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

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.

Wash. Post Profile Of Severino Baselessly Called JCN's Campaign Against Garland “Remarkably Successful”

Wash. Post: JCN's “Effort Has Been, So Far, Remarkably Successful.” In the headline and in text of an April 25 interview with Judicial Crisis Network (JCN) chief counsel Carrie Severino for The Washington Post’s PowerPost section, the Post called JCN's efforts “remarkably successful” because “In the five weeks since Obama nominated U.S. Circuit Judge Merrick B. Garland to the high court, Garland has met with 10 Republican senators, and none subsequently changed their views on whether the Senate should act.” [The Washington Post, 4/25/16]

The Fact That GOP Senators Are Meeting With Garland Is Evidence That GOP Obstruction Is Not Working. Many GOP senators initially said they would not even meet with Garland, but have caved to political pressure to hold meetings with Obama's nominee. Citing two additional meetings scheduled between Garland and GOP senators, Politico reported the development was “suggesting there's momentum behind the Democratic campaign to pressure the GOP into at least one-on-one meetings with the Supreme Court nominee, if not an actual confirmation vote this year.” [Politico, 3/31/16]

Wash. Post's Chris Cillizza Last Week: “Democrats Are Winning The Supreme Court Fight Over Merrick Garland. Big Time.” Writing for The Fix, Cillizza noted, “there’s striking evidence in a new NBC-Wall Street Journal poll that Democrats are winning the message war over Garland” :

The fight over Merrick Garland, President Obama’s nominee to fill the Supreme Court vacancy cased by the death of Associate Justice Antonin Scalia, has been pushed almost entirely out of the news by the ongoing presidential primary battles. But, while it may be out of sight to most people, there’s striking evidence in a new NBC-Wall Street Journal poll that Democrats are winning the message war over Garland.

This slide, from Democratic pollster Peter Hart’s analysis of the data, tells that story:

[The Washington Post, The Fix, 4/19/16]

Wall Street Journal Poll: Poll Of Republicans Shows Opposition To Voting On Garland Nomination “Is Starting To Erode.” According to The Wall Street Journal's write-up of an April 18 WSJ/NBC poll, “Public support for a Senate vote this year to fill a two-month old Supreme Court vacancy has increased since the White House picked Judge Merrick Garland for the seat” and “notably, the poll suggested that Republican opposition to such a vote is starting to erode” :

Public support for a Senate vote this year to fill a two-month old Supreme Court vacancy has increased since the White House picked Judge Merrick Garland for the seat, a new Wall Street Journal/NBC poll has found.

[...]

But notably, the poll suggested that Republican opposition to such a vote is starting to erode. Some 24% of Republicans in the survey preferred that the Senate vote this year, up from 16% in March. A slight majority of Republicans—56%—favored waiting to vote until a new president could pick a replacement for Justice Scalia, down from 69% in March who wanted the Senate to wait. [The Wall Street Journal, 4/18/16]

Wash. Post Allows JCN’s Severino To Lie About Garland’s Judicial Record On Guns, Labor And Environmental Regulations, And The ACA Contraception Mandate

JCN’s Severino Repeats Previously Debunked Smears About Garland In Washington Post Interview. Severino was asked about her organization’s work to oppose Judge Merrick Garland’s nomination to the Supreme Court. The interviewer glossed over JCN’s history of misinformation and allowing her to mislead about his record on guns, labor and environmental regulations, and the Affordable Care Act’s contraception coverage mandate (emphasis added):

Since Justice Antonin Scalia died suddenly in February, the Judicial Crisis Network has been on the front lines of the conservative fight to keep President Obama from filling the unexpected vacancy on the Supreme Court. Founded in 2004 as the Judicial Confirmation Network to press for Senate approval of President George W. Bush’s court nominees, the group is now coordinating the efforts of activist groups across the conservative firmament and has spent millions of dollars on TV and digital ads pressuring Republican senators to deny Obama’s nominee hearings or votes.

The effort has been, so far, remarkably successful. In the five weeks since Obama nominated U.S. Circuit Judge Merrick B. Garland to the high court, Garland has met with 10 Republican senators, and none subsequently changed their views on whether the Senate should act. Chief Counsel Carrie Severino sat down Friday to discuss why the blockade is holding and what’s ahead in the fight over Garland’s nomination. The interview has been edited for length.

[…]

[Severino:] We’re seen a real engagement from the groups who recognize the threat to the values they care about the most. The National Rifle Association is very concerned about this nomination, because Judge Garland has a singularly bad record on the Second Amendment, even suggesting that he doesn’t believe the Second Amendment covers a right to have a weapon for your own protection in your own home. So, of course, they have activated the people who care about that. The National Federation of Independent Businesses is very concerned because they’ve gone into incredible detail looking at Judge Garland’s opinions and have concluded that he’s much too much in the pocket of big bureaucratic agencies like the National Labor Relations Board, like the Environmental Protection Agency. That’s why this is the first time in 73 years they’ve gotten engaged on this issue, and they have come out strongly on it.

You’ve seen antiabortion groups very involved on this. They see things like Planned Parenthood and their strong support of Judge Garland, people like Sen. [Kirsten] Gillibrand commenting on his view of reproductive rights and saying how they support that. This is clearly someone who would be a danger on their issues. You see a lot of other groups that have broader mandates like the Tea Party Patriots who are getting involved. And there are people who are concerned about religious freedom and are concerned about Judge Garland’s record on this issue. He did have a change (sic) to vote on the Priests for Life case that came up and was consolidated with the Little Sisters case — he thought that the D.C. Circuit got that right in not respecting the rights of the plaintiffs in that case. So there’s just a whole range of issues and people. [The Washington Post, PowerPost, 4/25/16]

Judicial Crisis Network Has A Long History Of Injecting Misinformation Into Judicial Nomination Fights

JCN Previously Called Itself The Judicial Confirmation Network And Was Devoted To An “Up Or Down Vote” For “Every Nominee.” The Judicial Crisis Network was founded during the second Bush administration and was originally named the Judicial Confirmation Network. It was founded to push through Bush's often-far-right nominees, “support the confirmation of highly qualified individuals to the Supreme Court of the United States,” and “ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.” JCN -- which once derided "'obstructionists' for blocking votes on Bush nominees" -- changed its name and mission after President Obama took office. Its current mission is to support “only highly qualified individuals who share” a vision of “limited government.” [Media Matters, 2/19/16]

In 2009, JCN Misrepresented Sotomayor's Record To Fearmonger About A “Liberal Activist Judge.” JCN was active in the opposition to Sonia Sotomayor's Supreme Court nomination, misrepresenting her judicial record to suggest she was an “activist” judge. JCN ran a web ad making the false claim that Sotomayor had a “100% reversal rate as a court of appeals judge,” which was subsequently taken offline. But Wendy Long, JCN's counsel at the time, continued to peddle similar claims in the media without challenge. Long was quoted in Congressional Quarterly alleging that “Sotomayor has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.” Long also appeared on CNN days later with the misleading claim that Sotomayor “had plenty of cases ... overturned unanimously” by the Supreme Court. In reality, Sotomayor's reversal rates were deemed by legal experts and fellow judges to be “lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present” and “typical.” [Media Matters, 5/26/09, 5/27/09, 5/29/09]

In Recent Years, JCN Has Led Misinformation Campaigns Against State-Level Court Candidates. In 2012, JCN reportedly spent roughly $1 million on an ad attacking Michigan Supreme Court candidate Bridget McCormack, who was backed by Democrats and went on to win the race. The ad featured Michigan woman Teri Johnson, whose son was killed in Afghanistan, stating: “My son's a hero and fought to protect us. Bridget McCormack volunteered to help free a terrorist. How could you?” JCN's attack was premised on McCormack's past work for the Center for Constitutional Rights, which participated in a network that sought to vindicate the rights of improperly detained Guantanamo prisoners. The editorial page editor of The New York Times criticized the “McCarthyist” ad for “shamelessly exploit[ing]” the death of a soldier and falsely attacking McCormack. Local media also called out the ad as a “cynical manipulation” of the facts, writing that the claim “ignore[d] the U.S. rule of law.” JCN also spent hundreds of thousands of dollars to oppose Justice Courtney Goodson in her unsuccessful race this year for Arkansas Supreme Court chief justice. A JCN mailer attacked Goodson for striking down the state's 2013 voter ID law, claiming she was opening the door to “Illegal Immigrants Voting,” “Election Theft,” and “Widespread Voter Fraud,” pushing a series of debunked right-wing talking points alleging an imaginary voter fraud issue, and “grotesquely distorting” Goodson's record. The voter ID decision in question was decided unanimously, with all seven justices finding that the law violated the state constitution. [Media Matters, 2/19/16]

Severino’s Attack On Garland’s View Of Gun Rights Has Been Discredited By Legal Experts

Severino Previously Claimed That Garland’s Vote To Rehear A Case On Handgun Restrictions Indicates “He Has A Very Liberal View On Gun Rights.” In a March 11 post at National Review's Bench Memos legal blog, Severino wrote that a vote Garland cast to rehear the 2007 Parker case on Washington, D.C.'s handgun ban -- known as an en banc vote -- disproved Garland's reputation as a “moderate,” revealing his “very liberal view on gun rights” because he had agreed with Judge David Tatel, “one of the most liberal judges on the court.” She added that his vote signaled a desire to overturn Justice Antonin Scalia's opinion in the Second Amendment case D.C. v. Heller, which is current precedent for the constitutional scope of gun restrictions:

As the White House prepares to choose a nominee for the Supreme Court, they are continuing to suggest that they might nominate a supposed “moderate.”

But Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia's most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.

Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one's own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the "[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights" in a previous case. Had Garland and Tatel won that vote, there's a good chance that the Supreme Court wouldn't have had a chance to protect the individual right to bear arms for several more years.

[...]

First, it tells us that he has a very liberal view of gun rights, since he apparently wanted to undo a key court victory protecting them. Second, it tells us that he's willing to uphold executive actions that violate the rights of gun owners. That's not so moderate, is it? [National Review, Bench Memos, 3/11/16]

JCN Also Falsely Claimed Garland “Vot[ed] To Uphold D.C.’s Very Restrictive Gun Restrictions.” Shortly after Obama's announcement to nominate Garland, JCN released “topline points” outlining its opposition to Garland, claiming that the nominee has “demonstrated a remarkable level of hostility toward the Second Amendment right to keep and bear arms,” including by “voting to uphold D.C.'s very restrictive gun restrictions.” But as PolitiFact noted, “Garland never heard the case about Washington gun laws from the bench, and so he never voted on it.” PolitiFact continued, “He voted in favor of reconsidering the case, but it's impossible to extrapolate from that vote his position on the merits of the case.” [Media Matters, 3/16/16]

Legal Scholars Told Media Matters Reading Anti-Gun Bias Into Garland's En Banc Vote Is A “Dangerous” Assumption. Legal scholars from Georgetown University Law Center; Duke University Law School; University of California, Berkeley, Law School; and University of Pennsylvania Law School stressed to Media Matters that a vote to rehear a case en banc should not be taken as evidence of how a judge would rule in the case:

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," [Georgetown University law professor Sherman L.] 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.”

[...]

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!” [Media Matters, 3/17/16]

Supreme Court And Legal Reporters Debunked En Banc Claims. Reporters covering courts and legal issues at The Washington Post, The New York Times, The San Francisco Chronicle, and Slate have all explained that Garland's vote to rehear the Parker case en banc did not indicate any particular view on the case itself, often noting that the Garland was joined in his support for rehearing the case en banc by a well-known conservative judge. The New York Times' Adam Liptak called the en banc vote “fairly thin evidence,” of anti-gun views, while The Chronicle's Bob Egelko noted that the 2007 vote was “in line with previous Supreme Court decisions” on the matter and outlined a possible procedural line of reasoning for the vote. Slate legal writer Mark Joseph Stern referred to “talking points from an anti-Garland activist,” JCN's Severino, as the source of misinformation on the en banc vote, and wrote that those arguing the vote indicated any sort of Second Amendment stance were engaged in “speculation” and “narrative-driven nonsense.” [Media Matters, 3/17/16]

Second Amendment Scholars Call Parker Claim “Specious And Dishonest.” In a letter to Senate Judiciary Committee leadership, a group of Second Amendment scholars with the American Constitution Society urged the Judiciary Committee to “fulfill its constitutional duty” by holding hearings and calling a vote on Garland's nomination. They explained that the attacks on Garland's guns record based on the misrepresentation of his en banc vote in the Parker case were “specious and dishonest” and part of the National Rifle Association's (NRA) “extraordinary misrepresentation of his record.” As the scholars wrote:

Senate Majority Leader Mitch McConnell and others have justified taking no action on Judge Garland's nomination based on serious misrepresentations of the Senate's constitutional obligations and a substantial distortion of Garland's record.

Senator McConnell recently stated 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.” For the United States Senate to outsource its constitutional advice-and-consent duty to any special interest group would set a dangerous precedent for future judicial nominations, and would pose a severe threat to our impartial judiciary. We are particularly troubled, in this case, because the N.R.A.'s stated reasons for opposing Judge Garland are based on an extraordinary misrepresentation of his record.

[...]

Any argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturn Heller is specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.

[...]

The First Amendment may grant interest groups like the N.R.A. the right to distort the facts and attempt to mislead the public. Nothing in the Constitution justifies the Senate acceding to such misrepresentations. [American Constitution Society, 3/31/16]

Well-Known Conservative Judge A. Raymond Randolph Also Voted To Rehear The Case. The four votes to rehear the Parker case also included one cast by Judge A. Raymond Randolph, a George H.W. Bush appointee to the D.C. Circuit and a well-known conservative. In fact, JCN -- then still operating under the name Judicial Confirmation Network -- promoted a discussion between Randolph and ultra-conservative jurist and rejected Supreme Court nominee Robert Bork months after Randolph joined Garland in voting to rehear Parker. [Media Matters, 3/14/16]

Legal Experts Called Scorecard Cited By Severino In The Post To Attack Garland “Silly” And “Nonsense”

NFIB Released Misleading “Scorecard” On Garland That Dishonestly Omitted Important Context About His Regulatory Rulings. On April 12, the National Federation of Independent Business (NFIB) released a “judicial scorecard” on Garland’s rulings as a judge on the D.C. Circuit, claiming that Garland is not “moderate” because he supposedly sides too often with federal agencies to the detriment of business interests. But a Media Matters analysis of the 35 cases cited by NFIB, concerning Garland’s judicial opinions on the Environmental Protection Agency, Department of Labor, and the National Labor Relations Board, found that one or more judge appointed by a Republican was on the same side as Garland in 28 out of 35 -- or 80 percent -- of the cases.

[Media Matters, 4/19/16]

Law Experts Contacted By Media Matters Dismissed NFIB’s Attack On Garland As “Silly,” “Nonsense,” Explaining That “Deference Is The Presumption.” Top legal experts who spoke with Media Matters about NFIB’s claim that Garland’s rulings prove he is anti-business dismissed the attack, explaining that current Supreme Court precedent establishes that federal judges are supposed to defer to government agencies’ reasonable interpretations of statutes:

“If you look at cases involving direct regulation by government agencies, his pattern of voting in those cases is entirely standard,” said Laurence Tribe, a professor at Harvard Law School. “It’s the common approach because ever since the Chevron decision the idea has been that Congress can’t always address all of the details that arise in the regulatory state so they give a lot of leeway to expert agencies in deciding how best to carry out the underlying purpose that Congress had in enacting statutes. Therefore, the idea is when agencies resolve those ambiguities in ways that are at least rational and don’t cross any boundaries that are laid down, federal judges usually defer.”

Joseph Landau, associate professor at Fordham Law School, agreed.

“The Supreme Court has said that if the statute is unclear, courts should defer to the agency’s interpretation of the federal law as long as the agency’s interpretation of the statute is reasonable,” he said. “If the statute is unclear, and the agency is interpreting the statute, courts have generally held that the agency gets deference. There are exceptions, but deference is the presumption.”

[…]

William H. Simon, Arthur Levitt Professor of Law at Columbia Law School, called the NFIB attack “silly.”

“It's silly to conclude that he is 'biased,'” Simon said. “The law says judges are supposed to defer to the agencies on many issues. A reluctance to overrule the other branches is a defining characteristic of a judicial 'moderate', which is what many in both parties say they are looking for.”

Osamudia James, a law professor at the University of Miami School of Law, said, “When Judge Garland or any judge comes in and says they side with the agency, they are saying that based on the statute that Congress set up, what the agency is doing is reasonable.”

She also cited that many Republican-appointed judges agreed with Garland. “That is an interesting part of this to see who sided with him,” she added. “Other Republican judges are in agreement with him. That undercuts attacks that Garland is excessively pro-regulatory.”

For Daniel Selmi, professor of law at Loyola Law School in Los Angeles, the criticism of Garland is “nonsense.”

“The court reviews what the agency has done based on the administrative record and in doing it, it exercises the standard of review,” Selmi explained. “Which is favorably inclined toward the public agency. They win a majority of the cases. That wouldn’t be abnormal and it wouldn’t tell you anything about bias, it would tell you he is following the law.” [Media Matters, 4/21/16]

Severino’s Claim That Garland’s En Banc Vote On Priests For Life Case Revealed His Position Is False

People For The American Way: An En Banc Vote Alone “Does Not Necessarily Tell You Anything About Why The Judge Voted That Way.” The nonprofit People for the American Way (PFAW) responded to an attack by LifeSiteNews' on Garland's vote opposing an en banc rehearing of the Priests For Life case by noting, as many legal experts have already stated in response to similar attacks on Garland's record, that a vote on rehearing a case en banc does not reflect how a judge would theoretically rule in the case. PFAW also wrote that, like in the case of Garland's other en banc votes attacked by conservative groups, Garland was joined by a conservative judge on the vote in question:

In any event, Life Site News slams Judge Garland for voting against having the entire D.C. Circuit rehear the Priests for Life case. A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don't know how Garland would have voted on the merits of the case.

There could be any number of reasons not to want to review a panel decision; perhaps you agree with it; perhaps you think the issue is not important enough to merit that unusual step; perhaps you think a different case would be a better vehicle for addressing the legal issues; perhaps you're concerned about the court's workload; perhaps you know that numerous other circuits are addressing the exact same question and that - regardless of whether your court reconsiders the panel decision - the issue will be resolved by the Supreme Court, so that an en banc review would be a pointless waste of time and resources. [People for the American Way, 3/21/16]

Wash. Post Previously Gave Platforms To JCN For Other SCOTUS-Related Attacks

Wash. Post Failed To Provide Adequate Context For JCN's Debunked Smears In March Report. In reporting on Democrats' efforts to push for hearings on Garland's nomination on March 17, The Washington Post identified the Judicial Confirmation Network as a group “coordinat[ing] the conservative response to the Scalia vacancy,” and re-published a portion of JCN's “topline points,” without noting that the attacks have been debunked. [Media Matters, 3/18/16]

JCN’s Severino Claimed That Judge Kelly Was Unsuitable For The Supreme Court Because She Represented A Criminal Client While Working As A Federal Public Defender. Even though a public defender's basic constitutional responsibility is to advocate for his or her client, Severino attacked Judge Jane Kelly -- who was reportedly being considered as a nominee by President Obama in early March -- because while working as a federal public defender in Iowa, she secured a 14-year prison sentence plea deal for Casey Frederiksen, who was charged with receiving and possessing child pornography. In a March 3 blog for National Review, Serevino attacked Kelly because the former public defender had “argued her client was not a threat to society,” without mentioning Kelly was presenting the views of a psychologist that her client had been seeing. [National Review, Bench Memos, 3/3/16; Media Matters, 3/7/16]

Wash. Post Uncritically Repeated Severino’s Attacks On Judge Kelly. In a March 7 article detailing the credentials of several possible nominees to the Supreme Court, The Washington Post repeated Severino's misguided attacks on Kelly's criminal defense work, describing Severino's citation of the plea deal for Casey Frederiksen as evidence of Kelly's liberal ideology:

Conservative veterans of Supreme Court nomination fights reject the idea that Obama is preparing to nominate someone without ideology. “What Obama is trying to do is find someone he knows will be a very reliable liberal voice on the court. But he's going to present them as if they were moderate,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a conservative legal group, which has hired a research firm to help excavate the records of potential nominees. She cited a plea deal that Kelly secured as a public defender for a child predator. [The Washington Post, 3/7/16]