In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
Absurd smears against a highly-qualified judicial nominee for her support of family planning, sex equality, and conservative attempts to dismantle gender stereotypes made the jump from right-wing blogs to the Fox News Channel.
On November 25, Fox News' Shannon Bream correctly reported that the former Connecticut attorney general, among a wide collection of bipartisan legal experts, supports the nomination of the eminently qualified Georgetown Law Professor Cornelia "Nina" Pillard to the U.S. Court of Appeals for the D.C Circuit. Unfortunately, Bream proceeded to repeat right-wing media myths accusing Pillard of "radical feminis[m]" and hosted National Review Online contributor Carrie Severino to recycle the smears. From America's Newsroom, with co-host Martha MacCallum:
MACCULLUM: What are the critics saying that are opposed to her?
BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny. Here's a bit of what she has said when writing about abortion issue. Here's a quote from one of her articles: "Anti-abortion laws and other restraints on reproductive freedom not only enforce woman's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection." Here's Carrie Severino of the Judicial Crisis Network.
SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the Equal Protection Clause and feeling like women are being objectified as breeders in the country.
BREAM: She has used that word referring to women as breeders if they are forced to carry pregnancies that they don't want to have. But at this point it looks like there is no blocking her, it is likely she will take a seat on that very important court.
Since Pillard was nominated, she has been subjected to sexist, retrograde, and false accusations that her views on reproductive rights are not in the mainstream. In fact, they are based on decades-old constitutional law, including a decision written by arch-conservative former Chief Justice William Rehnquist.
For example, the quote that Bream yanked out of context from a 2007 academic article in which Pillard noted that "antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a "vision of the woman's role" as mother and caretaker of children in a way that is at odds with equal protection[,]" is an explicit reference to the fact that justices on the Supreme Court have already incorporated equal protection principles into their reproductive rights precedent. Unmentioned by Bream, the quote was part of a discussion of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the constitutionality of Roe v. Wade.
The notion that damaging gender stereotypes can be at the core of restrictions on reproductive rights is also based on long-standing constitutional precedent.
National Review Online, while claiming to support a change in Senate procedure in order to "overcome partisan obstruction," refused to acknowledge that it was hyper-partisan obstructionism that forced Senate Democrats to embrace the so-called "nuclear option."
On Thursday, Senate Democrats approved a rule change that will finally allow an up-or-down vote for President Obama's nominees, who have been the victims of unprecedented Republican obstructionism. NRO, like other right-wing media outlets, colorfully responded to the rule change, with John Fund calling Democrats "snake-oil salesmen."
From NRO's November 21 editorial:
The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees.
The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue's gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: "Don't tell me what the law is. Tell me who the judge is." He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, "We are remaking the courts." Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.
The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid's Senate is conspiring with him to do so. The voters missed their chance to forestall these shenanigans in 2012. They made the wrong decision then, and have a chance to make partial amends in 2014, when they will be deciding not only what sort of Senate they wish to have, but what sort of courts, and what sort of country.
Fund joined the chorus in a separate post, minimizing GOP obstructionism and advancing the myth that new judges are not needed on the D.C. Circuit because the court's caseload is "provably so light." Fund went on to imply Senate Democrats were hypocrites because they spoke out against the use of the nuclear option by the GOP to push through President Bush's ultra-conservative jurists back in 2005.
Rush Limbaugh spent a substantial portion of his radio show ranting about the Senate Democrats' decision to invoke the so-called "nuclear option," which would allow President Obama's judicial and executive nominees to finally be confirmed through a simple majority vote, a practice that had ground to a halt because of the GOP's mass filibusters.
On his November 21 show, Limbaugh inaccurately stated that President Obama could now increase the number of seats on the D.C. Circuit, and accused Democrats of seeking "total statist authoritarianism":
Obama's going to get every judge he wants. He's going to get -- if they want to add seats to a court -- if they want to add five new liberal seats to the D.C. Circuit, for example, they can do it, there's no stopping them, because the Republicans don't have the votes.
Democrats abruptly changed the Senate's balance of power by reducing from 60 to 51 the number of votes needed to end procedural roadblocks known as filibusters against all presidential nominees. Folks, this is part and parcel of why the Democrats are so hell-bent on winning the House in 2014. This -- winning the House would give them total authoritarian non-challengeable control over the US government. Quite literally there would be no way to stop them. None whatsoever.
When the minority is Republicans, they don't even exist. And they're not due any respect, constitutional or otherwise. Constitutional or human. And so basically what this means, with a president like Obama, is there's no stopping -- he can nominate anybody for anything in the judiciary ... cabinet, whatever. There's no way he can be stopped.
Democrats have made it plain they're not interested in democracy. And that really is what this means. Not interested in democracy at all. Total statist authoritarianism. And frankly, I'm being kind with that terminology.
Rush went on to say that if Democrats wanted to "nominate avowed Communists to be judges, there's no stopping them now ... If Obama wants to nominate [Syrian President] Bashar Assad to the Ninth Circuit Court of Appeals, there's no stopping him. ... How about they want to make Bill Ayers a judge, or Jeremiah Wright?"
Leading up to the successful rules change in the Senate to require a simple majority vote on presidential nominees, CNN gave air time to a number of right-wing myths about the D.C. Circuit Court of Appeals, among them that the court is ideologically balanced and that Senate Democrats' decision to embrace the "nuclear option" could make the Senate even more volatile in the future.
On November 21, in response to Republicans' blanket filibustering of President Barack Obama's judicial and executive nominees, Democrats reformed the rules of the Senate (a common practice) to prevent this unprecedented abuse of the filibuster. While reporting on this new rule that will restore up-or-down votes for the backlog of highly-qualified and mainstream nominees, CNN unfortunately repeated right-wing media myths on filibuster reform and the D.C. Circuit. Before the final vote, CNN's chief congressional correspondent Dana Bash initially minimized the unprecedented obstructionism on the part of Republicans, saying that a rule change could make the legislative body "even more partisan" should the GOP regain a majority in the Senate down the road. Bash went on to say that Senate Majority Leader Harry Reid (D-NV) was considering the so-called "nuclear option" because he wanted "to make a political point," ignoring that the mass filibusters have threatened to grind agencies to a halt:
BASH: What [the "nuclear option"] means in layman's terms is that it could be even more partisan on Capitol Hill, if you can imagine that, than it is now. The reason that the Democratic leader is going to seek to change the rules is because they're very frustrated with the fact that Republicans have been holding up the president's nominees. Let's just take a step back and talk about what we're discussing. ... [T]he current rules allow the minority to filibuster, and it requires 60 votes to overcome the filibuster. What this rule change would do, would effectively take away the minority's rights on most of the president's nominees for the executive branch and also for the bench, except for the Supreme Court.
Now you might ask well if this is the case why don't people in the majority, parties in the majority change the rules all the time? The reason is, there's a reason it's called the nuclear option, it is because institutionally, both parties have this sort of an understanding that they may be in the majority now but they could be in the minority tomorrow and part of the beauty of the Senate, in the Senate rules at least for the past few decades, has been that minority rights are pretty strong, as opposed to the House and so the respect for that has made it, made the leaders in both parties reluctant to change the rules, but Harry Reid has gotten so fed up and wants to make a political point right now and so it looks like it might happen today.
Although Bash appears to agree with the idea that it's increasingly likely that Senate Republicans will change procedural rules in the future now that Democrats have reformed the rules, her assertion that the "nuclear option" would make Washington "even more partisan" ignores the hyper-partisan maneuvers Senate Republicans have already employed. It is precisely because Senate Republicans have engaged in such partisanship that Democrats were forced to consider a rule change. In just the last few weeks, Republicans have topped off their historic streak of mindless filibustering by blocking three D.C. Circuit nominees in a row -- and not because they have qualms about their qualifications.
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.