Right-wing media have responded to President Obama's comments that he "believe[s] that Muslims have the same right to practice their religion as everyone else in this country" by falsely claiming that opponents of the proposed Islamic community center in Lower Manhattan have not talked about restricting Muslims' religious freedom. In fact, opponents have advocated using government intervention to restrict construction of the center or have asserted that the planners don't have a right to build it at the proposed location.
In recent days, right-wing media have attacked Imam Feisal Abdul Rauf's upcoming State Department trip to the Middle East to "discuss Muslim life in America and religious tolerance." However, Rauf began participating in the outreach program during the Bush administration, which considered this kind of outreach as useful "[i]n the struggle against violent extremists."
The right-wing media is attacking Imam Feisal Abdul Rauf's upcoming State Department trip to the Middle East to "discuss Muslim life in America and religious tolerance," by falsely claiming he will use the trip as a "taxpayer-funded fundraising jaunt" to finance construction of his Islamic cultural center in New York City. In fact, the State Department has made clear that fundraising of any kind is prohibited during the trip, and Rauf has previously participated in this program, first under President Bush.
Conservative media figures have repeatedly claimed or suggested that it would be unprecedented and "corrupt" for Democrats to address "controversial" issues during Congress' lame duck session following the 2010 elections. But in 1998, Republicans impeached President Clinton during such a post-election congressional session.
Following Judge Vaughn Walker's landmark decision to strike down California's ban on same sex marriage, the right wing has falsely attacked him as an extremist member of the "liberal court" and pushed the ridiculous argument that as a gay man who may be in a long-term relationship, he should have recused himself from the case.
In reality, Walker was nominated by Presidents Reagan and George H.W. Bush and has been praised by Republican lawmakers, and as we've pointed out, if Walker should have recused himself because he was gay, by that logic, straight judges who have ruled against gay rights should have recused themselves from those cases.
The recusal argument is so bogus that, out of the hundreds of documents filed in the Prop 8 case, not one includes a motion asking Walker to recuse himself.
Not content to merely attack Walker, the right is now questioning the plaintiffs' experts because "many or most are in same-sex relationships." Here's the latest from NRO's Bench Memos:
Short version [of Walker's opinion]: Everything that plaintiffs' "experts" say is beyond dispute. E.g.: "[T]he evidence shows beyond any doubt that parents' genders are irrelevant to children's developmental outcomes." "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples." (I would have thought that it's equally clear that "moral and religious views form the only basis for a belief" that the laws against murder should protect all persons.)
Judge Walker makes little or no reference to the fact that nearly all of plaintiffs' "experts" are political activists for gay causes and that many or most are in same-sex relationships. They're just neutral experts. In the same way that Walker is just a neutral judge.
Conservative media falsely claimed that the state of Missouri overwhelmingly rejected "Obamacare" because 71 percent of those who voted in the August 3 election supported a ballot measure rejecting the individual mandate in health care reform. In fact, the results were skewed "by a heavily Republican turnout in a relatively low-turnout primary."
Conservatives have criticized Judge Susan Bolton for ruling that a provision of Arizona's immigration statute requiring law enforcement personnel to determine the immigration status of all arrestees is likely unconstitutional. They have argued that Bolton should have ignored the plain language of the statute in favor of a contorted reading of the provision requiring Arizona law enforcement to check the immigration status of "any person who is arrested."
This suggests that conservatives are willing to toss aside their professed concern over judicial activism in order to win a case about an issue that matters deeply to them.
In a post on National Review's The Corner blog, conservative activist Heather Mac Donald claimed that Bolton participated in "the Obama administration's carefully cultivated fiction" that the concerns over the Arizona immigration law dealt with the treatment of lawfully present immigrants. According to Mac Donald, what the Obama administration really wanted was to maintain a "de facto amnesty" for undocumented immigrants. Mac Donald claimed that in order to support the Obama administration's supposed cover story about the effects on lawful immigrants, Bolton misinterpreted a provision of the law that "required that 'any person who is arrested shall have the person's immigration status determined before the person is released.' " According to Mac Donald, "any person who is arrested" did not mean "any person" but rather only people for whom reasonable suspicion exists that they are here illegally.
On Fox News, host Arthel Neville allowed Kris Kobach, who helped draft the Arizona law and is running for Kansas Secretary of State, to make similar claims without challenge. Kobach stated:
KOBACH: The judge actually made a rather startling mistake. She misinterpreted the intent of a critical provision of the bill. And the reason that's a mistake is there's a longstanding Supreme Court rule that says when you have a law that's not been implemented yet, the court must give the best possible reading to the bill. In other words, give the bill a reading that would not be in violation of any other law. And instead, what the judge did is give the worst possible reading. I think that's going to make her opinion very difficult to sustain on appeal.
NEVILLE: Let me see if I understood what you said. You said that the judge misinterpreted -- she misread the -- your SB 1070?
KOBACH: Yeah. There was the word arrest is used in Section 2, and what she did is there are multiple interpretations of that word arrest. And she picked the interpretation that would be most problematic, but on a facial challenge, a judge is bound to give the bill the best possible reading to give the state the opportunity to implement it in a constitutional manner. She failed to do this, and I think her opinion is very weak because of that and will probably be flipped on appeal.
In fact, as Bolton made clear in her opinion, the statute unambiguously requires law enforcement officials to verify the immigration status of every person who is arrested and that arguments to the contrary simply do not have any support in the statute's text.
Ed Whelan and two of his colleagues at National Review Online have repeatedly attacked a New York Times article that reported on a study finding that the Supreme Court under John Roberts is "the most conservative one in living memory." Their attack is unsurprising since Whelan based a major part of his testimony opposing Elena Kagan's Supreme Court nomination on the premise that the conservative Supreme Court majority is actually non-ideological. But their complaints are undermined by the words of former Chief Justice William Rehnquist who described the philosophy of a "strict constructionist" in explicitly results-oriented terms.
NRO contributor Matthew Franck complained that the study relies on "the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior." Carrie Severino put the argument and the defense of conservative justices even more strongly, writing:
Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the "left" and the "right" to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as "you do what you think is right and let the law catch up," and if you subscribe to Marshall's philosophy, this type of blunt head-counting might make sense. The problem is that "conservative" judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must "catch up" to the law by putting aside political preferences when deciding cases.
Fatal to the claim that conservative judges put aside "political preferences when deciding cases," however, are Rehnquist's words. As a Nixon administration official, Rehnquist reportedly defined a "strict constructionist" as someone who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."
And it's hard to get more clearly results-oriented than that.
Last week, conservatives got very excited by a Wall Street Journal editorial speculating that Elena Kagan must have given an opinion on litigation Florida and other states filed challenging the constitutionality of the health care reform legislation. Conservative activist and National Review Online blogger Carrie Severino co-wrote a letter demanding that senators "clarif[y]" whether Kagan had participated in the case. And all seven of the Judiciary Committee Republicans signed a letter asking her a series of questions about whether she had given any advice about the constitutionality of the health care bill or strategies for defending that bill in court.
In response to the Judiciary Committee Republicans, Kagan said that she did not comment on the constitutionality of the health care reform legislation or the litigation challenging that legislation.
That should end matters. But not for Severino. She has written an NRO blog post basically accusing Kagan of lying. Severino complained about the "utter implausibility of the idea that she never discussed of any issues surrounding health care" and spins a conspiracy theory that "Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible."
Of course, Kagan didn't say she has never discussed "any issues surrounding health care." Regarding what Kagan actually said, it's not Kagan's job to comment on the constitutionality of a statute pending before Congress. That's the job of the Justice Department's Office of Legal Counsel and the attorney general (who, on very rare occasion, might ask others for an opinion if he or she disagrees with the Office of Legal Counsel's findings -- something that apparently didn't happen in this case).
Furthermore, as Severino acknowledges, Kagan said she stopped attending the attorney general's morning meetings "some time in early-to-mid-April." Kagan also wrote that she scaled back her participation "in more general departmental matters (which were not extensive to begin with)" soon after March 5, the date on which she was informed that the president was considering her for a possible Supreme Court nomination.
President Obama signed the health care bill on March 23 and the lawsuit challenging that law was filed the same day. That means that within a couple of weeks of the health care legislation becoming law and the filing of the case challenging the health care litigation, Kagan stopped attending the very meetings that the Journal identified as ones in which she must have spoken on the issue.
Rather than proof of any nefarious conspiracy theories, Kagan's responses have settled the recusal issue for everyone but the diehards.
National Review Online's Ed Whelan and Carrie Severino attacked President Obama for nominating Louis Butler to a federal judgeship after he lost his electoral bid to retain his seat on the Wisconsin Supreme Court. In fact, there is nothing unusual about Butler's appointment: President Bush successfully appointed federal judges who lost a state court election race.
Glenn Beck advanced the discredited claim that federal funding will go to fund elective abortions in Pennsylvania in order to suggest that President Obama lied when he promised federal funds would not pay for such abortions.
After a judge in Massachusetts ruled against a federal ban on gay marriage, National Review Online's Ed Whelan revived the falsehood that Supreme Court nominee Elena Kagan abandoned her constitutional duty as solicitor general and "succeeded in sabotaging the Defense of Marriage Act that she was dutybound to defend."
So says National Review Online blogger Kevin D. Williamson in a post titled "An Idea for the RNC: Dump Steele, Hire Palin."
Re: Steele and the RNC: Allow me to chime in with my usual observation on this subject: This is a job for Sarah Palin. Palin would be a much better RNC chairman than presidential candidate or freelance kingmaker. She'd raise tons of money and help recruit good candidates, i.e., she'd excel at doing the things Steele should have been doing instead of appointing himself Republican pundit-at-large.
A Chairman Palin would help set the right tone for the Republican party without having to get herself entangled in the minutiae of policy-development, which has not been her forte. Sure, she'd be polarizing, but so is Barack Obama, and these are polarized times. And it's one thing to have a polarizing party chairman, another to have a polarizing candidate.
I guess the upside of hiring Palin is the idea that if she were given a four-year gig as chair it wouldn't matter if she ended up doing poorly because she'd be gone in about two years anyway. Also, her first order of business could be formalizing Fox News' role as the communications arm of the party -- after all, she's already on network's payroll.
National Review Online's Ed Whelan is posting a "series of posts explaining some of the respects in which I find [Elena Kagan's] testimony unsatisfactory." Based on the early examples, I don't think we can expect very much from them.
For instance, in one post, Whelan falsely suggests that Kagan has refused to defend the "Don't Ask, Don't Tell" policy.
Whelan has previously attacked Kagan for refusing to immediately challenge a decision by the Ninth Circuit that required the government to provide further evidence to support its contention that the "Don't Ask, Don't Tell" policy was constitutional.
Whelan notes that at her hearing, Kagan stated that she thought it would be a stronger litigation strategy not to pursue an immediate appeal to the Supreme Court for tactical reasons.
Whelan does not attempt substantively to challenge Kagan's argument that further proceedings would have given the government a stronger argument that the Ninth Circuit's decision was overly-burdensome should Supreme Court review have become necessary. He just claims that the Ninth Circuit's decision was clearly wrong, and the Supreme Court would have clearly recognized that.
Whelan then engages in a bit of mindreading. He writes:
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don't Ask, Don't Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.
But Kagan proved Whelan's claim to be utterly false at her hearing. Kagan did "take a public position" on behalf of the Obama administration on the constitutionality of Don't Ask, Don't Tell.
As Kagan testified (via Nexis):
KAGAN: So take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the "don't ask/don't tell" policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- the government very much approved of, which was a decision that upheld the "don't ask/don't tell" policy.
And we told the court, in no uncertain terms, not to take the case, and we defended the statute vigorously. We told the court not to take the case because the statute was constitutional.
So in that Pietrangelo brief that I filed -- and it's a brief on which I'm counsel of record -- the -- the -- the argument is made vigorously that the "don't ask/don't tell" statute is fully constitutional, given the appropriate standard of review, and particularly given the deference that courts properly owe to the military.
So the Pietrangelo brief is a brief -- and, again, I'm counsel of record on that brief -- in which the U.S. government vigorously defended the "don't ask/don't tell" policy and statute, more importantly, and told the court not to take a case which challenged a decision upholding that statute. [emphasis added]
And indeed, the brief Kagan filed in Petrangelo v. Gates did exactly what Kagan said. The brief Kagan filed stated:
Petitioner contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to determine whether 10 U.S.C. 654 violates his substantive due process, equal protection, and free speech rights. The decision of the court of appeals is correct and does not conflict with any decision of this Court.
The brief then went on to defend the constitutionality of Don't Ask, Don't Tell on all of these grounds.
(It should be noted that the Solicitor General has an obligation to defend the constitutionality of federal statutes and, thus, her defense of Don't Ask, Don't Tell does not necessarily reflect her personal views on the subject.)
National Review Online's Carrie Severino attacked Elena Kagan for saying at her hearing that natural rights are, in Severino's words "irrelevant to her work as a judge because she would only be interpreting the Constitution and the laws of this country." But Kagan's statement that she would rely on the Constitution and laws rather than natural rights is completely noncontroversial, and indeed Justice Clarence Thomas made similar statements during his confirmation hearing.
During her hearing, Kagan testified to Sen. Tom Coburn (R-OK): "I believe that the constitution is an extraordinary document, and I'm not saying that I do not believe that there are rights preexisting that the constitution and the laws -- but my job as a justice is to enforce the constitution and the laws."
Severino said Kagan's exchange with Coburn was "painful." Severino later said "This is not the time for a potential Supreme Court justice to be iffy on the Declaration of Independence. So much for the right to Life, Liberty and the Pursuit of Happiness."
But Kagan's comments were noncontroversial. Indeed, her comments echo what Thomas said during his own confirmation hearing when he rejected the idea of using "natural law in constitutional adjudication." From Thomas' hearing:
As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.