National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.
NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the "nuclear option," which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):
I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.
Whelan's NRO colleague, Carrie Severino, joined the "make my day" chorus in a similar post on Reid's decision to invoke the nuclear option, saying, "I hope he does conservatives the favor." Severino later reiterated that point on PBS Newshour with Gwen Ifill:
I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.
But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.
It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the "nuclear option" just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.
Fox host Brian Kilmeade insisted that college admissions offices employ a "quota" system based on race, despite the fact that racial quotas in education have been illegal since 1978.
On the November 20 edition of "Fox & Friends," Kilmeade interviewed former college counselor Lacy Crawford about her book Early Decision. In response to a story about a parent who lied about her son's race on a college application to improve his chances for admission, Kilmeade proclaimed it was "because schools have quotas!" This has not been true since 1978, when the Supreme Court ruled in Regents of the University of California v. Bakke that it was unconstitutional for institutions of higher education to reserve a certain number of seats for students of color. Appearing uncomfortable, Crawford didn't bother to correct Kilmeade, saying only, "Well, 'quota' is a complicated word."
CNN congressional correspondent Dana Bash repeated the right-wing myth that the U.S. Court of Appeals for the D.C. Circuit, arguably the second most important court in the country, is currently "evenly split" and inaccurately reported that the blanket filibusters preventing up-or-down votes on President Barack Obama's judicial nominees are "sacrosanct."
In the wake of a flurry of filibusters of the president's highly-qualified nominees to the D.C. Circuit, Democrats appear to have finally convinced holdouts in their caucus that Senate Republicans' unprecedented obstructionism of judicial and executive nominees is unacceptable. Unfortunately, in reporting on this development that a change to the Senate rules may finally have enough votes to pass, CNN's Bash uncritically repeated right-wing media's dissembling justifications for the GOP blockade. From the November 19 edition of the Situation Room:
BASH: As you well know, Senate filibusters require 60 votes to overcome and it's a pretty high hurdle in a politically divided Senate but the ability to filibuster has been sacrosanct, neither party has dared take that power away from the minority. But Democrats are so frustrated right now that they can't get the president's nominees confirmed, they are once again threatening to do just that, the nuclear option.
BASH: But unlike other partisan brawls over the course, this is not about qualifications or ideology of the nominees. It's about the makeup of the court itself. The D.C. Circuit, the powerful federal appeals court that hears most challenges to laws passed by Congress, now evenly split, four judges appointed by Democrats and four by Republicans. And the GOP wants to keep it that way.
BASH: Republicans argue the D.C. Circuit workload isn't heavy enough to need three more judges. They say Democrats are the ones playing politics.
To her credit, Bash does correctly note that Republicans cannot muster legitimate criticisms of the actual nominees. But by failing to recognize the inaccuracy of their alternate reasons for filibustering these highly-qualified nominees anyway, she inadvertently gives legitimacy to bogus right-wing media rationales and minimizes the historic nature of this rampant obstructionism.
In a recent editorial, The Washington Times accused Democrats of planning to play "the race card" by criticizing Senate Republicans' historic obstruction of President Obama's well-qualified and diverse judicial nominees.
Senate Republicans have engaged in unprecedented obstruction of Obama's judicial nominees, which is preventing an up-or-down vote on current nominees to the critical U.S. Court of Appeals for the D.C. Circuit, Cornelia "Nina" Pillard, Patricia Millett, and district court judge Robert Wilkins. Yet the editors of the Times are quick to side with Senate Republicans who dismiss any criticism of their obstructionist strategy as nothing more than "a well-worn card."
From the November 18 editorial:
Senate Republicans are standing up, so far, to President Obama's attempt to pack the U.S. Court of Appeals for the D.C. Circuit with radical judicial activists. A filibuster blocked a vote on the confirmation of Cornelia Pillard last week and of Patricia Millett two weeks before that. Predictably, Senate Democrats declared that the forthright Republican opposition was another skirmish in the "war on women."
"It's a well-worn card," says Sen. Chuck Grassley, Iowa Republican, of the Democratic strategy. "And they play it every time." Well, not quite every time. When Republicans attempt to block confirmation of U.S. District Judge Robert L. Wilkins, who is black, to the appellate bench, Democrats will play the race card.
Opposing women and blacks is said to be part of Republican war on two fronts. It's not war when Democrats oppose female and black nominees. Forty-three Democrats voted unsuccessfully to deny George W. Bush's nominee Janice Rogers Brown to the appellate bench because she was not woman enough, just as Clarence Thomas was judged by Democrats to be not black enough. The Democrats guard their race and gender formulas as fiercely as Coca-Cola protects the formula for the popular soft drink.
Mr. Obama let slip the game at a private Democratic Senatorial Campaign Committee fundraiser early this month. "We are remaking the courts," he told them. The claim was brazen enough to make the ghost of FDR, lurking nearby, blush.
Republicans are rightly troubled by the prospect of remaking the courts by adding radical activists to a bench that doesn't even need new judges. Senate Minority Leader Mitch McConnell says that if more judges are added to the panel, "there wouldn't be work enough to go around." With some other federal appeals courts having legitimate vacancies, attention should be paid to "where judges are needed and where they're not," says Sen. John Cornyn, Texas Republican, "And this court demonstrably doesn't need new judges. It's not any more complicated than that."
The editorial is a stale rehashing of repeatedly disproved right-wing talking points.
As Republicans gear up to filibuster yet another of President Obama's highly-qualified judicial nominees, Democrats are mulling Senate rule changes to allow a straight up-or-down vote on these picks. After unprecedented obstructionism on the part of the GOP, media should note that the so-called "nuclear option" may be the only way for these nominees to get a vote.
Immediately after President Barack Obama nominated the highly-qualified and widely respected Debo Adegbile to be the next assistant attorney general for civil rights at the Department of Justice, right-wing media attacked this top lawyer of the NAACP Legal Defense Fund for purportedly being a "racialist."
Writing on an obscure right-wing blog, J. Christian Adams, a frequent Fox News guest who served in the highly politicized and disgraced Bush-era DOJ and "whose claim to fame as a federal lawyer seems to be his penchant for accusing black people of discriminating against whites," accused Adegbile of "racialis[m]" and the venerable NAACP Legal Defense Fund of a "radical racial agenda." From a November 14 post on Pajamas Media:
Adegbile hails from the NAACP Legal Defense Fund, an organization that has pushed a radical racial agenda including attacks on election integrity measures, opposition to criminal background checks for hiring, and racial hiring quotas for state and local governments.
Adegbile's name was mentioned as a possible nominee to the federal bench. Because of his advocacy for racialist policies, such a nomination would face serious confirmation difficulties. But in Eric Holder's Justice Department, nakedly racialist policies are standard fare, and Adegbile will fit right in.
This is an an-your-face nomination. This is the White House sending a message to Republicans and conservatives that the radical racial policies of the Justice Department will continue full speed ahead.
[I]n the Obama Justice Department, the law is not as important as the cause. And with Adegbile, the cause is racialist.
In another context, the venue and content of this thinly-veiled insinuation of so-called reverse racism could be easily ignored. Unfortunately, on the topic of executive and judicial nominees of the current president, Adams' attack is disturbingly similar to the same sort of race-baiting that jumps from little-read blogs to prominent right-wing platforms like Fox News, the editorial page of The Wall Street Journal, National Review Online, and even the mouths of GOP congressmen engaged in the ongoing blanket filibustering of the president's diverse nominees.
Accusing select presidential nominees of racialism or anti-white bias is a tired page of right-wing media's playbook against those who litigate and uphold longstanding civil rights precedent, a body of law that tends to help most those systematically disadvantaged by racism. This rant has been directed with more or less subtlety at Labor Secretary Thomas Perez (who previously led the DOJ's Civil Rights Division), Supreme Court Justice Sonia Sotomayor, and Attorney General Eric Holder.
Assumedly, these charges have some sort of salience with those unfamiliar with American history and basic civil rights law.
On November 13, the Supreme Court heard oral arguments in Unite Here v. Mulhall, a case that could make it even more difficult for unions to organize workers. One of the issues in the case is whether a "neutrality agreement" -- where management agrees to remain neutral during a union organizing campaign in exchange for union concessions -- is illegal under a labor statute that prohibits employers from giving unions a "thing of value."
In an editorial, The Wall Street Journal glossed over the fact that these are voluntary agreements, instead claiming that they are the result of union intimidation and collusion. Moreover, the WSJ ignored that neutrality agreements have been an increasingly useful tool for both unions and employers during organization campaigns since a wave of Republican anti-union legislation has placed obstacles between workers and union representatives and disrupted opportunities for workplace productivity.
From the November 13 WSJ editorial:
With their membership declining, unions have become more politically creative and one of their tactics has been to cut deals with management to replace bottom-up organizing on the shoproom floor. On Wednesday, the Supreme Court heard oral arguments on whether so-called neutrality agreements between Big Labor and business are collusion that infringes on the rights of employees.
Martin Mulhall (Unite Here v. Mulhall) is a groundskeeper at the Mardi Gras greyhound racetrack in Florida, where he has worked for 40 years. In 2004, Unite Here's Local 355 struck a deal with the company to grease the skids for unionization.
Mr. Mulhall didn't want to join a union and objected to the company entrapping him in a unionized workplace. He sued, arguing that Mardi Gras's collusion with Unite Here is forbidden by the 1947 Labor Management Relations Act, aka Taft-Hartley. Under Section 302 of that law, employers are forbidden from giving any "thing of value" to a union that wants to organize its employees.
While unions typically win only 45% of secret ballot elections, they succeed in 78% of organizing efforts using card check, when the union needs merely to collect signed cards from 50% of the work force to automatically become the monopoly bargaining agent.
If the Justices agree that Mardi Gras's concessions represent a "thing of value," organizers will have a harder time getting companies to sign off on deceptive procedures like card check. Unions will have to spend more time convincing individual workers that they can provide a service worth having. That would be a real thing of value.
WSJ also says unions who bargain for neutrality agreements somehow "intimidate" management, even though in exchange for neutrality, management is assured that the union will not strike in the event of a dispute over the agreement.
The Wall Street Journal called on Congress to support the Furthering Asbestos Claim Transparency Act (the FACT Act), baselessly speculating that this GOP bill will curb fraudulent asbestos claims, even though there is no evidence of widespread fraud.
WSJ supports the FACT Act, which has also been championed by the pro-business juggernaut U.S. Chamber of Commerce and has received no bipartisan support. This is not the first time the WSJ has come out in favor of corporate efforts to deny justice to victims of asbestos exposure.
From the November 12 editorial:
Nearly 20 years ago Congress established bankruptcy trusts to help asbestos victims. Better late than never, it is now trying to stop the plaintiffs bar from bilking the trusts with fraudulent claims.
As early as Wednesday the House will vote on the much-needed Furthering Asbestos Claim Transparency (Fact) Act sponsored by Texas Republican Blake Farenthold and Utah Democrat Jim Matheson. The bill would require new reporting rules to expose the fraud that is looting the nation's 60 some asbestos trusts.
Companies sued into bankruptcy often create trusts to fund payouts for current and future asbestos victims. Asbestos trusts manage some $36 billion, which is an invitation to fraud. The plaintiffs bar files claims with many trusts on behalf of the same client--arguing a different cause of asbestos disease with each claim. They can pull this off because trusts don't share claims data with each other or with the courts, and the plaintiffs bar has pressured the trusts to keep claims confidential.
But evidence of fraud abounds.
The legal sharks claim the Fact Act will discourage legitimate claims. But the legislation prohibits the release of confidential medical details, Social Security numbers, or other sensitive information protected in the normal course of bankruptcy.
The WSJ spends the rest of its editorial fear-mongering about the potential for fraudulent claims being filed with the asbestos trusts. It cites only a few instances of fraud, and claims that one corporation at the center of asbestos litigation "has evidence" of more -- but it is unable to provide any specifics because the "evidence" has been sealed by a federal judge.
The editorial board of The Wall Street Journal attacked constitutional race-conscious admissions policies in higher education, but completely botched Supreme Court precedent as well as the Department of Justice's current legal position on this topic.
Trying to drive a wedge between Justice Anthony Kennedy's recent majority opinion in Fisher v. University of Texas, which reaffirmed that considering race as one among many factors in a holistic admissions policy is constitutional, and DOJ's recent legal brief in the now-remanded case, the WSJ declared that Kennedy "is getting an unpleasant lesson in the Obama Administration's respect for Supreme Court authority." From the November 11 WSJ, timed for Wednesday's oral arguments before the U.S. Court of Appeals for the Fifth Circuit:
In June, Justice Kennedy wrote the opinion for a 7-1 majority in Fisher and remanded it for a rehearing. His opinion stopped short of ending racial preferences in education, but it did emphasize that the use of race in admissions had to be held to the "strict scrutiny" standard laid out in the 2003 University of Michigan case Grutter v. Bollinger. Under Fisher, Justice Kennedy explained, race preferences should be carefully drawn and universities were entitled to "no deference" when courts examined how colleges used race in admissions.
So much for that. According to the Justice Department's brief, strict scrutiny needn't be strict, or even amount to much scrutiny.
[R]ather than looking at percentages of students of varying races admitted or matriculating, the Justice Department argues, the court should make "a qualitative assessment of the educational experience of the university." This is the admissions version of a shell game, dodging the Supreme Court's explicit strict scrutiny instructions by letting a school define its own criteria for using race.
But the Supreme Court never held that universities are accorded "no deference" in judicial review of their consideration of whether and how to diversify their institutions through race-conscious admissions policies, and DOJ never denied the appropriateness of strict scrutiny for this use of race.
Under long-standing affirmative action law, educational institutions can constitutionally use the consideration of race among other characteristics in an individualized holistic review of applicants. As reaffirmed by Fisher, contrary to the WSJ's inaccurate claim, when a university is deciding whether or not its diversity is at the "critical mass" necessary for its educational mission, a court's deference to educational judgment on this evaluation is entirely appropriate. From Kennedy's Fisher opinion:
According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" that a diverse student body would serve its educational goals.
Bloomberg columnist and National Review editor Ramesh Ponnuru picked up the repeatedly debunked right-wing media myth that President Barack Obama is "court-packing" because Senate Democrats are trying to hold up-or-down votes on nominees to the D.C. Circuit Court of Appeals.
In addition to the fact that filling vacant seats is not actually "pack[ing] the court," the term used to describe FDR's failed attempt to add more seats to the Supreme Court, Ponnuru includes a variety of discredited falsehoods in his column as reasons why Republicans should continue to block Obama's judicial nominees, regardless of their stellar qualifications and bipartisan endorsements.
From his November 12 Bloomberg column:
Senate Majority Leader Harry Reid says he intends to force a vote this week on the nomination of Cornelia Pillard to the court. Pillard's is one of three nominations Republicans are opposing. They say the Democrats are trying to pack the court. The Democrats say they're just trying to fill vacancies, and argue that the Republicans' behavior is so abusive they'll restrict the filibuster if it continues.
Republicans should remember what happened the last time we had such a fight, and they shouldn't give in.
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points.
As it happens, the Republicans have the better of the current argument. They aren't conducting a "blockade" that violates past norms. President Barack Obama's nominees are getting confirmed at a faster pace than Bush's were at the same point in his presidency. One of Obama's nominees, Sri Srinivasan, was unanimously confirmed in May.
And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court's chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that "there wouldn't be enough work to go around" if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.
I'll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit's caseload is. What they care about is the court's ideological balance.
Ponnuru goes on to assert that the D.C. Circuit "is actually balanced between Democratic and Republican appointees." This is not the first time right-wing media have trotted out faulty math to to try and argue that the D.C. Circuit is somehow ideologically balanced -- but it just isn't true. In fact, there are six judges on the court who have taken "senior status," a form of quasi-retirement that allows those judges to hear panel cases. Of the six judges who have taken senior status, five are Republican appointees. Far from being "balanced" ideologically, conservative justices outnumber their more liberal counterparts 9 to 5.
National Review Online is pointing to instances of trouble at Texas polling places as proof that the state's overwhelmingly stringent voter ID law is "a good thing."
NRO contributors Roger Clegg and Hans von Spakovsky argued that because four prominent, white Texans were eventually able to vote after experiencing problems with their identification, complaints about the voter ID law are "hysterical." They went on to claim that a New York Times article that characterized the new ID law as "mak[ing] a dent at the polls" is overblown.
From Clegg and von Spakovsky's November 9 post:
A New York Times headline Thursday declared: "Texas' Stringent Voter ID Law Makes a Dent at the Polls." A careful reading of the article will leave many readers scratching their heads about that title.
The article begins by noting that three prominent Texans -- state judge Sandra Watts, state senator Wendy Davis, and state attorney general Greg Abbott -- all had photo IDs that did not quite match their names on official voter rolls, and so all had to sign affidavits before they could vote. But ... they all could and did vote.
Jim Wright -- another Texan, whom the Times helpfully identifies as a former U.S. Speaker of the House -- had an expired driver's license, and so he had to produce a birth certificate. But ... he also voted.
So, when all is said and done, where's the "dent"?
It's worth noting that these four voter-ID "victims" are hardly the poor, minority voters that the Left asserts are targeted by these laws. To the contrary, all four are white and quite prominent, one a Republican. They not only got to vote, they were alerted to discrepancies in their voter registrations that they can now get corrected.
This is the new Jim Crow?
The post went on to conclude that "there was really no problem after all" and that "there apparently are not large numbers of Texas voters who lack identification."
Evidently, the fact that one in 10 registered voters in Texas lacks valid identification is of no great concern to NRO. Although Texas will provide "election identification certificates" to voters free of charge, voters must provide proof of citizenship and identity in order to get one. The documentation required to obtain a certificate -- such as a U.S. passport -- is generally not free.
National Review Online has joined Fox News contributor Erick Erickson in smearing Wendy Davis, Democratic candidate for governor of Texas, for using boilerplate legal language in a defamation and intentional infliction of emotional distress (IIED) lawsuit filed on her behalf against a local Fort Worth newspaper nearly 20 years ago.
Earlier this week, Erickson questioned Davis' "mental health" and corresponding suitability for public office after learning about a civil lawsuit her lawyers filed in 1996 in response to disparaging editorials directed at Davis during her unsuccessful run for city council, information he sourced to a website run by the Republican Party of Texas. NRO picked up the story, clumsily characterizing the complaint as "light on subtlety and nuance," without realizing that the language it highlighted are standard legal elements for an IIED claim. From NRO:
Following an unsuccessful bid for a seat on the Fort Worth city council in 1996, Davis sued the Fort Worth Star-Telegram, along with parent companies ABC and Disney, for libel, alleging that the paper's coverage of her campaign had been biased and "demonizing," caused harm to her physical and mental health, and infringed on her "right to pursue public offices in the past and in the future." Davis demanded "significant exemplary damages" in return.
The suit, which was roundly dismissed on three separate occasions after Davis appealed all the way to the Texas Supreme Court, centered on a series of "libelous and defamatory" articles about her candidacy, which, she alleged, were authored "with an intent to inflict emotional distress" and to deny her rights under the First Amendment.
The complaint itself was light on subtlety and nuance, arguing that the paper's conduct "was extreme and outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, as to be regarded as atrocious and utterly intolerable in a civilized community." As a result of the paper's actions, Davis alleged, she had "suffered and is continuing to suffer damages to her mental health, her physical health, her right to pursue public offices in the past and in the future, and to her legal career" and deserved financial compensation.
Like Erickson, NRO failed to mention the role the Texas GOP played in pushing this 20 year-old non-story. Moreover, it ignores the fact that the suit follows basic pleading practice for this type of personal injury -- any plaintiff claiming IIED would file substantially similar boilerplate language with the court. In fact, plaintiffs who claim IIED must plead an almost identical variation of the "extreme and outrageous ... in a civilized community" phrasing that NRO quoted. This is the sort of thing covered in the first year of law school, or that can be easily discovered on Google. Elementary competence in writing legal complaints on the part of her lawyers doesn't make Davis "crazy or a liar," as Erickson erroneously claimed -- it makes her an average plaintiff.
Right-wing media have relentlessly attacked Davis, including going after her record on reproductive justice and referring to her as "Abortion Barbie." This latest smear based on her purported unsuitability for office due to alleged emotional distress in 1996 demonstrates that, at least in this case, their ignorance is catching up to their viciousness.
The Wall Street Journal came out swinging in favor of a Supreme Court decision that could force state-based lawsuits brought by state attorneys general out of their jurisdictions and into federal court despite complaining about federal encroachment on state powers in another Supreme Court case the very same day.
In a November 5 editorial, the WSJ supported an outcome in Mississippi v. AU Optronics that would make it more difficult for states' attorneys general to bring successful lawsuits on behalf of their citizens by forcing state cases into federal court under the Class Action Fairness Act (CAFA), a forum where class actions are increasingly harder to win. The WSJ, clearly a fan of insulating the wealth of large wrongdoer corporations from class action lawsuits, not only disfavors attorneys general filing lawsuits to protect its citizens, but also erroneously called CAFA an "illegal loophole":
When Congress rewrote the law on class-action lawsuits in 2005, it didn't figure on being thwarted by the nation's top law enforcers. Now the Supreme Court has a chance to close what has become a large and illegal loophole.
The High Court on Wednesday will hear arguments in Mississippi ex rel. Jim Hood, Attorney General vs. AU Optronics. The protagonist is Mississippi AG Jim Hood, who is famous for moonlighting as a job creator for his trial-lawyer donors. The question is whether Mr. Hood's "state" lawsuits are really an attempt to circumvent the 2005 federal Class Action Fairness Act (Cafa).
In 2006 the Justice Department conducted a grand jury probe into alleged price-fixing by makers of liquid crystal display screens (LCDs). Some companies settled with the feds, others refused and weren't charged. The trial bar piled on with 100 or so copycat class actions.
In 2011 Mr. Hood filed his own lawsuit on behalf of his state, municipalities and Mississippians who purchased LCDs. His suit named the same six manufacturers targeted by the private class-action litigation, and 176 of his 206 paragraphs of allegations were verbatim or near-verbatim copies of the private litigation. This was no surprise since one of the two law firms Mr. Hood hired to prosecute his state suit -- Zimmerman Reid -- has also filed private LCD class actions.
This all looks like a run around the 2005 class-action reform. That law allows defendants hit with civil claims by 100 or more persons to seek removal to federal court, where the rules on classes are stricter and defendants can avoid biased state juries.
Mr. Hood also claims that he can bring his suit because he is its only "named plaintiff." He wants the Justices to ignore that he is asserting claims on behalf of thousands of LCD purchasers, and that Cafa is clearly aimed at any "mass action" that could result in a "monetary" judgment.
The WSJ seems happy to throw the idea of states' rights under the bus, even though in a different November 5 editorial, it lamented "dagger[s] aimed at the heart of federalism," protesting that "[t]he last century has seen Washington wrest ever more power from the states" and that "Congress needs constitutional guardrails or it will drive the states off the road." But when corporate wealth is at risk, the WSJ is suddenly terrified at the thought of states handling their state law-based legal issues in their own courts.
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.
Conservative Washington Post columnist and Fox News contributor George Will cherry-picked outlier examples of campaign finance violations while ignoring legitimate concerns about the potential for big-money donors to corrupt elections and balloted measures .
In his October 30 column, Will attacks campaign finance reform and celebrates the Supreme Court's infamous Citizens United decision, which opened the floodgates for large donors to corrupt elections with outsized contributions. Will highlights a pair of lower-court cases where judges struck down regulations on political speech that affected seemingly small-time civic participation to downplay the danger of political corruption, conveniently overlooking how these decisions might make it easier for large corporations to obfuscate their own political participation:
Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment's protections of free speech and association. The latest examples, from Mississippi and Arizona, reflect the judiciary's proper engagement in defending citizens from the regulation of political speech, a.k.a. "campaign finance reform."
In 2011, a few like-minded friends and neighbors in Oxford, Miss., who had been meeting for a few years to discuss politics, decided to work together to support passage of an initiative amending Mississippi's Constitution. The amendment, restricting the power of the state and local governments to take private property by eminent domain, was provoked by the U.S. Supreme Court's 2005 Kelo ruling that governments could, without violating the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), take property for the "public use" of transferring it to persons who would pay more taxes to the government.
The Mississippi friends and neighbors wanted to pool their funds to purchase posters, fliers and local newspaper advertising. They discovered that if, as a group, they spent more than $200 to do these simple things, they would be required by the state's campaign finance law to register as a "political committee." And if, as individuals, any of them spent more than $200 supporting the initiative, they must report this political activity to the state.
Mississippi defines a political committee as any group of persons spending more than $200 to influence voters for or against candidates "or balloted measures." Supposedly, regulation of political activity is to prevent corruption of a candidate or the appearance thereof. How does one corrupt a "balloted measure"?
The answer to this question should be obvious, and even Will begrudgingly admits "there is some slight informational value in knowing where money supporting a voter initiative comes from." Although Will doesn't mention it, the judge in the Mississippi case clearly left the door open for future regulations of political speech, giving a nod to the possibility of improper influence with respect to ballot initiatives:
Significantly, the Court does not hold that Mississippi may not regulate individuals and groups attempting to influence constitutional ballot measures. Instead, the Court holds only that under the current regulatory scheme, which is convoluted and exacting, the requirements are too burdensome for the State's $200 threshold.
Nevertheless, Will goes on to call the Supreme Court's decision in Citizens United -- one that allowed a tsunami of corporate money to enter the election process -- an "excellent" one. But even Citizens United noted the corrupting danger of unchecked money in the political system, and transparency was explicitly recognized as the critical protection against such a problem.