The Washington Times attempted to recycle misinformation about Senate Majority Leader Harry Reid's warning that GOP obstructionism of President Obama's nominees is unsustainable, but published an inaccurate argument that doesn't support its own rhetoric.
In a May 24 editorial, The Washington Times claimed Reid's announcement that he would revisit filibuster reform in July because of the unprecedented obstructionism of the president's executive and judicial nominees "disturbed the peace of the Senate" and was a "variant" of court-packing analogous to former President Franklin Roosevelt's famous threat to expand the number of seats on the pre-war Supreme Court. From the editorial:
Senate Majority Leader Harry Reid doesn't like the direction the federal judiciary is heading, so he has come up with a variant of court-packing to achieve his results. He took the Senate floor Wednesday to defend the use of the "nuclear option" to bypass Senate rules and force through President Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit.
That would be the same court whose three-member panel in late January ruled, unanimously, that Mr. Obama's faux "recess appointments" of Big Labor-approved nominees to the National Labor Relations Board were unconstitutional. "You have a majority in that court that is wreaking havoc in the country," Mr. Reid complained, citing only the NLRB ruling. "For the first time in 230 years, they ruled the president can't make a recess appointment."
The three judges accused of havoc-wreaking merely made the point, obvious to English-speakers everywhere, that the president is obliged to wait for a recess before he can make a recess appointment.
Mr. Reid's rant disturbed the peace of the Senate amid debate over how quickly to proceed with the nomination of Deputy Solicitor General Sri Srinivasan to the 11-member D.C. appeals court, which currently has four vacancies. Mr. Reid's claim that the vacancies must be filled at once to restore ideological "balance" to the court is patently false, given that four of its seven judges are appointees of Republican presidents and three were appointed by Democrats. Four more liberal judges would likely guarantee a rubber stamp for Mr. Obama's agenda. Some "balance."
Mr. Reid is trying to follow the example of Franklin D. Roosevelt, who dreamed up the concept of outcome-based adjudication with his 1937 attempt to pack the U.S. Supreme Court.
Contrary to The Washington Times' description that Reid is trying to "bypass Senate rules," Reid is actually adopting a GOP proposal that was floated when Republicans were in the majority, which was to change Senate rules to allow filibusters to be broken by majority vote. Although a handful of longer-tenured Democratic Senators have been hesitant at such a move - the so-called "nuclear option" - the stark realization that GOP opposition to the president's agenda has extended to blanket opposition of his nominees is reportedly causing a change in position.
The Wall Street Journal demonstrated why a Senate rule change that prevents filibusters against executive and judicial nominations may be overdue when it baselessly opposed yet another of President Obama's picks.
Continuing its seemingly knee-jerk resistance to any and all of the president's nominations, the WSJ recently pushed the GOP to oppose making Tony West's job of acting associate attorney general permanent without a legitimate reason for obstruction. Rather, the WSJ floated the idea that West should be opposed because he worked at the same address as Labor Secretary nominee Thomas Perez and was consulted on a civil rights case that the WSJ has scandal-mongered. From WSJ editorial board member Mary Kissel's column:
[S]enators shouldn't miss the chance to explore Mr. West's acquiescence in the legal quid pro engineered between late 2011 and early 2012 by his colleague, Justice civil-rights chief, Thomas Perez.
[West has] promised to "work to ensure that legitimate whistleblowers are taken seriously and treated fairly and lawfully."
Did Mr. West change his mind about that statement, or did he let Mr. Perez make decisions about an important case--one that could have netted taxpayers some $200 million--on his behalf? Either way, the episode raises questions about his legal judgment. That may not be enough to stall his confirmation, but Mr. West certainly deserves scrutiny for this sorry episode.
Kissel has a record of identically using this smear against anyone "involved in 'communications'" with Perez on this matter. Such targets include the president's most recent nomination to the U.S. Court of Appeals for the D.C. Circuit, the bipartisan-supported Principal Deputy Solicitor General Srikanth Srinivasan. Senate Majority Leader Harry Reid (D-NV) recently indicated that he has reached his breaking point with the parallel GOP obstructionism to the president's nominations, fueled by right-wing media such as the WSJ.
The Wall Street Journal is endorsing Republican Sen. Chuck Grassley's absurd claim that the U.S. Court of Appeals for the D.C. Circuit doesn't need to fill its judicial vacancies, a position the senator didn't take when he was helping confirm former President George W. Bush's right-wing judges.
Despite the newspaper's own reporting on the rampant GOP obstructionism that has prevented President Obama from easing the judicial emergencies caused by vacancies in the federal courts, the editorial page of the WSJ continues to applaud Republican filibusters of the president's nominations.
The most recent example is the WSJ's stamp of approval for Grassley's disingenuous proposal to reduce the number of non-senior seats on the D.C. Circuit from 11 to eight, thereby preventing the current Democratic president from nominating judges to this appellate bench considered second in importance only to the Supreme Court. From the editorial:
It's good to be the king. When the federal courts overturn your Administration's rules or find decisions unconstitutional, you can pack them with judges more likely to rule your way. That seems to be the working theory at the White House, where word is that President Obama is close to nominating several new judges to sit on the D.C. Circuit Court of Appeals.
The court doesn't need the judges. The D.C. Circuit is among the most underworked court in the federal system. Lawyers can under most statutes now bring challenges to federal agencies in either the D.C. or a local circuit. Liberals prefer the Ninth Circuit, while conservatives used to favor the Fourth but might now choose the Fifth. In any case this means fewer cases for D.C.
Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits--the country's busiest. And the court's workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.
Mr. Obama ought to settle for adding [recent nominee and Principal Deputy Solicitor General Srikanth "Sri" Srinivasan] to the court. If he insists on trying to pack it, Republicans should just say no.
The editorial - like Grassley's plan - is extremely inaccurate, merely another transparent excuse to justify the relentless and unprecedented Republican filibusters of President Obama's judicial nominations.
The Wall Street Journal debunked the false equivalency of its editorial page that insists the current GOP blockade on President Obama's judicial nominees is unremarkable "turnabout" and merely follows "filibuster precedent" set by Democrats.
In a May 13 article, the WSJ's Washington Bureau Chief Gerald F. Seib detailed the unprecedented Republican obstructionism of the president's agenda, which not only attempts to nullify his policy initiatives by hamstringing executive agencies, but more seriously by filibustering his picks for the federal courts.
As explained by Seib, the Republican refusal to allow up or down votes on President Obama's judicial nominations is both unparalleled and has turned the Senate into an "embarrassment to itself...that increasingly infects the rest of government with its paralysis." From his May 13 article:
The Obama administration must shoulder some blame for this predicament. It has been slower than its predecessors to vet and nominate judicial candidates.
But the lion's share of the blame lies with the Senate, a body that's becoming an embarrassment to itself and that increasingly infects the rest of government with its paralysis.
This problem has been building for years. A recent study by the nonpartisan Congressional Research Service shows that even noncontroversial judicial appointments--those that ultimately got bipartisan support and easily passed the Senate--are having to wait longer for confirmation across the past four presidencies of both parties.
As Republicans note, Democrats set the stage for today's problems by filibustering George W. Bush's judicial nominees. Now the problem has grown worse in the Obama years, as Republicans turn the tables and bottle up Democratic nominations.
The study found that 35.7% of George W. Bush's noncontroversial circuit-court nominees had to wait more than 200 days for confirmation--up from 22.2% for Bill Clinton. During the Obama presidency, that percentage has soared to 63.6%. No Obama circuit-court nominee has been confirmed in less than 100 days.
What's more, previously only more-sensitive appeals-court nominations were filibustered; now it's also less-sensitive district-court nominations.
The Wall Street Journal applauded another anti-worker decision of the extremely conservative U.S. Court of Appeals for the D.C. Circuit and touted its escalating attacks on the National Labor Relations Board.
The D.C. Circuit is considered second only to the Supreme Court in importance because it has jurisdiction over the bulk of challenges to government action and regulations ranging from national security to environmental law. It is currently skewed to the far right, due to a highly successful court-packing effort by the Republican Party. The results have been predictably devastating for government protections that offend big business sensibilities.
The National Labor Relations Board (NLRB) - frequent bogeyman of the right - has been a victim of this ideological bias, and the WSJ highlighted the D.C. Circuit's radical decision invalidating the president's last two nominees to the NLRB when commentating on a more recent judicial "smackdown" of worker rights. From the WSJ:
[T]he D.C. Circuit Court of Appeals, ruling in National Association of Manufacturers v. National Labor Relations Board, struck down the NLRB's diktat that businesses put up pro-union posters in the workplace. That, the court said, violated employer free speech rights in place since Congress's 1947 Taft-Hartley Act. It got worse.
Before even getting to the heart of his opinion, Judge A. Raymond Randolph wrote, "Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case." That "one issue" is of course the now-famous Noel Canning case, the D.C. Circuit's January opinion which held that President Obama's non-recess recess appointments to the NLRB were illegal, and thus hundreds of past and current NLRB rulings are illegitimate. While the poster rule was not affected by Canning, the appeals court felt the need to remind the NLRB of its current, weak status. Ouch.
The specific case that the WSJ used to attack the legitimacy of the NLRB in general, National Association of Manufacturers, is disturbing in its own right, if sadly typical of an appellate court that has proven to be hostile to regulations that seek to curb corporate excess. Utilizing a strained reading of the First Amendment, the D.C. Circuit held that a NLRB rule that required employers to display a notice informing workers of their rights under the National Labor Relations Act (NLRA) of 1935 impermissibly compelled employer speech.
Right-wing media continue their relentless campaign to undermine the Labor Secretary nomination of Thomas Perez, pushing the baseless claim that he acted unethically in his involvement with a withdrawn Supreme Court case that could have undone decades of civil rights precedent.
The Wall Street Journal and the National Review Online have been at the forefront of allegations, most recently made by the WSJ on May 6, that Perez perpetuated a "shady quid pro quo" with the City of St. Paul, Minnesota, because of his involvement in deliberations that resulted in a withdrawn Supreme Court case, Magner v. Gallagher, and the decision of the Department of Justice to not intervene in an unrelated False Claims Act lawsuit.
By holding a surprise hearing for the "whistleblower" who initiated the False Claims Act case against St. Paul, Congressional Republicans have used the allegations that something "awfully suspicious" occurred to push back Senate mark-up of Perez's nomination until May 8. The "whistleblower," a small business owner named Frederick Newell, may have lost a sizeable sum of money he could have been awarded if DOJ had intervened. As explained by Mother Jones, "given all the hard work he put in, it's understandable he's ticked off at Perez. But the fact that Newell didn't get his money doesn't mean Perez did anything improper."
Indeed, it's unclear if Newell could have won even if DOJ had joined the case. DOJ's top expert on these sorts of claims, Deputy Assistant Attorney General Michael Hertz, determined the case was weak, reportedly deciding "this case sucks" and to not intervene. The Magner case at the other end of this "quid pro quo," however, was of far greater significance.
Because Magner had the potential to present yet another opportunity for the conservative Justices to dismantle long-standing civil rights precedent, advocates ranging from civil rights attorneys to former Vice President Walter Mondale joined the DOJ in requesting St. Paul drop its appeal that had brought the case to the Supreme Court. In a recent op-ed for Politico, Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, explained the stakes:
As any lawyer knows, bad facts make bad law. This adage aptly applies to a fair housing case involving the city of St. Paul, Minn., that is now being unfairly used to tarnish the integrity of Tom Perez[.]
What made [Magner] so unusual was landlords' claim that by enforcing housing codes against them the city was committing a civil rights violation under the Fair Housing Act. Their argument was that bringing their buildings up to code would cost too much money, cause them to dispose of the properties and thus, affect the access of their minority tenants to housing. The district court dismissed the landlords' claims, but they prevailed on appeal.
This case represented a real threat to established civil rights laws that have protected millions of Americans from discrimination. It would be a real threat to the integrity of the Fair Housing Act if these landlords could use it to keep tenants in squalor.
St. Paul's mayor, Chris Coleman, was working with Perez on this issue and on an unrelated False Claims Act case against the city. The false claims case was relatively weak, and the Justice Department chose to dismiss it. During this same period, I was among the civil rights advocates who initiated conversations with the mayor to ask if he would withdraw the city's Supreme Court appeal in the landlords' case. Coleman's public interest background and commitment to preserving the Fair Housing Act made him uniquely sympathetic to our concerns. After due deliberation, the city dropped its Supreme Court appeal.
A Wall Street Journal columnist cited a new Urban Institute study on the increased wealth gap between communities of color and whites to both revive the debunked accusations that fair housing policies caused the subprime mortgage bubble and falsely link Assistant Attorney General Thomas Perez to these claims.
Continuing the outlet's relentless attacks on current Labor Secretary nominee Perez, editorial board member Jason Riley wrote a WSJ column claiming Perez is responsible for the racial wealth gap documented by a recent Urban Institute report by purportedly "saddl[ing] a lot of minorities with foreclosed homes, huge debt burdens and bad credit scores."
The support for this backwards allegation was that as head of the Civil Rights Division at the Department of Justice under President Obama, Perez effectively pursued lawsuits against banks that impermissibly discriminated against communities of color during the administration of former President George W. Bush. From the WSJ:
Not surprisingly, neither the Urban Institute nor the New York Times have much to say about the federal policies that pushed lenders to loan money to people unlikely to be able to repay it. But the reality is that well-intentioned housing policies aimed at low-income minorities have ultimately left those folks worse off.
President Obama's nominee for labor secretary, Thomas Perez, made a name for himself in the Justice Department by shaking down some of these lenders for "racial discrimination" if blacks and Hispanic applicants weren't approved for some loans at the same rate as whites. Other lenders got the message.
Mr. Perez is getting a promotion, and the Obama administration is patting itself on the back for pursuing these so-called fair-lending cases. Of course, all they've really done is saddle a lot of minorities with foreclosed homes, huge debt burdens and bad credit scores.
The Wall Street Journal speculated that Labor secretary nominee Thomas Perez's "Spanish surname" would be the reason for his confirmation by the Senate, dismissing his qualifications and bipartisan support and reviving debunked right-wing media attacks on his record.
Perez is the Assistant Attorney General for the Justice Department's Civil Rights Division and was nominated for the position of Secretary of Labor by President Obama in March. The Associated Press reported that the Senate would begin Perez's confirmation process on April 18.
In an editorial in the April 18 print edition of the paper, the Journal implied that Perez's surname was the only reason that he might be confirmed instead of being blocked by Republicans:
Thomas Perez gets his Senate confirmation hearing Thursday, and our sources say Republicans are unlikely to ask more than a few tepid questions of the Labor nominee. They don't want to be seen opposing someone with a Spanish surname. That speaks volumes about Washington's current political standards, because Mr. Perez has more or less admitted that he deep-sixed a Supreme Court case to further his political agenda.
In addition, the Journal revived the repeatedly debunked claim that Perez improperly interfered in a St. Paul, MN, decision not to pursue a United States Supreme Court ruling in a civil rights case, accusing Perez of "stomping on minority claims":
To sum up, Mr. Perez fancies himself a civil-rights hero but he's happy to stomp on other minority claims when they interfere with his political priorities. He is fine with bending the law to suit his ideological purposes. This kind of behavior should be unacceptable in any government official.
Contrary to the Journal's claims, Perez is more than a Latino with a record smeared by conservative media. He enjoys the support of Republican officials that served in past administrations.
Right-wing media have a long history of leveling charges of anti-white bias at President Obama's nominees and appointees of color, smears that have now formed the basis of Republican attacks on Labor Secretary nominee Thomas E. Perez.
Wall Street Journal columnist and editorial board member Kimberley Strassel misrepresented the win-loss record of the Environmental Protection Agency (EPA) in court in order to suggest the Obama administration's environmental rulemaking is frequently illegal.
In an April 9 column, Strassel attempted to smear President Obama's nominee for EPA Administrator, the highly qualified and widely regarded Gina McCarthy, with the accusation that she shared blame for an alleged "embarrassing string of [legal] defeats" suffered by the Obama administration while serving as the senior EPA official in charge of regulating air pollution. From the WSJ:
[C]ritics have also started to take note of the embarrassing string of defeats the courts have recently dealt the agency regarding rules it issued in Mr. Obama's first term. Those judicial slapdowns are making a mockery of former Obama EPA Administrator Lisa Jackson's promise in 2009 to restore the agency's "stature" with rulemaking that "stands up in court."
This past year alone has proven a banner year for EPA rebukes[.]
Mrs. McCarthy--who has spent four years as EPA Assistant Administrator for the Office of Air and Radiation--was nominated precisely because she shares Mrs. Jackson's aggressive view of the EPA's authority. With the administration now looking to push the EPA boundaries even further on climate, expect senators to grill Mrs. McCarthy on why she believes those coming rulemaking procedures will fare any better in court. A number of senators are particularly focused on this question, since it is their authority Mr. Obama is usurping in having the EPA unilaterally implement a climate program.
But Strassel - like influential House Republicans - misrepresents the record of the Obama EPA in court, especially in the area of Clean Air Act rulemaking, which McCarthy oversaw. As opposed to the win-loss record of the Republican EPA under George W. Bush, the Obama administration has been highly successful in defending its Clean Air Act actions in court.
Evening network news shows have largely ignored the filibuster brinkmanship of Senate Republicans in blocking President Obama's judicial nominees, as well as the resulting vacancy crisis at the important D.C. Circuit Court of Appeals.
The D.C. Circuit Court of Appeals is considered the most important court in the country after the Supreme Court, in part because many of its judges go on to become justices, and in part because it is by far the most powerful appellate check on the federal government. Since it is required to examine challenges to a wide range of federal action - from environmental regulations to consumer protections to voting rights - it has the ability to uphold or strike down law on a national level.
However, as another victim of relentless Republican filibustering and the ensuing inability to hold up-or-down votes on the president's nominees to the federal courts, the D.C. Circuit currently has nearly 40 percent of its judgeships vacant. A Nexis search of evening network news shows in the past six months indicates that this problem has been ignored by ABC, CBS, and NBC.
National Review Online misrepresented the conclusions of a recent Department of Justice (DoJ) Office of the Inspector General (OIG) report on current hiring practices in the department's Voting Section in order to join the right-wing assault on the Labor Secretary nomination of Assistant Attorney General for Civil Rights Thomas Perez.
NRO's aversion to the effective enforcement of civil rights law is well-established and the outlet's wish that precedent in this area is overturned has been repeatedly stated. In addition to Section 5 of the Voting Rights Act and affirmative action, NRO has also expressed its dislike for the currently constitutional "disparate impact" doctrine. This doctrine proves impermissible discrimination against protected groups by demonstrating the disproportionate effects of challenged policies and laws, an evidence-based approach that has drawn the NRO's particular ire in the area of fair housing. A recent NRO post attempted to recycle these attacks as new ones on Perez by observing not many conservatives go to work for DoJ's Civil Rights Division (CRD).
The NRO accuses Perez of dismissing the fact that not enough conservatives serve in the Voting Section - a "disparate impact" - even though Perez enforces "disparate impact" law against banks that impermissibly discriminated against communities of color.
Fox News and Fox Business are butchering civil rights precedent and the Voting Rights Act (VRA) in their continued campaign to suggest President Obama's nominee for Labor Secretary, Assistant Attorney General for Civil Rights Thomas Perez, doesn't want to protect white people.
Following the pre-existing practice of smearing President Obama and his administration as hostile to whites and biased toward people of color, Fox has joined right-wing media in attacking Perez for his enforcement of long-standing civil rights law and advocacy for Hispanic immigrants. This right-wing campaign against Perez has focused on the Civil Rights Division (CRD), which under Perez's supervision has been very effective at using the VRA to protect historical victims of voter suppression.
The Republican Party wants to reinvent itself. The Republican National Committee's March 18 post-mortem of the 2012 election warns of a national party that "is increasingly marginalizing itself" by alienating women, Hispanics, African Americans, the youth -- basically everyone but old white people. The report prescribes a number of long-term fixes for the party, but before the GOP can even hope to implement them, they have to overcome a substantial hurdle: conservative talk radio and Rush Limbaugh. Can the Republican Party successfully undergo such a significant transformation when their most potent media platform refuses to go along?
We're already seeing friction between the party establishment and the AM dial. Not long after RNC chairman Reince Preibus unveiled his roadmap for the GOP's electoral future, President Obama formally nominated Thomas Perez for Secretary of Labor. Perez, the son of Dominican immigrants, heads up the Justice Department's Civil Rights Division, and has been a key figure in the trumped-up scandal over the New Black Panthers. Reacting to the news, Rush Limbaugh drew a straight line between Perez and the "grand kleagle of the Ku Klux Klan" and also compared him to Hugo Chavez. It's not difficult to see how that bumps up against the recommendations in Preibus' report: "If we want ethnic minority voters to support Republicans, we have to engage them, and show our sincerity."
As for the RNC report itself, Limbaugh was not impressed. "The Republicans are just getting totally bamboozled right now. And they are entirely lacking in confidence. Which is what happens to every political party after an election in which they think they got shellacked," Rush said of Preibus' report, according to Salon's Alex Seitz-Wald.
The Wall Street Journal is joining the right-wing campaign against President Obama's nominee for Secretary of Labor, Assistant Attorney General for Civil Rights Thomas Perez, by uncritically pushing the unsubstantiated claim that Perez improperly colluded with the City of St. Paul, Minnesota, to withdraw a Supreme Court civil rights case.
In reporting on President Obama's official nomination of Perez to head the Department of Labor, the WSJ repeated the claim that Perez inappropriately interfered with Magner v. Gallagher, a Supreme Court civil rights case that could have provided the conservative justices with an opportunity to strike down decades of civil rights precedent. Specifically, although the City of St. Paul has clearly stated it withdrew Magner v. Gallagher because it feared a split Court might use it to strike down the established practice of proving discrimination by showing the racial effects of challenged policies - "disparate impact" litigation - the WSJ uncritically repeated the allegation that Perez was improperly involved. From the WSJ:
The nomination of Mr. Perez as labor secretary comes as some congressional Republicans have raised questions about his alleged involvement in the Justice Department's decision to stay out of two lawsuits against St. Paul, Minn., in which private plaintiffs alleged the city defrauded the U.S. in its use of housing funds.
Republicans have questioned whether the Justice Department stayed out of those cases in exchange for St. Paul dropping an appeal pending at the Supreme Court in a case that civil-rights advocates had feared would undercut enforcement of U.S. housing-discrimination law.