From the November 20 edition of Fox News' America's Newsroom:
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Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.
Continuing his post-election meltdown, Washington Times columnist Ted Nugent, who is also a National Rifle Association board member, claimed in a November 15 column that America may not be able to survive "four more years of Mr. Obama and his Big Wrecking Crew government liberal jihad."
Nugent also amplified his attack on downtrodden areas of America, claiming that urban cities are "rusting wrecks full of unemployed scavengers." He singled out East St. Louis, Illinois and Detroit, Michigan, which he described as "hell-scapes of dependent hopelessness." In an October 30 interview with the Times, Nugent called the majority of Detroit residents "pimps, whores and welfare brats that have made bloodsucking a lifestyle."
Nugent continued to deride Americans who voted for President Obama in his November 15 column, describing them as only interested in "more free candy from Uncle Sugar Daddy." Following the re-election of Obama, Nugent sent out a series of tweets on November 7 calling Obama voters "subhuman varmint[s]" and "Pimps whores & welfare brats." In a Times column on November 8, he unleashed more invective, describing Obama voters as "thunderously dumb and incredibly naïve."
In the lead up to Election Day, Nugent repeatedly made inflammatory remarks about Obama. While promoting his Discovery Channel special about gun culture, Nugent called Obama "anti-American" and accused him of only feigning respect for veterans. While promoting his special on Twitter, Nugent referred to the Obama administration as "enemies of America" and leveled accusations of treason and "criminal complicity to murder."
Nugent, who drew the scrutiny of the Secret Service in April after promising to be "dead or in jail" if Obama was re-elected, also made waves in July when he wrote in a Times column, "I'm beginning to wonder if it would have been best had the South won the Civil War."
The right-leaning Heritage Foundation has thrown cold water on the revival a conspiracy theory pushed on Fox News by contributor Dick Morris and the National Rifle Association that the United Nation's Arms Trade Treaty (ATT) is actually a sinister Obama administration plot to eliminate the right of private individuals to own a firearm.
During a Heritage Blogger Briefing, senior research fellow Ted Bromund stated, "I don't think that the ATT is a gun confiscation measure for a variety of reasons. First, because I don't regard that as within the bounds of possibility in the United States and secondly, because that is not what the text says."
Bromund's assessment is correct. The stated goal of the treaty is to regulate the international trade of firearms in order to prevent the diversion of arms to human rights abusers, and the most recent version of the treaty's text expressly prohibits the regulation of firearm ownership within sovereign nations.
The preamble of the July 26 treaty draft clearly "reaffirm[s] the sovereign right and responsibility of any State to regulate and control transfers of conventional arms that take place exclusively within its territory, pursuant to its own legal or constitutional system." Furthermore, the Department of State has stated that it will oppose any treaty that contains "restrictions on civilian possession or trade of firearms otherwise permitted by law or protected by the U.S. Constitution."
Despite convincing evidence that the treaty seeks only to regulate international trade -- and that any treaty limiting rights granted by the United States Constitution would be considered invalid -- the conspiracy theory persists. Morris, who has pushed theory on Fox News, and NRA Executive Vice President Wayne LaPierre, both dedicated space in their latest books to advance the claim.
Three Fox hosts have allowed Congressman Allen West (R-FL) to repeat his unsubstantiated allegations that election official wrongdoing led to his failing bid to retain his seat. The Fox hosts not only failed to push back on West's legally unfounded position, but neglected to report that these complaints are about Florida election system problems that have been ignored or exacerbated by the state GOP.
In support of his refusal to concede the race to represent Florida's 18th Congressional District - despite the fact that the state has already certified Democrat Patrick Murphy's victory - West has been complaining that "irregularities" in county officials' performance during the ballot tabulation process, the change in voting tallies as the tabulation proceeded, the outcome of a partial recount, and the accounting of more ballots than voters, requires another partial recount of all votes cast during the early voting period. On the November 12 edition of Fox's Hannity, West made all of these accusations to host Sean Hannity, who responded that he thought a vote shift away from West to Murphy during the counting process was "unbelievable."
West repeated these claims to Fox host Greta Van Susteren on the November 13 edition of On The Record, and again on November 14 in a recorded interview with Fox host Martha MacCallum for America's Newsroom. Like Hannity, these Fox hosts did not press West on his insinuations of election malfeasance. The most obvious example was Van Susteren, who referenced West's second lawsuit filed in a Florida state court seeking an early vote recount in defiance of state law, but made no mention of his first failed lawsuit. That lawsuit, which also sought to "count paper ballots and to impound voting machines," had been denied on November 9 by a state judge. In addition to noting that West's motion had "woefully failed to establish a proper demand for injunction," the judge scolded West for contesting the election results in court when "the Supreme Court of Florida 30 years ago has said the courts should not get involved in the election process under facts and circumstances which we have here today."
More significantly, Hannity, Van Susteren, and MacCallum all failed to report that West's unsubstantiated complaints about the dysfunctional Florida election process is partly attributable to recent voter suppression efforts. As reported by the Orlando Sentinel, the incoming Republican House Speaker has already "conceded" that Florida's difficult election process and its "embarrass[ing]" irregularities may have been caused by early voting and registration changes pushed through by Republicans in the state legislature. In conjunction with budget cuts that targeted county election offices, recent GOP attempts to restrict opportunities for voting resulted in the predictable and widely reported chaos that West now complains about.
The swing in vote tallies, however, is an old problem and one that none of the Fox hosts addressed. Not only is West complaining about a losing margin more than three times that of Gore's for the entire state of Florida in the presidential election of 2000, West is also complaining about a swing in votes from himself to Murphy that is only about a quarter of the infamous Volusia County swing in votes away from Gore for Bush. Further, the optical-scan voting machines at the center of West's complaints are of the same make as those used in Volusia in 2000, as reported by election integrity expert and Salon contributor Brad Friedman, but that important context was absent from Fox's segments on the issue.
The make of the voting machines is also relevant to West's challenge of the partial recount of early votes in St. Lucie County. The election supervisor there has already explained the partial recount of some votes was necessary because of an electronic memory cartridge failure. Hannity, Van Susteren, and MacCullum not only failed to report this fact, they also failed to report such memory cartridge failure is an extremely common problem in Florida, as was extensively detailed by the Daytona Beach News-Journal.
Finally, the discrepancy between voters and votes tallied that West references has already been explained by multiple outlets as a consequence of tabulation machines erroneously counting two-page individual ballots as multiple ballots. This too was unreported by Fox News as it continues to give Allen West a platform to advance his unproven reasons for refusing to concede, without challenging the problems with his claims and providing the necessary context of a Florida election system badly in need of reform.
The National Rifle Association Institute for Legislative (NRA-ILA) issued an election postmortem claiming that the public has been misled by the media "about the effectiveness of NRA campaign spending." The release is the latest attempt by the NRA to sustain what has been a false media narrative about the NRA's ability to influence elections.
Despite the NRA's protestations, the outcome on Election Day could hardly have been worse for the gun organization. The NRA failed to achieve its main goal, the defeat of President Obama, and also backed the losing Senate candidate in six out of seven races where the NRA spent more than $100,000. Over two-thirds of House incumbents who lost their seats were endorsed by the NRA. The non-partisan Sunlight Foundation concluded that less than one percent of $10,536,106 spent by NRA Political Victory Fund went to races where the NRA-backed candidate won.*
These results do not comport with the widely-accepted media narrative that the NRA is an electoral powerhouse. Despite research by American Prospect contributing editor (and former Media Matters staffer) Paul Waldman proving that the impact of both NRA campaign contributions and endorsements is overblown, the fable of NRA influence has persevered. Slate's Brian Palmer encapsulated this narrative in July when he wrote that the NRA "can reliably deliver votes" and "is considered by many the most powerful lobbying group in the country."
Although mythology surrounding the NRA's power has persisted for years in the media, that façade appears to be crumbling in the wake of the 2012 elections. An article by The Hill titled "Report: NRA shoots blanks this election," highlighted the NRA's ineffective spending and noted that the Sunlight Foundation's report "challenge[s] the popular political wisdom that the NRA is among Washington's most influential lobbying forces and that candidates who buck their agenda do so at their own peril." The Washington Post offered similar analysis in an article titled "National Rifle Association shut out on Election Day" that cited the Sunlight Foundation's conclusions.
As an attempt to continue projecting itself as an organization that can determine the outcomes of elections, the NRA is now touting the success of three state ballot initiatives preventing states from banning hunting as evidence that money given to the NRA was well spent.
But the hunting ballot initiatives -- which were not even opposed by NRA nemesis the Humane Society -- are not what the 2012 elections were about for the NRA. In 2011, NRA Executive Vice President Wayne LaPierre announced an "All In" campaign to remove President Obama from the White House that compared a potential Obama second term to a 2004 tsunami that killed over 250,000 people in South Asia.
In the wake of the 2012 elections, where the National Rifle Association spent $18 million dollars to little effect, NRA Executive Vice President Wayne LaPierre promised to defeat Democrats who do not support his organization's agenda in the 2014 elections. According to LaPierre, a columnist for the organization's publications, Democrats who support gun violence prevention laws will "go out on that plank" with President Obama and "the American public and the NRA will saw it right off."
From the November 9 edition of The Daily News on NRA News:
LAPIERRE: So what [Obama] is going to try to do is walk a lot of Democrats out on that plank with him. Now that Obama has got no more elections in front of him, he is going to try to do the same thing that Bill Clinton did in '92 after he got elected, which is walk a lot of Democrats out on that plank of attacking the Second Amendment. And here's a prediction I make right now. If they go out on that plank with President Obama, he doesn't have any more elections; these Democrats will have more elections in front of them. I predict in 2014, when they are out on that plank, if they walk it with Obama, the American public and the NRA will saw it right off behind him and defend this freedom.
But the NRA had an abysmal track record for the 2012 elections. Besides failing to achieve its primary goal to defeat President Obama, the NRA backed the losing candidate in six out of seven Senate races where it spent more than $100,000. Over two-thirds of incumbent House members who lost re-election bids were endorsed by the NRA.
In the wake of the presidential election, National Review Online's Ed Whelan made it clear that the country can expect more of the unprecedented right-wing opposition of the past four years to President Obama's judicial nominees. However, news outlets often neglect this obstructionism and ignore the role of the GOP and conservative media in creating "judicial emergencies" where courtrooms across the country suffer from vacancies on the bench, an omission highlighted by a prominent judicial nominations expert.
Fresh off of ascribing a lack of virtues to the majority of the nation who re-elected the president, conservative legal analyst Ed Whelan urged the Republican party on November 8 to redouble its efforts in blocking judicial picks by expanding the obstruction to any and all Supreme Court nominees. In the NRO blog, Whelan wrote:
I'm surprised to see, in [a November 8] Wall Street Journal article, that one conservative legal commentator has opined (according to the article's paraphrase and internal quote) that "[b]ecause Republicans lost the presidential election and a couple of Senate seats, ... Mr. Obama was entitled to 'a lot of deference' should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee."
I think that this view is badly misguided.
[C]onservatives shouldn't set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn't embrace those principles is unfit for the Court.
This sentiment serves as a reminder of just how intransigent the right-wing has become in objecting to judicial nominees who aren't conservative ideologues. Although the named WSJ article at least referenced the prospect that Republicans would filibuster anyone left of centrist U.S. Court of Appeals for the District of Columbia Judge Merrick Garland for the Supreme Court, it ignored the rampant obstructionism that has ground the lower court confirmations process to a halt. The unprecedented nature of this bottleneck could become even more apparent this week, when multiple stalled nominations will be sent to the lame-duck Senate floor in hopes of receiving the due consideration of an up-or-down vote that was accorded President George W. Bush's nominees exactly ten years ago. As recounted by the Constitutional Accountability Center's Doug Kendall:
There is certainly precedent for a big crop of lame-duck confirmations--in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
This precedent may be overlooked, as it has become unfortunately common for the news media to downplay the GOP's role in blocking the President's nominees. But as judicial nominations expert and University of Richmond Professor of Law Carl Tobias has repeatedly noted, ignoring obvious obstructionism and instead claiming the administration fails to prioritize nominations - "overstat[ing] Democratic responsibility, and understat[ing] Republican" - does not adequately explain the unacceptably high number of vacancies in the federal judiciary. From Tobias' November 11 editorial in the Baltimore Sun:
Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees -- inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.
Whelan's post is not only an excellent reminder that the Republican obstructionism highlighted by Tobias may continue unabated, but also that Republican Senators have refused to be cooperative on centrist choices. Indeed, the prospect of Republicans only filibustering those "to the left of Merrick Garland," as suggested by the WSJ article, is highly suspect in light of the treatment of similarly centrist nominees this past Congressional session.
Future coverage of federal court nominees should thus look to the influential Whelan as to why these vacancies are not being confirmed. Whatever responsibility the administration may have in not offering nominees in a timely manner, the real reasons lie in Whelan's admitted goal of a Supreme Court with a "supermajority" of conservative Scalia clones.
For years, the media has advanced a false narrative that the National Rifle Association is an electoral powerhouse with a real ability to impact the outcomes of elections. The 2012 elections clearly demonstrate that the conventional wisdom is at odds with reality. While most incumbents in the House of Representatives kept their seats on November 6, over two-thirds of incumbents who lost were backed by the NRA.
Slate's Brian Palmer summed up the media's conventional wisdom on the NRA over the summer, when he wrote that the group "can reliably deliver votes," and this "is considered by many the most powerful lobbying group in the country."
This false media narrative of NRA's supposed influence on elections has persisted, even as an analysis by American Prospect contributing editor Paul Waldman (who previously worked for Media Matters) concluded that both NRA endorsements and campaign contributions have a negligible impact on elections. In a study of House races over four election cycles, Waldman determined that Republican incumbents did not receive a statistically significant advantage if endorsed by the NRA. The average campaign contribution of $2,500 to NRA-endorsed House candidates was also found to have insignificant impact on elections.
Of the 26 incumbent House members who lost on Election Day, 18 were endorsed by the NRA. Defeated incumbents included four Democrats and 14 Republicans. Four of the eight defeated incumbents not endorsed by the NRA were Democrats who lost to other Democrats in California's top-two primary system.
Overall, the NRA fared poorly in the 2012 election. According to open government group the Sunlight Foundation, the NRA Political Victory Fund, the NRA's political action committee, received a less than one percent return on $10,536,106 spent on independent expenditures during the election cycle. The NRA spent 0.44 percent of its money supporting winning candidates and 0.39 percent opposing losing candidates.* The NRA Institute for Legislative Action, the organization's lobbying arm, garnered a 10.25 percent return on $7,448,017 spent on the election. In seven Senate races where the NRA spent more than $100,000, six of the NRA-backed candidates lost.
The following NRA endorsed incumbents were defeated on Election Day. Two incumbents included in this analysis are currently trailing vote tallies, but those races have not been officially called:
Fox host Brian Kilmeade announced on the November 8 edition of Fox & Friends that he doesn't "blame the gougers" who are jacking up prices for gasoline in the wake of superstorm Sandy. But price gouging after a natural disaster not only takes advantage of humanitarian crises, it's also illegal in both New York and New Jersey.
Kilmeade's expression of sympathy for price gougers occurred in a discussion of the difficulties victims of Sandy and the current "nor'easter" face in obtaining gas, which many desperately need for transportation, electricity, and heat. As reported by CBSnews.com:
Six days after a superstorm devastated parts of the northeast, the recovery -- and frustration -- continues.
At least 111 people are known dead. Nearly two million homes and businesses remain without power, down from a peak of over eight million -- most of them in New Jersey and New York.
There's still a scramble for gas and housing as temperatures drop.
Along the coast in Rumson, N.J., an old fashioned iron hand pump is the only way to get gasoline out of its underground tank.
The gas is fueling generators in a town largely without electricity.
One person in line said they were using the gas to power their house, take hot showers, feed their family -- in other words "the real basics like 100 years ago."
In the face of this demand - described by co-host Steve Doocy as "gas-amageddon" - some vendors in possession of gas and gas cans are charging exorbitant prices. This windfall, however, is clearly illegal under both New York and New Jersey law that prohibits such price gouging, a fact unmentioned by Kilmeade. Both the Republican Governor of New Jersey and the Democratic Attorney General of New York have warned that this practice, described by the conservative New York Post as "sleazy," will be prosecuted to the fullest extent.
From the New York law:
During any abnormal disruption of the market for consumer goods and services vital and necessary for the health, safety and welfare of consumers, no party within the chain of distribution of such consumer goods or services or both shall sell or offer to sell any such goods or services or both for an amount which represents an unconscionably excessive price.
From the New Jersey law:
It shall be an unlawful practice for any person to sell or offer to sell during a state of emergency or within 30 days of the termination of a state of emergency, in the area for which the state of emergency has been declared, any merchandise which is consumed or used as a direct result of an emergency or which is consumed or used to preserve, protect, or sustain the life, health, safety or comfort of persons or their property for a price that constitutes an excessive price increase.
Kilmeade is not the only Fox personality offering sympathy for those who are engaging in illegal price gouging at the expense of victims of this natural disaster. Fox contributor Judge Andrew Napolitano took the same extreme "free market" stance on Fox Business' Varney & Co, and announced that as a "practicality," he "doesn't believe in any government regulation of the economy." As reported by Fox Insider:
[Fox's] Stuart [Varney] believes if the stations were allowed to charge what they wanted, there would be a revolution, and Judge Napolitano thinks that is the practical way to go. "If buyers were willing to pay what they agreed to pay, there would be enough gas to go around," said Napolitano.
"The free market can allocate resources better than the government can," according to the judge, and gas station owners should be able to charge what they want.
In a November 6 post titled "Vote," ex-militia blogger and Fox News guest Mike Vanderboegh wrote, "At least later on you can say you tried everything else before you were forced to shoot people in righteous self-defense of life and liberty."
Vanderboegh, one of the self-proclaimed "midwives" covering the Bureau of Alcohol, Tobacco, Firearms and Explosives Operation Fast and Furious "because nobody else would touch it," has repeatedly appeared on Fox News over the past two years to discuss the failed gun trafficking sting. Setting aside his use of violent rhetoric and threats of armed insurrection against the United States government, Fox News promoted Vanderboegh as an "authority" on the topic.
In the wake of the passage of healthcare reform in March 2010, Vanderboegh received national exposure after telling his readers that "if you wish to send a message that [then-Speaker Nancy] Pelosi and her party cannot fail to hear, break their windows." According to The Washington Post, "In the days that followed, glass windows and doors were shattered at local Democratic Party offices and the district offices of House Democrats from Arizona to Kansas to New York." Vanderboegh was unrepentant, telling the Post, "Glad to know people read my blog."
According to federal prosecutors, the plot of Vanderboegh's novel Absolved inspired four members of a Georgia militia to attempt to obtain explosives and manufacture ricin, a biological agent, as part of a plan to assassinate government officials. In Absolved, a deadly shootout between a man who has stockpiled weapons and law enforcement inspires a group of anti-government extremists to devise a widespread assassination campaign against government officials. In its introduction, Vanderboegh described the book as "a cautionary tale for the out-of-control gun cops of the ATF" and "a combination field manual, technical manual and call to arms for my beloved gunnies of the armed citizenry."
Judicial Crisis Network chief counsel Carrie Severino praises her organization's last-minute television attack advertisement against Michigan Supreme Court candidate Bridget McCormack for assisting in the representation of Guantanamo detainees. But Severino's article, which appeared in the National Review Online, failed to mention that the right to counsel for the detainees, such as the one McCormack represented, has been defended by prominent conservative lawyers and the federal courts.
The ad in question began running the week before the election and has been heavily criticized both locally and nationally for attacking McCormack's participation in the legal proceedings for accused detainees at Guantanamo. The 30-second ad features a mother whose son was killed while serving in the military in Afghanistan, who asks "how could" McCormack "help free a terrorist"? In fact, McCormack was part of a Bush-era legal system set up to represent Guantanamo detainees, many of whom were found to be improperly detained. In defense of the ad, Severino writes that the Judicial Action Network was "proud of the service we performed by exercising our constitutional rights and bringing these facts to the people of Michigan." But this attack on the provision of attorneys for detainees - regardless of their guilt - is not new and has been repeatedly discredited by prominent conservatives.
For example, Severino recycles the argument that the detainees should not have access to counsel based on their status as "foreign enemy combatants." As conservative Professor of Law Orin Kerr has noted, this argument is "simply incorrect," as evidenced by the Bush administration's abandonment of such a claim and Supreme Court and subsequent rulings that established the constitutional right of detainees to "go to federal court to challenge their continued detention," a right not contingent on citizenship.
Kerr offered this analysis in the wake of similar attacks on Justice Department attorneys who - like McCormack - had provided representation for detainees prior to entering government service, describing the attacks as "ridiculous." Also in response to this earlier incarnation of the current smear, a "group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a 'shameful' effort." From the 2010 letter, which included prominent conservative attorneys David Rivkin, Lee Casey, Kenneth Starr, and Viet Dinh, among others:
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
The right to counsel has been repeatedly reaffirmed by the courts. Most recently, the respected Chief U.S. District Judge Royce Lamberth, who was nominated to the bench by President Ronald Reagan and is in charge of Guantanamo proceedings, reminded the government in September that the constitutional right to access to the courts for detainees "means nothing without access to counsel" because they "are inseparable concepts and must run together." In fact, this fundamental constitutional concept is the exact point of the op-ed penned by McCormack in 2005 that the Judicial Action Network mischaracterized in their ad campaign against her as "an opinion piece in the Detroit News where she encouraged other attorneys to represent suspected terrorists." From McCormack's June 16, 2005, Detroit News op-ed (via Nexis):
The success of the emerging democracy in Iraq, which hundreds of American men and women have lost their lives fighting for, will depend on whether the rule of law takes full root. Of course, our commitment to the rule of law here at home underlies our own system of government.
That commitment in turn requires unwavering respect for due process for the accused -- to be informed of charges, to have genuine access to legal counsel and to be given an opportunity to present or contest evidence. Our commitment to such basic rights extends to our most serious transgressors, and it is upheld during our most difficult times. Such a commitment most distinguishes us from our enemies.
The urge to cut constitutional corners when fighting an evil enemy is understandable. But it is a visceral urge, and we should resist it.
Abandoning the rule of law betrays our most fundamental commitments, our noble side. America has fought and won its most important battles without abandoning the values that most define it, including most especially due process and the rule of law.
Right-wing media outlets are reporting that New York City Mayor Michael Bloomberg, an advocate of gun violence prevention, denied the National Guard entry into Brooklyn to aid victims in the wake of Hurricane Sandy because members of the National Guard carry firearms. In fact, during the press conference the critics are citing, Bloomberg said he opposed having the Guard patrol the streets because he believed the New York Police Department was sufficiently equipped to protect the public and that the Guard would be better used in locations with smaller police forces.
During an October 31 press conference, Bloomberg was asked to respond to Brooklyn Borough President Marty Markowitz's request for additional National Guard resources to deter criminal activity. Bloomberg responded that "The National Guard has been helpful, but the NYPD is the only people we want on the street with guns," adding that "[w]e don't need it" and that the troops would be better used for that purpose in "locations upstate and into surrounding states where they don't have a police department the size of New York."
REPORTER: Mr. Mayor, Brooklyn borough president Marty Markowitz has a question, additional National Guard in Brooklyn, do you agree?
BLOOMBERG: No, we appreciate the help. The National Guard has been helpful, but the NYPD is the only people we want on the street with guns. We don't need it. There has been one or two minor outbreakings, disgraceful as they may be, looting reported in the paper, but the vast bulk of people are doing the right thing. And in Brooklyn people are safe the same way they are in the rest of the city. We have the resources, the NYPD is 100 percent confident that we can protect the public, we've been doing this for an awful long time. You just have to take a look at the crime rate to understand how good a job this is. And the National Guard has plenty of responsibilities. There are plenty of locations upstate and into surrounding states where they don't have a police department the size of New York, and they can use help from the state, and that's where they should be.
In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
Fox News reporter William La Jeunesse highlighted fears from gun owners about President Obama's call to reinstate the assault weapons ban and suggested that those fears could sway the presidential election. In so doing, Fox is ignoring the fact that an assault weapons ban is favored by most Americans and that research suggests that the gun lobby has relatively little influence on election outcomes.
During the November 1 edition of Happening Now, La Jeunesse claimed that President Obama "stunned gun owners with his plans for a second term" when he indicated support for restrictions on assault weapons during the October 16 presidential debate. He further indicated that "gun owners could cause a problem" for Obama in some swing states, warning that "gun owners do vote."
But by harping on the importance of gun owners in presidential elections, La Jeunesse helped advance a false National Rifle Association narrative that exaggerates the influence of the gun lobby. An analysis conducted by The American Prospect contributing editor Paul Waldman (a former Media Matters staffer) found that NRA intervention has almost no influence on election outcomes. Waldman's report further showed that claims that the NRA had a significant impact on the 2000 presidential election -- a claim often repeated by the NRA and the media -- is baseless.
In focusing on the opinions of the handful of gun owners he interviewed, La Jeunesse also ignored the fact that large majorities of Americans say that they would support a reinstatement of the assault weapons ban.