically reduced union organizers' ability to communicate directly with workers, provided extra protection to employers who try to aggressively prevent unionization in the workplace, and have obstructed access to justice for victims of labor law abuses. These decisions have eroded unions' ability to engage in meaningful communication with potential members, protect themselves from illegal labor practices, and have generally contributed to the reduction in membership numbers.
Rush Limbaugh charged that a new rule proposed by the Housing and Urban Development Department (HUD) aimed at promoting fair housing practices was "social engineering" and an attempt on the part of the federal government to "force" people to live in certain neighborhoods.
In the 1970s, schools were ordered to bus children into neighborhoods far away in order to racial balance in the schools. ... [W]hen forced busing erupted, there was outrage all over the country, including liberal Boston. But the social architects of the left didn't listen, and they kept at it ... 'cause they were forcing people to do what people weren't doing of their own volition. People were choosing neighborhoods where they wanted to live, and leftists didn't like the choices they were making. So they basically used the power of the government to force them [to move].
Okay, let's fast forward to today. Social engineering is on the verge of being imposed on entire neighborhoods, adults and children alike. ... What this is, is central planners imposing their will on where you live, not just where your kids go to school--and it's all being done, of course, for our own good.
Limbaugh cites a Wall Street Journal op-ed written by Rob Astorino, the Republican Westchester County executive, as proof that HUD "wants the power to dismantle local zoning" ordinances in order to impose diversity in local communities. Limbaugh goes on to claim that "[a]ll of this is Obama and the Democrats. They run these agencies. They look at zoning as disguised discrimination." Any effort to balance out segregated housing patterns, according to Limbaugh, is "part of [an] ongoing effort to achieve utopia" by "the elites."
What Limbaugh fails to note is that HUD's efforts to integrate racially homogenous neighborhoods is not new, nor was it invented by President Obama or anyone in his administration. It was actually Republican George Romney (father of Mitt), in his role as Richard Nixon's HUD Secretary, who began this effort with the "Open Communities" program in 1968. The program would have given federal grants only to those local governments that provided subsidized housing for poor minorities, in an effort to promote equal opportunities in housing and education.
National Review Online attacked "contemporary progressivism" because it is "led by radical lawyers," a dubious proposition that ignores the fact that the right-wing legal movement is currently attempting to overturn decades of Supreme Court precedent.
Without any acknowledgment of the recent wave of conservative challenges to long-standing law that underpins the successes of the New Deal and the civil rights movement, NRO condemned progressives for approaching the legal profession "as a kind of revolutionary instrument." From NRO:
Perhaps the most alarming fact about contemporary progressivism is that it is a movement led by radical lawyers. The use of the law to undermine our constitutional tradition is in effect the use of the law to undermine itself. But worse than that, it is the use of the legal profession as a kind of revolutionary instrument. That is a particular problem because the legal profession has always had a special role in the Anglo-American common law tradition as precisely an anti-revolutionary instrument--a repository of cautionary precedent and prudent mulishness. "The English or the American lawyer inquires into what has been done, the French lawyer into what one ought to wish to do," Alexis de Tocqueville wrote in 1835.
As the more nuanced essay that NRO relied on noted, organizations like the NAACP did in fact have to challenge racist precedent in order to overthrow Jim Crow, a form of "radical lawyer[ing]" that has inspired practitioners since.
What the NRO failed to acknowledge, however, is that if challenging "what has been done" is "undermin[ing] our constitutional tradition," it is contemporary conservatism that is currently taking its turn, with its relentless assault on modern constitutional law.
Spurred on by right-wing media, the conservative legal movement has steadily increased its challenges to established precedent on topics ranging from the ability of the federal government to regulate the economy, the protection of the right to vote from racial discrimination, the ability for workers to effectively advocate, access to justice for plaintiffs other than well-funded corporations, prohibitions on the corruptive influence of money on elections, the ability of the country to offer equal opportunity in education for all, and the president's centuries-old power to appoint officials during recesses, just to name a few.
And then, of course, there is abortion.
(Photo by Flickr user peacearena)
National Review Online is downplaying the seriousness of an Oklahoma law currently before the Supreme Court that forces doctors to ignore safe and accepted medical practice when prescribing the drug RU-486 for medication abortions.
In response to a New York Times blog by legal expert Linda Greenhouse highlighting Oklahoma's appeal of a state supreme court decision that held its new restrictions on the use of RU-486 blatantly violated reproductive rights precedent, the NRO accused Greenhouse of "put[ting Supreme Court Justice Anthony] Kennedy on notice of how he will be treated by the liberal media if he doesn't toe their line in this term's controversial cases." From NRO:
[The case from Oklahoma, Cline v. Oklahoma Coalition for Reproductive Justice,] gives the Court the opportunity to clarify the ambiguous "undue burden" test Casey [v. Planned Parenthood, a 1992 Supreme Court case that allowed states to impose restrictions on access to abortion as long as they did not create an "undue burden" on women] applied to regulations of abortion. Given Kennedy's affection for Casey, there is little likelihood the Court would use this opportunity to overturn that decision, but it could give some a content to the characteristically amorphous standard conceived by Kennedy, Souter, and O'Connor in their plurality opinion. And, from my perspective at least, it seems evident that only an incredibly broad reading of "undue burden" would suffice to overturn the Oklahoma law. After all, it simply adopts the determination of the FDA and still leaves ample other methods of abortion open to women.
But in discussing the Supreme Court's decision to review Cline, NRO fails to mention that in order to "adopt the determination of the FDA," doctors will have to follow guidelines that most consider to be woefully outdated.
Fox News Radio's Todd Starnes is falsely warning that the USDA is bullying Christian organizations that distribute food to low-income individuals into "choos[ing] between Jesus and cheese," ignoring that religious organizations are allowed to provide social services as long as they comply with federal law.
In a September 9 column for FoxNews.com, Starnes said that the USDA threatened to revoke federal financial assistance from the Christian Service Center, a Christian ministry in Florida, unless the group "removed portraits of Christ, the Ten Commandments, a banner that read 'Jesus is Lord' and stop[ped] giving Bibles to the needy." The sensationalist claim is already being repeated by other right-wing media outlets. From FoxNews.com:
For the past 31 years, the Christian ministry has been providing food to the hungry in Lake City, Fla. without any problems. But all that changed when they said a state government worker showed up to negotiate a new contract.
"The (person) told us there was a slight change in the contract," [Christian Service Center Executive Director Kay] Daly told me. "They said we could no longer have religious information where the USDA food is being distributed. They told us we had to take that stuff down."
Daly said it's no secret that the Christian Service Center is a Christian ministry.
"We've got pictures of Christ on more than one wall," she said. "It's very clear we are not social services. We are a Christian ministry."
[T]he Christian Service Center had a choice: choose God or the government cheese.
So in a spirit of Christian love and fellowship, Daly politely told the government what they could do with their cheese.
"We decided to eliminate the USDA food and we're going to trust God to provide," she told me. "If God can multiply fish and loaves for 10,000 people, he can certainly bring in food for our food pantry so we can continue to feed the hungry."
But Starnes is setting up a false choice and one that the ministry is not facing.
A Wall Street Journal editorial is mischaracterizing the Department of Justice's attempts to bring Louisiana into compliance with long-standing school desegregation orders as motivated by pro-union biases.
The editorial follows a long line of conservative media attacks against the DOJ's decision to file a lawsuit against Louisiana, asking a federal court to block the state's controversial voucher program. Despite the fact that Republican Louisiana Gov. Bobby Jindal began issuing vouchers before seeking the required judicial approval, he insists that the DOJ's suit is nothing more than a scheme to advance the interests of teachers unions, a baseless charge the WSJ editorial board continues to repeat.
After accusing Education Secretary Arne Duncan of "plead[ing] ignorance" for refusing to comment on the DOJ lawsuit (neither Duncan nor the Department of Education are parties to the suit), in a September 6 editorial the WSJ went on to suggest that the "real motive" for the suit is a pro-teachers union agenda on the part of the DOJ:
[Jindal] got to the heart of the matter by noting that the real motive for this lawsuit is union politics. The teachers unions have been trying to block the voucher plan by any means possible, but so far they've failed. Bringing in the feds for a desegregation gambit is merely the latest attempt.
Jindal maintains that vouchers represent the next stage of the civil rights struggle by offering minority students at failing schools a "choice," but the DOJ argues that vouchers actually "impeded the desegregation process." More importantly, right-wing media have largely ignored the existence of numerous long-standing court orders that require Louisiana to obtain permission from a federal judge before making any changes to the education system that might negatively impact desegregation efforts.
Instead, right-wing media are accusing the Obama administration of "inhumane" treatment of students of color and comparing Attorney General Eric Holder to infamous former Alabama Gov. George Wallace who sought to illegally maintain segregation in schools. For its part, the WSJ claims that "studies" show that "voucher recipients increase integration by letting minority children escape geographic school boundaries."
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 National Review Online editorial compared Attorney General Eric Holder to a notorious Jim Crow official for blocking a Louisiana school voucher program and accused the Obama administration of dehumanizing children of color, failing to mention the Department of Justice is acting pursuant to long-standing desegregation orders.
Continuing a right-wing media campaign against the DOJ's current attempts to ensure Louisiana remains in compliance with valid court orders still in effect to prevent the re-segregation of its public schools, the NRO followed the lead of Fox News and completely ignored the law in order to champion a Republican school voucher plan.
The NRO also accused the Obama administration of "inhumane" treatment of public school students of color, comparing the attorney general to George Wallace, the infamous Alabama governor who attempted to illegally maintain school segregation.
Finally, the editorial assumed its readership was unaware of Nixon's "Southern Strategy" and the well-known switch on race relations between the two parties because of federal civil rights law, ahistorically concluding "[w]ould that [Wallace's] fellow Democrats should have a similar change of heart and give up their half-century stand in the schoolhouse door." For a publication with an ugly and well-documented history of past and present racism, such smears are wildly audacious.
From the September 4 editorial:
It was 50 years ago this June that George Wallace, the Democratic governor of Alabama, made his infamous "stand in the schoolhouse door" to prevent two black students from enrolling at an all-white school. His slogan was "Segregation now, segregation tomorrow, segregation forever!"
These many years later, Democrats still are standing in the schoolhouse door to prevent black students from enjoying the educational benefits available to their white peers, this time in Louisiana instead of Alabama. Playing the Wallace role this time is Eric Holder, whose Justice Department is petitioning a U.S. district court to abolish a Louisiana school-choice program that helps students, most of them black, to exit failing government schools.
The Obama administration is a serial offender on this issue, and its cynicism is startling.
Setting aside the naked political cronyism that is in fact at the heart of this dispute, consider the DOJ's case on its merits: The government is arguing that the choices of actual black students and their families must be constrained in the service of preserving certain statistical measures of how black certain schools are. Put another way, this case really turns on the question: Are black children human beings?
From wildly offensive treatment of civil rights history to routine mendacity on voter ID, Fox chose to mark the 50th Anniversary of the March on Washington by smearing the ongoing struggle for voting rights.
Over the past week leading up to President Barack Obama's commemoration of the anniversary on August 28, Fox News has been at the forefront of right-wing media attempts to discredit links between the progressive community and the civil rights legacy of the March on Washington. Voting rights, in particular, have attracted a significant amount of misinformation and ignorance, some of it quite shocking.
On June 12, 1963, Medgar Evers, a Battle of Normandy veteran and the NAACP's first field secretary for the state of Mississippi, was assassinated in his driveway. Shot in the back, his murder was the culmination of an extensive white supremacist terror campaign against the voting rights and desegregation advocacy of the NAACP, a cause that President John F. Kennedy championed the very night of Evers' death as both a moral and constitutional issue to ensure "American citizens of any color [can] register and  vote in a free election without interference or fear of reprisal."
Evers' widow, Myrlie Evers-Williams, was invited to speak at the original March on Washington that took place two months later, an invitation that she was finally able to accept this past weekend at the 50th anniversary events. She warned about ongoing "efforts to turn back the clock" on the civil rights movement.
Congressman John Lewis, another veteran of the voting rights struggles, was more explicit. Also the victim of brutal violence due to his efforts to protect the right to vote, Lewis referenced the infamous Shelby County v. Holder Supreme Court decision and told the crowd, "I gave a little blood on that bridge in Selma, Alabama, for the right to vote. I am not going to stand by and let the Supreme Court take the right to vote away from us...We must say to the Congress, fix the Voting Rights Act."
On the August 26 edition of her radio show, Fox News contributor Laura Ingraham chose to follow up a recording of Lewis' call to Congress to both fix the Voting Rights Act and pass immigration reform with a gunshot sound effect. As Joan Walsh of Salon observed, even "[a]fter the assassinations of Medgar Evers, John F. Kennedy, Bobby Kennedy and Dr. King, after the gunning down of so many civil rights workers over the years, Ingraham thought it was funny, or clever, or provocative, to 'symbolically' cut off Lewis' speech with the sound of a gun."
Fox News downplayed Colin Powell's objections to strict voter ID laws and ignored the fact that Texas not only has a long history of illegal racial discrimination in its election practices, a federal court already found its voter ID measures to be impermissible voter suppression.
On the August 26 edition of America's Newsroom, Fox News host Martha MacCullum and correspondent Mike Emanuel reported on the Department of Justice's new legal challenge to the voter ID law Texas immediately enacted after the Supreme Court struck down a crucial provision of the Voting Rights Act (VRA) in Shelby County v. Holder:
Fox News failed to mention, however, that Texas is being accused of illegally suppressing the vote through a voter ID law that has already been found to be racially discriminatory by a federal court.
Writing for a three-judge panel in 2012, a circuit judge dismissed Texas' evidence that its voter ID law was not impermissibly discriminatory as "unpersuasive, invalid, or both." As explained by the Constitutional Accountability Center's Doug Kendall:
[I]n Texas v. Holder, a three-judge court unanimously blocked Texas' new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic. The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available - a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card - and making it costly to obtain a so-called "free" election ID for use at the polls. For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, "imposing an implicit fee for the privilege of casting a ballot." The "very point" of the Voting Rights Act, the court explained, was to deny "states an end-run around the Fifteenth Amendment's prohibition on racial discrimination in voting."
On August 12, a federal court judge ruled that the New York Police Department (NYPD) was improperly performing the common police tactic of "stop and frisk" by unconstitutionally targeting persons of color without reasonable suspicion. The New York City Council agreed, and passed legislation over a mayor's veto on August 23 to safeguard against future unconstitutional applications of this long-standing enforcement tactic. Right-wing media responded by ignoring the constitutional violations and instead defended the NYPD's actions for "establishing a sense of order."
Fox News hosts repeatedly attacked a federal court opinion that found that the New York Police Department's (NYPD) version of stop and frisk was unconstitutionally applied by arguing stop and frisk in general is constitutional, a misleading conflation of the NYPD's enforcement tactics and proper stop and frisk procedure.