Hope springs eternal. Despite more than a year of fruitless digging, the right-wing media can't let go of their hope that Supreme Court Justice Elena Kagan will be disqualified from hearing cases about the constitutionality of the Affordable Care Act.
Recently, conservative media have been hyping letters from House Judiciary Committee Chairman Lamar Smith (R-TX) as well as 49 other congressional Republicans seeking documents to determine if Kagan was involved with health care litigation during her time as solicitor general (the position she held immediately before being appointed to the Supreme Court).
Conservative media don't bother hiding the reasons for hoping that Kagan must be recused. As Judicial Watch head Tom Fitton wrote on BigGovernment.com, "The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama's socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare."
In addition to Fitton's post on BigGovernment.com, HotAir.com's Ed Morrissey breathlessly hyped the 49 House members' letter, asking, "Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?" The Washington Times also hyped the same letter, as did Newsmax. And National Review Online blogger Carrie Severino and Glenn Beck's website TheBlaze.com hyped both the 49 House members' letter and Smith's letter.
But CNS News may take the cake for the most overwrought reaction. CNS reported that Smith had begun an "investigation" into whether Kagan had been involved in health care litigation as solicitor general. It subsequently had to append an "editor's note" to the article explaining that the House Judiciary Committee "requested a correction of the story" because Smith had not launched a "formal investigation" but had merely made a "request for addition information."
CNS's overreaction to Smith's letter to the Justice Department epitomizes the right-wing's campaign to have Kagan recuse herself from health care litigation. The right-wing media keeps demanding further inquiry into the issue of whether Kagan should recuse herself. The additional information shows that there is no reason for Kagan to recuse herself. But the right-wing media claims that all it needs is a little more information, and it will become clear that Kagan did recuse herself.
Below the fold is a brief recap of the right-wing media's recusal campaign so far.
NPR has decided that anti-immigration activist Mark Krikorian's nativist dogma is worthy enough to be a featured "point of view" in the immigration debate. Never mind that the entirety of Krikorian's solution to the issue involves a scheme where all unauthorized immigrants and their children, American citizens or not, would be given "90 days or ... six months" to "pack up your things ... resolve your affairs" and "go home."
On its website on Thursday, NPR thought to contrast Krikorian's extremist views with those of journalist Jose Antonio Vargas, who recently admitted he is an undocumented immigrant who has been in the United States since he was 12 years old. Vargas' take on immigration reform was highlighted in an interview with the station's Fresh Air program.
Krikorian, the executive director of "low immigration" think tank, the Center for Immigration Studies, and a columnist for National Review Online, explained why Vargas should leave the United States and why the DREAM Act shouldn't apply to immigrants like Vargas. From NPR:
"It's not so much that he's undocumented. It's that he's an illegal immigrant -- he had illegal documents," says Krikorian, the executive director of the Center for Immigration Studies, a think tank that advocates a "low immigration, high enforcement" immigration policy. "He came here as a child [but] ... he came here with an identity formed as a Filipino. In other words, he came at 12."
Vargas says he was inspired to write his article after the Senate failed to pass the Dream Act, which would have granted amnesty to people younger than 36 who arrived in the United States as children, have lived here for five years or more and are currently attending college or serving in the military.
But Krikorian says legislation like the Dream Act shouldn't apply to people like Vargas -- because he arrived in the United States at the age of 12.
"The moral case that you can make for the Dream Act -- or something like the Dream Act ... really only applies, it seems to me, to people whose identities have been formed here, who have no memory of any other country, who really are -- as some of the advocates sometimes put it -- are Americans in all but paperwork," he says. "This doesn't really cover a lot of the people who would be covered under the current version of the Dream Act, including Mr. Vargas. The man has real abilities and real skills, and he should go home to his country of citizenship, the country he grew up in for most of his childhood."
Krikorian further stated: "The strongest case you can make for something like the Dream Act is for people who prudence suggests we should allow [to] stay because their identities have been formed here. They really are, psychologically speaking, Americans."
So, according to Krikorian's ridiculous logic, a child who moves here around age 12 will never be, "psychologically speaking," American? I'm sure Madeleine Albright, Patrick Ewing, and a host of others who immigrated here as pre-teens, like me, would have something to say about that. But putting aside the absurd notion that there is a cookie cutter formula to national identity, Krikorian has maintained that immigrants are considered truly American only if they embrace "Anglo-conformity."
After the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the individual mandate provision of the Affordable Care Act, many right-wing bloggers criticized the decision or downplayed its significance. But one of the judges who voted to uphold the statute was Jeffrey Sutton, an appointee of President George W. Bush who was such a proponent of states' rights during his legal career that he once proclaimed that he became involved in states' rights issues because "I really believe in this federalism stuff."
Conservative media have remained adamantly opposed to any revenue increases when covering the current negotiations over the looming default crisis. In fact, several prominent conservative economists disagree and have said that new revenue should be part of an agreement.
The right-wing media have vilified a proposal by the National Labor Relations Board to change rules regarding union organizing elections, accusing the NLRB of trying to establish "quickie elections." In fact, the proposal would establish no time frame for holding elections, and it modernizes procedures before and after elections.
Jose Antonio Vargas, a Pulitzer Prize-winning journalist, recently revealed that he is an undocumented immigrant. Right-wing media responded with virulent anti-immigrant attacks, with Don Surber of the Charleston Daily Mail writing: "kick the lying, illegal alien Jose Antonio Vargas out."
National Review's Andrew McCarthy has made a habit of citing anti-Muslim activist Robert Spencer as a credible authority -- plugging Spencer's book The Truth about Muhammad: Founder of the World's Most Intolerant Religion, for instance. In a recent blog post, McCarthy said that Spencer was the sort of "expert" who should testify at Rep. Peter King's hearings on the "radicalization of the Muslim-American community." McCarthy wrote: "I fear the hearings may turn into a non-event, in large part because they are not hearing from all the right witnesses -- experts like Steve Emerson and Robert Spencer. These experts have been excluded, evidently due to fear of the predictable reaction of the Muslim Brotherhood's American grievance network."
Today, FrontPage Magazine published an interview in which Spencer claims that "the most likely scenario" is that former Rep. Anthony Weiner "did convert to Islam."
In a June 16 National Review Online blog post, Andrew C. McCarthy criticizes Rep. Peter King's (R-NY) hearings into the radicalization of American Muslims. While Muslim, civil rights, and interfaith groups have panned the hearings as "divisive," McCarthy has a different problem: The hearings aren't anti-Islam enough.
According to McCarthy, "the hearings are proceeding on a false premise: namely, that Muslims are being 'radicalized' by some aberrant ideology that is a perversion of Islam." He explains:
What "radicalizes" Muslims is Islam -- the mainstream interpretation of it. The "radicals" propagating it do not need the "captive audience" provided by the prison environment. The "radicalization" is happening in plain sight.
McCarthy bases his claims on a study by David Yerushalmi and Mordechai Kedar which states that more than 80 percent of U.S. mosques feature texts that promote or support violence. Several right-wing pundits who specialize in attacks on Muslims and Islam previously highlighted the report earlier this month.
As we noted at the time, this study is undermined by Yerushalmi's history of extreme anti-Muslim and racially charged rhetoric. The Anti-Defamation League has highlighted Yerushalmi's "record of anti-Muslim, anti-immigrant and anti-black bigotry," specifically highlighting his reported statement that "African Americans are a 'relatively murderous race killing itself" and suggesting that "racial differences included innate differences in character and intelligence."
The ADL also reports that a think tank founded and led by Yerushalmi "called on Congress to declare war on the 'Muslim nation,' which it defined as 'Shari'a-adherent Muslims,' and further asked Congress to define Muslim illegal immigrants as alien enemies 'subject to immediate deportation.'"
Yerushalmi has written that "Muslim civilization is at war with Judeo-Christian civilization" and that "The Muslim peoples, those committed to Islam as we know it today, are our enemies." This is probably not the kind of person you want to rely on for unbiased data.
Of course, Andrew McCarthy thought the proposed Park51 Islamic center several blocks from Ground Zero represented "Islamist supremacism" and his most recent book recycles numerous smear to paint President Obama as an "Islamist," so perhaps we shouldn't be surprised.
The charge was negligent homicide.
Incensed by a New York Post "exclusive" last winter about "arrogant" union sanitation workers who purposefully failed to plow local streets in the aftermath of a crippling blizzard in order to protest department budget cuts, some members of the GOP Noise Machine, having whipped themselves into a union-hating frenzy, suggested the worker were actually guilty of criminal misconduct.
The Post's plow story, which was thoroughly debunked by a just-completed city investigation, and which the right-wing media now remain universally silent about, presents us with a depressing case study of how so-called "conservative journalism" often works today. (And especially how Rupert Murdoch-bankrolled journalism works.)
As illustrated by the Post's hollow, union bashing "exclusive," as well as by the far-right press' feral hyping of the concocted story, conservative journalism is often nothing more than sloppy propaganda designed to deceive and to inflame partisan passions. It' a nasty brand of misinformation and operates outside any discernible ethical guidelines, which accounts for its fleeting interesting in truthful reporting, as well as its dedicated lack of accountability.
In the wake of the Anthony Weiner scandal, members of the conservative media are demanding respect for getting the story right. But they're conveniently forgetting about a whole laundry list of previous smear campaigns they peddled and have never apologized for.
This was the Post's outlandish claim:
Selfish Sanitation Department bosses from the snow-slammed outer boroughs ordered their drivers to snarl the blizzard cleanup to protest budget cuts — a disastrous move that turned streets into a minefield for emergency-services vehicles, The Post has learned.
New York's Strongest used a variety of tactics to drag out the plowing process -- and pad overtime checks -- which included keeping plows slightly higher than the roadways and skipping over streets along their routes, the sources said.
Keep in mind that city investigators have now determined that virtually nothing in the Post's breathless "exclusive" was accurate.
In other words, it was a hoax.
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.