National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.
NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the "nuclear option," which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):
I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.
Whelan's NRO colleague, Carrie Severino, joined the "make my day" chorus in a similar post on Reid's decision to invoke the nuclear option, saying, "I hope he does conservatives the favor." Severino later reiterated that point on PBS Newshour with Gwen Ifill:
I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.
But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.
It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the "nuclear option" just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.
CNN congressional correspondent Dana Bash repeated the right-wing myth that the U.S. Court of Appeals for the D.C. Circuit, arguably the second most important court in the country, is currently "evenly split" and inaccurately reported that the blanket filibusters preventing up-or-down votes on President Barack Obama's judicial nominees are "sacrosanct."
In the wake of a flurry of filibusters of the president's highly-qualified nominees to the D.C. Circuit, Democrats appear to have finally convinced holdouts in their caucus that Senate Republicans' unprecedented obstructionism of judicial and executive nominees is unacceptable. Unfortunately, in reporting on this development that a change to the Senate rules may finally have enough votes to pass, CNN's Bash uncritically repeated right-wing media's dissembling justifications for the GOP blockade. From the November 19 edition of the Situation Room:
BASH: As you well know, Senate filibusters require 60 votes to overcome and it's a pretty high hurdle in a politically divided Senate but the ability to filibuster has been sacrosanct, neither party has dared take that power away from the minority. But Democrats are so frustrated right now that they can't get the president's nominees confirmed, they are once again threatening to do just that, the nuclear option.
BASH: But unlike other partisan brawls over the course, this is not about qualifications or ideology of the nominees. It's about the makeup of the court itself. The D.C. Circuit, the powerful federal appeals court that hears most challenges to laws passed by Congress, now evenly split, four judges appointed by Democrats and four by Republicans. And the GOP wants to keep it that way.
BASH: Republicans argue the D.C. Circuit workload isn't heavy enough to need three more judges. They say Democrats are the ones playing politics.
To her credit, Bash does correctly note that Republicans cannot muster legitimate criticisms of the actual nominees. But by failing to recognize the inaccuracy of their alternate reasons for filibustering these highly-qualified nominees anyway, she inadvertently gives legitimacy to bogus right-wing media rationales and minimizes the historic nature of this rampant obstructionism.
In a recent editorial, The Washington Times accused Democrats of planning to play "the race card" by criticizing Senate Republicans' historic obstruction of President Obama's well-qualified and diverse judicial nominees.
Senate Republicans have engaged in unprecedented obstruction of Obama's judicial nominees, which is preventing an up-or-down vote on current nominees to the critical U.S. Court of Appeals for the D.C. Circuit, Cornelia "Nina" Pillard, Patricia Millett, and district court judge Robert Wilkins. Yet the editors of the Times are quick to side with Senate Republicans who dismiss any criticism of their obstructionist strategy as nothing more than "a well-worn card."
From the November 18 editorial:
Senate Republicans are standing up, so far, to President Obama's attempt to pack the U.S. Court of Appeals for the D.C. Circuit with radical judicial activists. A filibuster blocked a vote on the confirmation of Cornelia Pillard last week and of Patricia Millett two weeks before that. Predictably, Senate Democrats declared that the forthright Republican opposition was another skirmish in the "war on women."
"It's a well-worn card," says Sen. Chuck Grassley, Iowa Republican, of the Democratic strategy. "And they play it every time." Well, not quite every time. When Republicans attempt to block confirmation of U.S. District Judge Robert L. Wilkins, who is black, to the appellate bench, Democrats will play the race card.
Opposing women and blacks is said to be part of Republican war on two fronts. It's not war when Democrats oppose female and black nominees. Forty-three Democrats voted unsuccessfully to deny George W. Bush's nominee Janice Rogers Brown to the appellate bench because she was not woman enough, just as Clarence Thomas was judged by Democrats to be not black enough. The Democrats guard their race and gender formulas as fiercely as Coca-Cola protects the formula for the popular soft drink.
Mr. Obama let slip the game at a private Democratic Senatorial Campaign Committee fundraiser early this month. "We are remaking the courts," he told them. The claim was brazen enough to make the ghost of FDR, lurking nearby, blush.
Republicans are rightly troubled by the prospect of remaking the courts by adding radical activists to a bench that doesn't even need new judges. Senate Minority Leader Mitch McConnell says that if more judges are added to the panel, "there wouldn't be work enough to go around." With some other federal appeals courts having legitimate vacancies, attention should be paid to "where judges are needed and where they're not," says Sen. John Cornyn, Texas Republican, "And this court demonstrably doesn't need new judges. It's not any more complicated than that."
The editorial is a stale rehashing of repeatedly disproved right-wing talking points.
As Republicans gear up to filibuster yet another of President Obama's highly-qualified judicial nominees, Democrats are mulling Senate rule changes to allow a straight up-or-down vote on these picks. After unprecedented obstructionism on the part of the GOP, media should note that the so-called "nuclear option" may be the only way for these nominees to get a vote.
Immediately after President Barack Obama nominated the highly-qualified and widely respected Debo Adegbile to be the next assistant attorney general for civil rights at the Department of Justice, right-wing media attacked this top lawyer of the NAACP Legal Defense Fund for purportedly being a "racialist."
Writing on an obscure right-wing blog, J. Christian Adams, a frequent Fox News guest who served in the highly politicized and disgraced Bush-era DOJ and "whose claim to fame as a federal lawyer seems to be his penchant for accusing black people of discriminating against whites," accused Adegbile of "racialis[m]" and the venerable NAACP Legal Defense Fund of a "radical racial agenda." From a November 14 post on Pajamas Media:
Adegbile hails from the NAACP Legal Defense Fund, an organization that has pushed a radical racial agenda including attacks on election integrity measures, opposition to criminal background checks for hiring, and racial hiring quotas for state and local governments.
Adegbile's name was mentioned as a possible nominee to the federal bench. Because of his advocacy for racialist policies, such a nomination would face serious confirmation difficulties. But in Eric Holder's Justice Department, nakedly racialist policies are standard fare, and Adegbile will fit right in.
This is an an-your-face nomination. This is the White House sending a message to Republicans and conservatives that the radical racial policies of the Justice Department will continue full speed ahead.
[I]n the Obama Justice Department, the law is not as important as the cause. And with Adegbile, the cause is racialist.
In another context, the venue and content of this thinly-veiled insinuation of so-called reverse racism could be easily ignored. Unfortunately, on the topic of executive and judicial nominees of the current president, Adams' attack is disturbingly similar to the same sort of race-baiting that jumps from little-read blogs to prominent right-wing platforms like Fox News, the editorial page of The Wall Street Journal, National Review Online, and even the mouths of GOP congressmen engaged in the ongoing blanket filibustering of the president's diverse nominees.
Accusing select presidential nominees of racialism or anti-white bias is a tired page of right-wing media's playbook against those who litigate and uphold longstanding civil rights precedent, a body of law that tends to help most those systematically disadvantaged by racism. This rant has been directed with more or less subtlety at Labor Secretary Thomas Perez (who previously led the DOJ's Civil Rights Division), Supreme Court Justice Sonia Sotomayor, and Attorney General Eric Holder.
Assumedly, these charges have some sort of salience with those unfamiliar with American history and basic civil rights law.
Bloomberg columnist and National Review editor Ramesh Ponnuru picked up the repeatedly debunked right-wing media myth that President Barack Obama is "court-packing" because Senate Democrats are trying to hold up-or-down votes on nominees to the D.C. Circuit Court of Appeals.
In addition to the fact that filling vacant seats is not actually "pack[ing] the court," the term used to describe FDR's failed attempt to add more seats to the Supreme Court, Ponnuru includes a variety of discredited falsehoods in his column as reasons why Republicans should continue to block Obama's judicial nominees, regardless of their stellar qualifications and bipartisan endorsements.
From his November 12 Bloomberg column:
Senate Majority Leader Harry Reid says he intends to force a vote this week on the nomination of Cornelia Pillard to the court. Pillard's is one of three nominations Republicans are opposing. They say the Democrats are trying to pack the court. The Democrats say they're just trying to fill vacancies, and argue that the Republicans' behavior is so abusive they'll restrict the filibuster if it continues.
Republicans should remember what happened the last time we had such a fight, and they shouldn't give in.
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points.
As it happens, the Republicans have the better of the current argument. They aren't conducting a "blockade" that violates past norms. President Barack Obama's nominees are getting confirmed at a faster pace than Bush's were at the same point in his presidency. One of Obama's nominees, Sri Srinivasan, was unanimously confirmed in May.
And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court's chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that "there wouldn't be enough work to go around" if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.
I'll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit's caseload is. What they care about is the court's ideological balance.
Ponnuru goes on to assert that the D.C. Circuit "is actually balanced between Democratic and Republican appointees." This is not the first time right-wing media have trotted out faulty math to to try and argue that the D.C. Circuit is somehow ideologically balanced -- but it just isn't true. In fact, there are six judges on the court who have taken "senior status," a form of quasi-retirement that allows those judges to hear panel cases. Of the six judges who have taken senior status, five are Republican appointees. Far from being "balanced" ideologically, conservative justices outnumber their more liberal counterparts 9 to 5.
Even after CBS' Lara Logan apologized for and promised to correct a retracted 60 Minutes story on the Benghazi attacks featuring inconsistent accounts from an unreliable source, the ripple effects from the delay in retracting the report continue.
On the November 10 edition of State of the Union, CNN host Candy Crowley asked Sen. Lindsey Graham (R-SC) if he would continue to block President Obama's nominees, after the false 60 Minutes report collapsed. Graham replied that he would continue blocking nominees, saying he's been requesting to talk to Benghazi survivors for a year. Crowley pushed further, explaining to Graham that "what spurred your action to block the president's nominees was the 60 Minutes report, so that's what prompted you to do this. I mean you did it the day after and you cited it."
CBS' failure to properly vet its sources and its long delay in responding to criticism of its report has created ripple effects that continue to this day. Not only has CBS' credibility taken a huge hit, but the story has led Graham to block presidential nominations. Media Matters founder and chairman David Brock explained, when asked by MSNBC host Al Sharpton "how does [Graham] justify blocking every post that the president proposes," that Republicans will continue investigating until they hear what they want to hear:
Although all of President Obama's qualified nominees for the U.S. Court of Appeals for the D.C. Circuit are currently at risk of being refused an up-or-down vote by unprecedented Republican obstructionism, right-wing media have targeted Georgetown law professor Cornelia "Nina" Pillard in particular with misguided smears.
In a report on the renewed judicial nominations struggle over three vacant seats on the D.C. Circuit Court of Appeals, Fox News' Shannon Bream incorrectly reported that the court was balanced evenly and that past Democratic opposition to highly controversial Republican judicial nominees is equivalent to the blanket obstructionism President Obama's nominees are currently facing.
Appearing on Special Report with Bret Baier, Bream advanced the right-wing myth that filling the vacancies on the D.C. Circuit would "tip the balance" ideologically and is unnecessary, given its "lighter" caseload. From the October 29 edition of Special Report:
BREAM: The problem is this is the D.C. Circuit Court. And what's important about it is it is the key appeals court for looking at federal regulations and federal agencies, things like the EPA, the IRS. So it's something that looks at administrative action that goes around Congress. So it is a real check on administrative power. Now, this is the court that looked at the NLRB recess appointments, those appointments that the president made to the National Labor Relations Board, and found them unconstitutional. So it's very important. It's balanced right now evenly between judges who were appointed by Republican presidents and Democratic presidents, so adding even one new nominee of the president to this court is going to tip the balance. By the way, four of the current Supreme Court justices served on this court. It's very important.
BRET BAIER: But Democrats rightly point out there are a lot of empty seats so why shouldn't they be filled?
BREAM: Yeah, there are three vacancies. The President has tapped three different lawyers to fill those seats, including one who is currently a judge in a lower court. And basically, there were vacancies back when President George W. Bush was fighting to fill these seats as well. Back then Democrats said the court doesn't have enough of a workload to justify filling all of these seats. It's what Republicans are saying now and they add the workload has gotten even lighter in the last eight years. One of the judges currently sitting on the bench said this, quote, "if any more judges are added now, there won't be enough work to go around." That's from one of the current folks who's on this court.
Bream's report on Republican obstruction of Obama's judicial nominees parrots repeatedly debunked right-wing talking points. Bream is correct that the D.C. Circuit Court is a significant part of the federal court system -- it is considered second only to the Supreme Court in terms of its impact on federal law. It is strange, then, that she would uncritically report on Republican efforts to prevent the court from operating at full capacity. Moreover, her characterization of Democratic opposition to George W. Bush's D.C. Circuit nominees is demonstrably false -- that opposition did not result in the elimination of any seats, and ultimately four of Bush's nominees were confirmed. And unlike Bush's judicial picks, President Obama's nominees have faced unprecedented obstruction from Senate Republicans.
Right-wing media continue to deny that President Obama's judicial nominees have faced unparalleled obstruction from congressional Republicans, and is mischaracterizing the legal philosophies of those nominees.
FoxNews.com contributor John Lott not only misled on the overwhelming hurdles President Obama's nominees have faced, he also rather bizarrely branded one nominee as "controversial," even though his legal opinions are based on well-established Supreme Court precedent.
From Lott's October 16 column:
The Senate Judiciary committee will vote on either Wednesday or Thursday whether to confirm Robert Wilkins, President Obama's nominee to the prestigious D.C. Circuit Court of Appeals -- the court often referred to after the Supreme Court as the "second highest court" in the country.
President Obama has spared little rhetoric in threatening Republicans should they dare defeat or delay Wilkins' nomination. When Wilkins was nominated in June, Obama accused Republicans of being "cynically" engaging in "unprecedented" obstruction of judicial nominations.
Democrats claim that any fair consideration would guarantee Wilkins' quick confirmation. After all, as they point out, Wilkins was quickly confirmed as a District Court judge in 2010 "without opposition."
But it might not be such smooth sailing, for after getting on the bench, Wilkins has made a number of controversial rulings -- recently striking down Texas' voter photo ID law and upholding aggregate campaign finance donation limits.
The president and other Democrats complain that Obama's nominees are suffering the most difficult confirmations ever. Many newspaper articles agree, such as in the New York Times, USA Today, and the Congressional Research Service.
But, these numbers are fundamentally flawed.
These studies don't look at what finally happens to nominees, only what happens at some arbitrary cut-off date, such as last fall or at the end of a president's first term.
In reality, many of the longest confirmation battles involve nominations made during a president's first term and not finished until some time during his second term.
A president's decision to make nominations late in a congressional cycle can also strongly influence the results.
Actually, President Obama has little to complain about.
But As Lott himself acknowledges, numerous analyses (including one by the non-partisan Congressional Research Service) have shown that President Obama's "rhetoric" is true -- his nominees have been blocked at unprecedented levels. Lott dismisses these studies by highly reputable sources because supposedly their "numbers are fundamentally flawed," a bold claim from a source whose research on gun violence has been repeatedly and seriously discredited.
As Congress returns from summer recess, right-wing media are once again helping obstruct President Barack Obama's nominees to the critical U.S. Court of Appeals for the D.C. Circuit.
Picking up where it left off, National Review Online is continuing its attacks on Georgetown Law Professor Cornelia "Nina" Pillard because of her purportedly wild-eyed academic writings on sex equality law, a mainstream part of American constitutional jurisprudence for decades.
Having seemingly failed to convince anyone beyond GOP Senators like Ted Cruz - who repeated NRO's talking points during Pillard's confirmation hearing - the NRO has now resorted to accusing Pillard of "false and deceptive" misrepresentations of one of these law review articles.
Specifically, NRO claims to know the true meaning of the article's words better than the author who wrote them, confidently concluding Pillard's law review piece was not academic, but rather an "ideologue['s]" manifesto of "extremism." From NRO:
In short, contrary to her testimony, Pillard wasn't playing the disinterested academic and merely identifying "the argument that one would make to make [her equal-protection challenge] amenable" to judicial resolution. Rather, she was affirmatively advocating the argument.[emphasis original]
In short, NRO is quibbling over whose paraphrase and characterization of a 53-page academic article was more correct during the hearing.
A Wall Street Journal editorial downplayed the vacancies on the D.C. Circuit Court of Appeals to justify Republican opposition to filling the posts, ignoring the Journal's past editorials highlighting vacancies during the George W. Bush administration as well as statements from judges on the D.C. Circuit regarding its unique workload and need for a full bench.
Fresh off of unsuccessful scare-mongering about the dangers of marriage equality, right-wing media are turning the clock back even further and attacking a highly qualified judicial nominee to the important D.C. Circuit Court of Appeals because of her academic writings on established sex equality law.
Started by Ed Whelan of the National Review Online and continued by anti-gay hate group leader Tony Perkins, a whisper campaign against veteran litigator and law professor Cornelia T.L. Pillard, President Obama's pick for the D.C. Circuit, has been spreading through right-wing media.
Whereas Whelan at least attempted to engage the legal arguments of a 2007 law review article in which Pillard explored how decades-old sex equality law is relevant to reproductive rights, other right-wing media are making even wilder and more inaccurate claims to smear the nominee as extreme when she is in fact solidly in the mainstream.
Perkins of the notorious Family Research Council, for example, made numerous errors in his attack on Pillard that, along with Whelan's rhetoric, is circulating on anti-choice websites and right-wing blogs.
Falsely ascribing a quote of conservative former Chief Justice William Rehnquist to Pillard in which he wrote for the Supreme Court that family leave policies not equally provided to both sexes are a "self-fulfilling cycle of discrimination," Perkins inaccurately described it as Pillard's condemnation of "celebrating motherhood." Where Pillard has observed that the anti-choice personhood movement could be exposed as unconstitutional by increasing awareness of the equal protection ramifications for pregnant women, Perkins fabricated the charge that Pillard "criticizes" the ultrasound. Resorting to spreading the ridiculous myth that Pillard would "declare" abstinence-only education "unconstitutional," Perkins managed to debunk such a silly charge in his very next sentence by quoting her accurate observation that a sex education class that stereotypes and disadvantages women could theoretically be "vulnerable to an equal protection challenge" under established precedent.
Finally, Perkins selectively quoted Pillard to characterize as "militant feminism" her argument that for women to have equal rights in the workplace, they need to be valued for more than their ability to bear children. From the actual full quote in Pillard's 2007 article:
A society in which women lack control to plan when they have children is one in which women must remain second-class citizens. We already know, and the Court recognized in Hibbs, that many employers assume that to be a mother is to be a primary caregiver with correspondingly less job commitment than a man, who is presumed to be an unencumbered "ideal worker." If impaired access to contraceptives hinders women's ability to exercise choice about when and whether to have children, it also reinforces broader patterns of discrimination against women as a class of presumptive breeders rather than reliable breadwinners and citizens.
From the July 24 edition of Fox News' America Live:
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The National Review Online published a string of blog posts featuring sexist, hypocritical, and flawed attacks on Georgetown law professor and Supreme Court litigator Cornelia T.L. Pillard, President Obama's nominee to the critical U.S. Court of Appeals for the D.C. Circuit.
Right-wing media have repeatedly attempted to rally GOP filibusters against the president's nominees to three vacancies on the D.C. Circuit, the appellate court considered the second-most important in the nation and currently skewed to the right. NRO recently joined the attack with the first personal smear, prefaced with the "damning assessment" that an unnamed source claims Pillard is "[liberal Ninth Circuit Judge Stephen] Reinhardt in a skirt but less moderate."
Obama has nominated three highly-qualified picks to fill these seats and offset the conservative imbalance of the D.C. Circuit's complement of active and senior judges. One of these choices is Pillard, graduate of Yale College and Harvard Law School, veteran of the Clinton administration, and former employee of both the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She also is an accomplished Supreme Court litigator in sex equality law (also referred to as gender equality law) and a contributor to the successful arguments in United States v. Virginia, which opened the doors of the Virginia Military Institute to women by firmly establishing the equal protection clause of the Fourteenth Amendment applies heightened scrutiny to sex discrimination.
In short, a liberal president nominated an extremely accomplished liberal to the D.C. Circuit.
NRO has responded with four posts that criticize a 2007 law review article Pillard wrote that argues reproductive rights, such as the constitutional right to an abortion, should be encompassed under equal protection grounds as well. Not only is this a decades-old concept at the root of sex equality doctrine, Justice Ruth Bader Ginsburg has made no secret of her support for this idea, even arguing for it in her successful 1993 Senate confirmation hearing.
Notably, the author of the pieces, Ed Whelan, chose an opening for criticizing Pillard that appears to go against his previous defense of then-nominee Justice Samuel Alito. In 2005, Whelan argued that Alito's past anti-choice writings on reproductive rights should not be used as a barometer for how he would rule on abortion as a justice. From the NRO:
[A Washington Post] article notes that one critic (a longtime abortion activist, as it happens) "said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion." Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito "applied his sentiments"? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.
The Post's article is simply not responsible journalism, and it does not even make any serious effort to be.
It should be noted that Alito's anti-choice writings that Whelan defended were legal memoranda penned as a Justice Department lawyer and judicial opinions. By contrast, when it comes to Pillard, Whelan is attacking her based on a law review article invoking the well-established constitutional doctrine of sex equality.