Media Matters has previously discussed the right-wing media's efforts to malign Supreme Court Justice Ruth Bader Ginsburg's suggestion that Egypt look to South Africa's constitution for guidance as they draft Egypt's new Constitution. Ginburg's inoffensive suggestion that Egypt look to constitutions drafted more recently than the U.S. Constitution was aggressively distorted to suggest Ginsburg represented a "perverted judicial philosophy." The description was categorically nonsense. Ginsburg's full comments show her admiration for how the U.S. Constitution has served America and persevered over time.
With a new strain of the long running attacks against liberal Supreme Court Justices created, it comes as no surprise to see the National Rifle Association signaling that they're integrating the Ginsburg smear into their 2012 campaign.
The NRA's lobby shop has been pushing the depiction of Obama's future Supreme Court nominees and Ginsburg herself as broadly hostile to the U.S. Constitution:
But it was a much bigger shock when the [New York] Times reported in the same story that Ruth Bader Ginsburg, a sitting associate justice of the U.S. Supreme Court and grande dame of the Court's liberal voting bloc, shares the Times' dim view of the Constitution. Ginsburg said "I would not look to the United States Constitution if I were drafting a constitution in the year 2012." Her personal recommendations would instead include "the South African Constitution, the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights."
None of this should come as a surprise. One wonders, for example, if Justice Ginsburg even looks to the United States Constitution when interpreting it in 2012. [...]
While it is lamentable that the Times cannot see the greatness of our Constitution, it is far more troubling that Justice Ginsburg cannot. And most troubling of all is the possibility that if elected to a second term, President Obama could appoint even more justices who share Justice Ginsburg's views.
NRA executive vice president Wayne LaPierre also made potential Obama Supreme Court appointees a central focus in his speech at this year's Conservative Political Action Conference, calling Justices Sonia Sotamayor and Elena Kagan "two of the most rabidly anti-gun justices in history." LaPierre also belittled Ginsburg, saying she looked like a "giddy school girl" when she hugged President Barack Obama at the State of the Union address, and suggested her comments on Egypt called into question her oath to "uphold and defend our Constitution."
Speaking to Paul Bedard of the Washington Examiner NRA chief lobbyist Chris Cox pledged a piece of the gun lobby's reported $225 million dollar war chest to making the Supreme Court an issue in every Senate race in 2012. It remains to be seen whether their distortion of Ginsburg's constitution comments will be a part of that effort.
As we have documented, National Review Online's Ed Whelan has strongly disagreed with a commentator who pointed out that Supreme Court Justice Samuel Alito appeared to employ an "empathy standard" when he disagreed with the eight-justice majority opinion siding with Westboro Baptist Church in a free speech case.
Whelan -- who has harshly criticized President Obama for saying that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law" -- stated that in the Westboro case, Snyder v. Phelps, the difference between the majority decision and the dissent is "a legal one, not a difference between dispassion and empathy." To make that claim, Whelan ignored the fact that in his dissent, Alito devoted more than 1,200 words to a recitation of Westboro's despicable attacks against the plaintiffs in the case, the family of slain Marine Matthew Snyder.
(Whelan subsequently conceded that it is possible that Alito acted out of empathy in the case.)
Now there's more evidence that the long recitation of the facts in Alito's dissent is not strictly about robotically searching for the correct rule of law, and it comes from a decision Alito himself joined.
Today, Alito joined a concurring opinion written by Justice Antonin Scalia (the justice for whom Whelan clerked) that attacked the dissenting judges for their lengthy recitation of the case's facts. The opinion said that the dissent's factual recitation was "puzzling" because the question at issue "is a legal one." From the concurring opinion in Connick v. Thompson:
The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. See Brady v. Maryland , 373 U. S. 83 (1963) . That question is a legal one: whether a Brady violation presents one of those rare circumstances we hypothesized in Canton 's footnote 10, in which the need for training in constitutional requirements is so obvious ex ante that the municipality's failure to provide that training amounts to deliberate indifference to constitutional violations. [emphases added]
So Alito himself believes that a "lengthy" recitation of the facts is "puzzling" when the Court is dealing with a legal question. Therefore, it stands to reason that Alito's own lengthy recitation of the facts in Snyder is about something other than just the pure legal question.
Last week, National Review Online's Ed Whelan attacked a Huffington Post piece for suggesting that Supreme Court Justice Samuel Alito employed empathy when he sided against the Westboro Baptist Church in the First Amendment case of Snyder v. Phelps, which dealt with the church's despicable protest at a military funeral. Whelan declared that Alito reached his conclusion by relying on "law, not empathy." This week, however, Whelan admitted that it's not out of the realm of possibility that Alito did indeed rely partly on empathy in the case.
On Monday, Whelan -- a former clerk for Justice Antonin Scalia and a former high-ranking Justice Department official -- wrote: "To be sure, a critic could speculate that Alito adopted the legal framework that he did [in Snyder] out of 'empathy' for the soldier's father."
Whelan's admission that it is plausible to argue that Alito relied on empathy is important. Whelan has been one of the chief critics of President Obama's statement that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law." Whelan, in fact, has argued that Obama has embraced a "lawless empathy standard."
As we have pointed out, Alito's sole dissent in Snyder certainly seems to rest at least in part on empathy. Alito cites a precedent for the proposition that "the First Amendment does not shield utterances that form 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " But his opinion devotes more than 1,200 words to a recitation of the specifics of Westboro's attack against the family of the fallen soldier. Surely, such a lengthy exposition wasn't necessary to make the legal point about how Westboro's actions were "an abusive attack on a private figure rather than speech on a matter of public concern."
National Review Online blogger Ed Whelan has frequently misinformed in order to attack President Obama for saying that he would seek a Supreme Court nominee who has the "quality of empathy" and is "dedicated to the rule of law." So, when the Huffington Post published a piece highlighting that conservative Supreme Court Justice Samuel Alito appeared to rely at least in part on empathy in writing a lone dissent in Snyder v. Phelps -- a case dealing with the extent of Westboro Baptist Church's First Amendment right to protest near the funeral of a deceased Marine -- it didn't take long for Whelan to go on the attack.
In a piece claiming that the difference between the eight-justice majority opinion and Alito's dissent is "a legal one, not a difference between dispassion and empathy," Whelan -- a former Supreme Court clerk and high ranking Justice Department official -- points out that Alito cited the Supreme Court case of Chaplinsky v. New Hampshire to say that the First Amendment does not shield utterances that "form 'no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' "
Whelan adds that "as Alito saw it, an abusive attack on a private figure rather than speech on a matter of public concern -- 'the First Amendment should not interfere with recovery.' "
Therefore, Whelan suggests, empathy played no part in Alito's coming to a different conclusion than all the other justices. But that only makes sense if you ignore much of what Alito wrote as well as Alito's own statements about how he views his role as a judge.
On August 4, WorldNetDaily published an article by executive news editor Joe Kovacs (reproduced here) asserting that newly minted Supreme Court Justice Elena Kagan, while serving as solicitor general, "has actually been playing a role for some time in the dispute over whether Obama is legally qualified to be in the White House," adding that "A simple search of the high court's own website reveals Kagan's name coming up at least nine times on dockets involving Obama eligibility issues."
One little problem: Not a shred of that is true.
As the urban legend-busters at Snopes detailed, none of the nine lawsuits Kovacs references have anything to do with "Obama eligibility issues." Even the one involving a group called "The Real Truth About Obama, Inc." is centered on an allegation that the Federal Election Commission "chilled its right to disseminate information about presidential candidate Senator Obama's position on abortion."
After the Snopes debunking, WND quickly backpedaled. Snopes added in an update: "Immediately after we published this article, WND scrubbed all reference to the original article without explanation. Three days later, WND replaced the original with an article on a completely different topic."
Indeed, the WND article is completely rewritten, focusing on the insignificant "Real Truth About Obama, Inc." case. It now begins with a correction (though it's not called that):
Today, the front page of Tucker Carlson's Daily Caller blared the headline "Justice Sharia: Critics allege Kagan is sympathetic to Islamic law" over a large picture of Supreme Court nominee Elena Kagan.
The conservative media has been circulating this claim for months now -- though to be honest, we're more accustomed to it being paired with an image of Kagan in a turban, rather than one of her standing behind a podium.
Nonetheless, it's important to again set the record straight on this tired, Islamophobic attack, especially because The Caller has chosen to revive it just as the right is whipping up an anti-Muslim frenzy regarding the community center and mosque set to be built near Ground Zero.
The Caller reports that, according to some conservative critics (more about this merry band later), one of Kagan's "primary disqualifications" is the supposed "approval of Sharia" she demonstrated as the dean of Harvard Law School. The familiar laundry list of Kagan's alleged offenses includes "condoning the acceptance of $20 million from Saudi prince Alwaleed bin Talal -- who blamed the attacks of 9/11 on American foreign policy -- to fund programs on Islam," "spearhead[ing] the 'Islamic Finance Project,' a program aimed at mainstreaming Sharia-compliant finance in America," and "award[ing] the Harvard Medal of Freedom to the chief justice of the Supreme Court of Pakistan, Iftikhar Chaudhry, who critics say is a promoter of Sharia."
None of these attacks is remotely accurate.
Members of the right-wing media are engaging in a thinly-disguised attempt to justify a delay in the vote on Elena Kagan's Supreme Court nomination -- a delay that could only be accomplished by a filibuster.
Two weeks ago, right-wing bloggers promoted Americans United for Life's call for an investigation into Elena Kagan's testimony. According to the anti-abortion rights group and the bloggers, Kagan manipulated medical science in her work with the American College of Obstetricians and Gynecologists on the bill banning so-called "partial-birth abortions." They also claimed that during her confirmation hearing, Kagan lied to the Judiciary Committee when she said that ACOG had told her that the procedure was "sometimes the best" one to use.
These charge are utterly false. Kagan did not ask ACOG to change its medical findings and ACOG did not do so. Furthermore, Kagan's testimony that the procedure was "sometimes the best" is supported by sworn testimony by an ACOG official as well as by memos Kagan wrote at the time.
That didn't stop WorldNetDaily from promoting conservative activist Larry Klayman's ridiculous charge that Kagan violated her ethical duties and possibly criminal statutes by her work on the "partial-birth abortion" issue.
It was always clear that these false charges are part of strategy to convince senators to delay the vote on Kagan. And now The Washington Times has adopted the strategy explicitly, calling for a delay in Kagan's vote. From an editorial in today's Washington Times headlined "Kagan's abortive ethics" and subheadlined "Senate needs more time to investigate Obama court nominee":
The U.S. Senate is derelict in its duty if it votes to confirm Elena Kagan to the Supreme Court without further investigating her legal ethics.
Ms. Kagan, the U.S. solicitor general, was directly responsible for altering a key medical report in a way that stacked the deck in favor of keeping the barbaric practice of partial-birth abortion legal. She then gave testimony to the Senate Judiciary Committee that appeared to veer from the actual record.
The legal ethics in question are significant. The moral questions involved in partial-birth abortion should make senators and their constituents blanch. Ms. Kagan's troubling combination of bending the rules to endanger the unborn is enough to disqualify her from the bench.
Let's hope no one is fooled into thinking that this is anything more than a transparent attempt to justify a filibuster of Kagan's nomination, a filibuster that would be at odds with claims by several Republicans that filibusters of judicial nominees are unconstitutional. The charges are too flimsy to think that anyone really believes Kagan lied to the Judiciary Committee or otherwise violated her legal duties.
A piece in National Review claimed that Elena Kagan is anti-small business because as solicitor general, she filed a Supreme Court brief arguing that the Court should throw out a case brought by a business. But Kagan's alleged anti-small business argument was first made by the Bush Justice Department, and legal experts say Kagan's solicitor general briefs are not necessarily proof of her personal views.
Promoting their "Stop Kagan" scam, which asks readers to send WorldNetDaily $24.95 in order to mail personalized letters opposing Elena Kagan to all 100 senators, WorldNetDaily repeated numerous myths and falsehoods about Kagan including Larry Klayman's ridiculous charges that Kagan violated her ethical duties and possibly criminal statutes through her work on "partial-birth abortion" bills.
Ed Whelan and two of his colleagues at National Review Online have repeatedly attacked a New York Times article that reported on a study finding that the Supreme Court under John Roberts is "the most conservative one in living memory." Their attack is unsurprising since Whelan based a major part of his testimony opposing Elena Kagan's Supreme Court nomination on the premise that the conservative Supreme Court majority is actually non-ideological. But their complaints are undermined by the words of former Chief Justice William Rehnquist who described the philosophy of a "strict constructionist" in explicitly results-oriented terms.
NRO contributor Matthew Franck complained that the study relies on "the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior." Carrie Severino put the argument and the defense of conservative justices even more strongly, writing:
Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the "left" and the "right" to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as "you do what you think is right and let the law catch up," and if you subscribe to Marshall's philosophy, this type of blunt head-counting might make sense. The problem is that "conservative" judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must "catch up" to the law by putting aside political preferences when deciding cases.
Fatal to the claim that conservative judges put aside "political preferences when deciding cases," however, are Rehnquist's words. As a Nixon administration official, Rehnquist reportedly defined a "strict constructionist" as someone who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."
And it's hard to get more clearly results-oriented than that.
Investor's Business Daily columnist Svetlana Kunin attacked Elena Kagan's family and roots in a piece headlined "Elena Kagan And 'The Urge To Alter.' " Kunin noted that Kagan, like Kunin herself had Russian roots, but that Kagan's family left Russia before the Communist revolution. She then attacked Kagan for growing up on the Upper West Side of Manhattan; not having an understanding of the true nature of socialism; having a brother who was involved in radical politics; and writing a college thesis on the socialist movement in the United States.
In the process, Kunin falsely suggested that Kagan embraced socialism in her thesis.
Supreme Court nominee Elena Kagan is only a decade younger than I. And, judging by her name, I can tell that her grandparents came from the same place I did. Kagan's father was a lawyer, as was mine. My mother was a librarian; Kagan's mother was a teacher. Both families had three children. This, however, is where the similarities end.
Kagan's grandparents most likely left their native land around the time the socialist revolution took place. They emigrated to a country where churches and synagogues existed side by side and where people were allowed to follow their individual pursuits and make profits.
My grandparents and parents lived in a socialist country where people were forced to conform to government dictates in order to survive. God-based religion was eliminated from the public sphere. Churches and synagogues were demolished or converted to other uses.
Kunin later attacks Kagan for writing a thesis on the socialist movement in the United States, having a brother who was involved "in radical causes," and asserts that Kagan "perhaps couldn't relate to Americans who prefer their own life, libert and pursuit of happiness" because she grew up "in the comforts of Manhattan's Upper Westside."
Of course, Kagan did not express personal support for socialism or radicalism in her college thesis. Rather, she explored the historical question of why socialism did not become a major political movement in the United States as it had elsewhere in the world. Specifically, Kagan discussed the rise and fall of socialism in New York City in the early 20th century, with a particular emphasis on why the movement collapsed. Kagan's thesis adviser has said that Kagan has never been a socialist, and one of her college peers described her views in college as "well within the mainstream of the ... sort of liberal, democratic, progressive tradition."
Contrary to conservatives' claims that the Supreme Court under Chief Justice John Roberts is a moderate court, The New York Times reports that, according to "an analysis of four sets of political science data," the Roberts Court has become "the most conservative one in living memory." From the July 25 Times article:
When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term.
In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.
And for all the public debate about the confirmation of Elena Kagan or the addition last year of Justice Sonia Sotomayor, there is no reason to think they will make a difference in the court's ideological balance. Indeed, the data show that only one recent replacement altered its direction, that of Justice Samuel A. Alito Jr. for Justice Sandra Day O'Connor in 2006, pulling the court to the right.
Analyses of databases coding Supreme Court decisions and justices' votes along these lines, one going back to 1953 and another to 1937, show that the Roberts court has staked out territory to the right of the two conservative courts that immediately preceded it by four distinct measures:
In its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953.
The courts led by Chief Justices Warren E. Burger, from 1969 to 1986, and William H. Rehnquist, from 1986 to 2005, issued conservative decisions at an almost indistinguishable rate -- 55 percent of the time.
That was a sharp break from the court led by Chief Justice Earl Warren, from 1953 to 1969, in what liberals consider the Supreme Court's golden age and conservatives portray as the height of inappropriate judicial meddling. That court issued conservative decisions 34 percent of the time.
Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
The Roberts court is finding laws unconstitutional and reversing precedent -- two measures of activism -- no more often than earlier courts. But the ideological direction of the court's activism has undergone a marked change toward conservative results.
Until she retired in 2006, Justice O'Connor was very often the court's swing vote, and in her later years she had drifted to the center-left. These days, Justice Kennedy has assumed that crucial role at the court's center, moving the court to the right.
From the July 22 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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After its previous suggestion that Elena Kagan must recuse herself from participating in health care reform-related litigation fizzled away, The Wall Street Journal is attempting a new line of attack -- speculating that Kagan sensed or was informed of her potential as a Supreme Court nominee and thus engaged in a "deliberate act of avoidance to hear and say nothing" about the health care litigation so that she wouldn't have to recuse herself should she become a Justice. In fact, Kagan herself stated that, after being informed that the president was considering nominating her to the Supreme Court, she "scaled down" her participation in Justice Department work outside her specific duties as solicitor general. And her decision was completely appropriate.
After recounting Kagan's statement that she was not involved in the health care reform litigation and had not given an opinion on the constitutionality of the reform legislation, the Journal argues:
We have no reason not to take Ms. Kagan at her word. Enough people work in Justice who would know if she were not telling the truth, and it would be severely damaging to her credibility on the High Court if such a claim later surfaced. We doubt Ms. Kagan would take such a risk.
Yet it is also worth noting how extraordinary it is that she would have played no role at Justice even in discussing the cases. As SG, she is the Administration's foremost authority on the Constitution. The Florida lawsuit was filed on March 23, six weeks before she was nominated on May 10. The op-ed pages and cable channels were full of debate about the Florida and Virginia lawsuits and their merits.
It must have taken a deliberate act of avoidance to hear and say nothing about this potentially landmark legal challenge on such a momentous issue. Our guess is that either someone advised her to avoid the subject, perhaps someone at the White House who knew she was a potential nominee. Or perhaps Ms. Kagan herself, with what we have learned are her finely cultivated political instincts, decided she should all but recuse herself from the case while at the Justice Department lest she later have to recuse herself while on the Court.
But there's no reason for the Journal to be speculating about why Kagan did not participate in the litigation challenging health care reform. Kagan herself stated outright that soon after she was informed in early March of the fact that President Obama was considering her nomination, Kagan stated that she "scaled down my participation in more general departmental matters (which was not extensive to begin with)."
And it would have been irresponsible for Kagan to have done otherwise, since she would have expanded the number of cases in which she would have to recuse herself and risk the possibility that the Supreme Court would tie 4-4 on important issues.
In a Wall Street Journal op-ed, Iraq War veteran Pete Hegseth pushed the myths that Elena Kagan barred the military from Harvard and that Kagan is anti-military. Hegseth even digs up the falsehood that the military's policy of discriminating against gay men and lesbians was "imposed on the military" by Congress and President Clinton when, in fact, the military had an anti-gay policy well before Congress passed the "Don't Ask, Don't Tell" law.
These are all myths we have thoroughly debunked already. Indeed, Hegseth even acknowledges that other veterans disagree with him and have defended Kagan: "Her backers say Ms. Kagan supports the military because she has praised them publicly and hosted dinners for veterans. A handful of veterans have defended her, and I concede that she has had good things to say about our troops, which I appreciate."
But one sentence of Hegseth's piece caught our attention in particular. Hegseth writes in the second sentence of his op-ed: "There are several reasons why [Kagan] does not belong on the Supreme Court." Yet he doesn't list any reason besides Kagan's actions regarding military recruiters -- which he calls "the crucial" reason to oppose Kagan.
What are these unstated "other reasons" for opposing Kagan? There's no way to know for sure, but looking at Hegseth's background provides some clues: Hegseth is a former intern and fellow with the right-wing Family Research Council; he has taken vehement anti-gay rights and anti-abortion stances; and he has towed the line on many Republican pet issues, including the Iraq invasion.