A Wall Street Journal op-ed pushed discredit smears to claim that Senator John Kerry is anti-military and not fit for a possible cabinet post.
President Obama is reportedly considering Kerry to be Secretary of State or Defense. In response, former Journal editorial board member Seth Lipsky asked in his op-ed "why in the world" the president would consider Kerry for either position. Lipsky claimed nobody did more than Kerry to "besmirch the name of the GIs who fought in Vietnam." As evidence, Lipsky cited 1971 testimony by Kerry that members of the military had committed war crimes in Vietnam. Lipsky suggested this claim was unfounded aside from the massacre at My Lai. But as FactCheck.org stated in 2004, "ample evidence of other atrocities has come to light" since Kerry's 1971 testimony.
In 1971 Mr. Kerry related to the Senate accusations that he said had been made by veterans testifying before an antiwar group called the Winter Soldier Investigation.
The conviction of Lt. William Calley for his role in the massacre at My Lai is a reminder that our side did commit some war crimes in Vietnam. But they were, as Mr. Obama suggested, the misdeeds of a few. According to the website wintersoldier.com, which is sympathetic to Mr. O'Neill and the Swift Vets, the allegations raised by the Winter Soldier investigation were examined by the Defense Department and either did not hold up or could not be proved and no one was ever prosecuted for the allegations made by Mr. Kerry's group. Allies of Vietnam Veterans Against the War, sponsor of the antiwar hearings at which veterans testified, dispute critics of the investigation.
But Factcheck.org debunked the claim that Kerry was making unfounded charges, pointing out that Kerry was relating stories he had heard from fellow members of the armed forces and that stories of wartime atrocities by U.S. troops have been documented in a book by Marine Corps veteran Gary D. Solis, a Pulitzer Prize winning series by the Toledo Blade, and by a Columbia University doctoral student who said she found evidence of hundreds of atrocities in government archives.
In a Wall Street Journal op-ed, Bush administration attorney general Michael Mukasey disregarded Ambassador Susan Rice's actual remarks on the attack at the U.S. diplomatic compound in Benghazi, Libya, to suggest she lacks the "moral fitness" to serve as secretary of state.
Mukasey and co-writer Anne Bayefsky said that although former secretaries of state have "said or done foolish things," "moral fitness is also relevant" when selecting a new top diplomat. On this trait, they found Rice lacking, in part because of Rice's description of the attack in Benghazi during appearances on the Sunday news shows on September 16.
Conservative media figures have led a witch hunt against Rice over these appearances, despite the fact that Rice based her statements on talking points provided by the U.S. intelligence community.
Mukasey and Bayefsky claimed that Rice deserves blame in part because she referenced an anti-Islam video that sparked global riots. They suggested Rice was somehow at fault because she "knew that the video story line was questionable, as Sen. Dianne Feinstein (chairman of the Senate Select Committee on Intelligence) and administration officials had already suggested publicly that the attack was al Qaeda-related."
But in reality, Rice repeatedly qualified her remarks, saying that an investigation was ongoing and that "we don't want to jump to conclusions" before the investigation was finished. She also said that "we look to that investigation to give us the definitive word as to what transpired." So Rice did, in fact, stress that current intelligence was "questionable," to use Mukasey and Bayefsky's word.
Furthermore, credible reporting says that the video did indeed play a role in the Benghazi attack.
Mukasey and Bayefsky also noted Feinstein and administration officials publicly suggested the attacks may have had Al Qaeda ties, ostensibly in contrast with Rice's statements.
But when CBS' Bob Schieffer asked Rice whether Al Qaeda had played a role, she replied, "I think it's clear that there were extremist elements that joined in and escalated the violence. Whether they were al Qaeda affiliates, whether they were Libyan-based extremists or al Qaeda itself I think is one of the things we'll have to determine."
Also absent from the Journal op-ed? Disclosure of Muskasey's former role as a Romney campaign adviser.
From the November 25 edition of Fox Broadcasting Co.'s Fox News Sunday:
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Sean Hannity hosted Swift Boat Veterans for Truth (SBVT) founder John O'Neill and praised his 2004 ad campaign attacking Sen. John Kerry's presidential campaign. But the ad campaign praised by Hannity as "powerful" and "effective" was based on lies and distortions of Kerry's war record.
Following rumors that Kerry may be appointed as secretary of defense, Hannity hosted O'Neill on the November 15 edition of his Fox News show. Hannity played one of O'Neill's 2004 ads, which accused Kerry of lying about his service in the Vietnam War, and called the ads "very effective" and "powerful." Hannity complained that the Swift Boat campaign has been "used as a pejorative by the left":
But O'Neill is not a credible source, and his disgraced ad campaign has long been exposed as based on outright lies and distortions of Kerry's record.
Fox News is mounting smear campaigns against Sen. John Kerry and Ambassador Susan Rice in an attempt to prevent them from being part of President Obama's second-term Cabinet. On Monday, The Washington Post reported that Obama may ask Kerry to be defense secretary, while Rice is being considered for secretary of state.
Fox is attacking Rice, the U.S. ambassador to the United Nations, over her statements about the attack on the American compound in Benghazi, Libya, and reviving the utterly discredited lies about Kerry's service in Vietnam that were advanced by the Swift Boat Veterans for Truth in 2004.
It's remarkable that Fox would suggest that the Swift Boat lies could play any role in Kerry's nomination. After the notoriously false attacks on Kerry during his 2004 presidential campaign, the term "swift-boating" became shorthand for dishonest political smears.
Likewise, Fox's attacks on Rice over Benghazi are premised on falsehoods about statements she made during Sunday talk show appearances on September 16. But as Mother Jones' Kevin Drum explained, Rice was accurately conveying the intelligence community's best assessment at the time of what had happened in Benghazi.
Fox is ramping up these campaigns in the wake of an election that resulted in losses for Republicans, and many in the media agree that Fox's influence on the GOP has hurt the party.
Much of the criticism of Fox's influence is that it pressures elected officials to embrace storylines that are at odds with reality. Yet Fox is undeterred, kicking off its coverage of Obama's potential second-term advisers with stories that are rooted in falsehoods.
Fox News has seized on what it believes is a new angle to continue making an issue of the Obama administration's response to the Libya terrorist attack. Discussing President Obama's news conference on Wednesday, Fox treated Obama's statement that the White House chose Ambassador Susan Rice to discuss the attack publicly as new and "significant," claiming Obama's admission is "one of the most important parts" of what he said during his press conference.
It's unclear why Fox believes Obama's statement is significant considering Rice's position as a top official in the Obama administration.
In her capacity as one of the United States' top diplomats -- she was nominated by President Obama as U.S. ambassador to the United Nations in January 2009 -- Rice is a member of the Obama administration whose job is to speak for the White House on government decisions and policy.
Not only that, but the White House's reasons for why it specifically asked Rice to discuss the situation in Benghazi publicly have been known for at least a month. The Washington Post reported on October 15: "The White House has said that it turned to Rice to make the administration's case on the Benghazi attack because it made sense to have a top diplomat speak to the loss of the U.S. ambassador to Libya, J. Christopher Stevens."
On September 16, five days after the attack on the U.S. Consulate in Benghazi, Rice appeared on the Sunday talk shows to talk about what the administration knew about the attack. In the interviews, Rice made clear that definitive conclusions would only follow from an administration investigation, which she stressed was under way.
OBAMA: [L]et me say specifically about Susan Rice, she has done exemplary work. She has represented the United States and our interests in the United Nations with skill and professionalism and toughness and grace. As I've said before, she made an appearance at the request of the White House in which she gave her best understanding of the intelligence that had been provided to her.
If Senator [John] McCain and Senator [Lindsay] Graham and others want to go after somebody, they should go after me. And I'm happy to have that discussion with them. But for them to go after the U.N. ambassador, who had nothing to do with Benghazi and was simply making a presentation based on intelligence that she had received and to besmirch her reputation is outrageous.
Discussing his comments on Fox News' America Live, however, host Megyn Kelly and Fox contributor Kirsten Powers expressed surprise at Obama's statement that Rice's appearances on the Sunday talk shows were "at the request of the White House."
Powers claimed the admission was "probably one of the most important parts" of what Obama said, "which is admitting that the White House is the one who told her what to say and that this did come from the White House, which had been mostly been speculated upon."
Fox News is trying to disqualify Susan Rice, the U.S. ambassador to the United Nations, from being nominated as the next secretary of state by alleging that she made inaccurate statements about the attack on the U.S. compound in Benghazi, Libya. But during her Sunday show appearances, Rice was accurately conveying the consensus of the intelligence community at the time, and there is evidence that the anti-Islam video she referenced did, in fact, play a role in motivating the attack.
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.
Rush Limbaugh hyped a right-wing media story that suggested the U.S. Embassy in Libya's hiring process favored bodyguards who were same-sex partners of government employees. However, the actual application's selection process simply reads that preference is given to veterans and family members of government employees, a category which includes same-sex spouses.
On his radio program, Rush Limbaugh touted a story by right-wing news site CNS.com which claimed that the U.S. Embassy in Libya "gave preference to" same-sex spouses or domestic partners of government employees for bodyguard positions. Limbaugh used the story to attack the embassy for its hiring process of bodyguards, claiming "they solicited for same-sex couples" in the job notices.
In a later segment, Limbaugh went on to claim that being the same-sex domestic partner of a U.S. government employee was "a job prerequisite" for the position. From the show:
However, the job posting -- which was posted in January -- does not list same-sex domestic partners of government employees as a prerequisite. The applications specifically states, "When fully qualified, US Citizen Eligible Family Members (USEFMs) and US Veterans are given preference."
Primetime news has largely overlooked the future ideological direction of the U.S. Supreme Court as a key election issue, failing to note that the candidate who wins in November will likely appoint justices and shape how the court will decide vitally important issues.
Other news outlets have acknowledged the significance of Court nominations for the next president. The New York Times has reported that "[t]he winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines. That suggests that the next president could have a powerful impact if he gets to replace a justice of the opposing side." The Associated Press has added that "[d]ecisions on many of the hot-button issues in recent years have been by 5-4 votes. These include upholding Obama's health care overhaul, favoring gun rights, limiting abortion, striking down campaign finance laws, allowing consideration of race in higher education and erecting barriers to class-action lawsuits." Both articles note that because four justices are currently in their seventies, the next president's prospects for appointing multiple justices are very real.
A Boston Globe editorial noted that by the end of his first term, President Obama will have appointed far fewer lower court judges than either of his two predecessors, and chided him for "fail[ing] to make the most of an opportunity to shape the federal judiciary." The editorial referenced a recent New York Times article that highlighted unprecedented Republican obstruction of President Obama's nominees but does not actually mention this fact. By ignoring Republican obstruction, the Globe gives its readers far less than half the story.
The federal judiciary currently has so many vacancies that more than half of Americans are living in a "judicial emergency." That is, as district judges are increasingly faced with disproportionately large dockets, attention to individual cases falls, resolution is delayed, and access to justice for everyone suffers. As The New York Times reported, as of August 17, "Mr. Obama has appointed just 125 such judges, compared with 170 at a similar point in Mr. Clinton's first term and 162 for Mr. Bush."
After Chief Justice John Roberts wrote the opinion upholding health care reform, the right-wing media have attacked his conservative credentials. Despite experts' statements that the opinion might have cleared the way for more rulings restricting federal power and progressive legislation, media conservatives are using this as a pretext to demand even more conservative judicial nominees. There is evidence their pressure is having an effect.
National Review Online blogger Ed Whelan is trying to aid the unprecedented obstruction tactics Senate Republicans are using to block President Obama's nominees.
On June 20, 2012, American Bar Association president William T. Robinson III sent a letter to Sens. Harry Reid (D-NV) and Mitch McConnell (R-KY) urging that the Senate hold confirmation votes on three judicial nominees who had strong bipartisan support but were being blocked despite the merits of their nominations. Whelan, a blogger with significant influence in the media and Capitol Hill, responded to the letter by saying: "A Senate staffer in the know tells me that the ABA never sent a similar letter on behalf of George W. Bush's nominees."
But it would have been impossible for the ABA to send a "similar letter" on behalf of President George W. Bush's judicial nominees, because Bush's judicial nominees were not subject to the type of obstruction experienced by the Obama nominees in question.
As the ABA noted in its letter, Obama nominees William Kayatta, Jr., Robert Bacharach, and Richard Taranto "are consensus nominees who have received overwhelming approval from the Senate Judiciary Committee." In addition, Kayatta and Bacharach have "the staunch support of" the Republican senators from their home states. And Taranto, who is nominated to a court with nationwide jurisdiction, has the "endorsement of noted conservative legal scholars."
Nevertheless, Senate Republicans have announced that they are blocking all three of these nominees along with every single one of Obama's judicial nominees until after the presidential election, regardless of whether they would be good judges.
Tonight on his Fox News show, Sean Hannity promised to spend time this week examining President Obama's "controversial appointments, ... in other words, the very extreme people that he's put in positions of power."
If history is any indication, Hannity's latest attempt to "examine" Obama's appointees will be nothing more than a vicious smear campaign based on distortions, guilt by association, and outright falsehoods.
Throughout 2009, Hannity relentlessly attacked Kevin Jennings, a former Department of Education official who led federal efforts to prevent bullying. During his attacks on Jennings, Hannity repeatedly falsely claimed that Jennings failed to report the statutory rape of a 15-year-old student. Hannity even advanced that falsehood after the claim had been conclusively debunked. Hannity also advanced the smears that Jennings supported NAMBLA and sought to indoctrinate students about homosexuality.
And Hannity's attack on Jennings is just one example of Hannity's long line of vicious smears against Obama appointees.
In a January 19 editorial headlined "Obama's appointment with tyranny: President grabs absolute power in abuse of recess commissions," The Washington Times attacked President Obama over his recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB) during a Senate recess of fewer than three days, calling it "lawless" and a "play for absolute appointment-making sovereignty."
However, past presidents have made recess appointments during recesses of three days or fewer, and neither the Constitution nor the courts have specified how long the Senate must be in recess for a president to make a recess appointment. Moreover, congressional Republicans have engaged in unprecedented obstructionism that is preventing hundreds of Obama nominees from being confirmed.
From the Times:
President Obama's lawless Jan. 4 installation of a new director of the Consumer Financial Protection Bureau goes to the heart of his loose interpretation of our Constitution. Mr. Obama's actions show he believes checks and balance apply only to the other branches of government, not to him.
The recess appointment authority has drifted far from what was originally intended by the framers of the Constitution. Article II Section 2 allows that "the president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." As a plain reading of the text indicates, this was intended to apply to openings that actually occurred when the Senate was in recess, such as when someone in a relevant office resigned, died or was incapacitated. It was a matter of reasonable convenience for the executive, not an invitation for the president to obviate the will of the people. This was the standard interpretation of the text for over a century.
Congress further checked the power of the executive by stipulating no salary would be paid to anyone given a recess appointment if the position to which they were appointed existed during the prior Senate session. This law withered over time as various parties used recess appointments to their advantage, but it was sound legislation while it lasted and prevented much of the contemporary abuse of the power. It should be revisited.
Unchecked power is inimical to liberty. Any legal reasoning that supports unlimited executive authority is thus false on its face. President Obama's play for absolute appointment-making sovereignty should be checked while there's still a republic to save.