In the midst of its disingenuous campaign to have Supreme Court Justice Elena Kagan disqualified from deciding whether the Affordable Care Act is constitutional, National Review Online accidentally undermined the case for having her disqualified.
A post on National Review Online's Bench Memos blog by Ed Whelan poses the following hypothetical:
Let's say that in January 2010 President Obama met with Solicitor General Kagan and told her (a) that she was a leading candidate for the next Supreme Court vacancy, (b) that it was important to him that any justice he appointed be able to take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge, and (c) that he was instructing her not to exercise her ordinary duties as Solicitor General on litigation involving his health-care legislation so that she would not be clearly disqualified (under 28 U.S.C. § 455(b)(3)) from taking part in deciding the litigation as a justice. Under these hypothetical facts, would Justice Kagan have to recuse herself under 28 U.S.C. § 455(a) because her "impartiality might reasonably be questioned"?
According to Kagan, this isn't what actually happened. Kagan has stated that she began scaling down her participation in general Department of Justice matters on March 5, 2010, not in January.
But let's imagine for a second that Whelan's hypothetical actually did happen, with one amendment: It's extremely unlikely that President Obama would have told Kagan that he wanted a justice he appointed to "take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge." [emphasis added] But it would not be totally out of the realm of possibility for Obama to have said that he wanted to make sure a justice he appointed could take part in such a case to avoid a 4-4 tie.
And that would have been totally appropriate and not provided grounds for recusal, since in the amended hypothetical Obama would not have been saying how he expected Kagan to rule.
The right-wing media have attacked President Obama for commenting at a conference that "we've been a little bit lazy" about attracting foreign investment in America, claiming that he is "attacking Americans." However, several independent analysts have said that this line of attack takes Obama's comments out of context and that the president "wasn't calling Americans lazy."
National Review Online's Carrie Severino is still pursuing her quixotic quest to have Supreme Court Justice Elena Kagan recused from any cases dealing with the Affordable Care Act. In a recent blog post and report, Severino has concluded that based on the evidence she has seen, Kagan should "recuse herself from any consideration of [the Affordable Care Act's] legality before the Supreme Court."
The charge is baseless. Kagan has said that she had not been involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law.
And importantly, faced with the same evidence that she's now citing, Severino acknowledged back on April 11 that she didn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The facts haven't changed, but Severino's conclusions certainly have. It seems that Severino hoped she would find a smoking gun that required Kagan's recusal. And when she failed in that attempt, Severino simply reversed herself on what those facts mean.
The conservative media is divided on anonymous sources: Some right-wing media figures have been hyping a claim by an anonymous source that Chicago Mayor Rahm Emanuel is "likely involved with the sexual harassment" allegations against Republican presidential candidate Herman Cain. At the same time, however, other conservative media figures have tried to cast doubt on the sexual harassment allegations against Cain by pointing out that they are based on anonymous sources.
Following a report accusing Herman Cain of sexual harassment in the 1990s, media conservatives are claiming that such allegations are often "meaningless" or used as "a political tool." But studies show that victims often endure serious psychological and professional side effects as a result of the experience.
The American Constitution Society has published an issue brief by law professors Michael Gerhardt and Richard Painter setting forth a "proposal for judicial nominations reform" that suggests limiting the power of a minority of senators to obstruct a judicial nominee from being confirmed. Predictably, National Review Online's Ed Whelan -- who professes to be an opponent of filibustering judicial nominees, but always seems to provide cover for Republican attempts to filibuster President Obama' nominees -- is on the warpath against the report.
People can legitimately disagree about when, if ever, filibusters of judicial nominees are legitimate. But Whelan's attack against Gerhardt and Painter is far from fair.
In their report, Gerhardt and Painter noted that in 2005, a "Gang of 14" senators agreed not to filibuster judicial nominees except in "extraordinary circumstances." Gerhardt and Painter then suggested that the agreement has broken down, in large part because all remaining Republican members of the Gang of 14 have voted to filibuster one or more of President Obama's judicial nominees:
On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was otherwise almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate's rules for making such a revision, the Gang of 14, as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were "extraordinary circumstances." For the remainder of George W. Bush's presidency, the agreement held, and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14.
Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found "extraordinary circumstances" justifying their support of some judicial filibusters.
Whelan responded by calling Gerhardt and Painter "hilariously confused" and stating: "One elementary flaw in Gerhardt's and Painter's account is that they fail to recognize that the Gang of 14 agreement, by its very terms, related only 'to pending and future judicial nominations in the 109th Congress' -- that is, for 2005 and 2006."
But while the agreement technically applied only in 2005 and 2006, Whelan is either confused himself, woefully uninformed about the judicial nominations process, or dissembling when he suggests that the Gang of 14 agreement is no longer applicable.
Indeed, in Senate floor speeches in 2011 alone, the following Republican senators have applied the "extraordinary circumstances" test: Sens. Jeff Sessions (AL), a former ranking member of the Senate Judiciary Committee; John McCain (AZ), a member of the Gang of 14; Jon Kyl (AZ), a member of the Senate Judiciary Committee; Charles Grassley (IA), the current ranking member of the Senate Judiciary Committee (on two occasions); and John Cornyn (TX), a member of the Senate Judiciary Committee.
If the Gang of 14 agreement is now meaningless, why do the senators continue to reference it when justifying filibusters of judicial nominees?
In a post Thursday on National Review Online, Mark Krikorian attempted to deflect criticism from Sen. Marco Rubio against so-called "Democratic" Hispanic critics, writing, "Apparently it's news that 'Rubio faces Hispanic Critics.' " According to the Politico article Krikorian was referencing, "the broader Hispanic electorate" is not enthused with Rubio because of "his hard-line stance on immigration," especially in light of recent revelations about his background. But Krikorian rationalized the criticism as "phony," claiming that it's "hilarious" to expect Rubio to appeal to a broader swath of Hispanics because of their shared ethnic history.
Here's a hint: his critics are -- drum roll -- Democrats! The controversy itself is obviously phony (the Post has his parents' 1956 immigration application but we can't see Obama's transcripts?), but what's really hilarious is the idea that a Cuban-American Republican is somehow naturally going to appeal to Mexican-American Democrats just because their ancestors came from countries that were once both part of Spain's long-defunct empire. News flash: Cubans aren't Mexicans. Puerto Ricans aren't New Mexico Hispanos. And Mayan-speaking Guatemalans certainly aren't Portuguese. The very idea of an "Hispanic" or "Latino" identity is an ahistorical fiction, but one we are doing everything in our power to create and reinforce.
Setting aside the fact that the Politico article also highlighted Republican critics of Rubio or that it was in no way making the point that Rubio's appeal, or non-appeal, is predicated on his ethnicity, what is Krikorian really saying here? Is he really pushing the idea that the only reason one Hispanic can disagree with another is because one is an American of Puerto Rican descent and the other is an American of Cuban descent? Is he in fact claiming Hispanics or Latinos don't have the intellectual capacity to take sides because, well, they can't really argue the merits of an issue since ethnic history trumps all?
This premise would be ridiculous in this day and age, but not for Krikorian. He has stated that Haiti is "so screwed up" because "it wasn't colonized long enough." He once blamed a bank's demise on its diversity policy -- specifically, its commitment to Hispanic diversity. He has repeatedly suggested that the U.S.-born children of foreign nationals, because they won't be raised in the United States, could one day grow up to become terrorists. (And there's more.) And let's not forget that Krikorian is the executive director of the Center for Immigration Studies, which is part of an anti-immigrant network comprised of hate groups founded on nativist ideology.
In a blog post yesterday, National Review Online's Ed Whelan reported that "President Obama is on the verge of nominating NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit," a court that is often called the second most important court in the land. Whelan then proceeded to suggest that Adegbile is unsuited to the job, based solely on Adegbile's having been a lawyer at a prominent New York law firm and then an attorney at the NAACP Legal Defense and Education Fund.
After noting that Adegbile had worked for seven years for the New York City law firm of Paul, Weiss, Rifkind, Wharton & Garrison and has since spent a decade working for the NAACP Legal Defense Fund, Whelan acknowledged that he had "never heard of Adegbile." He then pronounced it "odd" that Obama had nominated Adegbile and another person to the D.C. Circuit, both of whom he described as "New York lawyer[s] with no significant background in federal administrative law (and no judicial experience to offset that deficiency)."
Whelan concluded his short post by saying that "[t]his may well be a pick more designed to excite Obama's left-wing base than to produce a confirmation."
Why should someone with seventeen years of experience as a litigator, including a decade as a civil rights attorney, not be considered the right fit for the D.C. Circuit? After all, Adegbile is no stranger to federal court litigation. A Lexis search shows that he has worked on cases at all levels of the federal system throughout the country -- including in D.C. -- since at least 1996.
Can one really say Adegbile is less qualified than Judge David Sentelle, a D.C. Circuit judge nominated by President Ronald Reagan who, at the time of his nomination, had worked for roughly 10 years in private practice in North Carolina, four years as an assistant U.S. attorney in North Carolina, three years as a North Carolina state trial court judge, and a little more than a year as a federal judge in North Carolina?
What about Judge Janice Rogers Brown, a D.C. Circuit judge nominated by President George W. Bush whose experience consisted almost exclusively of work as a California state employee and California state court judge? Did that really prepare her for the D.C. Circuit?
Or is just that Adegbile's civil rights experience is particularly disfavored in Whelan's view?
If so, history is not on Whelan's side.
In a 1980 speech to evangelical leaders, conservative movement icon Paul Weyrich explained that Christians' "goo-goo" efforts to get every American to vote were flawed because "our leverage in the elections quite candidly goes up as the voting populace goes down." He brazenly declared, "I don't want everybody to vote."
Of course, this sort of blatant subjugation of democratic principles below the idol of bare-knuckled partisanship doesn't really play well in public. Over the past few decades, Weyrich's heirs have cloaked their partisan push for voter suppression -- seeking to ensure that "voting populace goes down" so that conservative "leverage in the elections... goes up" -- in the rhetoric of protecting voter rights.
In one recent example, Heritage Foundation senior legal fellow Hans von Spakovsky, a former Bush appointee to the Federal Elections Commission, took to National Review Online to claim that new restrictions on voter registration drives recently established in Florida are "intended to guarantee the enfranchisement of voters."
Von Spakovsky lauded the state's new restrictions requiring organizations to register with the state and turn in voter registration forms within 48 hours of completion. He added of the second law: "I fail to understand how that requirement will keep people from registering to vote."
The answer, of course, is becoming quite clear: The requirements will keep people from registering because they are so onerous that they discourage organizations from doing registration drives in the first place. The Daytona Beach News-Journal reports:
The teacher who heads up New Smyrna Beach High School's student government association could face thousands of dollars in fines. Her transgression? Helping students register to vote.
Prepping 17-year-olds for the privileges and responsibilities of voting in a democracy is nothing new for civics teachers, but when Jill Cicciarelli organized a drive at the start of the school year to get students pre-registered, she ran afoul of Florida's new and controversial election law.
Cicciarelli, you see, didn't register with the state before beginning her registration drive, and failed to turn in the forms within 48 hours. And so, for the crime of improperly trying to get her students involved in the democratic process, she faces fines.
She told the paper that she had wanted to pass the "big thrill" she had felt after first registering to vote on to her students, saying, "I just want them to be participating in our democracy...The more participation we have, the stronger our democracy will be."
Unfortunately, following in Weyrich's footsteps, conservatives like von Spakovsky disagree.
On October 18, an ad by NumbersUSA, the anti-immigration group with white nationalist ties run by Roy Beck, aired during CNN's coverage of the Republican presidential debate in Las Vegas. In the ad, NumbersUSA pitted immigrants against Americans, blaming legal immigrants for high unemployment among Americans, especially minorities. It featured a diverse group of people taking turns saying:
The immigration debate should not be about the color of people's skin, or their country of origin, or their religion, or where their grandparents were born. The debate should be about the numbers. Should Congress give work permits to 1 million new legal immigrants again this year when 20 million Americans of all colors, national origins, and religions are having trouble finding jobs? Immigration, it's about the numbers. The numbers. The numbers. Tell Congress at NumbersUSA.org.
In a post at National Review Online touting the ad, Mark Krikorian asked: "Is the issuance of green cards to more than 1 million legal immigrants per year (plus hundreds of thousands of 'temporary' workers) a good idea when we have 9 percent unemployment?"
A similar ad by anti-immigration group Californians for Population Stabilization aired during MSNBC's coverage of the September 7 Republican presidential debate. It also blamed immigrants for the fact that millions of Americans "are unable to find a job." This claim is still not true, as we noted at the time. Yet anti-immigrants persist in using it to stoke xenophobic sentiment.
And that's the message behind this ad campaign.
On October 18, U.S. Immigration and Customs Enforcement announced that the agency had deported a record number of undocumented immigrants: 396,906 foreign nationals in Fiscal Year 2011. ICE stated that this included the largest number of criminal immigrants removed at nearly 55 percent, "an 89 percent increase in the removal of criminals from FY 2008, and the largest number of criminal aliens removed in agency history."
As The New York Times reported:
"We came into office focused on creating a smart enforcement system by setting a rational system of priorities, and we have done that," John Morton, the director of Immigration and Customs Enforcement, said on Tuesday. "We said criminal offenders would be our highest priority, and lo and behold, they are the highest priority."
The Times further reported that the deportation program has come under intense criticism by Latinos and pro-immigration activists. The article highlighted a study that found that the program "has led disproportionately to the removal of Latino immigrants and to arrests by immigration authorities of hundreds of United States citizens."
In a post today at National Review Online, Mark Krikorian brushed away ICE's numbers, calling the announcement a "hollow deportation boast." His contention? The "largest number in the agency's history" "is a lot" but it isn't big enough. "[W]hen you look at history," Krikorian argued, "the 'largest number' is only about 1,700 more than two years ago." He continued:
The Obama administration, as a matter of policy, refuses to even ask Congress for the resources needed to deport any more than 400,000 people. Now, 400,000 deportations (of illegal aliens, of course, but also of legal aliens who made themselves deportable because of crimes) is a lot, but it can easily be doubled; I remember one of the top people at INS in the Clinton years telling me that the 114,000 removed in 1997 was a really, really big number and sufficient proof of their seriousness about immigration enforcement.
Krikorian seemed to be echoing Rep. Lamar Smith, who reportedly stated on October 18: "The Obama administration continues to inflate its deportation numbers. ... [I]n reality they are enacting amnesty through inaction."
In a blog post for National Review Online, Robert Spencer defended himself against charges by the Anti-Defamation League that his organization engages in anti-Muslim activism by saying that it is reasonable to lump the ADL in with other supposed "jihadist apologists."
Spencer's colleague David Horowitz similarly attacked the ADL, saying that ADL president Abe Foxman is "a notorious panderer to left-wing causes" and that the "American Left has joined in what I have elsewhere referred to as an 'unholy alliance,' making itself a valuable ally of the Muslim Brotherhood."
This attack on the ADL can be traced back to a National Review article Spencer and Horowitz wrote claiming that they espouse "a rational fear of Islamism" based on "the misogyny, bigotry, and terrorism promoted by many (but not all) Islamic institutions and religious texts." In doing so, they labeled the Southern Poverty Law Center as "jihadist apologists" and also attacked the Center for American Progress and the Council on American-Islamic Relations.
Center for American Progress policy analyst Matt Duss responded in a letter to the editor published by National Review by pointing out that, while Spencer and Horowitz attacked other groups in their article, they had not attacked the ADL even though it released a backgrounder earlier this year "declaring that Spencer's group, Stop Islamization of America, 'promotes a conspiratorial anti-Muslim agenda under the guise of fighting radical Islam.' " Duss asked, "Should the Anti-Defamation League also be lumped with the 'jihadist apologists'?"
That led Spencer and Horowitz to do what they had avoided doing in their article: lump ADL in with other groups who are either part of the conspiracy to Islamize America or are unwitting dupes of the conspiracy.
Right-wing media have been hyping the claim that a diplomatic cable released by WikiLeaks shows that President Obama had planned to "apologize" for the bombing of Hiroshima during his 2009 visit to Japan. But the cable only shows there was speculation from "anti-nuclear groups" that Obama might travel to Hiroshima after expressing support for a "nuclear-free world," and the Obama administration has said no apology was ever planned.
Yesterday, Andrew Breitbart, Sean Hannity, and National Review Online's Andrew McCarthy claimed that, in Sean Hannity's words, then-Senator Barack Obama was "hanging out" with a group of New Black Panther Party members during a 2007 event in Selma, Alabama. The charge was totally false, as it was based on cropped photos and dishonest descriptions.
In reality, the event was the 42nd anniversary of the 1965 march from Selma, a pivotal event in the civil rights movement that ended when the marchers were attacked by law enforcement at Edmund Pettus Bridge.
During the commemoration, Obama was in the company of people like the Rev. Fred Shuttlesworth, who Martin Luther King Jr. once described as "the most courageous civil rights fighter in the South." Shuttlesworth died today at the age of 89.
Here's a picture from Reuters of Obama pushing Shuttlesworth in a wheelchair across the Edmund Pettus Bridge during the event mentioned by Breitbart, Hannity, and McCarthy:
This closes the book on the latest shameful attempt at race-baiting by Breitbart, McCarthy, and Hannity.
At National Review's The Corner, Andrew McCarthy is excitedly hyping Andrew Breitbart's ridiculous "report" this morning on President Obama and the New Black Panthers. I'll reproduce just the first paragraph of McCarthy's post, because it's really all you need:
At Big Government, Andrew Breitbart reports that, as a presidential candidate in March 2007, then-Senator Barack Obama appeared and marched with members of the New Black Panther Party. Included in Obama's Panther entourage was Malik Zulu Shabazz, the racist group's "national chief." Shabazz was one of the Panthers charged in the voter intimidation case that the Obama/Holder Justice Department dismissed in 2009 -- even though the government had already won the case (the Panthers defaulted) and the evidence supporting the civil charges was overwhelming.
OK, let's see what McCarthy left out.
1) Obama and the NBPP were at a march commemorating the 42nd anniversary of the 1965 march from Selma, a seminal moment in the civil rights movement. By leaving that out, McCarthy made it seem as though Obama just showed up at a New Black Panther march.
2) If we're going to count Shabazz as part of Obama's "Panther entourage," then we have to count the several thousand other people who were in attendance. But why do that when you can just leave the (absolutely false) impression that Obama was walking arm-in-arm with Shabazz?
3) DOJ actually obtained judgment against NBPP member Samir Shabazz, and the department's Office of Professional Responsibility concluded "that Department attorneys did not commit professional misconduct or exercise poor judgment, but rather acted appropriately, in the exercise of their supervisory duties in connection with the dismissal of the three defendants in the NBPP case."
Actually, this is too much fun -- let's see what else McCarthy got wrong:
Andrew also notes that visitor logs indicate that a man identified as "Malik Shabazz" visited the White House two months after attorney general Holder dismissed the Panthers case. The White House has refused to clarify whether that Malik Shabazz is the Panther national chief.
Untrue! The White House clearly identified "Malik Shabazz" as one of the "false positives" that came up in their visitor logs: "The well-known individuals with those names never actually came to the White House."
Andrew further reminds us that, in March 2008, the Obama campaign website posted an endorsement of Obama by the New Black Panther Party.
Also untrue! The NBPP posted their own endorsement of Obama on the my.barackobama.com user-generated blog, and the campaign deleted the endorsement when they became aware of it.
The Breitbart report displays photos of Shabazz prominently speaking at the rally, and of Obama flanked by Shabazz and a uniformed New Black Panther Party member.
If by "flanked" McCarthy meant "several feet behind Obama as part of a large crowd" then perhaps this is accurate.
By my count, that's at least six demonstrably false claims or misleading omissions. Given that McCarthy's post comes in at under 400 words, that's an impressively high concentration of pernicious, race-baiting garbage.