With the help of an anonymous "Senate insider," National Review Online Blogger Ed Whelan came up with a bizarre conspiracy theory to mitigate one of the most egregious examples of Senate Republicans' obstruction of President Obama's judicial nominations. And now the conspiracy theory has proven to be totally baseless.
The story involves Marco Hernandez, a nominee to be a federal trial judge in Oregon. What makes Hernandez different from most nominees is that he was originally nominated by President Bush in July 2008, but his nomination lapsed without action by the Senate. So, one would think that there would be little objection from Republicans when Obama renominated him. But on December, 22, 2010, Senate Judiciary Committee Chairman Pat Leahy (D-VT) reported on the Senate floor that Republicans had obstructed the nomination by refusing to grant unanimous consent to allow a floor vote.
Obama renominated Hernandez when the new Senate convened, and on February 7, Hernandez was confirmed by unanimous consent. The Oregonian newspaper subsequently ran an editorial decrying the obstruction of Hernandez's nomination. And then Whelan entered the picture.
Conservative media figures have attacked Republicans for voting to repeal a provision of the health care reform bill that mandates the businesses file 1099 forms to the IRS when they purchase more than $600 worth of goods or services from a vendor. These media figures also warn Republicans not to support similar measures in the future. They say the 1099 provision hurts business, but argue that voting for such provision is a "trap" for Republicans who want to repeal the entire health care reform bill.
On February 2, 81 senators voted in favor of a repeal of the 1099 provision, which both Republicans and Democrats, including President Obama, have called overly burdensome. Since then conservative media figures have been attacking Republicans for their vote:
Erickson and Thiessen both state that the 1099 provision was harmful to businesses. So why do they argue against its repeal? In Erickson's words: "[D]oing this, instead of keeping the pain in place until Obamacare is repealed, makes the pain less and less. And as the pain becomes less and less because Republicans work with Democrats to 'fix' Obamacare, it becomes less and less likely that Obamacare will actually get repealed."
But are these conservative commentators really deluded enough to think that repeal of the Affordable Care Act is just around the corner? Perhaps. Or perhaps they are afraid that with a few fixes, calling for repeal of the health care reform law will become a real loser politically.
On RedState.com, CNN contributor Erick Erickson claimed that the Obama Administration has canceled an annual Centers for Disease Control and Prevention report on abortion statistics because it is "afraid of the truth," and continued to insist that the report was "killed" even after the CDC said it was merely delayed and will be published. Indeed, an internal CDC email obtained by Media Matters shows that the report was submitted for review and editing on November 12.
Following right-wing group Live Action's first release of a video allegedly "exposing" Planned Parenthood's "cover-up of child sex trafficking," conservative media have rushed to accuse Planned Parenthood of engaging in criminal activity. In fact, at least two weeks before the video of the sting operation in a New Jersey Planned Parenthood was released, Planned Parenthood reported to the FBI a "potential multistate sex trafficking ring" and later fired the employee behaving improperly in the video.
Right-wing media have seized on the conflict in Egypt to attack President Obama by comparing him to former President Carter and the Iranian uprising in the late '70s. However, experts have noted that comparing the uprising in Egypt to the 1979 Iranian revolution is "dangerously misleading."
Ed Whelan has posted his second attack on judicial nominee Caitlin Halligan for supposedly having a record that suggests she is "hard left." Previously, Whelan tried (but failed) to paint Halligan as outside the mainstream on the issue of same-sex marriage. His new attack is that she is too far left on national security issues. Unfortunately for Whelan, her position on one of the issues he highlights is the same as that taken by Justice Antonin Scalia.
Whelan argues: "The NYC Bar report maintains (p. 110) that the congressional Authorization for Use of Military Force (enacted September 18, 2001) does not authorize indefinite detention of enemy combatants." He paints this as out of the mainstream because a majority of the Supreme Court held in Hamdi v. Rumsfeld that the Authorization of the Use of Military Force did allow such detentions. Be that as it may (and the majority opinion in that case did not support the Bush administration's detention policies), four justices disagreed with that holding, and one of those was Scalia (the judge for whom Whelan clerked).
Scalia -- in an opinion joined by Justice John Paul Stevens wrote:
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.
Justices David Souter and Stephen Breyer also dissented from the view that the Authorization for Use of Military Force authorized the detention in Hamdi's case.
One final point: Whelan attempts to buttress his argument by saying that the U.S. Court of Appeals for the D.C. Circuit, the court to which Halligan has been nominated, has "adopted that broad construction" of the Authorization for Use of Military Force. However, Whelan cites only cases dealing with detainees at Guantanamo, and the report Halligan signed explicity said: "a large group of alleged 'enemy combatants' seized abroad is being held at the Guantanamo Bay Naval Base in Cuba (see p. 29, above), detentions which present distinct issues not addressed in this report."
So, in essence, either Whelan is providing evidence that Scalia is "hard left" or it's a bogus argument against Halligan. I suggest it's the latter.
National Review Online contributor Ed Whelan has promised to show that the record of President Obama's nominee to the U.S. Court of Appeals for the D.C. Circuit Caitlin Halligan suggests she is "hard left on a broad array of issues." Whelan's first attack on Halligan is that she is out of the legal mainstream on the issue of same-sex marriage. But it is a fairly weak attack.
Whelan attacks a memo that Halligan wrote as solicitor general of New York state on the issue of whether New York law allows same-sex marriage. It's strange for a conservative opponent of same-sex marriage like Whelan to focus on this memo, since Halligan concludes that New York law does not allow same-sex marriage even though New York law did not "explicitly prohibit same-sex marriage"; says the constitutional question has not been decided yet and does not have a clear outcome; and advises New York officials not to perform marriages for same-sex couples. Indeed, here is Halligan's conclusion on the subject:
We conclude that the Legislature did not intend to authorize same-sex marriages. This interpretation of the statute, however, raises concerns, which are best resolved by the courts of this State.
Because the purpose of the marriage licensing process is to "provide a definite, well-chartered procedure for entrance into marriage, so that parties following the statutory requirements can have a fair degree of certainty in their marital status," Practice Commentaries to DRL § 13 at 149, we recommend that clerks not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts.
Whelan doesn't mention this, but Halligan's memo advising New York officials that they shouldn't perform same-sex marriages came only a few days after a mayor of the small New York town of New Paltz began marrying same-sex couples. Thus Halligan's memo -- which was informal and did not have the force of law -- directly contradicted the decision by a New York official that the laws of New York state allowed same-sex marriage.
Whelan's argument amounts to a criticism that Halligan does not give sufficient weight to some of the arguments that Whelan finds compelling. But that is hardly evidence that Halligan is "hard left."
Andrew McCarthy's sole focus in life, it seems, is to hurl overblown and misleading accusations about Islam and who, supposedly, is in league with Islamic extremists. We've previously detailed how McCarthy's book The Grand Jihad repeatedly invokes smears, myths, and falsehoods to portray President Obama as an "Islamist," and an entire chapter of that book is dedicated to promoting the discredited claim that Obama, during a 2007 visit to Kenya, campaigned for a presidential candidate there.
McCarthy keeps up his record of anti-Muslim activism in a January 25 National Review Online blog post, in which he embraces the work of WorldNetDaily's Aaron Klein:
Aaron Klein is the World Net Daily reporter and WABC radio host to whom Imam Feisal Rauf could not bring himself to admit that Hamas is a terrorist organization, an episode I wrote about in a column last week. Mr. Klein has just uncovered a recent recording in which the imam who has replaced Rauf as the face of the Ground Zero Mosque explains that Islam's sharia law requires the imprisonment of former Muslims who publicly renounce Islam.
"If someone leaves the din, leaves the path privately, they cannot be touched. If someone preaches about apostasy, or preaches their views, they're jailed," stated Shaykh Abdallah Adhami, a 44-year-old American and scholar of sharia. His remarks were made in a lecture two months ago.
Here is the moderate part: As Adhami acknowledged, many sharia jurists say that apostates -- Muslims who renounce Islam -- must be killed. But Adhami maintains that sharia distinguishes between "public" apostates and "private" apostates. Only the former, he says, must be punished and -- to be even more moderate about it -- they don't have to be killed . . . just "jailed so they are contained."
But as we documented, Adhami wasn't expressing his personal views; he was merely reciting history. Klein cherry-picked a handful of statements out of a 10-minute-long answer to create his slant, which McCarthy uncritically repeated despite Klein's long history of shoddy reporting. And both ignored a 2007 article by Adhami, headlined "The right to change one's religion," in which he called for religious tolerance, writing, "We need to acknowledge and affirm that diversity and difference are part of the divine intent for creation."
McCarthy's touting of how Rauf "could not bring himself to admit that Hamas is a terrorist organization" to Klein is similarly misleading; the website for Rauf's Cordoba Initiative states: "Hamas is both a political movement and a terrorist organization. Hamas commits atrocious acts of terror. Imam Feisal has forcefully and consistently condemned all forms of terrorism, including those committed by Hamas, as un-Islamic."
Unsurprisingly, Klein's misleading story also proved to be irresistible to the rabidly anti-Muslim Pam Geller, who promoted Klein's article as proof that Adhami was stumping for Islamic law on apostasy -- which, of course, is not what he was doing.
Right-wing media have seized on the performance of a Chinese song by pianist Lang Lang at a recent state dinner as an "anti-American" slight against the U.S. In reality, Lang said he picked the song "for no other reason but for the beauty of its melody," and one expert on Chinese culture called it "nutty" to suggest that Lang's performance was somehow "anti-American."
In a January 19 post on National Review Online, Daniel Foster attempted to defend former Nevada Senate Candidate Sharron Angle's famous "Second Amendment remedies" line by saying she was only warning that "we're a few awful bills away from folks starting to seriously consider revolution. From the National Review Online:
I didn't think Angle was an ideal candidate, but I think it's clear from context that what she was saying was more along the lines of "Winning this election is important because things are so bad we're a few awful bills away from folks starting to seriously consider revolution."
One thing she was certainly not saying is that the Second Amendment legitimizes political assassinations. If only it were obvious to liberals that conservatives would not endorse, even in principle, the right of a John Wilkes Booth to afford himself of "Second Amendment remedy."
In the wake of the tragic shootings in Arizona, several right-wing media figures have attacked Pima County Sheriff Dupnik for calling for an end to vitriolic rhetoric while discussing the shooting. However, the right-wing media repeatedly praised a different Arizona sheriff, Paul Babeu, who regularly engages in vitriolic attacks against President Obama and Democrats.
In a recent profile in the Weekly Standard, Mississippi Gov. Harley Barbour (R) heaped praise on the white supremacist Citizens Councils for its role in barring KKK activity in his hometown of Yazoo City. After significant criticism, Barbour later stated that "the 'Citizens Council,' is totally indefensible, as is segregation."
However, following the Weekly Standard piece, right-wing media rushed to Barbour's defense, dismissing his remarks as innocent nostalgia and decrying a left-wing smear campaign. For instance, Hot Air's AllahPundit asserted that "maybe [Barbour] was simply naïve about" the Citizens Councils' purpose.
In addition, linking to a National Review Online post defending Barbour, Fox Nation posted the headline "Haley Barbour Fends off Left-Wing Racial Smears with Ease."
During the confirmation proceedings for Supreme Court Justice Elena Kagan, bloggers at National Review Online took it upon themselves to defend the Supreme Court from charges that it had tilted far to the right and in favor of corporate interests since John Roberts had taken over as Chief Justice of the United States. For instance, this summer, Ed Whelan strongly criticized Alliance for Justice President Nan Aron for "contend[ing] that the 'Roberts court has repeatedly placed corporate interests first and the rights of individuals second.' "
But now The New York Times has reported on a new study finding that "[t]he Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953." The study added that the "differences are statistically significant."
And the study is not the work of progressives alone. Indeed, one of its co-authors is federal appellate Judge Richard Posner, a Ronald Reagan appointee and a conservative hero.
This all leads me to wonder: Which NRO blogger will be the first to throw Judge Posner under the bus in defense of the Roberts Court?
Media conservatives are condemning President Obama for using the word "hostage" as a metaphor while discussing negotiations. Yet Presidents Ronald Reagan and George W. Bush also used the same rhetoric in describing their political opponents.
The right-wing media have been attacking President Obama's New Strategic Arms Reduction Treaty (New START), claiming it "may harm national security." But the treaty enjoys widespread support among military leaders, who have called its passage a "no-brainer," and have argued that "the treaty makes us safer."