Media outlets are ramping up their pushback against a highly questionable PolitiFact Virginia analysis of the proposed elimination of no-fault divorce law supported by Ken Cuccinelli, the Republican candidate for governor of Virginia and favorite of "father's rights" groups.
Obsessed with an uncontroversial 2007 academic article she wrote on reproductive rights, National Review Online continues to smear judicial nominee Cornelia Pillard, whose approval vote before the Senate Judiciary Committee is today.
Nominated to the second-most important court in the nation, Pillard should be voted out of committee on her way to a Senate confirmation vote based on her stellar qualifications for the U.S. Court of Appeals. Because of right-wing media attacks started by National Review Online and repeated almost verbatim by GOP Senators on the committee, the vote is expected to be straight down party lines.
In anticipation of the vote, last night the editorial board of the NRO regurgitated the same smears.
Pivoting off of a sliver of her academic work while misrepresenting it, right-wing media have attacked Pillard for her mainstream support of family planning, comprehensive sex education, and overall adherence to established sex equality law.
Right-wing media have been so desperate to pretend her legal writings are "extreme" that not only have they dismissed the inconvenient fact that half of the Supreme Court agreed with her perspectives on reproductive rights and abortion, but her invocation of the relevance of "sex stereotypes" that NRO and others like Tony Perkins condemn was endorsed by arch-conservative former Chief Justice William Rehnquist.
But the attacks are not really about Pillard.
Rather, they are a reflection of how much the right-wing apparently loathes the decades-long development of sex equality under Fourteenth Amendment law. Make no mistake- most of these Pillard smears have nothing to do with fidelity to precedent. Right-wing media like NRO apparently desire nominees who don't support civil rights precedent.
Cornelia "Nina" Pillard is President Obama's pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.
She is also a "feminist."
A "feminist" insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's "radical feminism" appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.
Despite increasing evidence of a pro-corporate slant in recent Supreme Court decisions, right-wing media continue to insist that there is no such bias.
In a Bloomberg View editorial, National Review Online senior editor Ramesh Ponnuru accused Sen. Elizabeth Warren (D-MA) of "hyperbolic" grandstanding because she accurately cited a comprehensive study that showed that the current Supreme Court of the United States is one of the most pro-business in history. Ponnuru's September 16 editorial called Warren's statements the result of "flawed thinking":
Citing "a recent study"... she said: "The five conservative justices currently sitting on the Supreme Court are in the top 10 most pro-corporate justices in a half-century -- and Justices Alito and Roberts are numbers one and two -- the most anti-consumer in this entire time."
The study doesn't tell us what Warren thinks it does, or anything we should care about. It gives equal weight to every vote by a justice, even though decisions plainly vary in importance for businesses, and for everyone else. It ignores decisions that matter a great deal for businesses but don't have business litigants.
Jonathan Adler, a law professor at Case Western University, notes that the study excludes Massachusetts v. Environmental Protection Agency, one of the two or three most important Supreme Court cases for business of the past decade. The court ruled that the Clean Air Act authorizes the EPA to fight global warming. Because neither named party in the case was a business, the study excludes it.
The study that Ponnuru dismisses, "How Business Fares in the Supreme Court," analyzed nearly 2,000 Supreme Court decisions over the last 65 years. Although Ponnuru doesn't say so, the study was co-written by esteemed--and conservative--federal judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. It has been described, even by its detractors, as "the most comprehensive examination of the Supreme Court's handling of business-related cases in the post-New Deal era."
Florida Watchdog.org, an offshoot of the Koch brothers-funded Watchdog.org, parroted right-wing media claims that Congress is receiving an "exemption" from the Affordable Care Act (ACA) by receiving a "special subsidy" from the government for its health insurance. However, this zombie lie is not based in fact and is due to a Republican effort to politicize the implementation of the law.
In an interview with libertarian media outlet Reason.com, columnist George Will spoke out in defense of right-wing "judicial activism," highlighting civil rights precedent as particularly problematic.
While other right-wing media outlets - most notably National Review Online - twist themselves into knots pretending efforts to roll back decades of progressive law that emanated from the New Deal, civil rights era, and Great Society are paradoxically a form of restraint, Will has taken the opposite approach. As noted in a recent interview with Reason.com, Will has "increasingly kind words for what used to be derided by conservatives as 'judicial activism.'"
Will's admission as to what the current right-wing legal movement is supporting in its quest to overturn critical progressive precedent has been criticized as hypocritical from both the right and the left.
In the Reason.com interview, Will continued his unapologetic defense of judicial activism on behalf of right-wing goals, by arguing "someone has to say what the Constitution means." Will subsequently listed federal programs that he thought were suspect, including the interstate highway program, federal funding for state education, and affirmative action. Linking all three programs as unnecessary examples of government overreach, Will also explained that the time for state action against systematic racism was over because "routine daily insulting of African-Americans by white Americans is now completely unacceptable. That's an astonishing improvement."
In addition to repeating this right-wing media claim that the problems of structural racism are a thing of the past and the fight for civil rights is over and "won," Will recycled debunked right-wing media claims that affirmative action "is really not helping people, it's really hurting a lot of people," dismissing it as only a way to "make elite universities feel virtuous." In fact, this was not one of the many "substantial" benefits that conservative former Supreme Court Justice Sandra Day O'Connor relied on to uphold the continued constitutionality of affirmative action in Grutter v. Bollinger.
Will's refusal to honestly describe this race-conscious program to ensure equal opportunity in education, however, illustrates that whatever term right-wing media use to describe the current conservative legal assault on half a century of civil rights precedent, the end goal is the same.
National Review Online attacked "contemporary progressivism" because it is "led by radical lawyers," a dubious proposition that ignores the fact that the right-wing legal movement is currently attempting to overturn decades of Supreme Court precedent.
Without any acknowledgment of the recent wave of conservative challenges to long-standing law that underpins the successes of the New Deal and the civil rights movement, NRO condemned progressives for approaching the legal profession "as a kind of revolutionary instrument." From NRO:
Perhaps the most alarming fact about contemporary progressivism is that it is a movement led by radical lawyers. The use of the law to undermine our constitutional tradition is in effect the use of the law to undermine itself. But worse than that, it is the use of the legal profession as a kind of revolutionary instrument. That is a particular problem because the legal profession has always had a special role in the Anglo-American common law tradition as precisely an anti-revolutionary instrument--a repository of cautionary precedent and prudent mulishness. "The English or the American lawyer inquires into what has been done, the French lawyer into what one ought to wish to do," Alexis de Tocqueville wrote in 1835.
As the more nuanced essay that NRO relied on noted, organizations like the NAACP did in fact have to challenge racist precedent in order to overthrow Jim Crow, a form of "radical lawyer[ing]" that has inspired practitioners since.
What the NRO failed to acknowledge, however, is that if challenging "what has been done" is "undermin[ing] our constitutional tradition," it is contemporary conservatism that is currently taking its turn, with its relentless assault on modern constitutional law.
Spurred on by right-wing media, the conservative legal movement has steadily increased its challenges to established precedent on topics ranging from the ability of the federal government to regulate the economy, the protection of the right to vote from racial discrimination, the ability for workers to effectively advocate, access to justice for plaintiffs other than well-funded corporations, prohibitions on the corruptive influence of money on elections, the ability of the country to offer equal opportunity in education for all, and the president's centuries-old power to appoint officials during recesses, just to name a few.
And then, of course, there is abortion.
(Photo by Flickr user peacearena)
National Review Online is downplaying the seriousness of an Oklahoma law currently before the Supreme Court that forces doctors to ignore safe and accepted medical practice when prescribing the drug RU-486 for medication abortions.
In response to a New York Times blog by legal expert Linda Greenhouse highlighting Oklahoma's appeal of a state supreme court decision that held its new restrictions on the use of RU-486 blatantly violated reproductive rights precedent, the NRO accused Greenhouse of "put[ting Supreme Court Justice Anthony] Kennedy on notice of how he will be treated by the liberal media if he doesn't toe their line in this term's controversial cases." From NRO:
[The case from Oklahoma, Cline v. Oklahoma Coalition for Reproductive Justice,] gives the Court the opportunity to clarify the ambiguous "undue burden" test Casey [v. Planned Parenthood, a 1992 Supreme Court case that allowed states to impose restrictions on access to abortion as long as they did not create an "undue burden" on women] applied to regulations of abortion. Given Kennedy's affection for Casey, there is little likelihood the Court would use this opportunity to overturn that decision, but it could give some a content to the characteristically amorphous standard conceived by Kennedy, Souter, and O'Connor in their plurality opinion. And, from my perspective at least, it seems evident that only an incredibly broad reading of "undue burden" would suffice to overturn the Oklahoma law. After all, it simply adopts the determination of the FDA and still leaves ample other methods of abortion open to women.
But in discussing the Supreme Court's decision to review Cline, NRO fails to mention that in order to "adopt the determination of the FDA," doctors will have to follow guidelines that most consider to be woefully outdated.
In a column on National Review Online's (NRO) The Corner, Fox News contributor and NRO columnist John Fund and Heritage Foundation senior legal fellow Hans von Spakovsky laid out what they considered "The Latest Evidence Of Voter Fraud." The evidence they offered, however, amounted to one county in Mississippi that was recently ordered to remove ineligible voters from its registration rolls, and a report released by the conservative Voter Integrity Project showing a statistically insignificant number of alleged voter fraud cases, neither of which showed any conclusive evidence or prosecution of voter fraud.
In a September 9 column, Fund and von Spakovsky wrote, "Obama-administration officials and their liberal camp-followers who routinely claim there is no reason to worry about election integrity because vote fraud is nonexistent suffered some embarrassing setbacks last week."
The first piece of evidence they offered was a lawsuit brought by the American Civil Rights Union (ACRU) -- a far right legal advocacy group whose senior fellow and policy expert once accused the NAACP's president of "treason" for denouncing voter ID laws, and who said it was racist to oppose those same laws -- against Walthall County, Mississippi in which the county was instructed to purge its voter rolls of felons, the deceased, and duplicate registrations. Fund and von Spakovsky made no claims of actual voter fraud in regards to that case, however, writing only that:
This is the first time in the 20 years that the NVRA has been in force that a conservative group has sued to enforce Section 8, while liberal advocacy groups have filed many cases to try to stop election officials from cleaning up their registration lists, a practice which they foolishly label "voter suppression."
An inflated voter registration roll by itself is not evidence of voter fraud, which the Brennan Center for Justice defined as "when individuals cast ballots despite knowing that they are ineligible to vote, in an attempt to defraud the election system." Instead, voter roll purges have repeatedly been used as a tool to disenfranchise minorities and students -- traditionally Democratic voting blocs.
The second piece of evidence Fund and von Spakovsky presented was a report released by the Voter Integrity Project of North Carolina (VIP-NC), a group with a history of false claims regarding voter fraud. VIP-NC released a report they obtained from the North Carolina Board of Elections which shows 475 cases in which the state had a "reasonable suspicion" that voter fraud occurred. Those cases were turned over to the appropriate district attorneys and Fund, von Spakovsky, and VIP-NC acknowledged that prosecutors chose not to bring charges in those cases. However, Fund and von Spakovsky attributed the lack of convictions to political fear, writing, "As VIP also points out, the report raises the important question of why local district attorneys in North Carolina have been 'so negligent in prosecuting' these referrals."
Fund and von Spakovsky used the VIP-NC report to advocate for strict voter ID laws and portrayed North Carolina as a hotbed of voter fraud (emphasis added):
The report shows that there were 475 cases of election fraud that the Board "believed merited a referral" to prosecutors between 2008 and 2012. The fraud included double voting, impersonation and registration fraud, and illegal voting by noncitizens and felons. Not all of this fraud would have been stopped by voter ID, but there are certainly people willing to engage in fraud and we need to take a comprehensive approach to protect the security of the voting and election process.
In fact, the strict voter ID laws they advocate might have prevented only one of the 475 alleged voter fraud cases referenced -- the single allegation of voter impersonation. According to the report, the majority of the 475 cases occurred during the 2008 general election, when over four million people voted. Yet conservatives in the state have used similar claims of voter fraud to pass what former Secretary of State Hillary Clinton called a "greatest hits of voter suppression."
According to Mother Jones, North Carolina's law "prohibits same-day registration, ends pre-registration for 16- and 17-year-olds, eliminates one week of early voting, prevents counties from extending voting hours due to long lines (often caused by cuts in early voting) or other extraordinary circumstances, scratches college ID cards and other forms of identification from the very short list of acceptable state-issued photo IDs, and outlaws certain types of voter registration drives." From Mother Jones:
The bill's new provisions make it so that, with very few exceptions, a voter needs a valid in-state DMV-issued driver's license or non-driver's ID card, a US Military ID card, a veteran's ID card or a US passport. According to an April 2013 analysis (pdf) of state Board of Elections data by Democracy North Carolina, 34 percent of the state's registered black voters, the overwhelming majority of whom vote Democrat, do not have state-issued photo ID. The same study found that 55 percent of North Carolina Democrats don't have state-issued photo ID. Only 21 percent of Republicans have the same problem.
Instead of protecting elections from fraudulent voting, strict voter ID laws are instead being used to disenfranchise minorities and low-income individuals in an effort to help Republicans win elections.
Fund and von Spakovsky both have a history of spreading misinformation about voter fraud, culminating in a book they co-authored that is rife with falsehoods. NRO's continued advocacy of strict voter ID laws is not surprising given its sordid history regarding civil rights.
As Congress returns from summer recess, right-wing media are once again helping obstruct President Barack Obama's nominees to the critical U.S. Court of Appeals for the D.C. Circuit.
Picking up where it left off, National Review Online is continuing its attacks on Georgetown Law Professor Cornelia "Nina" Pillard because of her purportedly wild-eyed academic writings on sex equality law, a mainstream part of American constitutional jurisprudence for decades.
Having seemingly failed to convince anyone beyond GOP Senators like Ted Cruz - who repeated NRO's talking points during Pillard's confirmation hearing - the NRO has now resorted to accusing Pillard of "false and deceptive" misrepresentations of one of these law review articles.
Specifically, NRO claims to know the true meaning of the article's words better than the author who wrote them, confidently concluding Pillard's law review piece was not academic, but rather an "ideologue['s]" manifesto of "extremism." From NRO:
In short, contrary to her testimony, Pillard wasn't playing the disinterested academic and merely identifying "the argument that one would make to make [her equal-protection challenge] amenable" to judicial resolution. Rather, she was affirmatively advocating the argument.[emphasis original]
In short, NRO is quibbling over whose paraphrase and characterization of a 53-page academic article was more correct during the hearing.
A National Review Online editorial compared Attorney General Eric Holder to a notorious Jim Crow official for blocking a Louisiana school voucher program and accused the Obama administration of dehumanizing children of color, failing to mention the Department of Justice is acting pursuant to long-standing desegregation orders.
Continuing a right-wing media campaign against the DOJ's current attempts to ensure Louisiana remains in compliance with valid court orders still in effect to prevent the re-segregation of its public schools, the NRO followed the lead of Fox News and completely ignored the law in order to champion a Republican school voucher plan.
The NRO also accused the Obama administration of "inhumane" treatment of public school students of color, comparing the attorney general to George Wallace, the infamous Alabama governor who attempted to illegally maintain school segregation.
Finally, the editorial assumed its readership was unaware of Nixon's "Southern Strategy" and the well-known switch on race relations between the two parties because of federal civil rights law, ahistorically concluding "[w]ould that [Wallace's] fellow Democrats should have a similar change of heart and give up their half-century stand in the schoolhouse door." For a publication with an ugly and well-documented history of past and present racism, such smears are wildly audacious.
From the September 4 editorial:
It was 50 years ago this June that George Wallace, the Democratic governor of Alabama, made his infamous "stand in the schoolhouse door" to prevent two black students from enrolling at an all-white school. His slogan was "Segregation now, segregation tomorrow, segregation forever!"
These many years later, Democrats still are standing in the schoolhouse door to prevent black students from enjoying the educational benefits available to their white peers, this time in Louisiana instead of Alabama. Playing the Wallace role this time is Eric Holder, whose Justice Department is petitioning a U.S. district court to abolish a Louisiana school-choice program that helps students, most of them black, to exit failing government schools.
The Obama administration is a serial offender on this issue, and its cynicism is startling.
Setting aside the naked political cronyism that is in fact at the heart of this dispute, consider the DOJ's case on its merits: The government is arguing that the choices of actual black students and their families must be constrained in the service of preserving certain statistical measures of how black certain schools are. Put another way, this case really turns on the question: Are black children human beings?
National Review Online columnist Dennis Prager declared that he believes tolerance for LGBT Americans could lead to a fascist takeover - a threat he once considered "overwrought" but now sees as a reality.
In an August 27 column for NRO, Prager asserted that "tolerance" is only a mirage for leftist efforts to impose state tyranny on the American people. To support this claim, Prager cited high-profile anti-discrimination cases, as well as a new California law protecting the rights of transgender students:
I have never written that there is a threat of fascism in America. I always considered the idea overwrought. But now I believe there really is such a threat -- and it will come draped not in an American flag, but in the name of tolerance and health.
Last week, the New Mexico Supreme Court ruled that an event photographer's refusal on religious grounds to shoot the commitment ceremony of a same-sex couple amounted to illegal discrimination.
This is what happened to a florist in Washington State who had always sold flowers to gay customers, but refused to be the florist for a gay wedding: sued and fined.
This is what happened to a baker in Oregon who had always sold his goods to gays, but refused to provide his products to a gay wedding: sued and fined.
This is what happened in Massachusetts, Illinois, and elsewhere to Catholic Charities, historically the largest adoption agency in America. Their placing children with married (man-woman) couples, rather than with same-sex couples, was deemed intolerant and a violation of the law. In those and other states, Catholic Charities has left adoption work.
In the name of tolerance -- fighting sexual harassment -- five- and six-year-old boys all over the country are brought to the police for innocently touching a girl.
In the name of tolerance -- girls' high school teams in California and elsewhere must now accept male players who feel female.
In the name of tolerance - businesses cannot fire a man who one day shows up on the sales floor dressed as a woman.
National Review Online editor-at-large Kathryn Jean Lopez joined the right-wing media's outcry over a New Mexico Supreme Court decision affirming that businesses can't discriminate against gay customers, blasting the court's "soft tyranny" and declaring that the decision amounts to the effective death of religious freedom.
In an August 26 post for NRO, Lopez cited the successful lawsuit against Elane Photography, whose owner refused to photograph a same-sex couple's commitment ceremony, as evidence of the "tyrannical" trend in our nation's "libertine" culture:
The court ruled that it is "the price of citizenship" that, although you can believe whatever you want, you can't act as if you take certain beliefs all that seriously. It would seem the position of the New Mexico Supreme Court is that believing men and women are expressly made for the institution of marriage, for one another -- that their very biology suggests as much, naturally ordered toward the creative gifts that are children -- is somewhat akin to believing in unicorn gods who will come to set us free. That is: utterly absurd. Believe it in private if you wish; but don't ever try to operate in the world outside your active imagination or your codependent church with your crazy beliefs in mind.
But then, this is how the soft tyranny develops. Reporters trip over one another to refer to Bradley Manning as "she" because he asked them to. Loving a brother who is suffering doesn't require lying to him. Increasingly, though, lies are not only expected but mandated. That's not love. That's not freedom. That's where a dictatorship of relativism and cultural delusion lead us. And our very laws are coming to reflect this.
What are we going to do about it? You will recall that Tocqueville liked a lot of what he saw here. What he liked best is the civil society he saw flourishing. Today, that civil society is waning and threatened. When the government says that religious beliefs that conflict with its mandates on health insurance, in the realm of contraception, sterilization, and even abortion, are not fit for the public square, and when it subjects to punitive fines any employer who insists on acting on his beliefs, then it discourages service. It marginalizes a cast of characters a democratic republic needs. As much as some may believe they have found the perfect formula for happiness in the libertine realm, moral and even biological coherence does have its upsides. We would do well to leave some room for that. [emphasis added]
Conservative media outlets denounced the New Mexico Supreme Court's unanimous decision holding that a photography studio violated the state's Human Right Act by refusing to photograph a same-sex commitment ceremony, casting the ruling as "state-sponsored tyranny" and an affront to free speech and religious liberty.
On August 22, the New Mexico Supreme Court ruled unanimously that Elane Huguenin - owner of Elane Photography - had violated the state's Human Rights Act when she refused to photograph a same-sex commitment ceremony in 2006. According to the Associated Press:
Justice Richard Bosson wrote that the business owners "have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different."
"That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us a people," Bosson wrote in an opinion concurring with the court's ruling. "That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship."
Right-wing media repeatedly argue that increased turnout of voters of color demonstrates that strict voter ID requirements do not cause voter suppression, a relationship that experts note is a basic confusion of correlation with causation.
Right-wing media have repeatedly misrepresented the latest court opinion finding New York City has been unconstitutionally applying the common police tactic of stop and frisk and are now baselessly citing the murder rate in Chicago as an example of what will occur without this law enforcement practice.
Confronted by the most recent court opinion finding the version of stop and frisk implemented by the New York Police Department (NYPD) unconstitutionally discriminates on the basis of race and without reasonable suspicion, right-wing media have either ignored the constitutional flaws or have inaccurately assumed that the court held all stop and frisks unconstitutional.
In their defense of current practices a federal court found were not consistent with proper stop and frisks as described by the Supreme Court in Terry v. Ohio, right-wing media have also claimed that without police unconstitutionally stopping persons of color, New York City will descend into terror and criminality.
The Wall Street Journal editorial board has predicted that "the virtual war zone that was New York City from the 1970s through the early '90s" will return. Fox News hosts and contributors have called ending the unconstitutional practices that purportedly check the "disproportionate percentage of crimes committed by young minority men" and protect "people who are trying to get by, not get killed, not get robbed, not get raped on the streets of New York," a "disaster." The National Review Online editors warned the practice condemned by federal courts is nevertheless what is "prevent[ing] the city's backsliding into its pre-Giuliani state of criminal chaos[.]"
Compounding their dire but abstract warnings of the "mass murder" that will occur, right-wing media are now becoming more specific, pointing to Chicago as the future of a New York City without its current and unconstitutional stop and frisk tactics.
On the August 14 edition of The Five, Fox News host Eric Bolling flatly claimed that the higher murder rate in Chicago is because it doesn't "have stop and frisk," continuing a string of recent Fox News comparisons between the two cities. The New York Post repeated this rhetoric, adding its own long-standing touch of exploiting victims of gun violence to promote stop and frisk as applied by the NYPD.
But right-wing media apparently is unaware Chicago, like many jurisdictions, already has stop and frisk.