Primetime news has largely overlooked the future ideological direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide vitally important issues.
Other news outlets have acknowledged the significance of Court nominations for the next president. The New York Times has reported that "[t]he winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact if he gets to replace a justice of the opposing side." The Associated Press has added that "[d]ecisions on many of the hot-button issues in recent years have been by 5-4 votes. These include upholding Obama's health care overhaul, favoring gun rights, limiting abortion, striking down campaign finance laws, allowing consideration of race in higher education and erecting barriers to class-action lawsuits." Both articles note that because four justices are currently in their seventies, the next president's prospects for appointing multiple justices are very real.
Some media outlets have accepted uncritically a U.S. Chamber of Commerce Institute for Legal Reform survey on "state lawsuit climates" for businesses, even though the survey is wholly based on interviews with lawyers and executives for large corporations. Experts have for years critiqued the survey, which claims to rank states on how "fair and reasonable" their tort liability systems are, as "lack[ing] elementary social scientific objectivity" and "substantively inaccurate and methodologically flawed."
Mitt Romney's embrace of rejected right-wing Supreme Court nominee Robert Bork received another pass in the media on Sunday when David Gregory, host of NBC's Meet the Press, failed to ask Romney about Bork and his outside the mainstream view of the Constitution in the course of a lengthy interview.
Bork serves as one of three co-chairs of Romney's "Justice Advisory Committee," which, according to his campaign, advises the candidate on "the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues." Bork's nomination to the Supreme Court was rejected by a bipartisan Senate majority in 1987 because his positions on the Constitution were so far outside the mainstream.
GREGORY: I want to ask you one question on the social issue and that is abortion. You were on this program in 2007 and you said that you would fight to overturn Roe v. Wade. I know you said this is an issue for the courts. I ask you now would a President Romney fight to overturn Roe v. Wade? And what would you do in that fight to achieve that goal?
MR. ROMNEY: Well, there are a number of things I think that need to be said about preserving and protecting the life of the unborn child. And I recognize there are two lives involved: the mom and the unborn child. And I believe that people of good conscience have chosen different paths in this regard. But I am pro-life and will intend, if I'm president of the United States, to encourage pro-life policies. I don't--
GREGORY: Just encourage or fight for it to be overturned?
MR. ROMNEY: Well, I don't actually make the decision the Supreme Court makes and so they'll have to make their own decision. But, I will, for instance, I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country. Those things I think are consistent with my pro-life position. And I hope to appoint justices to the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.
Gregory asked Romney one question which touched on the courts and the Constitution: "would a President Romney fight to overturn Roe v. Wade?" But that question falls short in addressing many other vitally important legal issues - from environmental regulation to racial justice, from women's equality to corporate power - that would come before judges nominated by Romney. Bork presumably advises Romney on these "judicial matters."
Romney's embrace of Bork is especially relevant and worthy of media scrutiny because the next president will almost certainly be in a position to appoint three or more Supreme Court justices. Four of the current justices are over 70 years of age, and Justice Ruth Bader Ginsburg will turn 80 next year. If Romney is elected and is able to confirm justices with views similar to Bork, he will shift the Roberts Court -- already one of the most conservative in history -- even farther to the right.
Despite the tremendous importance of the next President's ability to reshape the Supreme Court, major media outlets have for the most part ignored Romney's embrace of Bork and its implications for the future of the Court. The Washington Post, Wall Street Journal, Los Angeles Times, and the three major broadcast networks have all failed to address the issue. Only The New York Times has provided substantial coverage of Bork's role in Romney's campaign.
Joining others in right-wing media, Fox News is using the GOP convention as an opportunity to push preferred candidates for Mitt Romney's cabinet. For example, on the August 29 edition of Fox & Friends, Gretchen Carlson promoted the prospect of Rudolph Giuliani serving as Attorney General in a Romney administration. However, in their endorsement of Giuliani for the position of the nation's chief law enforcement officer and legal advisor, the Fox News hosts did not mention Giuliani's patronage of convicted former Department of Homeland Security nominee Bernard Kerik, or Giuliani's questionable record on the protection of civil rights and liberties as Mayor of New York City.
While guest hosting The O'Reilly Factor on August 24, Monica Crowley praised SB 1070 architect Kris Kobach's filing suit against the Obama administration's "deferred action" policy, which allows young undocumented immigrants to temporarily remain in the United States. But Crowley failed to mention that the deportation policy is the continuation of long-standing prosecutorial discretion, and also neglected to report the lawsuit's basic procedural flaws.
Instead, Crowley ignored the weaknesses of the lawsuit and alleged the policy is "illegal," accused the administration of acting "extra-constitutionally," and finally commended Kobach for "fighting the good fight" against a "banana republic."
The lawsuit was filed in district court by Kobach on August 23 on behalf of 10 disgruntled Immigration and Customs Enforcement (ICE) agents and is underwritten by controversial "immigration-restriction" group NumbersUSA, despite the Supreme Court's recent reminder that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Nevertheless, the lawsuit challenges the administration's policy of deferred action in deportation proceedings for undocumented youth - a continuation of standard immigration discretion also practiced by George W. Bush - and further undermines its credibility through its choice of plaintiffs.
A Boston Globe editorial noted that by the end of his first term, President Obama will have appointed far fewer lower court judges than either of his two predecessors, and chided him for "fail[ing] to make the most of an opportunity to shape the federal judiciary." The editorial referenced a recent New York Times article that highlighted unprecedented Republican obstruction of President Obama's nominees but does not actually mention this fact. By ignoring Republican obstruction, the Globe gives its readers far less than half the story.
The federal judiciary currently has so many vacancies that more than half of Americans are living in a "judicial emergency." That is, as district judges are increasingly faced with disproportionately large dockets, attention to individual cases falls, resolution is delayed, and access to justice for everyone suffers. As The New York Times reported, as of August 17, "Mr. Obama has appointed just 125 such judges, compared with 170 at a similar point in Mr. Clinton's first term and 162 for Mr. Bush."
The National Review has attempted to distract from Rep. Paul Ryan's (R-WI) and Rep. Todd Akin's (R-MO) support of the extreme "Sanctity of Human Life Act" -- legislation that equates abortion and contraception to murder -- by neglecting to mention its relevance to Akin's rape comments and falsely asserting potential bans on abortion aren't a concern. But it is the act's radical redefinition of a fertilized egg as a person that Akin was defending with his imaginary claim that "legitimate rape" does not lead to pregnancy, and the fact that voters in conservative states have rejected similar "personhood" laws merely demonstrates how far outside the mainstream Ryan and Akin are.
In their move to distance conservative media from Akin's comments, the editors of the National Review called for Akin to withdraw his candidacy for the U.S. Senate. However, this calculated abandonment of Akin for announcing a right-wing view that the National Review acknowledges, but prefers kept under wraps, ignores the resurgent movement to criminalize all forms of abortion. By omitting the relevance of the Sanctity of Human Life Act to Akin's comments and the editorial's claim that "no state is going to ban abortion in the case of rape even if Roe v. Wade is overruled," the editorial is perpetuating frequent contributor Ramesh Ponnuru's attempts to gloss over Ryan and Akin's hostility to reproductive rights.
Indeed, the National Review's misdirection is even more apparent now that it appears the 2012 Republican platform will once again support a so-called "human life amendment" to the Constitution that would criminalize abortion in all circumstances. Furthermore, not only is the National Review's reassurance on state abortion bans irrelevant if reports on the GOP platform are accurate, it is wholly misrepresentative of recent state efforts to infringe on women's constitutional rights. In fact, conservative-leaning states have seen multiple attempts at "personhood" bills similar to Ryan and Akin's legislation. This fall, Colorado will likely again have a "personhood" ballot initiative presented to its voters, even though the unconstitutional measure just failed in Mississippi and was held "void on its face" in Oklahoma by the state Supreme Court.
Accordingly, it is unsurprising that Akin's apology for becoming "nationally notorious...for saying something stupid" was specifically only for the "words I said" in reference to rape and not for "the heart I hold," wherein presumably all abortion is criminalized pursuant to "personhood" legislation. A radical criminalization that, the National Review fails to mention, could also apply to in-vitro fertilization, stem-cell research, most forms of contraception, and even miscarriage.
In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.
In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.
Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to "reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest."
As conservative media scramble to defend Congressman Paul Ryan (R-WI) from charges that his proposed overhaul of Medicare would negatively affect seniors, one point is noticeably absent from their discussion: Ryan's plan imposes a Medicare "mandate" remarkably akin to the requirement to purchase insurance under the Affordable Care Act. Fox News and other conservative media are apparently ignoring this similarity, despite their two-year campaign against the highly similar provision in the Obama-supported health care reform law.
Fox News' Dana Perino asked on the August 13 edition of Fox & Friends, "who wouldn't want" Ryan's plan for Medicare? Left unsaid is that the health care reform law's constitutional choice of obtaining a private health insurance plan or paying a health insurance tax and Ryan's choice of obtaining a private Medicare plan or paying a Medicare tax are essentially the same.
Health care law expert Simon Lazarus wrote in Slate that:
Republicans' proposal to replace Medicare with partially subsidized private insurance also operates to "compel" people to pay for private health insurance policies. Moreover, this mandate is not even a pay-or-play option; Medicare taxes are mandatory, whether workers want to buy eligibility for old-age vouchers or not.
Matching the inflammatory rhetoric about health care reform's elimination of cost-sharing for women's contraception, conservative media outlets are currently misrepresenting a preliminary court order in a private company's challenge to this policy. Contrary to the right-wing narrative that crudely oversimplifies the complex legal issues at stake and ignores the need to balance the constitutional rights of employers with those of their female employees, the questions in the case are neither easy nor clear.
When the popular requirement went into effect that most insurance plans -- including employee plans sold to employers -- could no longer charge women co-pays or deductibles for prevention or wellness care, conservative media figures declared a national disaster. On August 1, the Editors of the National Review Online intoned that "[t]his day...is a dark one for religious freedom in the United States." Sean Hannity mirrored this solemnity on Fox News and announced "today is the day that religious freedom in America, in many ways died" (Fox Hannity Show, 8/1/12, via Nexis).
This reaction was unfortunately unsurprising. Despite the fact that many religious believers and institutions and most voters support insurance coverage of contraceptives, birth control has conflicted with the religious concerns of some since the 1960s. Recognizing this, the law provides an exemption from the contraceptive coverage requirement to "a nonprofit church or close church affiliate if it primarily employs and serves persons who share its religious tenets, and the purpose of the institution is the inculcation of religious values." [National Health Law Program, 8/12]
The exemption is similar to those used on the state level, and twenty-eight states currently have contraceptive insurance equity acts. The administration may also accommodate non-exempted non-profit organizations by allowing them to opt-out of the provision of insurance coverage for contraception, but instruct insurance companies to meet the preventive and wellness requirements directly. Nevertheless, claiming that these exemptions and accommodations do not go far enough, a for-profit, secular, Colorado-based company filed a lawsuit alleging it too should be treated like a church and be exempted from offering female employees plans with contraception coverage.
The case is one of first impression. As such, the judge issued a preliminary injunction, temporarily halting this company's compliance with the law until the court could consider the merits of the case. The Heritage Institute's Foundry said the company "demonstrated the strength of the religious liberty challenge to Obamacare." Ed Whelan of the National Review Online said "it's clear that the HHS mandate tramples [religious] protections[.]"
It's not that simple.