Conservative media outlets are deriding a memo recently released by the National Labor Relations Board, claiming that it "shows that the board wants to give unions much greater power over employers and their investment and management decisions." In reality, the memo addresses a narrow portion of labor law that requires employers to bargain with unions if labor costs are a factor when businesses decide to relocate. The changes contemplated in the memo would simply "encourage the use of bargaining rather than after-the-fact assessment of whether bargaining might have been successful."
National Review Online blogger Ed Whelan is still arguing that the decision by Judge Vaughn Walker to strike down California's ban on same-sex marriage must be thrown out because Walker is a gay man in a long-term relationship.
Last week, I documented Whelan's incredible admission that, if his argument is correct, a gay judge assigned to hear a same-sex marriage case must either disclose "intimate details" about his or her personal life or "[ask] the court clerk to reassign the case" to another judge.
As detailed by the lawyers opposed to the California ban on same-sex marriage, if Whelan's theory were correct, a gay judge who did not silently reassign the case would have to answer questions about "how long term, or how serious" the relationship was and "the judge's interest in marriage." The person who is in a relationship with a judge might have to answer similar questions.
But even more astoundingly, the defenders of California's ban on same-sex marriage are making the same argument in their brief (which, according to Whelan, "systematically dismantles" the other side's argument). Here is the relevant excerpt from the brief:
Plaintiffs argue that the statutory disclosure duty "would require federal judges to publicly disclose intimate details of their private lives," Doc # 779 at 23, but of course any judge who does not wish to make "a full disclosure on the record," 28 U.S.C. § 455(e), of personal facts that bear on his ability to sit in a case always has the option of simply asking the clerk to reassign it to another judge.
As I've previously detailed, this argument is odious on its own, but it's not even correct on the law. As the opponents of the same-sex marriage ban say: "Judges have a duty to sit and decide cases unless there is a legitimate reason to recuse." Thus, if Whelan and the defenders of the ban are correct, a gay judge assigned to hear a same-sex marriage case who does not believe he or she should be disqualified must preside over the case and must disclose the intimate details of his or her sexual orientation, relationship status, length of the relationship, seriousness of the relationship, and personal views on marriage.
Common sense suggests that this cannot be the law. And judicial ethics experts agree that this is not the law.
As Media Matters has previously reported, Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the ninth Circuit. Despite bipartisan support for Liu by prominent conservative politicians, the right-wing media have continuously attacked the nominee, and in some cases called for a filibuster of the nomination.
Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the Ninth Circuit, and the usual suspects in the right-wing media are rehashing their reasons for opposing Liu.
You wouldn't know it from the vitriol of the right-wing media, but Liu actually has a large number of conservative and Republican supporters.
Among those supporters are former independent counsel and federal appellate judge Kenneth Starr; former Bush Justice Department official John Yoo, who authored the infamous "torture memos"; former GOP Rep. Tom Campbell (CA); conservative legal activist Clint Bollick; former Secretary of Transportation William T. Coleman; and law professor Richard Painter, who served as the chief White House ethics lawyer during the Bush administration.
Kenneth Starr. A letter supporting Liu that Starr co-wrote with Yale Law Professor Akhil Amar stated: "What we wish to highlight, beyond his obvious intellect and legal talents, is his independence and openness to diverse viewpoints as well as his ability to follow the facts and the law to their logical conclusion, whatever its political valence may be."
John Yoo. According to The Los Angeles Times, Yoo said of Liu's nomination: "[H]e's not someone a Republican president would pick, but for a Democratic nominee, he's a very good choice."
Tom Campbell. Campbell -- former dean of the business school at the University of California-Berkeley and an unsuccessful candidate for the 2010 Republican nomination for U.S. Senate in California -- stated that Liu "is one of the most capable colleagues I've had in my three decades in academia. I hate the thought of Berkeley losing him, but it's a higher calling and the nation's gain. His ability to analyze, communicate, and inspire will make him a favorite among litigants and a leader among judges."
Clint Bollick. Bollick, director of the Goldwater Institute, wrote that he "strongly support[s]" Liu's nomination, adding that, "[h]aving reviewed several of his academic writings, I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."
William T. Coleman. Coleman, Secretary of Transportation during the Ford administration, stated: "I have known Goodwin Liu for many years as after he finished Yale Law School and then clerked for a Justice on the Supreme Court of the United States he worked at O'Melveny & Myers LLP in the Washington office for several years and did a tremendous job." Coleman later added, "I think he will make a tremendous Judge for the Ninth Circuit."
Richard Painter. Painter wrote: "Based on my own review of his record, I believe it's not a close question that Liu is an outstanding nominee whose views fall well within the legal mainstream. That conclusion is shared by leading conservatives who are familiar with Liu's record."
National Review Online's Ed Whelan certainly has issued his share of odd arguments about judicial nominees. But this might just take the cake. In a blog post yesterday, Whelan argued that filibustering judicial nominations is "a bad practice," but that this is precisely why Senate Republicans should filibuster the nomination of Goodwin Liu to be an appellate judge.
From Whelan's blog post:
I continue to hold the view that I've expressed since the outset of Bench Memos in 2004--that the filibuster of judicial nominees is constitutionally permissible but a bad practice. It's clear, however, that unilateral disarmament by Republicans would do nothing to deter Democrats from filibustering Republican nominees. As with the independent-counsel statute, the only sensible choice for Republican senators who want to get rid of the filibuster in the long run is to employ it against very bad judicial nominees by President Obama.
In sum, it's time for Republican senators to defeat cloture on the Liu nomination. [emphasis in the original]
By the way, Liu has been the subject of a concerted smear campaign by Whelan and others. And Senate Republicans are considering a filibuster of Liu even though many of the people leading the charge have argued -- unlike Whelan -- that filibusters are unconstitutional.
As we've documented, National Review Online blogger Ed Whelan and other supporters of California's ban on same-sex marriage seek to vacate Judge Vaughn Walker's ruling striking down that ban on the grounds that Walker is gay. At the same time, Whelan continues to pretend that Walker's sexual orientation is not the issue. The real problem, Whelan says, is that Walker is in a long-term same-sex relationship and therefore may want to marry his partner.
He makes this distinction because, as legal ethicists nearly universally agree, as numerous newspaper editorials and commentators have argued, and as Whelan himself acknowledges, it would be problematic to say a judge must be disqualified from the case simply because of his or her sexual orientation.
Now, in response to a brief filed by opponents of California's same-sex marriage ban, Whelan has sunk to a new low, defending his position by saying that a gay judge assigned to a case on same-sex marriage must either disclose "intimate details" about his or her personal life or silently reassign the case to another judge.
Rush Limbaugh accused President Obama of lying about government job losses and, citing a blog post by National Review's Jim Geraghty, claimed that "government employment is actually increasing." In fact, seasonally-adjusted job numbers show that the public sector has been cutting massive amounts jobs, a point Geraghty was forced to acknowledge when he updated the post.
The right-wing media has falsely accused Attorney General Eric Holder of "going after" CIA agents for administering enhanced interrogation techniques approved during the Bush administration. In fact, Holder has made it clear that the Department of Justice will not prosecute agents "who acted in good faith and within the scope of the legal guidance" of the Bush administration, and indeed, the DOJ's investigation reportedly focuses on agents who went beyond the Bush administration's "legal guidance."
National Review Online blogger Ed Whelan is pretending that the move to vacate Judge Vaughn Walker's ruling striking down California's ban on same-sex marriage is not based on Walker's sexual orientation. Whelan's argument is not only illogical, it fails to account for the right-wing slogan "if the judge ain't straight, you must vacate," which was coined by the head of Liberty Counsel, a prominent same-sex marriage opponent.
Whelan repeatedly argues that, in the words of one of his posts, "Prop 8 proponents do not base their motion on the fact that Walker 'is gay,' but on the fact that he is in a long-term same-sex relationship." It is extremely important for Whelan to make this distinction because legal ethicists nearly universally agree that Walker's sexual orientation is not grounds for recusal as have numerous newspaper editorials and commentators. And Whelan himself has said that "a judge's personal characteristics don't generally provide a basis for recusal."
However, Whelan's argument that the issue isn't Walker's sexual orientation falls flat.
Whelan has acknowledged that "there is 'no evidence' of Walker's specific intentions" about whether to marry or not. His recusal argument is based solely on surmises based on the length of Walker's relationship. However, Whelan never explains how long a same-sex relationship must be before it requires that the judge step aside. Nor does he explain why--based on his logic--a gay judge who definitely wants to marry but who hasn't yet found the right person should not also be disqualified.
Indeed, the threshold question a judge must answer in Whelan's view is not whether a judge is in a long-term relationship but whether the judge is gay. Under Whelan's theory, a judge presiding over a same-sex marriage case would seemingly have to disclose his sexual orientation and then subject himself or herself to a series of probing questions about whether the judge is in a relationship, how long that relationship has been going on, and whether the judge is really the committing type.
The conservative media are suggesting that former President Bush deserves more credit than President Obama for the death of Osama bin Laden. This is in stark contrast to their usual attacks that Obama is responsible for things that are happening during his presidency, including those tied to Bush-era policies like the Gulf oil spill, the weak economy, and the nation's deficit problems.
Right-wing media continue to attack President Obama over his speech announcing that U.S. forces had killed Osama bin Laden in a firefight. These attacks even include people saying that Obama should not have made the announcement himself.
Right-wing media outlets have criticized President Obama's call to end certain tax breaks for oil companies, claiming that doing so will increase the price of gasoline. However energy experts contacted by Media Matters explain that cutting the tax incentives will have little to no effect on prices at the pump.
After weeks of demanding President Obama "produce the birth certificate" so it can be "over [and] done with," right-wing media figures have begun attacking Obama for releasing his long-form birth certificate, claiming it was done as a "distraction" and complaining it was done to "personally put down his detractors."
Right-wing media responded to the release of President Obama's long-form birth certificate by attacking the president and claiming that certain questions surrounding the document remain unanswered. Below is a sampling of the early attacks by conservative media following the release of Obama's long-form birth certificate.