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  • Right-wing media's message to survivors: It's better if you keep quiet

    Blog ››› ››› MADELINE PELTZ


    Melissa Joskow / Media Matters

    Ever since the first of three women reported sexual misconduct by Supreme Court nominee Brett Kavanaugh, right-wing media’s message to victims of sexual violence has rung painfully clear -- if you come forward and tell your story, you’re putting yourself at risk and the establishment will circle the wagons to protect your abuser.

    Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick have faced unending smear campaigns while also being summarily dismissed by those seeking to ram Kavanaugh onto the court. Conservative media have systematically overlooked the fact that Kavanaugh lied and perjured himself during Senate Judiciary Committee hearings, instead propagating outlandish conspiracy theories about his accusers and questioning whether they have political motivations. Their smear campaign coalesces around one simple message of intimidation: If you tell your truth about sexual violence, it won’t disqualify your assailant from moving up in his career; instead, you’ll ruin the reputation of a good man, and a right-wing attack mob will set its sight on ruining yours as well.

    Conservative media message: Sexual assault allegations do not disqualify Brett Kavanaugh from a promotion

    Right-wing media’s radical and insulting insistence that a history of sexual assault doesn’t disqualify a man from sitting on the Supreme Court is perhaps the most honest confession in their coverage of allegations made against Brett Kavanaugh. They are telling survivors that coming forward is, as Sen. Dean Heller (R-NV) put it, but a “hiccup” on the way to their assailant getting a promotion.

    Perhaps the most shameless example of conservatives telling on themselves is an article published in The Federalist titled, “Why Brett Kavanaugh Should Be Confirmed To The Supreme Court Even If He’s Guilty.” An anonymous author argues “the actual impact” of Kavanaugh’s alleged history of sexual violence would likely be irrelevant to his “behavior as a Supreme Court justice.” The article goes on to say that “the stakes” of confirming Kavanaugh “are even higher” now than they were before, noting that if he fails to get on the court, “every Supreme Court nomination henceforth will be derailed by mere allegation.”

    For its part, Fox News has also made clear that Ford’s report should not get in the way of Kavanaugh’s promotion. This is not a surprise, considering that the network functions as a mouthpiece for the White House communications team led by disgraced former Fox executive Bill Shine, who was forced out due to his role in the culture of sexual harassment that prevailed under Roger Ailes. Here are some of the most offensive takes from the network’s Kavanaugh coverage:

    • Fox & Friends co-host Ainsley Earhardt insisted that “there has to be a vote” on Kavanaugh despite reports of sexual assault.
    • Fox contributor and former Bush administration flack Ari Fleischer asked if the “bigger ethical issue” of stopping alleged sexual predators from getting a lifetime judicial appointment is that it sets a precedent that they should be held “accountable” for “a disputable high school action.”
    • Fox contributor Mollie Hemingway questioned “whether it’s even appropriate that you can bring forth an allegation” from “35 years after the fact.”
    • On The Ingraham Angle, guest Wendy Long admitted, “I don’t think [Dr. Ford] deserves to be heard” and “we just can’t just cave into it.”

    Conservative media message: Sexual violence allegations against Brett Kavanaugh have made an innocent man into the victim of a smear

    In the effort to rehabilitate Brett Kavanaugh’s image, right-wing media have characterized the reports as nothing more than smears of a good and innocent man. Some have bizarrely admitted they believe Christine Ford but they don’t believe what she says Kavanaugh did to her. They’ve also deflected from the women’s stories by mentioning that Kavanaugh goes to church and volunteers and coaches his daughters’ basketball team:

    • Stuart Varney of Fox Business said reporting sexual assault “is how you slime a good man.”
    • Regular Fox News guest and American Conservative Union Chairman Matt Schlapp labeled Kavanaugh “the victim here.”
    • Fox contributor Tammy Bruce characterized Ford’s story as “an attempted political assassination of a character” and somehow managed to make the argument that coming forward with sexual assault reports actually negatively impacts the gains feminists have made in recent decades.
    • On Twitter, Fox’s Gina Loudon echoed Bruce’s sentiment that survivors coming forward sets back women because men will hesitate to hire women to avoid facing sexual violence allegations.
    • Laura Ingraham, who has had some of the most disgusting takes on Kavanaugh among her right-wing peers, said Ford’s report has “the whiff of a political smear masquerading as a sexual assault allegation.”
    • Judicial Crisis Network’s Carrie Severino, whom NPR identifies as chief counsel of the organization that is “responsible for the Federalist Society’s public support” of Kavanaugh, lamented,  “We’re smearing a poor man’s reputation.”
    • Fox’s Jason Chaffetz implied Ford’s story was not important because “there’s not a pattern” like there was with Harvey Weinstein and Bill Cosby, called it “unfair,” and said Kavanaugh is a “good, decent person.”
    • On MSNBC, The New York Times’ Bari Weiss said, “Other than this instance, Brett Kavanaugh has a reputation as being a prince of a man.” (Chaffetz and Weiss made their comments before both Deborah Ramirez and Julie Swetnick came forward -- not that a “pattern” of personal violence should be required to disqualify a person from serving on the Supreme Court.)
    • On Fox & Friends, former House Speaker Newt Gingrich raised the stakes, saying Kavanaugh is “fighting for more than” his reputation; “he’s fighting for the United States.”

    According to some right-wing pundits, even listening to victims is a wholesale attack on men. During her daily radio show, Laura Ingraham said she wanted to “focus on men for a moment” because “this could happen to any of you.” Not to be outdone by his peers, Tucker Carlson used the stories of sexual assault survivors to continues his ongoing white nationalist campaign, categorizing allegations against Kavanaugh as an attack on all white people and men and arguing that Democrats’ willingness to listen to Ford demonstrates a sexism that’s similar to racism. He also called Kavanaugh a “folk hero” to the “unfairly maligned.”

    When conservative media figures portray a sexual assault report as a politically motivated smear of a decent family man, they are telling victims the damage wrought by the violence they experienced is unimportant and that speaking about it is wrong.

    Right-wing media message: If you come forward, our machine will ruin your life

    The conservative victim-blaming campaign discourages survivors from speaking up through the direct threat of a never-ending character assassination and harassment campaign. The results of this tactic have been illustrated by the fact that Ford has had to go into hiding, separately from her children, for her family’s safety. Here are some examples of right-wing media attacking Ford’s character:

    • Frequent Fox guest Joe diGenova called Ford a “loon” because “one of the signs of lunacy” is “believing something that isn’t real.”
    • Later diGenova doubled down, saying Ford is “a deeply troubled person” with “a history of psychological discord,” and called her “a very sad woman.”
    • Laura Ingraham mocked protesters who disclosed their sexual assaults to Sen. Jeff Flake (R-AZ) on a Senate elevator, and her guest suggested Flake staged the scene to cover for a vote against Kavanaugh.
    • On Twitter, then-Fox contributor Kevin Jackson called Ford a “lying skank,” adding, “Dang girl stop opening your legs and OPEN A BOOK!” (Jackson was quickly fired.)
    • CRTV’s Steven Crowder simply called Ford a “lying whore.”
    • Fox’s Andrew Napolitano fantasized that a Republican senator would “demolish” Ford like “Arlen Specter did to Anita Hill,” to which host Stuart Varney replied, “That would be a sight for sore eyes.”
    • Tucker Carlson got creative (and incredibly insulting) when he compared sexual assault survivors speaking up to the mob engaged in a witch hunt in Arthur Miller’s The Crucible.

    And while Twitter is a general cesspool of conspiracy theories and smears against sexual assault survivors, no individual has put more into this effort than conservative commentator Erick Erickson, who called the confirmation process “the Left’s PizzaGate” and said that the Democrats were “willing to destroy an innocent man so they can keep killing kids.”

    Reality check: Right-wing media will not succeed in silencing survivors

    Right-wing media and Republicans in Congress have been working overtime to send a clear message to survivors of sexual violence: It’s better for us if you stay quiet. The campaign against Kavanaugh’s accusers reinforces what women already know -- that sexual violence is about power, and that when backed into a corner, power brokers will regroup and lash out at its challengers.

    Millions of people watch Fox News every day. Many of them are undoubtedly survivors of sexual violence themselves. While Fox News personalities get rich smearing victims in an effort to install Kavanaugh into power no matter his past behavior or the fact that he repeatedly lied to Congress, they’re saying to their viewers, “We don’t care about you, we don’t believe you, and you should shut up and keep your experiences to yourself.” Right-wing media outlets are sustained by their commitment to punching down, even if that means launching an attack on half of the world’s population to save the career of one man. Only through the power of testimony and solidarity can survivors overcome the system that seeks to silence us.

  • NRA Complains The Media Aren’t Taking Its False Attacks On Garland Nomination Seriously

    Blog ››› ››› TIMOTHY JOHNSON

    The NRA complained that media outlets are ignoring their false attacks on President Obama’s Supreme Court nominee Merrick Garland in an article that offered more falsehoods.

    In a May 24 article at the NRA’s online magazine America's 1st Freedom, Chris Cox, the NRA’s top lobbyist who also runs the group’s political efforts, lashed out at the New York Times editorial board for dismissing the NRA’s false claims about Garland’s record. Cox’s article, titled “Media Ignore Facts In Dismissing NRA’s Concerns About Supreme Court Nominee,” criticized the Times for concluding that there is “no fact-based reason” for the NRA to claim Garland is hostile to the Second Amendment.

    In complaining about “the most extreme case of media bias in recent memory,” Cox accused the Times of “spouting assumptions without checking facts” and “journalistic malfeasance to insist that the NRA has no basis for opposing him.”

    To make the case that Garland’s record does indicate an anti-gun bias, Cox went on to cite Garland’s role in the 2007 decision Parker v. District of Columbia which came before the U.S. Court of Appeals for the D.C. Circuit where Garland is now chief judge.

    But Garland’s role in this decision was minimal, and countless legal experts have repeatedly refuted claims that it indicates any particular views on the Second Amendment.

    Here are the facts about the Parker case.

    In a 2-1 panel decision -- in which then-circuit judge Garland did not participate -- the D.C. Circuit reversed a lower court's decision upholding D.C.’s handgun ban, finding that the law violated the Second Amendment.

    Following the ruling, Garland was one of four judges -- including George H.W. Bush appointee Judge Raymond Randolph -- who voted whether to have the entire D.C. Circuit rehear the case in a procedural move known as an en banc rehearing. A majority of D.C. Circuit judges voted not to rehear the case, and it moved on to the Supreme Court, where it became the landmark Second Amendment decision District of Columbia v. Heller.

    In the NRA article, Cox falsely alleged that Garland’s vote to rehear the case means that he would have reversed the decision striking down D.C.’s handgun ban, writing, “the fact is, judges do not vote to rehear decisions with which they agree. If a judge thinks a panel’s opinion was wrong, he or she votes to have the full court rehear it. If a judge thinks a panel’s opinion was correct, he or she lets it stand. Plain and simple.”

    According to the Federal Rules of Appellate Procedure, Cox is wrong to claim that a vote to rehear a case indicates that a judge agrees or disagrees with the court’s initial ruling.

    As Rule 35 explains, en banc rehearings “ordinarily will not be ordered unless” there is disagreement among courts about the correct outcome of the case or if “the proceeding involves a question of exceptional importance”:

    (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

    (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

    (2) the proceeding involves a question of exceptional importance.

    According to PolitiFact, both conditions of the en banc rule were satisfied by the Parker case. Indeed, the case came at a time when there was disagreement among the courts about whether the Second Amendment conferred a “collective” or “individual” right.

    The case was also exceptionally important -- the Supreme Court at the time had not made a significant ruling on the meaning of the Second Amendment since 1939 in United States v. Miller. In fact, the question of whether handgun bans were permissible under the Second Amendment was so important that the NRA spent years crafting a case to challenge the D.C.’s handgun ban. (The NRA’s case, Seegars v. Gonzalez was poorly crafted, and the NRA later joined the Parker efforts.)

    Legal experts have refuted the type of claim being made by the NRA about Garland's vote to rehear Parker. As Andrew Bradt, assistant professor of law at the University of California, Berkeley, School of Law explained, “A vote to rehear a case can be based only on the importance of the issue and the need to have the full court address it or it can be because the issue is a complicated and confusing one that demands the clarity provided by a discussion of the full court of appeals. It doesn't at all indicate a pre-judgement that the panel's decision was wrong.”

    The claim that Garland’s en banc vote in Parker means that he is anti-gun is a smear was first developed by the Judicial Crisis Network (JCN), a discredited right-wing group that is spending millions to oppose Garland's nomination, and now is repeated by the NRA. Numerous legal experts, however, have already debunked the claim that an en banc vote is representative of how a judge would rule on the merits if the case were reheard. Plain and simple.

  • As Polls Show Rising Support To Confirm SCOTUS Nominee, Wash. Post Lauds "Remarkably Successful" Opposition

    ››› ››› ZACHARY PLEAT

    The Washington Post credulously called the efforts by the discredited conservative group Judicial Crisis Network (JCN) to prevent the confirmation of Supreme Court nominee Judge Merrick Garland "remarkably successful." But polls show the general public is increasingly at odds with JCN's position. Indeed, just last week the Post reported that the results of a new poll was evidence that "Democrats are winning the message war over Garland." The Post promoted the notion of JCN's success in an interview with chief counsel Carrie Severino, who was given a platform to rehash debunked smears about Garland's judicial record on guns and government regulations.

  • The Familial Ties That Bind The Anti-Garland Judicial Crisis Network To Its Dark Money Funder

    Blog ››› ››› MATT GERTZ & ZACHARY PLEAT

    A Media Matters investigation of the discredited right-wing group Judicial Crisis Network (JCN), the main source of baseless smears against, and false characterizations of, Supreme Court nominee Merrick Garland, reveals a familial web of self-dealing between the organization, a major dark money funder of JCN called the Wellspring Committee, and a third nonprofit that also receives funding from Wellspring.

    Judicial Crisis Network and Wellspring Committee

    Video by John Kerr, image by Sarah Wasko.

    JCN Has Emerged As Right-Wing Media's Primary Source Of Supreme Court Misinformation

    The Judicial Crisis Network Rebranded Itself To Whitewash Its Lack Of Credibility. In the weeks following the death of conservative Supreme Court Justice Antonin Scalia, the Judicial Crisis Network (JCN) re-emerged as a major source of misinformation about potential nominees rumored to be under consideration by the Obama administration. JCN was founded as the Judicial Confirmation Network during the second Bush administration; its aim was to obfuscate the often-far-right records of that administration's judicial nominees in a push to guarantee an "up or down vote" on "every nominee." During the Obama administration, JCN pivoted to smearing nominations for the Supreme Court as well as nominees for other federal and state-level openings. [Media Matters, 3/18/16]

    JCN Has Falsely Characterized Merrick Garland's Record On Guns. On March 11, after the news broke that Supreme Court nominee Merrick Garland was one of President Obama's likely choices to fill the court vacancy, JCN chief counsel and discredited right-wing legal analyst Carrie Severino published a column in National Review falsely claiming that Garland has a "very liberal view on gun rights." She also claimed that he upheld an "illegal Clinton-era regulation" that would have created a registry of gun owners. Numerous judicial experts noted that JCN and Severino had mischaracterized Garland's past decisions, but the false accusations were still promoted by the National Rifle Association (NRA) and Fox News hosts Bret Baier and Bill O'Reilly, and used as talking points on ABC's This Week and Fox's Fox News Sunday. [Media Matters, 3/21/16]

    Dark Money Group Wellspring Committee Is A Major Funder Of JCN

    The Wellspring Committee Has Been Directly Funding JCN Since 2010. A March 23, 2015, Daily Beast story explained that a dark money group called the Wellspring Committee, created by political operatives tied to the industrialist Koch brothers for the purpose of "pumping funds to other dark money Koch-backed groups," has been a major source of JCN's funding, directly funding the organization since 2010. [The Daily Beast, 3/23/15]

    Wellspring Was Reportedly Founded By The Koch Brothers. A March 29 Daily Beast story reported that Wellspring was founded "in 2008 by none other than the infamous Charles and David Koch, together with their political Svengali, Richard Fink." The article cited Politico investigative reporter Kenneth Vogel in reporting that "Wellspring raised $10 million from attendees at the Kochs' donor seminars, right after it was founded." [The Daily Beast, 3/29/16]

    JCN Received Over $9 Million In Grants From Wellspring Between 2012 And 2014. Wellspring's Form 990 financial disclosure documents show that from 2012 through 2014, Wellspring granted over $9 million to JCN. According to the forms, Wellspring granted $1.155 million to JCN in 2012, $1.435 million in 2013, and $6.665 million in 2014. In each of those years, JCN was by far the largest grantee of the Wellspring Committee, receiving 53 percent, 40 percent, and 80 percent of Wellspring's granted funds, respectively. [GuideStar.org, accessed 3/21/16]

    Wellspring Grants Represented 30 Percent Of JCN's Revenue In 2012 And 25 Percent In 2013. JCN's 990 financial disclosure forms show that the grants reported in Wellspring's 990 forms comprised approximately 30 percent of JCN's revenue in 2012 ($4.99 million total) and 25 percent ($5.775 million total) of its revenue in 2013. JCN's 2014 Form 990 was unavailable. [Foundation Center, accessed 3/21/16]

    Wellspring Received All Of Its 2014 Revenue -- $7.8 Million -- From Just Three Undisclosed Donors. A November 24 article from the Center for Responsive Politics on Wellspring's $6.6 million grant in 2014 to JCN explained in part how Wellspring is funded: "Wellspring received all of its 2014 revenue of $7.8 million from just three contributions -- one of which was a transfer of $6.95 million, according to the annual form 990 it filed this month. Like other (c)(4) organizations, Wellspring is not required to disclose the identities of its donors." [Center for Responsive Politics, OpenSecrets.org, 11/24/15]

    Wellspring, And JCN Have Family Ties Among Officers And Through Another Wellspring Recipient, The Catholic Association Inc.

    Wellspring's President Helped Launch JCN And Is Married To JCN's Treasurer. The November 24 article from the Center for Responsive Politics reported on Wellspring and JCN's family ties, explaining, "Wellspring was founded and is still headed by Ann Corkery, a lawyer who for years has been involved in conservative fundraising and also helped launch JCN. Her husband, Neil, is JCN's treasurer. Their daughter, Kathleen, is on Wellspring's board. [Center for Responsive Politics, OpenSecrets.org, 11/24/15]

    JCN Paid Wellspring President's Husband $98,000 In 2011-13. JCN's financial disclosure forms show that between 2011 and 2013, it paid $98,000 in compensation to Neil Corkery, the treasurer of the organization, who is married to Wellspring's president Ann Corkery. [Foundation Center, accessed 3/30/16]

    Wellspring Granted Over $1 Million To Catholic Association Inc. Between 2012 And 2014. Wellspring's 990 financial disclosure forms show that from 2012 through 2014, Wellspring granted more than $1 million to the Catholic Association Inc. According to the forms, Wellspring granted $440,000 to the group in 2012, $60,000 in 2013, and $650,000 in 2014. [GuideStar.org, accessed 3/21/16]

    Wellspring Secretary And Treasurer Michael Casey Is Son Of JCN Board Member And Catholic Association Inc. Officer Dan Casey. Michael Casey, who is listed on Wellspring's 990 financial disclosure forms as its secretary and treasurer, is the son of Republican operative Dan Casey, who is a member of JCN's board and is reportedly "the political and PR brains" of the organization. Dan Casey is also listed on the Catholic Association Inc.'s 990 financial disclosure forms as its secretary and one of its directors. [GuideStar.org, accessed 3/21/16; The Daily Beast, 3/23/15]

    Catholic Association Inc. Paid Wellspring President's Husband And JCN Treasurer Neil Corkery $50,000 Over 2013 And 2014. The Catholic Association Inc.'s 990 financial disclosure forms show that in 2013, it paid $20,000 in compensation to Neil Corkery, and in 2014 it paid $30,000 in compensation. Neil Corkery was listed as the Catholic Association Inc.'s treasurer and one of its directors. [GuideStar.org, accessed 3/21/16]

  • One Of The NRA's Top Attorneys Has A Very Different View Of Merrick Garland Than The NRA

    Blog ››› ››› TIMOTHY JOHNSON

    As the National Rifle Association (NRA) smears Supreme Court nominee Merrick Garland as a threat to the Second Amendment by misrepresenting his judicial record, one of the NRA's top constitutional litigators is heaping praise upon Garland and his judicial temperament.

    The NRA began its false attacks on Garland moments after he was nominated, repeating smears from the Judicial Crisis Network (JCN) -- a discredited right-wing group spending millions of dollars opposing Garland -- that dishonestly distorted Garland's involvement as a judge on the D.C. Circuit in two gun-related cases.

    Running with JCN's smears, the NRA has baselessly claimed that Garland joining the Supreme Court "would mean the end of the fundamental, individual right of law-abiding Americans to own firearms for self-defense in their homes" and that the "fight over the confirmation of Judge Garland to the U.S. Supreme Court represents what could be a life-or-death decision for the right to keep and bear arms in this country."

    Although widely viewed as a moderate whose disposition as a judge was routinely praised by conservative jurists, the NRA has unconvincingly claimed that Garland's nomination "could be the most divisive -- and to the Second Amendment, most dangerous -- appointment to the Court in history."

    The NRA's dishonest and fiery rhetoric on Garland is at odds with the views of one of the organization's top constitutional litigators, conservative lawyer Charles J. Cooper.

    Cooper, "a longtime stalwart of the Federalist Society" who often represents the NRA and other conservative interests in his private appellate litigation practice, praised Garland in a March 28 interview, saying his respect for Garland has only grown since he supported Garland's nomination to the D.C. Circuit in 1997.

    In a 1997 letter to the Senate Judiciary Committee, Cooper noted that his legal philosophy differed from Garland's, but also wrote, "Not only is Merrick enormously gifted intellectually, but he is thoughtful as well, for he respects other points of view and fairly and honestly assesses the merits of all sides of an issue," and that should he be confirmed, "He would comport himself on the bench with dignity and fairness."

    Asked about the letter by The Washington Post, Cooper said his "high opinion of Judge Garland has not changed -- indeed, it has only strengthened -- over the course of the 19 years since I wrote these words." (Cooper, however, does support Senate Republicans in obstructing Garland's nomination for political reasons.)

    Cooper is one of the top conservative Second Amendment litigators in the country. In fact, the same day the Post published its interview with Cooper, he filed a brief on behalf of the NRA in a case involving a legal challenge to a Florida law that prevents doctors from asking patients certain questions about gun ownership. 

    He was involved in the landmark Second Amendment decision District of Columbia v. Heller, the opinion that the NRA baselessly claims Garland would overturn. Cooper is listed as the counsel of record for an amicus curiae brief filed on behalf of former employees of the Department of Justice in support of the conservative legal argument that the Second Amendment is an individual right. After Heller was decided, with a conservative majority finding the existence of an individual right, the NRA called Cooper's brief "especially worthy of note" when describing the "debt of gratitude" the NRA owed to other participants in the case.

    Cooper continues to represent the NRA and NRA state affiliates in some of the group's most high-stakes litigation -- cases that have advanced to U.S. courts of appeal -- including the NRA's constitutional challenges to post-Newtown gun laws in Maryland and New York, cases involving challenges to age restrictions on gun ownership and carrying guns in public , and NRA challenges to states' use of discretion in issuing permits to carry concealed guns.

  • Bush Judicial Nominee Miguel Estrada Dismantles Conservatives' Smear That Merrick Garland Is A Threat To The Second Amendment

    Blog ››› ››› MEDIA MATTERS STAFF

    Republican lawyer Miguel Estrada dismissed the claims from discredited right-wing organization Judicial Crisis Network (JCN) that Supreme Court nominee Judge Merrick Garland's judicial record indicates a "bias against Second Amendment rights."

    In a March 27 NPR story that refuted activists' criticisms of Garland's judicial record, Estrada -- who was nominated by President George W. Bush to the United States Court of Appeals for the District of Columbia -- explained that "the evidence that is being cited for the accusation that Judge Garland has some bias against Second Amendment rights is from thin to non-existent."

    The "evidence" dismissed by Estrada as "thin to non-existent" originated from the Judicial Crisis Network, which has been making this false charge against Garland since March 11, before he was nominated by President Obama, claiming that Garland's vote to rehear a 2007 case on handgun restrictions indicates he "has a very liberal view on gun rights."

    However, Garland was joined in his vote by the very conservative Judge A. Raymond Randolph, and legal scholars have explained that reading anti-gun bias in this vote by Garland is a "dangerous" assumption.

    As Estrada explained to NPR, voting to rehear a case does not indicate a judge's view of the merits of the case, but rather "the rules say that the full court may wish to rehear the case itself when the case raises a question, and I quote, 'of exceptional importance.'"

    Like several journalists who cover the courts and legal issued for national media outlets, Estrada dismissed the evidence presented by the JCN that Garland is anti-gun:

    [C]onservative activists see Garland's record as tilting distinctly to the left. The Judicial Crisis Network has already spent $4 million on TV and radio advertisements in 10 states insisting that he "would be the tie-breaking vote for Obama's big government liberalism."

    Proving some of these assertions, however, can be difficult.

    "The evidence that is being cited for the accusation that Judge Garland has some bias against Second Amendment rights is from thin to non-existent," says Miguel Estrada, a conservative Republican lawyer whose own nomination to the D.C. Circuit was stalled by Democrats during the George W. Bush administration.

    Estrada notes that the charge that Garland is hostile to gun rights stems from a case challenging the District of Columbia's ban on handguns. In 2007, a three-judge panel -- not including Garland -- ruled for the first time that there is a constitutional right to own guns for self-defense. Afterward, Garland was one of four judges, including a conservative Reagan appointee, who voted for the full court to rehear the case.

    Estrada explains that "the rules say that the full court may wish to rehear the case itself when the case raises a question, and I quote, 'of exceptional importance.' "

    The gun rights case certainly was of exceptional importance, he said, since no court of appeals had ever before ruled that there was an individual right to own a gun. Ultimately, Estrada notes, the Supreme Court, too, thought the case was of exceptional importance, since it agreed to review the lower court decision and, in a landmark opinion, sustained it.

  • Right-Wing Media Have Been Following Their Deceptive SCOTUS Nominee Playbook To A T

    Blog ››› ››› PAM VOGEL

    supreme-court

    On March 16, President Obama announced his nomination of Judge Merrick Garland to the Supreme Court. Before the nomination, Media Matters explained how right-wing media would respond: by following their deceptive conservative playbook against the nominee, regardless of who it was. And that's exactly what they did. Right-wing media resurrected the same tired tactics they've used before to oppose Obama's judicial nominees -- distorting the nominee's record to push alarmist rhetoric, purposefully taking past statements out of context, and lobbing attacks based on the nominee's race, gender, or religion. In the last week, we've already seen many of these plays put into action, with conservative media predictably propping up dishonest talking points and false claims dedicated to obstruction.

    Judicial Crisis Network Has Led The Pack In Pushing Debunked Misinformation On Garland's Record Into Media Coverage

    The discredited conservative group Judicial Crisis Network (JCN) -- known as the Judicial Confirmation Network during the Bush administration, but now committed to opposing Obama judicial nominations -- has led the way in fearmongering around "one more liberal justice," attempting to re-cast Garland's record as that of an anti-gun, job-killing judicial extremist.

    JCN began its misinformation campaign well before Garland's March 16 nomination, pushing myths about the records of several potential nominees at the National Review's Bench Memos legal blog, in press statements and attack ads, and in media appearances by JCN chief counsel Carrie Severino. On March 11, Severino authored a post on the Bench Memos blog attempting to smear Garland as "very liberal on gun rights" by grossly distorting actions he took on two cases pulled from his nearly two decades of judicial service, one of which did not even concern the Second Amendment. Severino cited Garland's 2007 vote to rehear a case on D.C.'s handgun ban and his 2000 ruling in a case related to the national background check system for gun purchases to draw this baseless conclusion. But she failed to note crucial context -- voting to rehear a case in what's called an en banc review does not indicate how a judge might theoretically rule, and in both cases, Garland either acted in agreement with colleagues or other courts across the ideological spectrum. Veteran Supreme Court reporters and numerous legal experts quickly and summarily debunked these misleading claims, but other right-wing outlets have further distorted them, and JCN has pushed the myths in subsequent attack ads and media appearances.

    Following Garland's formal nomination, JCN released a series of "topline points" outlining its opposition, further misrepresenting Garland's guns record to falsely suggest he had "voted to uphold" D.C.'s handgun ban and "demonstrated a remarkable level of hostility to the Second Amendment," as well as contending Garland was "the sole dissenter in a 2002 case striking down an illegal, job-killing EPA regulation." Like its earlier attacks on Garland's supposedly "very liberal" guns record, JCN's newer claims about Garland's ruling in the 2002 EPA case also grossly distorted the facts.

    Some mainstream outlets have uncritically echoed JCN's debunked "topline points" and attack ads on Garland's record, and these reports -- in The New York Times, The Washington Post, and The Wall Street Journal, and on National Public Radio -- lend an air of undeserved legitimacy to the group's misinformation campaign against Garland.

    National Review Has Served As The Right-Wing-Media Source For Misleading Talking Points

    National Review's Supreme Court coverage to date has continued its tradition of injecting context-free talking points into mainstream reporting on the nominee. Its legal blog, Bench Memos, has served as a testing ground for new smears against Garland, hosting several misinformation-filled posts from JCN's Severino that eventually made their way into mainstream reporting and broadcast coverage. In giving space for JCN and other right-wing legal pundits like contributor Ed Whelan to distort Garland's record, Bench Memos quickly made it clear that a lack of evidence is no reason to avoid making sweeping claims about the nominee.

    Before Garland was nominated, National Review featured posts from both Severino and Whelan that attempted to smear several potential nominees. On March 7, Whelan questioned the intelligence of Judge Ketanji Brown Jackson absent any evidence to suggest the accomplished federal judge was anything but qualified. That same day, Severino attempted to smear Judge Jane Kelly for fulfilling her constitutional duty of providing legal representation for an unsavory client while working as a public defender. In subsequent posts, Severino attacked Judges Sri Srinivasan and Paul Watford in a series aimed to undermine their reputations as "moderates" by misrepresenting a handful of their past decisions as "extremist."

    Attacks on Garland, too, began before the March 16 nomination announcement; Severino's March 11 post on Bench Memos first floated what have since become widespread and false conservative talking points on Garland's record on guns. In the post, Severino claimed that Garland's vote to rehear a 2007 case related to the D.C. handgun ban and his joining of a ruling in a 2000 case related to the FBI's National Instant Criminal Background Check System for gun purchases together indicated "a very liberal approach" to the Second Amendment and a desire to overturn the 2008 Heller Supreme Court decision on the Second Amendment. These attacks, which legal experts quickly and repeatedly debunked, continue to pervade media coverage of opposition to Garland's nomination.

    Fox Figures Have Parroted Debunked Claims, Reporting Misinformation As Fact To A Wider Audience

    Fox News figures have predictably latched onto conservative talking points to oppose Garland, broadcasting already debunked claims about Garland's record.

    On March 16, Bret Baier, host of Fox's Special Report With Bret Baier, claimed in an interview with White House Press Secretary Josh Earnest that Garland "opposed Justice Scalia's take on the Second Amendment in the Heller case," misrepresenting both Garland's 2007 vote to rehear the D.C. handgun case and the case's relationship to a Supreme Court decision issued the following year. On Fox's The O'Reilly Factor, host Bill O'Reilly further distorted JCN's talking point, incorrectly stating that Garland had "voted to keep the guns away" from private citizens in D.C., another claim about the Supreme Court nominee that PolitiFact labeled false.

    The NRA Has Launched An Opposition Campaign Based On These Recycled Talking Points

    As Media Matters warned, the National Rifle Association (NRA) quickly began pushing these right-wing media claims to justify its involvement in obstruction efforts and to fearmonger about Garland.

    Immediately following Garland's nomination on March 16, the NRA declared him "bad on guns." In a series of tweets reacting to the nomination, the NRA linked to the debunked March 11 Severino post on Bench Memos to claim that Garland would "vote to reverse" the Heller decision, and a Washington Times article pushing the same discredited claims with quotes from Severino, a spokesperson from the opposition research group America Rising Squared, and the extremist group Gun Owners of America.

    Later that day, the NRA formally announced its opposition to Garland's nomination. The move predictably mirrored the NRA's efforts to distort Sonia Sotomayor's record and to launch an unprecedented and largely ineffective ploy to threaten senators' records over their votes to confirm Sotomayor to the Supreme Court in 2009. Days later, the executive director of the NRA's Institute for Legislative Action explained the group's opposition in an op-ed in The Washington Post, regurgitating JCN's dishonest claims about Garland's 2007 en banc vote in the Parker case to fearmonger about the moderate judge.

    The NRA's opposition to Garland helped elevate JCN's long-debunked talking points on Garland all the way to Senate Republicans leading the obstruction efforts. In a March 20 appearance on Fox News Sunday, Senate Majority Leader Mitch McConnell (R-KY) explicitly cited the NRA's opposition to Garland as a sticking point for ongoing Senate obstruction, explaining that he "can't imagine that a Republican majority in the United States Senate would want to confirm, in a lame duck session, a nominee opposed by the National Rifle Association."

  • TIMELINE: The Evolution Of Conservatives' Smear Of Judge Merrick Garland's Record On Guns

    ››› ››› TIMOTHY JOHNSON

    False characterizations of Supreme Court nominee Merrick Garland's judicial record on gun-related cases pushed by discredited right-wing group Judicial Crisis Network (JCN) were echoed by conservative media and the National Rifle Association following Garland's nomination. These smears ultimately formed the basis for the continued refusal of Senate Majority Leader Mitch McConnell (R-KY) to allow a hearing.

  • Reminder To Media: The Judicial Crisis Network Is Still Not To Be Taken Seriously

    ››› ››› PAM VOGEL

    In the weeks leading up to the March 16 nomination of Judge Merrick Garland to the Supreme Court, media outlets uncritically featured discredited conservative group the Judicial Crisis Network (JCN) and its debunked talking points attacking Garland and other potential nominees. Following Garland's nomination, some mainstream outlets continue to credulously cite the group and its false claims, even though JCN has a history of injecting misinformation into judicial nomination fights.

  • Legal Scholars: Reading Anti-Gun Bias Into Merrick Garland's En Banc Vote Is A "Dangerous" Assumption

    Blog ››› ››› JOE STRUPP

    Legal experts at some of the nation's top law schools told Media Matters that Supreme Court nominee Merrick Garland's vote to rehear a gun-related case years ago cannot be held up as evidence that he is anti-gun.

    On Wednesday, President Obama nominated Garland -- currently the chief judge of the United States Court of Appeals for the District of Columbia -- to fill the vacancy on the Supreme Court. Even before his nomination was announced, the discredited right-wing group Judicial Crisis Network (JCN) was laying the groundwork for conservatives to oppose him over his purported views on the Second Amendment.

    In a March 11 post for National Review, JCN chief counsel Carrie Severino argued that Garland has a "very liberal view on gun rights" in part because he voted in 2007 in favor of the full D.C. Circuit Court rehearing an unprecedented case on Washington, D.C.'s handgun ban. She added that this vote for the full court was somehow indicative of his desire to overturn Justice Antonin Scalia's D.C. v. Heller decision, which upended precedent a year after the D.C. Circuit case and laid down new constitutional rules for the Second Amendment.

    Shortly after Garland's nomination was announced, the National Rifle Association tweeted a link to Severino's piece to label Garland "bad on guns." JCN also released a set of "topline points" after the announcement falsely claiming Garland had voted "to uphold D.C.'s very restrictive gun restrictions."

    The idea that Garland is somehow anti-gun based on the 2007 vote that predated Heller has since spread through right-wing media.

    But legal scholars disagree.

    In 2007, the D.C. Circuit decided the case Parker v. District of Columbia, which challenged the constitutionality of Washington D.C.'s ban on private handgun ownership. In the 2-1 decision, a D.C. Circuit panel of three judges ruled that the ban was unconstitutional.

    Garland did not participate in that decision.

    Garland's involvement came after the D.C. government asked for the case to be reheard en banc, which meant in front of the entire appeals court. In a 6-4 vote, the court declined to rehear the case, without explanation. Along with his conservative colleague Judge A. Raymond Randolph, Garland was one of four judges who voted to rehear it. 

    Legal scholars stress to Media Matters that a rehearing vote should not be taken as evidence of how a judge would rule in the case.

    "A vote to rehear a case can be based only on the importance of the issue and the need to have the full court address it or it can be because the issue is a complicated and confusing one that demands the clarity provided by a discussion of the full court of appeals," said Andrew Bradt, assistant professor of law at the University of California, Berkeley, School of Law. "It doesn't at all indicate a pre-judgement that the panel's decision was wrong."

    "A vote to rehear a case en banc by a judge who was not a member of the original panel does not provide evidence of that judge's views on the merits," said Steve Burbank, a law professor at the University of Pennsylvania Law School. "It usually indicates that in that judge's opinion there are aspects of the case that are sufficiently important or sufficiently difficult to warrant consideration by the full court."

    He added that, "en banc review is a necessary safeguard to ensure that panels speak for the court as a whole."

    Sherman L. Cohn, a professor of law at the Georgetown University Law Center and a former D.C Circuit law clerk, agreed.

    "A vote to re-hear, or not to re-hear, by a judge who did not sit on the original panel, is a dangerous way to predict how that judge would vote," Cohn said via email. "Sometimes the vote to rehear is because the judge does not believe that the original, panel decision was strong enough or clear enough - and not because the judge disagrees. When I was a law clerk on that very court (1957-58), I saw that happen."

    Marin K. Levy, an associate professor at the Duke University Law School, has written on the issue several times. She said assumptions based on a rehearing vote are often incorrect.

    "A judge's vote to rehear a case en banc can indicate many things apart from a desire to have the case decided differently on the merits," she said. "For example, a judge might think that the issue is sufficiently important that it should be decided by the entire active court and not simply a three-judge panel. Or a judge might think the outcome was the correct one but that the reasoning to reach the result was flawed."

    She later added, "There are many reasons why one would want to rehear a case en banc and so a judge's vote in this context should not be taken to necessarily mean he would have voted for a particular outcome."

    Dan Farber, a law professor at the University of California, Berkeley, School of Law said, "All it really means is that he thought the case deserved consideration by the entire court, not just the three judges who heard it initially. He might have disagreed with it, or he may have thought that it conflicted with other precedents or rulings from other courts, or just that it was a very important issue." 

    He added, "If they ever had a hearing, senators could ask him about this!"

  • WSJ Parrots Misleading Claims From Discredited Group In Urging Senate To Block Merrick Garland

    Blog ››› ››› DENISE ROBBINS

    The Wall Street Journal editorial board is calling for the Senate to "refus[e] to hold hearings" on Judge Merrick Garland, President Obama's nominee to the Supreme Court, warning that Garland's record "demonstrates a reliable vote for progressive causes."

    To make its case, The Journal repeatedly pointed to misleading claims that have been pushed by the Judicial Crisis Network (JCN), the discredited right-wing legal group leading the opposition against Garland's nomination. Following the March 16 nomination announcement, JCN released a series of "topline points" purporting to reveal Garland's leftist ideology, and it appears The Journal may have been reading from the same flimsy playbook.

    Here's how the statements from JCN and The Wall Street Journal match up:

    • To illustrate Garland's supposed "hostility toward the Second Amendment right to keep and bear arms," JCN cited SCOTUSBlog's Tom Goldstein saying: "Garland also notably voted in favor of en banc review of the D.C. Circuit's decision invalidating the D.C. handgun ban, which the Supreme Court subsequently affirmed."
    • To purport that Garland's tenure indicates a "progressive" view on the Second Amendment, The Journal wrote: "In 2007 Judge Garland voted for a rehearing en banc after a three-judge panel invalidated Washington D.C's handgun ban."

    In reality, Garland was joined by a well-known conservative judge, among others, in voting to rehear the case, and voting to rehear a case does not mean that a judge is committing to deciding it one way or the other nor does it reveal their constitutional thinking or ideology.

    • JCN also contended that Garland had sided "with the federal government in its plan to retain Americans' personal information from background checks for firearm purchases."
    • The Journal similarly wrote: "In 2000 Judge Garland was part of a three-judge panel that allowed the FBI to temporarily keep files with information from gun purchase background checks."

    In reality, this rule, which is not related to the Second Amendment, was considered in multiple courts and was always found to be in compliance with the Brady Handgun Violence Prevention Act. The Associated Press reported that the conservative-leaning Supreme Court "without comment, turned aside" a challenge to the law.

    • JCN claimed in its "topline points" that Garland "was the only dissenter in a 2002 case striking down an illegal, job-killing EPA regulation (the 'Haze Rule')."
    • The Journal wrote: "In an especially notable case, Judge Garland dissented when the D.C. Circuit struck down the EPA's egregious regional haze rules (American Corn Growers v. EPA, 2002)."

    In reality, the other two judges on the court agreed with Garland that the Environmental Protection Agency (EPA) is required to work with states to reduce haze pollution under the Clean Air Act; they just ruled against the EPA's specific approach to achieving those reductions. And a revised version of the regional haze rule is now in place and has been repeatedly upheld in other courts.

    The Journal editorial concluded:

    Senate Republicans have staked out the principle that voters should have a say in the next Supreme Court nomination via their presidential choice. The Senate should spare Judge Garland from personal attack by refusing to hold hearings.

    But if GOP Senators up for re-election want to be more conciliatory, they could say they regard Judge Garland as a suitable choice for a Democratic President and would be happy to vote for him in a lame-duck session--if Mrs. Clinton wins the election. That would be standing on principle and calling Mr. Obama's bluff.

  • Supreme Court Reporters Debunk Judicial Crisis Network Claim That Merrick Garland Is Anti-Gun

    ››› ››› ZACHARY PLEAT

    National journalists covering the courts and legal issues are rejecting the claims from the discredited Judicial Crisis Network that a 2007 vote by Supreme Court nominee Judge Merrick Garland to rehear a case on Washington, D.C.'s handgun ban means he is hostile to Second Amendment rights. In fact, Garland never voted to uphold the ban, and a very conservative Republican judge joined him in voting to rehear the case.