On February 5, President Obama announced the nomination of state judge Darrin Gayles to the U.S. District Court for the Southern District of Florida. The previous nominee for that slot, state judge William Thomas, was unexpectedly blocked by Sen. Marco Rubio (R-FL), a decision right-wing media defended.
If confirmed, Gayles will be the first black, openly gay male judge on the federal bench. But Gayles is not the first black, openly gay judge to be nominated to the Florida seat -- that would have been Thomas. Despite his initial support, Republican Senator Marco Rubio ultimately refused to support Thomas' nomination, a decision that was fatal to the nomination because nominees to the federal bench need the support of both of their home-state senators to advance.
In the wake of criticism about Rubio's flip-flop, right wing media defended the Senator's decision, claiming his belated "careful review of [Thomas'] record raised red flags" and rejecting as baseless any claims that Rubio's decision may have been "because he was a black homosexual."
But the nature of Rubio's subsequent change of heart regarding Thomas' nomination was strange. Though Rubio insisted he withdrew his support due to concerns about Thomas' "fitness" to serve, members of the Florida legal community were quick to point out the judge's extensive qualifications and his fairness in the courtroom. Indeed, although the "red flags" were purportedly supposed to involve improper sentencing in two criminal cases, the actual prosecutors involved rejected those arguments. As explained by Miranda Blue of People for the American Way:
Rubio's office provided two examples of instances in which they believed that Thomas didn't impose "appropriate criminal sentences." In both cases, Thomas imposed the highest sentence sought by the prosecution; in both cases, prosecutors praised his handling of the trials. Rubio's staff also claimed that in one of those cases, a grisly murder trial, Thomas "broke down in tears" when sentencing the defendant to death; news reports make clear that the judge's tears came when he was describing the brutal crime. As [MSNBC's] Chris Hayes put it, none of these complaints "pass the smell test."
Because of this history, national news organizations are already reporting on this nomination of Gayles to the federal bench. Rubio's office has also quickly responded to media inquiries, telling NPR "I do not anticipate having an objection to moving forward on any of these nominations pending the outcome of the customary background check conducted on every nominee." Such high-profile media scrutiny is certainly welcome in the wake of the confusing and contested reasons for the failure of the last openly gay black man to be seated to this court.
In the wake of a smear campaign of "race-baiting and dog whistle politics" against Debo Adegbile, President Obama's highly-qualified nominee to head the Civil Rights Division of the Department of Justice, The Leadership Conference on Civil and Human Rights has formally called on right-wing media to raise the level of discourse and abandon their efforts at "character assassination" and "racially charged rhetoric."
On January 23, conservative newspaper The Washington Times ran an extremely offensive caricature attacking Adegbile. The caricature was a reference to Adegbile's successful appellate representation of a convicted murderer whose death sentence was twice confirmed to be unconstitutional. Adegbile's work on that case as one of the NAACP Legal Defense Fund's top lawyers has been called "consistent with the finest tradition of this country's legal profession" by the American Bar Association.
The Times' caricature, on the other hand, referred to his nomination as "a slap in every policeman's face," a reference to the victim of Adegbile's former client.
The Leadership Conference -- a coalition of 200 of the nation's leading civil rights organizations -- responded with a statement calling the caricature "reminiscent of the racist iconography of the late 19th century designed to dehumanize and stereotype African Americans," a condemnation of the right-wing media attacks against Adegbile. The January 30 statement also called on the Times and Fox News specifically to "tone down this rhetoric and have a reasoned and substantive conversation on this important nomination":
Until today, we've ignored the race-baiting and dog whistle politics that form the basis of opposition to Debo Adegbile's nomination to head the Civil Rights Division at the Department of Justice. We've disregarded the distortions about Adegbile's efforts to ensure that all Americans can live and work free of discrimination.
But this buffoonish and racially tinged caricature is beyond the pale of acceptable mainstream debate. This cartoon is reminiscent of the racist iconography of late 19th century America designed to dehumanize and stereotype African Americans who were only beginning to throw off the shackles of chattel slavery.
Debo Adegbile is one of the preeminent civil rights lawyers of his generation with broad and bipartisan support for his confirmation. He's the son of immigrants who worked his way through law school to defend American democracy in the U.S. Supreme Court. But to the Washington Times, Fox News, and others, he's a buffoonish caricature and a "cop killer." The American Bar Association has debunked this lie, and wrapping it in racially charged rhetoric does not make it any more true.
This type of character assassination harkens back to the baseless and unrelenting attacks by Senator Joseph McCarthy during the 1950s McCarthy hearings, which led counsel Joseph Welch to ask Senator McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
The head of the civil rights division is a vitally important office charged with defending the rights of all under the U.S. Constitution. There is no longer room for the dog whistle politics of yesteryear in a 21st century debate about an extremely well-qualified nominee to an important position such as this. We're calling on all of Adegbile's critics to tone down this rhetoric and have a reasoned and substantive conversation on this important nomination.
Right-wing media continue to attack former senior counsel to the Senate Judiciary Committee Debo Adegbile, President Obama's highly-qualified nominee to head the Department of Justice's Civil Rights Division, with baseless smears and race-baiting.
Following the lead of an ongoing right-wing misinformation campaign against this former top lawyer for the NAACP Legal Defense Fund, The Washington Times advanced the accusation that Adegbile's nomination is somehow offensive to police because he once worked on the twice-successful appellate appeal of the unconstitutional death sentence of a convicted murderer. Adegbile's former client remains imprisoned for life. Immediately reposted by right-wing blogger J. Christian Adams, who began the smears against Adegbile, the Times captioned its disturbing caricature of Adegbile with: "Obama's choice represents a slap in every policeman's face."
The caricature does not appear in the online edition of the Times.
Unlike The Washington Times, the American Bar Association has called Adegbile's representation of a criminal defendant's constitutional rights "consistent with the finest tradition of this country's legal profession." Moreover, the National Organization of Black Law Enforcement Executives has also lent its support to Adegbile's nomination, calling him "well qualified" and the smears on his character "troubling":
We believe that Mr. Adegbile's record of achievement is impressive, and he is well qualified for the position. Additionally, he has demonstrated a respect for the fundamental rights of all people under our constitution to have legal representation no matter how heinous the offense. We are confident in his ability to bring a balanced and ethical perspective into his role as head of the Civil Rights Division.
The attacks on Mr. Adegbile's character for upholding one's constitutional rights are troubling. To take away one's right to a proper defense because of the act committed, is against the constitutional oath that we as law enforcement officials have sworn to protect and defend. His distinguished record of achievement has centered on racial justice, constitutional rights and equal opportunity; and he should be judged on his entire body of work and not one chapter.
We empathize with the surviving families and those touched by the despicable crimes that were committed; and we understand how painful it is for them to see a conviction sustained at trial and a death sentence imposed only to be lost on appeal because of an error. But these are the laws that we have taken an oath to uphold both popular and unpopular. Civil Rights cases are some of the most controversial and complex cases that our courts face. They are based on interpretations of the US Constitution and affect the rights afforded to all of our citizens and some non-citizens. We expect the leadership of the Civil Rights Division to possess the courage to move forward on those cases that warrant it, and, after careful and thoughtful consideration have the ability to reject those cases that don't meet the legal threshold.
We believe that Mr. Debo Adegbile possesses the unique qualifications needed to lead the Civil Rights Division. He is balanced and ethical, and has demonstrated a duty to honor our Constitution through his bravery to ensure the proper representation of even an individual who has committed the most reprehensible of offenses. Our Constitution is what makes America great and has served as a model for other nations. Therefore, it is our recommendation that Mr. Debo Adegbile be quickly confirmed as the Assistant Attorney General of the United States Department of Justice, Civil Rights Division. [National Organization of Black Law Enforcement Executives, 1/24/13]
Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
Fox News correspondent Shannon Bream misleadingly claimed that filling the vacancies on the second-most important court in the country was less pressing than filling seats in so-called "judicial emergency" jurisdictions, while ignoring how Senate Republicans have contributed to those emergencies.
In a November 25 segment on Special Report with Bret Baier, Bream suggested that, because the D.C. Circuit is not classified as a "judicial emergency," there is no reason to quickly confirm President Obama's highly-qualified nominees to that bench, such as Georgetown Law Professor Cornelia "Nina" Pillard:
BREAM: Critics say there is no reason for the president to insist these nominees, including Pillard, be approved as quickly as possible. Across the country there are four federal appellate courts so lacking in judges that there are, quote, "judicial emergencies." And this court, the D.C. Circuit, it's not one of them.
But the body that determines these "judicial emergencies," the U.S. Judicial Conference, has recommended that the D.C. Circuit retain its 11-judge complement, a capacity the current GOP filibusters are preventing.
In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
Absurd smears against a highly-qualified judicial nominee for her support of family planning, sex equality, and conservative attempts to dismantle gender stereotypes made the jump from right-wing blogs to the Fox News Channel.
On November 25, Fox News' Shannon Bream correctly reported that the former Connecticut attorney general, among a wide collection of bipartisan legal experts, supports the nomination of the eminently qualified Georgetown Law Professor Cornelia "Nina" Pillard to the U.S. Court of Appeals for the D.C Circuit. Unfortunately, Bream proceeded to repeat right-wing media myths accusing Pillard of "radical feminis[m]" and hosted National Review Online contributor Carrie Severino to recycle the smears. From America's Newsroom, with co-host Martha MacCallum:
MACCULLUM: What are the critics saying that are opposed to her?
BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny. Here's a bit of what she has said when writing about abortion issue. Here's a quote from one of her articles: "Anti-abortion laws and other restraints on reproductive freedom not only enforce woman's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection." Here's Carrie Severino of the Judicial Crisis Network.
SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the Equal Protection Clause and feeling like women are being objectified as breeders in the country.
BREAM: She has used that word referring to women as breeders if they are forced to carry pregnancies that they don't want to have. But at this point it looks like there is no blocking her, it is likely she will take a seat on that very important court.
Since Pillard was nominated, she has been subjected to sexist, retrograde, and false accusations that her views on reproductive rights are not in the mainstream. In fact, they are based on decades-old constitutional law, including a decision written by arch-conservative former Chief Justice William Rehnquist.
For example, the quote that Bream yanked out of context from a 2007 academic article in which Pillard noted that "antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a "vision of the woman's role" as mother and caretaker of children in a way that is at odds with equal protection[,]" is an explicit reference to the fact that justices on the Supreme Court have already incorporated equal protection principles into their reproductive rights precedent. Unmentioned by Bream, the quote was part of a discussion of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the constitutionality of Roe v. Wade.
The notion that damaging gender stereotypes can be at the core of restrictions on reproductive rights is also based on long-standing constitutional precedent.
Right-wing media have seized on Senate Democrats' parliamentary change to eliminate filibusters for most presidential nominees to call for Republicans to block immigration reform or advance the notion that the change makes it less likely for Republicans to act on reform. In fact, Republicans repeatedly refused to act on immigration reform long before this change took place.
National Review Online, while claiming to support a change in Senate procedure in order to "overcome partisan obstruction," refused to acknowledge that it was hyper-partisan obstructionism that forced Senate Democrats to embrace the so-called "nuclear option."
On Thursday, Senate Democrats approved a rule change that will finally allow an up-or-down vote for President Obama's nominees, who have been the victims of unprecedented Republican obstructionism. NRO, like other right-wing media outlets, colorfully responded to the rule change, with John Fund calling Democrats "snake-oil salesmen."
From NRO's November 21 editorial:
The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees.
The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue's gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: "Don't tell me what the law is. Tell me who the judge is." He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, "We are remaking the courts." Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.
The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid's Senate is conspiring with him to do so. The voters missed their chance to forestall these shenanigans in 2012. They made the wrong decision then, and have a chance to make partial amends in 2014, when they will be deciding not only what sort of Senate they wish to have, but what sort of courts, and what sort of country.
Fund joined the chorus in a separate post, minimizing GOP obstructionism and advancing the myth that new judges are not needed on the D.C. Circuit because the court's caseload is "provably so light." Fund went on to imply Senate Democrats were hypocrites because they spoke out against the use of the nuclear option by the GOP to push through President Bush's ultra-conservative jurists back in 2005.
Washington Post political blogger Jennifer Rubin is, like most pundits sympathetic to the Republican cause, upset over the move by Democrats to change Senate rules so that judicial and executive branch nominees will no longer have to face down a filibuster in order to get a confirmation vote. "It's a bad way to run the country," Rubin writes. But at the same time she is wistful for what might have been had the filibuster been done away with long ago, and what the nation might have discovered about... Benghazi?
If only. . .
The president cared as much about Iran's nuclear option as he does the Senate's.
The nuclear option was in place for superbly qualified Republican-nominated judges like Miguel Estrada whom the Democrats filibustered.
The nuclear option had prevented Sen. Barack Obama from blocking the confirmation of John Bolton as United Nations Ambassador in 2005.
The nuclear option had removed fear of a filibuster and allowed Susan Rice to get nominated as secretary of state so then she could have been questioned about Benghazi.
This is a perplexing hypothetical. At the time Susan Rice's name was being thrown around as a potential nominee for Secretary of State, there were few people in the media who opposed the idea more than Jennifer Rubin. "From my perspective, it makes no sense to have a three-ring confirmation hearing and lose over a subpar nominee such as Rice," Rubin wrote on December 4, 2012. When Rice asked that her name be withdrawn from consideration for the position, Rubin wrote: "To be frank, she should never have been floated as a possible nominee."
Rush Limbaugh spent a substantial portion of his radio show ranting about the Senate Democrats' decision to invoke the so-called "nuclear option," which would allow President Obama's judicial and executive nominees to finally be confirmed through a simple majority vote, a practice that had ground to a halt because of the GOP's mass filibusters.
On his November 21 show, Limbaugh inaccurately stated that President Obama could now increase the number of seats on the D.C. Circuit, and accused Democrats of seeking "total statist authoritarianism":
Obama's going to get every judge he wants. He's going to get -- if they want to add seats to a court -- if they want to add five new liberal seats to the D.C. Circuit, for example, they can do it, there's no stopping them, because the Republicans don't have the votes.
Democrats abruptly changed the Senate's balance of power by reducing from 60 to 51 the number of votes needed to end procedural roadblocks known as filibusters against all presidential nominees. Folks, this is part and parcel of why the Democrats are so hell-bent on winning the House in 2014. This -- winning the House would give them total authoritarian non-challengeable control over the US government. Quite literally there would be no way to stop them. None whatsoever.
When the minority is Republicans, they don't even exist. And they're not due any respect, constitutional or otherwise. Constitutional or human. And so basically what this means, with a president like Obama, is there's no stopping -- he can nominate anybody for anything in the judiciary ... cabinet, whatever. There's no way he can be stopped.
Democrats have made it plain they're not interested in democracy. And that really is what this means. Not interested in democracy at all. Total statist authoritarianism. And frankly, I'm being kind with that terminology.
Rush went on to say that if Democrats wanted to "nominate avowed Communists to be judges, there's no stopping them now ... If Obama wants to nominate [Syrian President] Bashar Assad to the Ninth Circuit Court of Appeals, there's no stopping him. ... How about they want to make Bill Ayers a judge, or Jeremiah Wright?"
Leading up to the successful rules change in the Senate to require a simple majority vote on presidential nominees, CNN gave air time to a number of right-wing myths about the D.C. Circuit Court of Appeals, among them that the court is ideologically balanced and that Senate Democrats' decision to embrace the "nuclear option" could make the Senate even more volatile in the future.
On November 21, in response to Republicans' blanket filibustering of President Barack Obama's judicial and executive nominees, Democrats reformed the rules of the Senate (a common practice) to prevent this unprecedented abuse of the filibuster. While reporting on this new rule that will restore up-or-down votes for the backlog of highly-qualified and mainstream nominees, CNN unfortunately repeated right-wing media myths on filibuster reform and the D.C. Circuit. Before the final vote, CNN's chief congressional correspondent Dana Bash initially minimized the unprecedented obstructionism on the part of Republicans, saying that a rule change could make the legislative body "even more partisan" should the GOP regain a majority in the Senate down the road. Bash went on to say that Senate Majority Leader Harry Reid (D-NV) was considering the so-called "nuclear option" because he wanted "to make a political point," ignoring that the mass filibusters have threatened to grind agencies to a halt:
BASH: What [the "nuclear option"] means in layman's terms is that it could be even more partisan on Capitol Hill, if you can imagine that, than it is now. The reason that the Democratic leader is going to seek to change the rules is because they're very frustrated with the fact that Republicans have been holding up the president's nominees. Let's just take a step back and talk about what we're discussing. ... [T]he current rules allow the minority to filibuster, and it requires 60 votes to overcome the filibuster. What this rule change would do, would effectively take away the minority's rights on most of the president's nominees for the executive branch and also for the bench, except for the Supreme Court.
Now you might ask well if this is the case why don't people in the majority, parties in the majority change the rules all the time? The reason is, there's a reason it's called the nuclear option, it is because institutionally, both parties have this sort of an understanding that they may be in the majority now but they could be in the minority tomorrow and part of the beauty of the Senate, in the Senate rules at least for the past few decades, has been that minority rights are pretty strong, as opposed to the House and so the respect for that has made it, made the leaders in both parties reluctant to change the rules, but Harry Reid has gotten so fed up and wants to make a political point right now and so it looks like it might happen today.
Although Bash appears to agree with the idea that it's increasingly likely that Senate Republicans will change procedural rules in the future now that Democrats have reformed the rules, her assertion that the "nuclear option" would make Washington "even more partisan" ignores the hyper-partisan maneuvers Senate Republicans have already employed. It is precisely because Senate Republicans have engaged in such partisanship that Democrats were forced to consider a rule change. In just the last few weeks, Republicans have topped off their historic streak of mindless filibustering by blocking three D.C. Circuit nominees in a row -- and not because they have qualms about their qualifications.
From the November 21 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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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.