Right-wing media have spent nearly a decade making false claims about birth control -- and now those falsehoods have found their way into the mouths of Supreme Court justices.
The Supreme Court on March 25 heard consolidated arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which examine whether for-profit businesses can deny employees health insurance coverage based on the owners' personal religious beliefs, a radical revision of First Amendment and corporate law. The owners of Hobby Lobby and Conestoga argue they should not be forced by the government to provide their employees insurance which covers certain forms of contraception, because they believe those types of birth control can cause abortions.
The owners are wrong. Medical experts have confirmed they are wrong, repeatedly and strenuously, including experts at the National Institute of Health, the Mayo Clinic and the International Federation of Gynecology. The contraceptives Hobby Lobby objects to -- which include emergency contraceptives like Plan B and long-term contraceptives like Intrauterine Devices (IUDs) -- delay an egg from being fertilized, and as the former assistant commissioner for women's health at the FDA noted, "their only connection to abortion is that they can prevent the need for one."
Despite this overwhelming medical evidence, the myth that some of the contested forms of birth control are "abortifacients" has gone all the way to the Supreme Court -- and now has been repeated by some of the justices themselves. During the oral arguments in the Hobby Lobby case, Justice Antonin Scalia responded to a point made by Solicitor General Donald Verrilli, the lawyer for the government, by referring to "birth controls ... that are abortifacient."
JUSTICE SCALIA: You're talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That's not terribly expensive stuff, is it?
GENERAL VERRILLI: Well, to the contrary. And two points to make about that. First, of course the -- one of the methods of contraception they object to here is the IUD. And that is by far and away the method of contraception that is most effective, but has the highest upfront cost and creates precisely the kind of cost barrier that the preventive services provision is trying to break down.
Justice Stephen Breyer, while describing the position of the Hobby Lobby owners, also referred to "abortifacient contraceptives."
This misunderstanding matters because it could determine the outcome of the case. In order to win, a majority of justices may have to understand there is a compelling government interest in facilitating equal access to contraceptives across health insurance plans. It is an entirely different and more difficult question if the justices examine whether there is a compelling interest in the government facilitating access to abortion. Even though federal law explicitly prohibits federal funding of abortion and these birth control methods are not abortifacients, if the justices mistakenly think abortion is involved, this case becomes far more dangerous.
So whether the employees of for-profit companies like Hobby Lobby are guaranteed access to basic preventative health care could ultimately come down to whether the justices act on the reality that these forms of birth control do not cause abortions. Whether for-profit companies are considered religious persons, a drastic change to constitutional corporate law, could come down to whether the justices act on the reality that these forms of birth control do not cause abortions. Whether the rights of gay and lesbian employees are respected, and whether taxes, vaccines requirements, minimum wage, overtime laws are all upheld could come down to whether the justices act on the reality that these forms of birth control do not cause abortions.
This simple lie about birth control could set up a chain of events that drastically alter health care by rewriting First Amendment and corporate law in this country -- and it's a lie that comes straight from the media, who have been pushing it for almost a decade.
Studies came out as early as 2004 pushing back on the idea that Plan B caused abortions, but Media Matters has repeatedly noted the tendency of journalists to get their facts wrong when addressing the issue. In 2005, CNN host Carol Costello gave a platform to a pharmacist who refused to fill a prescription for birth control pills because she thought they were equivalent to "chemical abortion." In 2007, Time magazine called the morning-after pill "abortion-inducing," while an AP article pushed the false Republican claims that emergency contraception destroys "developing human fetuses." In 2010, The Washington Times repeatedly equated emergency contraception to abortion.
And there was Lila Rose, the anti-abortion activist who in 2011 released videos heavily edited to deceptively portray practices at Planned Parenthood clinics, and who has equated contraception to "abortion-inducing drugs" which she claims exploit women. Rose and her mentor, James O'Keefe, defended their manipulation and falsification of evidence as "tactics" against the "genocide" of abortion, and she was supported and promoted on The O'Reilly Factor, Hannity's America, The Glenn Beck Show, The Laura Ingraham Show, while her work was been featured by Reuters, the Los Angeles Times, The Wall Street Journal, Washington Times, and National Review.
When the Affordable Care Act was passed in 2010, and medical experts including the Institute of Medicine recommended including comprehensive coverage for contraception as part of the preventative care provisions, right-wing media freaked out, calling it "immoral" and "a way to eradicate the poor." Fox News ignored the overwhelming support for the resulting contraception policy, instead pretending that Catholic hospitals and employers were being victimized -- even as exemptions and accommodations were included for churches and religious nonprofits. By 2012, Fox News' Michelle Malkin was referring to the contraception regulations as an "abortion mandate." Now, right-wing media figures have used the Hobby Lobby case and others to bring back this lie, from Fox News to the Wall Street Journal, while Rush Limbaugh and Laura Ingraham have become particularly fond of discussing these "abortifacients."
As Media Matters has previously explained, right-wing talking points demonizing birth control made their way into the amicus briefs presented to the court before the case was even argued, and Justice Scalia in particular has been known to repeat verbatim right-wing myths, such as the dubious idea that if the Supreme Court upheld the ACA the federal government could ultimately require consumers to purchase broccoli.
But the presence of the "abortifacient" lie during oral arguments takes this worrying tendency to a new level, raising the prospect that right-wing media's lies could potentially determine the outcome of a crucial case for religious and corporate law, hugely damaging reproductive rights in the process. If women lose the guarantee for their basic preventative health care, and corporations are granted even more flexibility as "persons" with religious rights, right-wing media will be partly to blame.
Before the Supreme Court even heard oral arguments in the next big challenge to reproductive rights, National Review editor Rich Lowry was already misinforming about the facts of the case.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could grant the owners of for-profit, secular corporations the ability to deny their employees preventive services in employer-sponsored health insurance, contrary to federal law. The owners of Hobby Lobby, the Green family, incorrectly believe that some forms of contraception are "abortifacients" (even though they aren't). So, the Greens argue, because their religious beliefs prohibit any support of abortion, they cannot comply with the Affordable Care Act (ACA) provision that requires American health insurance to cover preventive services, like birth control, at no cost.
Right-wing media has been all too happy to advance Hobby Lobby's arguments and ignore the scientific consensus disproving the corporate owners, framing the issue as evidence of President Obama's supposed hostility to religious freedom. National Review's Lowry, who is no stranger to misinforming about the contraceptive cases in front of the Supreme Court this term, was quick to join the pro-Hobby Lobby chorus.
In a recent post, Lowry portrayed the Greens as "law-abiding people running an arts-and-craft-chain," "minding their own business," until "Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally."
New research confirms that providing women access to free birth control does not result in women having sex with more partners -- a false claim that has been repeatedly pushed and promoted by conservative media, and which contributes to their efforts to stigmatize women's sexuality.
Providing women with no-cost contraception did not result in "riskier" sexual behavior (defined by the researchers as "sex with multiple partners") but did reduce unintended pregnancies and abortions, according to a comprehensive study from the Washington University School of Medicine.
As Amanda Duberman noted at the Huffington Post, having new empirical data to push back on the moralizing arguments against birth control is helpful, but raises the question: "why do we care?" The fact that researchers felt the need to study this particular claim about birth control at all reveals an "implicit stigmatization" of women's sexuality (emphasis added):
It is a small, pervasive set of voices that leads researchers to consider "multiple sexual partners" over the course of an entire year "risky sexual behavior."
The past decade of research has confirmed what women's health advocates already knew: the benefits of reducing barriers to birth control access far outweigh any subjectively determined adverse effects.
What's unfortunate is that making a case for something many women need relies on the implicit stigmatization of their sexuality. That researchers and health advocates need to presume harsh judgement of sexually active women to convince skeptics of birth control's utility just reminds us how far we have to go.
Duberman is right; it should not matter whether women have more or less sex when taking birth control pills. But it's not just a small set of conservative political voices pushing this offensive criticism of women's sexuality and inspiring scientific research. Conservative media have played a role in forcing this conversation, repeatedly slut-shaming women who use birth control and insisting that anyone who supports government funding for free contraceptives is equivalent to a prostitute.
National Review has established itself as a staunch proponent of allowing business owners refuse service to gay and lesbian customers. It's a position that unfortunately aligns with National Review's record of attacking defending discrimination against marginalized groups, including its shameful opposition to the Civil Rights Movement in the 1950's.
For months, National Review's staff has worked to invent bogus justifications for anti-gay business discrimination, condemning non-discrimination efforts as a form of government overreach. Long before states like Kansas and Arizona sought to pass laws allowing business to refuse service to gay and lesbian customers, National Review was championing business owners who had been sued for engaging in anti-gay discrimination.
In August, after the New Mexico Supreme Court ruled unanimously that photographer Elaine Huguenin violated the state's Human Rights Act by refusing to photograph a same-sex couple's commitment ceremony, National Review joined other right-wing media outlets in their howls of outrage. At National Review Online, NRO contributor and Heritage Foundation fellow Ryan T. Anderson blasted the ruling as a sign that social conservatives had been "driven to the margins of culture," with "religious believers" and "the truth about marriage" under judicial assault.
NRO also took up the mantle of Colorado baker Jack Phillips, who refused to bake a cake for a same-sex couple. In a one-sided interview published under the headline "Let Him Bake Cake in Freedom," NRO editor-at-large Kathryn Jean Lopez framed Phillips, whom a state judge ruled had violated Colorado's anti-discrimination law, as a victim of anti-Christian persecution. Lopez wondered what the "future of freedom" looked like in a world where businesses couldn't turn away LGBT customers.
Given its support for anti-gay businesses, it was unsurprising that National Review cheered the introduction of several state license-to-discriminate bills this winter.
After USA Today columnist and Fox News contributor Kirsten Powers penned a column denouncing Kansas' bill as an example of "homosexual Jim Crow laws," Anderson took to NRO to defend anti-gay business practices as protected under "freedom of association and freedom of contract." Anderson saw "religious liberty and the rights of conscience," not the rights and dignity of LGBT customers, at stake.
As national attention turned toward Arizona following the demise of the Kansas bill, support for anti-gay segregation measures became National Review's official editorial position. Following the Arizona legislature's passage of S.B. 1062 - which would have protected businesses from being sued for anti-gay discrimination - the National Review's editors published a February 24 editorial urging Republican Gov. Jan Brewer to sign the measure. The "necessary" bill, the editors wrote, simply affirmed the ethos of "live-and-let live."
If the annual Conservative Political Action Conference is any indication, conservative media won't be abandoning their scandal-mongering about the 2012 attacks in Benghazi any time soon. Though conservatives' conspiracies about the assault on U.S. diplomatic facilities have fallen apart under scrutiny, many CPAC attendees are upset with mainstream outlets for not being aggressive enough on the story.
"I would say the media isn't pursuing information about Benghazi enough, including FOIAs, trying to interview people who ... the government doesn't want interviewed and has discouraged from being interviewed and not in general doing due diligence," said John Fund, a conservative columnist at National Review. "I would compare the lack of follow through unfavorably to scandals such as Abu Ghraib and even Guantanamo."
Larry O'Connor, editor of Breitbart.com, offered a similar view when asked if Benghazi is being covered enough. "I see stories from Sharyl Attkisson at CBS News and Bret Baier's Special Report that I don't see other outlets covering."
Mainstream outlets have devoted significant coverage to the Benghazi story, if not always in the manner that those pushing the scandal would prefer. In December, The New York Times published an exhaustive six-part series on Benghazi which debunked several myths propagated by the conservative media. The fact-finding out of Congress also hasn't backed the scandal narrative; in January, the U.S. Senate Select Committee on Intelligence released a bipartisan report stating that there was no attempt by the Obama administration to cover up the attacks and pointing out that no "stand down" order was given to the military.
Those facts aren't stopping the conservative media.
"We have still not gotten a great answer as to why the military did not respond when one of our embassies is attacked," said John Solomon, editor of The Washington Times. Regardless of what Solomon considers a "great answer," the various aspects of the military response the night of the attacks have been widely detailed.
TownHall.com editor and Fox News contributor Katie Pavlich largely blamed the administration for reporters' difficulties covering the story, saying, "It is difficult for reporters to cover an issue when the government is not giving answers."
Support for more Benghazi investigations did not only come from media figures at CPAC. With former Secretary of State Hillary Clinton receiving massive attention over her potential run for the White House in 2016, conservatives clearly see Benghazi as a way to damage her possible candidacy.
During a speech, Sen. Mitch McConnell claimed media were "trying to fix Benghazi for Hillary" by not repeating the right-wing myths about the attacks.
There was also a Breitbart News-sponsored panel just a block away from the CPAC venue where participants claimed a cover-up exists, but offered few specifics.
Writers at National Review have whipped themselves into such an anti-gay fervor recently that they're oblivious to the plainly contradictory points they're trying to make as news of prominent gay athletes and discriminatory anti-gay laws continue to generate headlines this month.
The confused commentary resembles something of a last-ditch effort to salvage a small victory in the right wing's losing culture war over gay rights and marriage equality. Just ten years ago the Republican Party successfully used same-sex marriage as a wedge issue against Democrats in the 2004 campaign. Now, conservatives remain in retreat as public sentiment continues to shift (For the first time, a majority of Ohioans support marriage equality.)
"On this particular issue, the cultural wheel has spun so quickly," noted ESPN's Tony Kornheiser, while discussing the breaking news last week that Jason Collins was signing a contract with the Brooklyn Nets to become the first openly gay player in the NBA.
It was Collins' historic coming out story that helped set off a nasty National Review Online screed by contributing editor Quin Hilyer, who condemned "homosexual chic" and "gay mania" in his February 24 essay. Hilyer complained bitterly about how the "professional Left" is "going bonkers" hyping "active homosexuality (or any one of several exotic variants thereof) as an absolute virtue."
"Enough already with the in-our-faceness from the homosexual activists and their aggressively enthusiastic cheerleaders," Hillyer complained. He was especially angry by the recent press attention University of Missouri star football play Michael Sam received as he stands poised to become the first openly gay NFL player. Hillyer was also upset about "attention-grabbing" Johnny Weir who made headlines and won praise for his astute commentary of Olympic ice-skating for NBC this year.
"The problem isn't homosexuality," Hillyer insisted. "But public sexuality. There was a time, a better time, when the sex lives of strangers were nobody's business," he wrote. "Most Americans assuredly don't much care what other people do."
The message to public gays like Sam and Weir: Tone it down!
But here's the contradiction: While claiming nobody really cares what gays do, Hillyer in the same column, and National Review editors the following day in an unsigned editorial, simultaneously applauded right-wing efforts to pass state-wide laws that discriminate against gays.
The editorial board of the National Review ripped into "organized homosexuality" for opposing a measure passed by the Arizona legislature that would allow businesses and individuals to deny services to gay couples on religious grounds, defending the bill as part of the "live-and-let-live" credo.
In an editorial published online on February 24, the conservative publication's editors defended the bill as "necessary," criticizing the "oppression envy" shown by LGBT activists who have opposed the law and rejecting comparisons of the legislation to Jim Crow laws (emphasis added):
It is perhaps unfortunate that it has come to this, but organized homosexuality, a phenomenon that is more about progressive pieties than gay rights per se, remains on the permanent offensive in the culture wars. Live-and-let-live is a creed that the gay lobby specifically rejects: The owner of the Masterpiece Cakeshop in Colorado was threatened with a year in jail for declining to bake a cake for a same-sex wedding. New Mexico photographer Elaine Huguenin was similarly threatened for declining to photograph a same-sex wedding. It is worth noting that neither the baker nor the photographer categorically refuses services to homosexuals; birthday cakes and portrait photography were both on the menu. The business owners specifically objected to participating in a civic/religious ceremony that violated their own consciences.
Gay Americans, like many members of minority groups, are poorly served by their self-styled leadership. Like feminists and union bosses, the leaders of the nation's gay organizations suffer from oppression envy, likening their situation to that of black Americans -- as though having to find a gay-friendly wedding planner (pro tip: try swinging a dead cat) were the moral equivalent of having spent centuries in slavery and systematic oppression under Jim Crow. Their goal is not toleration or even equal rights but official victim-group status under law and in civil society, allowing them to use the courts and other means of official coercion to impose their own values upon those who hold different values.
Which is to say, what is regrettable here is not Arizona's law but the machinations that have made it necessary. It seems unlikely that those religious bakers and photographers were chosen at random, or that their antagonists will stop until such diversity of opinion as exists about the subject of gay marriage has been put under legal discipline.
The editors' assertion that the measure only targets services related to same-sex marriage has been debunked by experts. As constitutional law professor Kenji Yoshino of New York University has noted, the measure is written broadly enough that any individual or business owner would be allowed to refuse service to any gay person on the grounds that doing business with a gay person imposed a substantial burden on his or her religious beliefs.
While Fox News contributor and former Sen. Scott Brown ended his financial relationship with the conservative website Newsmax after the company sent his email list controversial solicitations, National Review and the Christian Broadcasting Network (CBN) tell Media Matters they will continue to let Newsmax send dubious ads to their own email lists.
Newsmax previously used both outlets' email lists to send advertisements plugging the same questionable doctor that caused Brown to sever relations with the company this week.
Brown cut ties with Newsmax on February 5, hours after the media began reporting on a missive the company had sent his political email list trumpeting the Alzheimer's disease cures of Dr. Russell Blaylock. In the email, Blaylock linked fluoridated water and flu vaccines to Alzheimer's and excessive exercise to Parkinson's disease.
In recent years, several prominent conservative outlets and personalities have sent Newsmax-sponsored emails to their followers pushing Blaylock's questionable medicine. In addition to Brown, National Review, and CBN, similar email ads have been sent through Newsmax from Dick Morris, Mike Huckabee, and Herman Cain. Newsmax frequently advertises for dubious health and financial products.
When asked about the questionable claims made in Blaylock's ads and the decision of Sen. Brown to terminate his relationship, National Review Publisher Jack Fowler told Media Matters he had no plans to end his magazine's Newsmax agreements.
"We have a relationship with Newsmax and that's all I'm going to say," Fowler said in an interview Thursday. "I can't speak for what Scott Brown does or doesn't do. I don't know who he has had a relationship with or whatever, but we have a relationship with Newsmax and that's it."
Asked if he had concerns given the questionable elements of Blaylock's claims, Fowler said, "Have a good day."
Chris Roslan, a spokesman for Christian Broadcasting Network, also defended the Newsmax/Blaylock email ads, describing Blaylock as a "qualified medical professional" and stating that "it is not uncommon for medical professionals to have differing points of view on medical conditions and their treatments." But he also pointed out that CBN includes a disclaimer in each email that states CBN does not endorse the products.
CBN attempts to vet all potential advertisers based on multiple criteria including pending legal complaints or conflicts, general business practices and also to make certain that there is no offensive material. CBN also evaluates potential advertisers and products based on their compatibility with the online environment we strive to create and the shared common faith values with our website users.
Regarding Dr. Blaylock, he is a retired neurosurgeon and an author with a very large following. As an M.D. he is certainly qualified to weigh in on the tragic disease of Alzheimer's.
As it is not uncommon for medical professionals to have differing points of view on medical conditions and their treatments - case in point: the use of vitamin supplements - CBN does not, and will not, attempt to validate medical opinions from qualified medical professionals in determining whether an advertisement is appropriate.
CBN includes a disclaimer in every sponsored email stating that the content is a paid advertisement and that it is not an endorsement by CBN. We feel our viewers can determine for themselves whether the content is valuable or not. We have not received a single complaint about this advertisement.
Dick Morris and Mike Huckabee did not respond to inquiries from Media Matters, while a spokesman for Herman Cain declined comment via email.
The right-wing bubble seems impervious to both experts and fact-checkers when it comes to economic truth and the Affordable Care Act.
This week the Congressional Budget Office (CBO) released its updated economic forecast for the years 2014 to 2024. Right-wing media quickly pounced on its projection that the supply of labor would voluntarily decline by about 2 million workers over the next three years due to the ACA, twisting the findings to accuse the ACA of destroying 2 million jobs. Such misinformation from the conservative bubble was predictable, as the Economic Policy Institute (EPI) put it on February 4:
Opponents of the ACA will try to paint these CBO estimates as evidence that the ACA has "killed jobs" or something like it. That's flat wrong. What the ACA has done is expand the menu of options available to Americans about how to obtain decent health insurance without having their income fall to poverty levels. That menu used to include one option--"go to work for a large employer."
Indeed, subsequent fact-checkers and experts discredited the right-wing media's spin -- As The Washington Post's FactChecker plainly said, "No, CBO did not say Obamacare will kill 2 million jobs," echoing Chairman of the Council of Economic Advisors Jason Furman who explained that "CBO's analysis itself is about the choices that workers are making in the face of new options afforded to them by the Affordable Care Act, not something about firms destroying jobs."
But it appears it will take more than facts and experts to penetrate the right-wing echo chamber.
Fox News doubled down on its misinformation on the February 6 edition of Fox & Friends, with an on-air graphic that framed the increased worker flexibility as "Obamacare to cut 2M jobs":
The Wall Street Journal editorial board claimed to "pars[e] this supply-of-labor reasoning" in a February 5 editorial by refusing to acknowledge the distinction between labor supply and job availability:
For years liberals have lamented the jobs crisis and underemployment to castigate Republicans as mean-spirited for opposing more "stimulus" and more weeks of unemployment benefits. But if pervasive joblessness is an economic and social scourge, why celebrate a program that is creating more of it?
Liberals are also trying to spin the CBO report as an endorsement of ObamaCare's alleged health security. Mr. Furman cited the phenomenon known as "job lock," in which people don't switch employers or start their own business to preserve fringe benefits. But job lock is really about employment flexibility, rather than the government extending subsidies so people don't need or want jobs.
A National Review editorial on February 6 characterized the fact-checks as "hilarious," claiming that the ACA was "taking a blowtorch to the work force" and creating a "crater" of lost economic value while mocking the administration:
But the administration still does not seem to be able to get its collective head around the fact that American workers are not just hungry mouths that have to be filled with paychecks: They are people who provide economically valuable goods and services. Those 2.5 million out of the work force may be happier at their leisure, but the economy as a whole will be substantially worse off without their contributions. We could, in theory, simply have the federal government deliver checks to every household and allow each and every one to follow his bliss as he sees fit, but the shelves of the grocery stores soon would be empty. The depth of the Obamacare crater in the labor force isn't some abstract unemployment rate, but the lost value of the work those Americans would have done.
Plugging their ears on the CBO's determination also blinded right-wing media to the CBO's suggestion that the projected changes in the labor supply would increase opportunity for unemployed workers:
If changes in incentives lead some workers to reduce the amount of hours they want to work or to leave the labor force altogether, many unemployed workers will be available to take those jobs--so the effect on overall employment of reductions in labor supply will be greatly dampened.
Following an announcement that House Republican leaders will unveil a set of "principles" for guiding debate on immigration reform, conservative media urged Republicans to reject these and any attempts to pass immigration reform legislation this year. This is the latest in a series of conservative media attacks against the immigration reform effort that began in 2013.
If you are a woman, you no longer have the same rights you had 41 years ago.
January 22 is the anniversary of the 1973 Supreme Court decision in Roe v. Wade, in which the court ruled that women have a constitutional right to choose to have an abortion.
But in the intervening decades, that right has largely disappeared, a process helped by media outlets that have misinformed on these safe and legal health procedures.
Thanks to Supreme Court rulings that came after Roe, states are now free to regulate and restrict abortion so long as new laws do not impose an "undue burden" on a woman's right to choose. But state legislatures are currently testing what qualifies as an undue burden, and in 2013 alone 70 different anti-choice restrictions were adopted in 22 states across the U.S. In fact, according to the Guttmacher Institute, more abortion restrictions have been enacted in the past three years than in the entire previous decade.
In December, Ian Millhiser and Tara Culp-Ressler published a thoughtful piece about this process at ThinkProgress headlined, "The Greatest Trick The Supreme Court Ever Pulled Was Convincing The World Roe v. Wade Still Exists." They argued that while a woman's right to choose an abortion is still ostensibly covered by the constitution, the reality is that right is increasingly restricted to just wealthy women who happen to live in (or are able to travel to) one of the few states that will still permit them the opportunity to exercise that right.
This sustained attack on women's rights is fast becoming a key issue for politicians in the 2014 midterms. But the media have also played a sizeable role in this process, contributing to the vanishing power of Roe by allowing anti-choicers to control the conversation.
Bloomberg columnist and National Review editor Ramesh Ponnuru picked up the repeatedly debunked right-wing media myth that President Barack Obama is "court-packing" because Senate Democrats are trying to hold up-or-down votes on nominees to the D.C. Circuit Court of Appeals.
In addition to the fact that filling vacant seats is not actually "pack[ing] the court," the term used to describe FDR's failed attempt to add more seats to the Supreme Court, Ponnuru includes a variety of discredited falsehoods in his column as reasons why Republicans should continue to block Obama's judicial nominees, regardless of their stellar qualifications and bipartisan endorsements.
From his November 12 Bloomberg column:
Senate Majority Leader Harry Reid says he intends to force a vote this week on the nomination of Cornelia Pillard to the court. Pillard's is one of three nominations Republicans are opposing. They say the Democrats are trying to pack the court. The Democrats say they're just trying to fill vacancies, and argue that the Republicans' behavior is so abusive they'll restrict the filibuster if it continues.
Republicans should remember what happened the last time we had such a fight, and they shouldn't give in.
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points.
As it happens, the Republicans have the better of the current argument. They aren't conducting a "blockade" that violates past norms. President Barack Obama's nominees are getting confirmed at a faster pace than Bush's were at the same point in his presidency. One of Obama's nominees, Sri Srinivasan, was unanimously confirmed in May.
And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court's chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that "there wouldn't be enough work to go around" if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.
I'll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit's caseload is. What they care about is the court's ideological balance.
Ponnuru goes on to assert that the D.C. Circuit "is actually balanced between Democratic and Republican appointees." This is not the first time right-wing media have trotted out faulty math to to try and argue that the D.C. Circuit is somehow ideologically balanced -- but it just isn't true. In fact, there are six judges on the court who have taken "senior status," a form of quasi-retirement that allows those judges to hear panel cases. Of the six judges who have taken senior status, five are Republican appointees. Far from being "balanced" ideologically, conservative justices outnumber their more liberal counterparts 9 to 5.
There's a growing movement of journalists and pundits who are rooting for the Republican-led impasse over government funding to result in a shutdown of government services. "I'm rooting for a shutdown and you should be too," writes Joshua Green in the Boston Globe. "Shut down the government!" cheers Todd Purdum in Politico. It's not that these writers are actually keen on causing economic disruption: they see it as the only recourse available to correcting the Republican political nihilism that keeps bringing us to the brink of crisis.
It's hard to begrudge them for what seems so cavalier a position -- we may have reached the point of political toxicity that drastic measures of this sort are the only remaining curatives. What is bothersome is the habit of conservative pundits who enable this political dynamic by recognizing the role people like Sen. Ted Cruz (R-TX) are playing in it, but brushing that aside and praising Cruz for exploiting it to achieve mundane, short-term political goals.
After Cruz's 21-hour non-filibuster in support of defunding Obamacare, there was widespread agreement on the left and (much of) the right that Cruz had done little beyond raising his own profile and raising the likelihood that the government would have to shut down.
Writing in Politico, National Review's Rich Lowry marveled at Cruz's speech: "After talking the talk, Ted Cruz wins." Lowry knows that Cruz's policy goals are unattainable ("farfetched to the point of absurdity") and that his politics are causing chaos in Congress at a time when it really needs to get work done, but he views that as secondary to Cruz's accomplishment of riling up conservative base voters:
The Cruz eye-rollers had plenty of occasions to roll their eyes -- perhaps no senator has caused so many colleagues to mutter under their breaths in his first eight months in the world's greatest deliberative body -- but the conservative grass roots stood up and cheered. They are desperate for gumption and imagination and, above all, fight, and Cruz delivered all three during his long, bleary-eyed hours holding forth on C-SPAN2.
We're on the precipice of shutdown because the Republicans can't get their act together, and Cruz's tactics are causing further disarray, and Cruz gets a cookie for making a small slice of the American electorate feel good about themselves?
National Review editor Rich Lowry declared that the civil rights dream of the 1960s has been "won," and thus assertions of ongoing discrimination are "imagined slights and manufactured controversies," a claim that dismisses the current reality of economic inequality and voting rights struggles.
August 28 marked the 50th anniversary of Dr. Martin Luther King, Jr.'s March on Washington, an event dedicated to calling for civil and economic rights for African-Americans. It was there in 1963 that Dr. King delivered his famous "I Have A Dream" speech, and the events helped bring about enactment of the 1964 Civil Rights Act and 1965 Voting Rights Act. For the anniversary celebration, tens of thousands gathered at the Lincoln Memorial to hear President Obama and Rep. John Lewis (D-GA) - a speaker at the 1963 march - give remarks.
In a Politico op-ed the next day, National Review editor Rich Lowry used the anniversary celebration as a vehicle to criticize today's civil rights movement as "an intellectually exhausted disgrace" with leaders who are a "degeneration" to the original effort. This is because, according to Lowry, Dr. King's dream "was a glorious triumph" and the fight for equal rights "is won," while today's movement "subsists largely on imagined slights and manufactured controversies unrelated to the welfare of real people."
As evidence of these "manufactured controversies," Lowry mocked the notion that recent voter ID laws are discriminatory and declared: "What the contemporary civil rights establishment can't bring itself to acknowledge is that cultural breakdown has more to do with the struggles of blacks than any officially sanctioned discrimination." He also ignored the continuing problem of economic inequality between whites and African-Americans.
Lowry's dismissal of the discriminatory nature of voter ID laws is illustrative of falsehoods he's pushed in the past. At least 11 percent of American citizens do not possess a government issued photo ID, and the percentage of African-Americans without a photo ID is even higher - one study estimated the number at 25 percent. Even if a state purports to issue an ID for "free," there are costs associated with obtaining one that amount to a poll tax. As the Brennan Center for Justice determined, voter ID laws "create more burdens for minority citizens."
National Review has published numerous articles this week marking the 50th anniversary of the March on Washington and Martin Luther King Jr.'s seminal "I have a dream" speech. Given its ugly history, the long-running conservative magazine is ill-suited for such transparent attempts to re-appropriate the civil rights movement. National Review opposed major civil rights legislation and published appallingly racist commentary during the height of the civil rights movement.
In an editorial published this morning, the editors of National Review invoke the March on Washington in order to attack the "decrepitude of today's civil-rights movement" and label the original civil rights movement "in a crucial sense conservative" because "it did not seek to invent rights, but to secure ones that the government already respected in principle."
In a nod to the magazine's own shameful history, the editors concede that "too many conservatives and libertarians, including the editors of this magazine" missed what it sees as the centrally conservative and theological arguments underpinning the movement:
Too many conservatives and libertarians, including the editors of this magazine, missed all of this at the time. They worried about the effects of the civil-rights movement on federalism and limited government. Those principles weren't wrong, exactly; they were tragically misapplied, given the moral and historical context. It is a mark of the success of King's movement that almost all Americans can now see its necessity.
It's commendable that the editors are acknowledging the magazine's role in opposing important facets of the civil rights movement. Nonetheless, claiming that National Review "worried about the effects of the civil-rights movement on federalism and limited government" glosses over the odious nature of some of the magazine's writing from the 50s and 60s, when that publication stood athwart history yelling stop as King and his allies fought to end a brutal regime of racial segregation and voter disenfranchisement.