Here Are The Big Players In The Inevitable Smear Campaign Against Judge Merrick Garland
As President Obama reportedly prepares to announce Judge Merrick Garland to fill the vacancy on the Supreme Court, media should be prepared to hear from several right-wing groups dedicated to opposing the nominee, no matter who it is. These advocacy groups and right-wing media outlets have a history of pushing misleading information and alarmist rhetoric to launch smear campaigns against Obama's highly qualified Supreme Court nominees, using tactics including, but not limited to, spreading offensive rumors about a nominee's personal life, deploying bogus legal arguments or conspiracy theories, and launching wild distortions of every aspect of a nominee's legal career.
- Most Likely To Lead Alarmist Rhetoric On Impact Of Supposed Liberal Judicial Activism: Judicial Crisis Network
- Most Likely To Spend Millions Injecting Falsehoods About The SCOTUS Nominee Into Senate Races: One Nation/American Crossroads
- Most Likely To Ignore Context: National Review
- Most Likely To Introduce Conspiracy Theories Into Confirmation Process: Judicial Watch
- Most Likely To Use Hateful Rhetoric To Fearmonger About A "Radical" Judge: Family Research Council
- Most Likely To (Baselessly) Threaten Senators' Jobs To Drum Up "Nay" Votes In A Confirmation Hearing: National Rifle Association
- Most Likely To Report Anti-Nominee Talking Points As Fact: Fox News' Shannon Bream
- Most Likely To Fixate On Nominee's Religion, Race, Gender, Sexuality, Or Family Background: The Entire Conservative Movement, Including Conservative Media At Large
President Obama Will Select Judge Merrick Garland To Fill The Vacancy On The Supreme Court
President Obama Will Announce Judge Merrick Garland As His Nominee To The Supreme Court. President Obama will reportedly name Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court during an event at the White House today. Garland has served on the D.C. Circuit since 1997. [Associated Press, 3/16/2016]
Senate Republicans Have Announced Opposition To Considering Any Obama SCOTUS Nominee. Senate Republicans, led by Majority Leader Mitch McConnell, have announced an unprecedentedly obstructionist strategy to blockade any nominee President Obama puts forth, promising not to afford the eventual nominee even a public hearing in the Senate Judiciary Committee. As reported by The New York Times:
Senator Mitch McConnell, Republican of Kentucky and the majority leader, has said he will not even meet with Mr. Obama's eventual nominee. Republicans on the Senate Judiciary Committee have signed a letter affirming that they will not hold hearings on such a nominee.
Democrats have launched a blistering attack on Mr. Grassley, who on Thursday drew an unexpected Democratic challenger in his campaign for a seventh term. Under pressure this week, Mr. Grassley said that he would be open to meeting with Judge Jane Kelly [, a federal appellate judge on President Obama's shortlist,] because she is an Iowa constituent, and that he would not rule out sitting down with another person Mr. Obama might nominate.
But Mr. Grassley has insisted that even though he warmly praised Judge Kelly in the past and urged fellow senators to support her confirmation to the federal bench, he would refuse to consider her or any other Supreme Court nominee on the principle that Mr. Obama does not have the right to advance one.
The president has said he has an obligation under the Constitution, which says he "shall" nominate Supreme Court justices, to fill the vacancy. Public opinion polls indicate that large majorities of Americans believe that the Senate should hold confirmation hearings. [The New York Times, 3/5/16]
Supreme Court Experts Agree That GOP's Calls For Obama Not To Nominate A Replacement Ignore The President's Constitutional Responsibility. Legal scholars and reporters who have covered the Supreme Court have criticized conservatives' initial calls for Obama not to even announce a nominee to fill the vacancy. As Media Matters reported:
Several legal scholars and Supreme Court beat reporters contend the president has a duty to appoint a replacement for Scalia, adding that the U.S. Senate is abdicating its constitutional responsibility if it does not hold hearings to approve or reject such nominees.
"Functionally, what that will mean is, assuming we do wait until January or February next year without a justice, we are going to go an entire year without a full court," [Lucas A. Powe, a University of Texas Law School professor and a one-time clerk for former Supreme Court Justice William O. Douglas,] said. "That means a lot of important cases are going to be put off until 2018."
He is among several experts who said the Senate has a right to reject a nominee, but not ignore it and refuse to vote: "It's another example of how rotten our politics are." [Media Matters, 2/16/16]
GOP Pledge To Refuse To Hold Hearings Is Contrary To More Than 100 Years Of Senate Nomination Process Norms. Explaining modern precedents surrounding Supreme Court nomination and confirmation norms, the White House noted on its website that "since 1875, every nominee has received a hearing or a vote":
Every nominee has received a vote within 125 days of nomination.
Since 1975, the average time from nomination to confirmation is 67 days. In fact, since 1875, every nominee has received a hearing or a vote. The longest time before confirmation in the past three decades was 99 days, for Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed in an average of 75 days.
The Senate has almost a full year -- more than 300 days -- to consider and confirm a nominee. [WhiteHouse.gov, accessed 2/29/16]
Most Likely To Lead Alarmist Rhetoric On Impact Of Supposed Liberal Judicial Activism: Judicial Crisis Network
The Judicial Crisis Network (JCN) is a group that has been described as providing "a pipeline for secret money to other, better-known dark money groups" to influence state judicial elections, and it has a history of misleading campaigns. JCN, which used to be called the Judicial Confirmation Network and which pushed confirmations for President George W. Bush's judicial nominees, is now launching a "seven figure" campaign urging senators to block any appointment by President Obama to fill the vacancy left by Justice Antonin Scalia's death.
JCN Previously Called Itself The Judicial Confirmation Network And Was Devoted To An "Up Or Down Vote" For "Every Nominee." The Judicial Crisis Network was founded during the second Bush administration and was originally named the Judicial Confirmation Network. It was founded to push through Bush's often-far-right nominees, "support the confirmation of highly qualified individuals to the Supreme Court of the United States," and "ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote." The JCN -- which once derided "'obstructionists' for blocking votes on Bush nominees" -- changed its name and mission after President Obama took office. Its current mission is to support "only highly qualified individuals who share" a vision of "limited government." [Media Matters, 2/19/16]
In 2009, JCN Misrepresented Sotomayor's Record To Fearmonger About A "Liberal Activist Judge." The JCN was active in the opposition to Sonia Sotomayor's Supreme Court nomination, misrepresenting her judicial record to suggest she was an "activist" judge. JCN ran a web ad making the false claim that Sotomayor had a "100% reversal rate as a court of appeals judge," which was subsequently taken offline. But Wendy Long, the JCN counsel at the time, continued to peddle similar claims in the media without challenge. Long was quoted in Congressional Quarterly alleging that "Sotomayor has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court." Long also appeared on CNN days later with the misleading claim that Sotomayor "had plenty of cases ... overturned unanimously" by the Supreme Court. In reality, Sotomayor's reversal rates were deemed by legal experts and fellow judges to be "lower than the overall Supreme Court reversal rate for all lower court decisions from the 2004 term through the present" and "typical." [Media Matters, 5/26/09, 5/27/09, 5/29/09]
In Recent Years, JCN Has Led Misinformation Campaigns Against State-Level Court Candidates. In 2012, the JCN reportedly spent roughly $1 million on an ad attacking Michigan Supreme Court candidate Bridget McCormack, who was backed by Democrats and went on to win the race. The ad featured Michigan woman Teri Johnson, whose son was killed in Afghanistan, stating: "My son's a hero and fought to protect us. Bridget McCormack volunteered to help free a terrorist. How could you?" JCN's attack was premised on McCormack's past work for the Center for Constitutional Rights, which participated in a network that sought to vindicate the rights of improperly detained Guantanamo prisoners. The editorial page editor of The New York Times criticized the "McCarthyist" ad for "shamelessly exploit[ing]" the death of a soldier and falsely attacking McCormack. Local media also called out the ad as a "cynical manipulation" of the facts, writing that the claim "ignore[d] the U.S. rule of law." The JCN also spent hundreds of thousands of dollars to oppose Justice Courtney Goodson in her unsuccessful race this year for Arkansas Supreme Court chief justice. A JCN mailer attacked Goodson for striking down the state's 2013 voter ID law, claiming she was opening the door to "Illegal Immigrants Voting," "Election Theft," and "Widespread Voter Fraud," pushing a series of debunked right-wing talking points alleging an imaginary voter fraud issue, and "grotesquely distorting" Goodson's record. The voter ID decision in question was decided unanimously, with all seven justices finding that the law violated the state constitution. [Media Matters, 2/19/16]
JCN Has Launched A "Seven Figure" Advertising Campaign Inciting Fear About "One More Liberal Justice On The Supreme Court." On February 18, JCN announced a "seven figure television, radio and digital advertising campaign on the importance of the Supreme Court in the upcoming presidential election." JCN chief counsel and policy director Carrie Severino -- also a frequent conservative pundit who writes for National Review -- described the goal of the campaign as giving "the people a voice. Let them decide in November what kind of Court they want." On February 29, Politico reported that the group was "ramping up its efforts to oppose" Obama's nominee for the Scalia seat, describing the fearmongering digital ads JCN launched, which attack Democratic senators:
"With one more liberal justice on the Supreme Court, extremists would abolish your Second Amendment right to keep and bear arms," the ad targeting [Democratic Indiana Sen. Joe] Donnelly reads. "Shouldn't the American people get to decide if that is what they want?"
"With one more liberal justice on the Supreme Court, bureaucratic agencies like the IRS and the EPA could carry out their extreme, unconstitutional agendas with no one to stop them," the ad targeting Donnelly reads. "Shouldn't the American people get to decide if that is what they want?" [Media Matters, 2/19/16, Politico, 2/29/16]
Most Likely To Spend Millions Injecting Falsehoods About The SCOTUS Nominee Into Senate Races: One Nation/American Crossroads
One Nation, the newly launched 501(c)4 nonprofit arm of Karl Rove's American Crossroads super PAC, is reportedly planning to make the impending SCOTUS confirmation process a major focus of its advertising buys in GOP Senate races. The group has already spent a reported $2 million to run ads touting the records of vulnerable Republican senators -- including Sens. Kelly Ayotte (R-NH), Mark Kirk (R-IL), and Pat Toomey (R-PA) -- who may be affected most by unfavorable public opinion of the Republican obstructionism on a potential SCOTUS confirmation battle. One Nation is also closely affiliated with Republican Senate Majority Leader Mitch McConnell (KY), and its activities will likely closely align with the Republican Party's election priorities.
One Nation, The Senate-Focused Arm Of Karl Rove's American Crossroads, Is Gearing Up To Back SCOTUS Obstructionism In The States. One Nation is reportedly preparing to launch a series of state-focused attacks warning against the potential impact of "a liberal Supreme Court justice," and supporting vulnerable re-election campaigns of senators aligned with McConnell's obstructionist tactics. On February 29, Politico reported:
American Crossroads is also likely to air ads through its political nonprofit One Nation, which has already spent big propping up vulnerable Senate candidates. The McConnell-aligned operation could implement a two-pronged approach: pushing out messaging on the broader impact of a liberal Supreme Court justice, then drilling down to specific areas where court decisions could have serious repercussions.
"The consequences of our next Supreme Court justice and what that will do to shape the court for 20 years is certainly an issue that One Nation will be front and center in addressing over the next several months," said Ian Prior, a spokesman for the group.
One Nation has already spent millions to support GOP Senate incumbents such as Kelly Ayotte of New Hampshire, Pat Toomey of Pennsylvania and Rob Portman of Ohio. Ayotte and Portman have adopted McConnell's hard-line position of not even meeting with a Supreme Court nominee. [Politico, 2/29/16]
The "New" Group Is Stacked With Seasoned Operatives, Has Already Spent $2 Million On GOP Senate Races This Election Season. One Nation's launch was reported in May 2015, along with its initial print, radio, and digital buys totaling nearly $2 million to defend "five vulnerable GOP senators." The group shares both a president and spokesperson with American Crossroads, and that shared president is a former chief of staff to McConnell. Media outlets soon reported that One Nation was likely created as a nonprofit in order to allow larger donations without disclosure than would otherwise be allowed. The group technically assumed the existing nonprofit status of the defunct Alliance for America's Future, an organization with extensive ties to former Vice President Dick Cheney, and One Nation will likely serve as "a vessel for the GOP's messaging on policy issues." As CNN reported:
One Nation, a new 501(c)4 linked to the Karl-Rove-backed American Crossroads super PAC, is spending more than $1.9 million on print, radio and digital ads highlighting the efforts of Illinois Sen. Mark Kirk, North Carolina Sen. Richard Burr, New Hampshire Sen. Kelly Ayotte, Ohio Sen. Rob Portman and Pennsylvania Sen. Pat Toomey to pass the "doc fix" legislation that realigned payments to Medicare providers with inflation.
The group is headed by Steven Law, the former Mitch McConnell chief of staff who also serves as American Crossroads' president.
It looks to be a likely vessel for the GOP's messaging on policy issues this cycle, as the party faces a difficult political climate with a tough Senate map to defend.
As a nonprofit, the group must primarily advocate on policy issues rather than engage in political activity. But 501(c)4 nonprofits can raise huge amounts of money, without having to disclose their donors, and they've been used by both parties to implicitly protect or attack targeted lawmakers by highlighting their work on a specific issue in Congress. [CNN.com, 5/12/15, OpenSecrets.org, 5/26/15]
Karl Rove-Backed Ad Buys Are Rife With Falsehoods. Two-thirds of American Crossroads' statements rated by PolitiFact were deemed "mostly false" or "false," and 63 percent of statements PolitiFact rated for Rove group Crossroads GPS were "mostly false," "false," or "pants on fire."
During the 2010 confirmation process for Justice Elena Kagan, National Review legal contributor Ed Whelan, in particular, led right-wing media in developing misinformed narratives that baselessly smeared Kagan for alleged judicial radicalism. Whelan, a contributor to National Review's Bench Memos blog and a former clerk to Justice Antonin Scalia, repeatedly dredged up obscure writings and out-of-context anecdotes from Kagan's past to try to prove that she was unfit to serve on the Supreme Court. His musings sparked widespread media coverage that persisted in pushing his claims long after they were debunked. If the last Supreme Court confirmation process provides any clues, Whelan and his fellow contributors at Bench Memos will once again attempt to smear the nominee by highlighting past remarks and decisions without offering any context.
National Review Bloggers, Led By Ed Whelan, Routinely Misrepresented Kagan As An Out-Of-Touch Radical. One month after the National Review editorial board wrote that the "question for conservatives will not be whether but how to oppose Obama's nominee" to the Supreme Court, and the publication's news editor acknowledged that Kagan was "well-respected by just about everybody on both sides," Whelan began a National Review-driven misinformation campaign against the nominee. In May 2010, Whelan wrote that Kagan's undergraduate thesis on the history of socialism indicated that the nominee was "well on the Left," ignoring comments from Kagan's thesis advisor and college peers clarifying that she was "the furthest thing from a Socialist. Period." Days later, fellow National Review blogger Daniel Foster doubled down on claims that Kagan's history thesis somehow indicated radical personal views and again presented original reporting on her thesis without either the context of her advisor's comments or any of the other ample evidence that the research did not reflect Kagan's personal views on socialism. These false assertions eventually trickled down to fringe conservative blogger Pam Geller, who ran a photoshopped image of Kagan -- who is Jewish -- wearing a Nazi uniform to accompany an article on the "SHOCKING" report that "Kagan's Princeton Thesis Cited German Socialist Who Endorsed Nazis." The following week, Whelan bizarrely attempted to paint Kagan as an out-of-touch New Yorker "remote ... from the lives of most Americans," by pointing to a friend's comment disparaging Kagan's driving skills. The following month, National Review blogger Robert VerBruggen falsely claimed that Kagan had "apparently tied" the National Rifle Association to the Ku Klux Klan while serving as an official in the Clinton administration. Whelan falsely painted Kagan as radically outside the mainstream for praising a former Israeli Supreme Court justice who had also garnered praise from both Scalia and a former solicitor general in the Reagan administration. Whelan and fellow National Review blogger Mark Krikorian then waged a series of attacks against Kagan based on a brief filed by the U.S. Solicitor General's Office after Kagan stopped acting as solicitor general. They speculated on Kagan's potential role in developing a brief she did not sign and is not listed on, and they misrepresented the substance of the brief. [Media Matters, 4/9/10, 5/10/10, 5/11/10, 6/1/10, 6/2/10, 6/18/10, 6/25/10]
Whelan Repeatedly Distorted Kagan's Record To Paint The Nominee As An "Anti-Military" Ideologue. Also in May 2010, Whelan wrote a blog post for National Review to push distortions on Kagan's tenure as dean of Harvard Law School (HLS), suggesting that Kagan excluded military recruiters from the law school campus and "treated military recruiters worse than she treated high-profile law firms" that represented terror suspects. In reality, Kagan's decisions on military recruiters were dictated by decades-old campus anti-discrimination policy that pre-dated her tenure as dean, and students had access to military recruiters throughout her tenure. Whelan's distortion of Kagan's actions related to military recruitment at HLS were used to prop up claims that Kagan was "anti-military" because of her opposition to the military's "don't ask, don't tell" policy. As with his framing of Kagan's decisions as HLS dean, Whelan did not acknowledge that Kagan's views on "don't ask, don't tell" were within the legal mainstream nor did he mention any of the widespread evidence that Kagan actually held the military in high regard. In the same post, Whelan also pushed a distorted view of Kagan's record as solicitor general to assert that Kagan "indulged her own ideological views" on the "don't ask, don't tell" policy and the Defense of Marriage Act rather than representing the position of the U.S. government. In fact, Kagan's actions on both cases as solicitor general were entirely in line with Department of Justice precedent. [Media Matters, 5/11/10, 5/11/10, 5/28/10, 7/2/10]
Whelan's Misinformation Campaign Spread Throughout Conservative And Mainstream Media To The Senate Judiciary Committee. Whelan's distortions of Kagan's record and beliefs did not end at his National Review legal blog, but were incorporated into reporting at conservative and mainstream outlets and further pushed during Whelan's eventual Senate testimony opposing the Kagan nomination. Whelan was quoted in outlets including the Associated Press and The New York Times and appeared on MSNBC, where he falsely suggested that Kagan's credentials were insufficient. Whelan also pushed his misrepresentation of Kagan's record on the "don't ask, don't tell" military policy during an MSNBC appearance, and he was quoted in Politico on the matter. Whelan was also quoted pushing fallacies on Kagan's recusal obligations and refusal to discuss personal opinions at CBSNews.com, in the Los Angeles Times, and in The New York Times. Whelan even testified before the Senate Judiciary Committee to oppose Kagan's nomination on the grounds of the "future risk of judicial activism." In his testimony, Whelan repeatedly questioned Kagan's qualifications and cited her "extremist rhetoric against Don't Ask Don't Tell" and decision "to bar military recruiters" from Harvard Law, reaching the conclusion that "there is ample reason to believe that ... [Kagan] would use her position as a Supreme Court justice -- quite possibly for the next 30 to 40 years -- to indulge her leftist values instead of neutrally interpreting the law." [Media Matters, 5/10/10, Ethics & Public Policy Center, 2010]
Judicial Watch is a conservative group with a history of engaging in dishonest activism, promoting conspiracy theories, and pushing false or misleading narratives in the media. The organization was formed in the 1990s by conspiracy theorist Larry Klayman, who filed spurious lawsuits in an attempt to bring down the Clinton administration. It is now headed by Tom Fitton, who has continued Klayman's methods in an ongoing campaign to antagonize the Obama administration, Hillary Clinton, and other Democrats, and to manufacture scandals related to Hillary Clinton's emails. Despite the group's history of misinformation, media outlets often unquestioningly report on its stories and stunts, making Judicial Watch's involvement in a SCOTUS confirmation fight all the more concerning.
Conservative Group Judicial Watch Purports To "Ensure High Ethical Standards In The Judiciary" And "Hold Judges To Account." Judicial Watch includes in its mission statement a commitment to "ensure high ethical standards in the judiciary through monitoring activities and the use of the judicial ethics process to hold judges to account." In the past, the group has filed amicus briefs in cases it describes as related to "judicial activism" and "political purchase of judicial influence," including a brief in support of California's Proposition 8, a ballot initiative that eliminated state recognition of same-sex marriages. [JudicialWatch.org, accessed 3/8/16, 3/8/16]
Judicial Watch Has A History Of Pushing Conspiracy Theories About The Obama Administration. In recent years, Judicial Watch has created and promoted conspiracy theories about the actions of the Obama administration and various government agencies. Those efforts include falsely alleging that President Obama had appointed 45 "czars" to his administration; claiming that the Justice Department was helping to organize rallies and protests against George Zimmerman, who shot and killed teenager Trayvon Martin; hyping false accusations about then-Speaker of the House Nancy Pelosi's travel costs; and maintaining a lengthy archive of often-exaggerated reports on the Obama family's travel expenses. [Media Matters, 10/2/15]
Judicial Watch's False Stories And Stunts Have Fooled Media Before -- Especially On Clinton's Emails. Judicial Watch has played a key role in the ongoing controversy over the private email system Hillary Clinton used as secretary of state. Records the group obtained from the State Department have served as fodder in the media and for the House Select Committee on Benghazi; since it was reported in March 2015 that Clinton used a private email server, Judicial Watch has been mentioned dozens of times in reports on the story, including in major outlets like Fox News, CNN, MSNBC, The New York Times, The Wall Street Journal, The Washington Post, and USA Today. But in its press releases and reports, the group often overreaches and misrepresents the documents it purports to have uncovered. For example, on September 24, Judicial Watch released records it had received from the State Department, which it claimed "reveal former Secretary of State Hillary Clinton personally signed the authorization for Huma Abedin, her then-deputy chief of staff, to become a special government employee." As The New York Times reported a few days later, the document that Judicial Watch had given to the media had the signature redacted "in a box intended for the aide's supervisor," and the assumption was apparently made that Clinton had signed it. But later The Times got a copy of the document that showed it was signed by Cheryl Mills, who was then Clinton's chief of staff. The entire premise of Judicial Watch's release was false -- but its misleading conclusions still pervaded mainstream coverage. [Media Matters, 10/2/15, 12/8/15, 12/9/15]
The anti-LGBT extremist group Family Research Council (FRC) -- which is recognized as a hate group by the Southern Poverty Law Center -- and its leader Tony Perkins waded into Justice Elena Kagan's confirmation process in 2010 to push hateful, conspiracy-laden rhetoric. Perkins and his organization cited discredited conservative media claims about Kagan's time as dean of Harvard Law School (HLS) to allege that Kagan's appointment would allow her to "advance the left's radical social policy." FRC's involvement in the Kagan opposition and its ongoing anti-LGBT activities signal that its inevitable opposition to President Obama's nominee will be both unsubstantiated and hateful.
Perkins Falsely Claimed Kagan Defied The Law On Military Recruitment, And He Launched Anti-LGBT Attacks Calling For Her Defeat. Parroting misleading conservative media claims about Kagan's involvement with Harvard's military recruitment policy during her HLS deanship, Perkins made a formal statement on behalf of FRC falsely alleging that Kagan had defied law in her decisions about campus military recruitment. Perkins called for Kagan's defeat by alleging that "she clearly does oppose the military because they have not yet bowed to the demands of the militant homosexual movement," and that she "wants to use the military to advance the left's radical social policy more." Perkins added that Kagan's stated view that "a society that discriminates on the basis of sexual orientation -- or that tolerates such discrimination by its members -- is not a just society" has "chilling" implications for "the freedom of speech and the freedom of religion." [PR Newswire, 5/17/10]
Perkins' Washington Times Op-Ed Doubled Down On False, Hateful Attacks. Following FRC's initial statement on Kagan's nomination to the Supreme Court, Perkins penned an opinion piece in The Washington Times parroting both his false claims about Kagan's decisions on military recruitment at Harvard and warning readers about the nominee's "ideological agenda." Perkins claimed that Kagan had said she "hoped 'that the Department [of Defense] would choose not to enforce'" a law that prevents universities from receiving federal money if they do not provide the same access to military recruiters as they do other recruiters. In reality, Kagan had said she hoped the Defense Department did not enforce "its interpretation" of the law -- a distinction echoed by many legal experts. Perkins went on to repeat anti-LGBT rhetoric from the earlier FRC statement, accusing Kagan of having "a narrow ideological agenda" and saying her views about discrimination "should be alarming" to "the majority of Americans who still affirm that homosexual behavior is morally wrong." He also misrepresented Kagan's opposition to the "don't ask, don't tell" military policy. [Media Matters, 5/27/10]
Perkins To Senate Judiciary Committee: Kagan "Wants To Use The Military To Advocate Radical Social Policies More." In his July 1, 2010, testimony on the Kagan nomination before the Senate Judiciary Committee, Perkins once again cited both Kagan's opposition to the "don't ask, don't tell" policy -- a stance shared by many legal experts - and the false narrative that she had barred military recruiters from the Harvard Law campus to assert that Kagan opposed the military. Parroting his earlier commentary, Perkins reportedly testified about Kagan, "Her record would suggest that it's not that Kagan does not want the military to defend our nation against terrorism, it's just that she wants to use the military to advocate radical social policies more." [ThinkProgress, 7/2/10]
Most Likely To (Baselessly) Threaten Senators' Jobs To Drum Up "Nay" Votes In A Confirmation Hearing: National Rifle Association
In 2009, the National Rifle Association opposed Justice Sonia Sotomayor's Supreme Court nomination as a "declaration of war against America's gun owners," by pushing misrepresentations of Sotomayor's record on cases related to the Second Amendment and threatening to consider senators' confirmation votes in grading annual NRA scorecards.
NRA Board Member Pushed Misinterpreted Record To Falsely Accuse Sotomayor Of "Very, Very Disturbing" Position On Second Amendment. Beginning in May 2009, National Rifle Association (NRA) board member and Family Research Council senior fellow Ken Blackwell began pushing a false narrative on Sotomayor's gun record, misrepresenting her decision to uphold New York state's ban on possession of nunchaku in the 2009 case Maloney v. Cuomo. Although Sotomayor had "consistently followed the Supreme Court's Second Amendment precedents as she is required by law to do," Blackwell wrote at Townhall.com that "the president's nomination of Sotomayor is nothing short of a declaration of war against America's gun owners," and argued that "if [Sotomayor] can persuade her liberal colleagues on the Court to join her, it could become the law of the land that states and cities can ban guns." Similarly, Blackwell was quoted at FoxNews.com characterizing Sotomayor's position on guns as "very, very disturbing." [ThinkProgress, 6/3/09, Townhall.com, 5/27/09, FoxNews.com, 5/28/09]
NRA Waded Into Sotomayor Confirmation To Threaten Senate Records Over "Yea" Votes. In July 2009, the NRA officially declared opposition to Sotomayor's nomination, claiming she had a "hostile view of the Second Amendment." NRA leaders Wayne LaPierre and Chris Cox alleged in a statement that Sotomayor "deliberately misread Supreme Court precedent to support her incorrect view" in the nunchaku case and "does not respect our God-given right of self-defense." The NRA also announced it would, for the first time, count senators' votes to confirm Sotomayor against their records, as The Washington Post editorial board wrote (emphasis added):
For the first time in its 138-year history, the National Rifle Association is counting the votes on a Supreme Court nominee in its ratings of senators. That means senators -- including members of the Judiciary Committee who are due to vote on Sonia Sotomayor on Tuesday -- will have to choose between voting for the first Hispanic nominee and getting high marks from the premier gun rights organization, which opposes her confirmation. Explains NRA Executive Vice President Wayne LaPierre: "Unfortunately, Judge Sotomayor's judicial record and testimony clearly demonstrate a hostile view of the Second Amendment and the fundamental right of self-defense guaranteed under the U.S. Constitution."
That's strange. During her confirmation hearings, Judge Sotomayor repeatedly acknowledged that the Second Amendment bestows an individual right to keep and bear arms, as the Supreme Court decreed in a landmark 2008 ruling, Heller v. District of Columbia. The NRA blasts Judge Sotomayor for not going beyond that ruling to declare that the Second Amendment prohibits states from adopting restrictions on that individual right. ...
Judge Sotomayor correctly followed the high court's existing case law.
The Associated Press later reported that the NRA's threats to punish senators who voted in favor of Sotomayor with lower guns record ratings were "met with a shrug by Democrats from conservative-leaning states and some Republicans who are breaking with their party to support her," citing four A-plus or A-rated senators that were planning to confirm Sotomayor. [The Wall Street Journal, 7/16/09, The Washington Post, 7/28/09, Associated Press, 8/1/09]
The NRA's Ability To Defeat Politicians Who Don't Go Along With Its Agenda Has Been Vastly Overstated, And The NRA Has Recently Lost Two High-Profile Nomination Fights. The NRA failed in its campaigns to oppose Obama's surgeon general nominee Vivek Murthy and attorney general nominee Loretta Lynch, who were confirmed by the Senate in December 2014 and April 2015, respectively. Analysis of the NRA's promise to use election spending to defeat members of Congress who oppose the organization's agenda has also found that the NRA has little impact on federal elections, as particularly highlighted by the gun group's disastrous spending during the 2012 elections. [Media Matters, 4/24/15, 2/21/12]
Fox News' Supreme Court correspondent and anchor Shannon Bream has a long history of pushing misinformation on both Supreme Court processes and past nominees. She has notably injected misleading information and baseless interpretations into the confirmation process for Justice Sonia Sotomayor and into discussions of judicial procedures and nominations in lower courts. Bream's notable tendency to report speculation as fact and irresponsibly regurgitate conservative talking points, cloaked in the veneer of legal expertise, solidify her likely stance as a major misinformer in the brewing confirmation battle.
During Sotomayor Confirmation Hearings, Bream Repeatedly Shared Her Misinformed Speculation While Reporting. Throughout the nomination and confirmation of Sotomayor in 2009, Bream appeared frequently on Fox to report on developments in the process, often injecting misguided speculation or debunked conservative media talking points into her segments. In May 2009, Bream echoed a common talking point that Sotomayor's ruling in a particular case was controversial; the Supreme Court later took up the case, and Bream speculated that the justices seemed sympathetic to the other side during oral arguments, in spite of widespread reporting that the court seemed "closely divided." Weeks later, Bream again appeared on Fox News to misrepresent a Supreme Court ruling on the Second Amendment, further suggesting that Sotomayor would be at odds with the court. Bream doubled down on this misinformed narrative during Sotomayor's confirmation hearings. She presented Sotomayor's stance on the Second Amendment as a concern by severely misstating the parameters of a 2009 Sotomayor decision on the Second Amendment and failing to note that multiple conservative judges had agreed with her interpretation in the case. Bream continued her misinformed reporting by hosting and echoing JCN's Wendy Long in pushing a series of myths about a reported statement Sotomayor made in 1983. Long asserted that the 25-year-old Sotomayor statement -- about the racial impact of crime -- was "extreme," and Bream failed to acknowledge Bureau of Justice Statistics crime data that entirely undermined Long's criticism and supported Sotomayor's statement. [Media Matters, 5/27/09, 6/1/09, 6/15/09, 7/15/09]
Bream Has Repeatedly Mischaracterized Obama Judicial Nominees And Misled On Judicial Processes. Bream has been repeatedly featured on Fox News to weigh in on judicial news related to nominees and processes of lower courts, and she has systematically injected misinformation and confusion into reporting on these topics. In 2013, Bream reported on Republican Senate opposition to President Obama's attempts to fill three vacancies on the U.S. Court of Appeals for the D.C. Circuit by falsely claiming the court was balanced evenly as it stood. She also suggested a false equivalence between past Democratic opposition to controversial Republican nominees with blanket Republican obstructionism to Obama nominees who were widely accepted to be noncontroversial. Bream also echoed conservative claims that the court had a "low caseload" that did not warrant appointments to fill the existing vacancies, failing to report on the legal experts and prominent conservative judges who disagreed with that claim, and repeating a Republican claim based on an anonymous source whom Sen. Chuck Grassley (R-IA) refused to identify. Bream also mischaracterized the D.C. Circuit filibusters, arguing that the vacancies in the D.C. Circuit were not pressing because they had not been declared "judicial emergencies" while failing to note that the same body that authorizes "judicial emergencies" had recommended that the D.C. Circuit maintain a full roster of judges. Bream also hosted and repeated conservative smears that one of the highly qualified candidates to fill one of the vacancies were "the most left-leaning justice or judge in the history of the republic," a "radical feminist," and "way out of the mainstream." Bream's "outside the mainstream" smear reappeared months later in her reporting on Debo Adegbile, a nominee to head the Justice Department's civil rights division. Bream contributed to a report citing conservative misinformation in the racially charged campaign against the highly regarded Adegbile, citing unnamed "critics" who had allegedly characterized the nominee as "radical," "dangerous," and "outside the mainstream." [Media Matters, 10/30/13, 11/25/13, 11/26/13, 1/31/14]
Most Likely To Fixate On Nominee's Religion, Race, Gender, Sexuality, Or Family Background: The Entire Conservative Movement, Including Conservative Media At Large
Some of the most prominent and pervasive baseless attacks on Justices Elena Kagan and Sonia Sotomayor were so-called implications of bias or incompetence based on the judges' demographic characteristics. Right-wing media frequently repeated personal attacks on the nominees originating from radical groups or launched attacks themselves, sometimes resulting in misinformation or hateful accusations that seeped into mainstream media coverage.
Fox's Judge Andrew Napolitano Quoted Anonymous Law Clerks To Question Sotomayor's Credentials. On the May 5, 2009, edition of Fox News Radio's Brian & The Judge, Fox commentator Judge Andrew Napolitano cited an anonymous former law clerk of a different federal judge to allege that Sotomayor "has a reputation for not being a very hard worker." Napolitano also suggested that Sotomayor may be nominated in part because of her gender and ethnicity:
NAPOLITANO: There are rumors that it may be Hillary Clinton. There are rumors that it may be Sonia Sotomayor, who attended college with Sam Alito and with me, and who is now a judge of the United States Court of Appeals for the Second Circuit. That's the federal appeals court in New York.
She was born in the projects in the South Bronx, won a scholarship to Princeton, won a scholarship to Harvard Law School, was a federal prosecutor, a federal trial judge, is now a federal appellate judge, obviously a woman, obviously a Latina, obviously a liberal Democrat, obviously 15, 18 years younger than Justice Souter -
KILMEADE: But -
NAPOLITANO: -- so she fits everything the president wants. [Media Matters, 5/6/09]
Media Developed A Source-less Narrative Raising "Concerns" About Sotomayor's "Intellect." Immediately after President Obama formally nominated Sotomayor, conservative radio host Glenn Beck and figures at CNN and MSNBC pushed unsourced claims that Sotomayor may not have the "intellectual throw weight to make a difference on the court." Following earlier citations of anonymous former law clerks by The New Republic's Jeffrey Rosen and Fox's Napolitano to make the same point, a CNN online article reported that Sotomayor "has suffered through recent stinging criticism in the media and blogs from both the left and right over perceived -- some defenders say invented -- concerns about her temperament and intellect." CNN host John King later commented that "some liberal groups" and "senior Democratic people outside of the White House" did not believe Sotomayor was one of the "intellectual firebrands that the president had on his list" and thought she perhaps could not "go up against a Scalia or an Alito on the court." Beck also stated, "I have heard that [Sotomayor] is ... not that intellectually bright," to which his guest, a Cato Institute staffer, replied that this view was "widely held." On MSNBC, legal commentator Jonathan Turley opined on Sotomayor's nomination: "She will be historic in many ways, like Thurgood Marshall. But I'll remind you, Thurgood Marshall was not a lasting intellectual force on the court. ... And I think that a lot of academics are a little bit disappointed." [Media Matters, 5/26/09]
Media Used Ethnic And Gender Stereotypes To Harp On Sotomayor's "Temperament." Another largely unsourced claim pervading media coverage of the Sotomayor nomination -- often paired with baseless accusations about the judge's intellect -- surrounded Sotomayor's "temperament." The New Republic's anonymous law clerk statements not only questioned Sotomayor's intelligence, but also suggested the judge was "kind of a bully on the bench" and "domineering during oral arguments." This dubious claim, backed by further anonymous quotes from the Almanac of the Federal Judiciary that one expert characterized as "gender-coded," seeped into reporting across media spectrum; a May 28 article in The New York Times even explored "Sotomayor's sharp-tongued and occasionally combative nature." Though mainstream coverage, including the Times article, often noted that many of Sotomayor's colleagues publicly defended her "temperament," and stated that "[Sotomayor's] way of dealing with people is exactly the same as male judges do," the narrative continued in reporting and punditry on Sotomayor's nomination. Pat Buchanan, Rush Limbaugh, Glenn Beck, The Washington Times, Fox's Shannon Bream, and CNBC's Larry Kudlow all repeated the anonymous criticisms of Sotomayor's "temperament" or lobbed attacks of their own. Fox Nation highlighted anonymous claims that Sotomayor was " 'Angry,' 'Nasty,' 'Out of Control,'" while Beck stated that he had "heard" that Sotomayor was "almost a bully; she just loves to hear herself talk." [Media Matters, 5/8/09, 5/29/09, 6/3/09, The New York Times, 5/28/09]
Baseless Accusations Of "Racism" Followed Sotomayor Stories From Right-Wing Media To The Mainstream. Conservative media also latched onto a speech Sotomayor gave in 2002 in which she commented on race and sex discrimination cases, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Right-wing media figures quoted this remark out of context to allege that Sotomayor was "racist" and "reverse racist," and to label the statement "outrageous" and "bigoted." Fox host Megyn Kelly, one of the first to take Sotomayor's statement out of context, claimed that the nominee was "saying that Latina judges are obviously better than white male judges," and further stated that she had read the entire speech to "see if that was taken out of context ... it wasn't." Radio host Rush Limbaugh used the out-of-context quote to assert, "Obama is the greatest living example of a reverse racist, and now he's appointed one." Radio host Mark Levin used the same quote to portray Sotomayor as "a radical leftist" and a "bigot." Then-Fox host Glenn Beck called the misinterpreted quote "one of the most outrageous remarks I've ever heard," and conservative pundit Tucker Carlson asserted that it was "a racist statement, by any calculation." It was also repeated by Ann Coulter on Good Morning America, where she claimed that "it was a racist statement" that "does a disservice to women and minorities." Conservative media doubled down on claims of Sotomayor's racism stemming from this out-of-context quote later in the confirmation process; Limbaugh, for example, said Sotomayor was "racist, in her own words." This misguided talking point didn't stay within right-wing radio and Fox News -- the quote was unquestioningly printed without context by The Wall Street Journal, The New York Times, The Washington Post, Politico, Time, The Economist, Congressional Quarterly, The Denver Post, USA Today, The Boston Globe, The Dallas Morning News, and the San Francisco Chronicle, and on CNN and CBS. Then-CNN host Lou Dobbs parroted right-wing accusations that the remark was "racist," and added that Sotomayor's nomination was "pure, pure absolute pandering to the Hispanics," and "filling in the box on one more minority." [Media Matters, 5/26/09, 5/27/09, 6/2/09,6/3/09]
Rush Limbaugh: Sotomayor And Kagan "Talk About Life Experiences" Because They Are "Not Qualified" Women And Therefore "Victims." During a July 2010 broadcast of the The Rush Limbaugh Show, Limbaugh agreed with a caller that Kagan was "unqualified," and went on to suggest that both Kagan and Sotomayor felt they were "owed" seats on the Supreme Court because they are women and therefore "victims" (emphasis added):
Sotomayor is not qualified. Kagan is not qualified. The whole point about talking about life experiences. Who are we talking about here? Sotomayor and Kagan. What are they? They're women. That means they're victims. That means they're minorities. That means they've been discriminated against. That means we owe 'em... They're owed a seat on the Supreme Court. Doesn't matter if they couldn't spell 'cat' if you spotted 'em the 'c' and the 't'. [Media Matters, 7/22/10]
Media Propped Up Debunked Rumors About Kagan's Sexuality. In April 2010, CBS.com republished an opinion piece by right-wing blogger Ben Domenech that included unsubstantiated rumors that Kagan, then featured on a shortlist of potential Supreme Court nominees, was "openly gay." Domenech subsequently added to the piece, "Kagan is apparently still closeted - odd, because her female partner is rather well known in Harvard circles," and CBS noted that a White House official had responded that the reference to Kagan's sexuality was "inaccurate." The flat denial of the unsubstantiated "Harvard rumor" about Kagan's sexuality from the White House itself, though, did not stop right-wing outlets and mainstream media from unquestioningly reporting on the rumor, or from anti-LGBT groups seizing on the point to launch attacks against Kagan during her confirmation process. In the days after the Domenech op-ed appeared on CBS.com, the hosts of MSNBC's Morning Joe spent nearly 30 minutes discussing the unsubstantiated rumors and mischaracterizing the White House's response to Domenech's piece. The Wall Street Journal published an article on Kagan's nomination illustrated with an old photograph of the judge playing softball, which some LGBT advocates viewed as "clearly an allusion" to Kagan's sexuality and which resulted in a new round of reporting and blogging about the debunked rumors. The Associated Press published a report devoted to rumors about Kagan's personal life, mentioning statements from the White House and Kagan's friends only 15 paragraphs into the article, after noting that "the irony in all of this is that Kagan may very well be straight." Meanwhile, the extremist American Family Association -- among other far-right, anti-LGBT groups -- seized on this rumormongering narrative in its campaigns against Kagan. [Media Matters, 4/15/10, 5/11/10, 5/12/10, 5/17/10, Politico, 5/11/10, ThinkProgress, 5/10/10, Associated Press, 5/17/10]
Rampant Anti-Semitism Characterized Right-Wing Kagan Coverage. In May 2010, right-wing activist Manuel Miranda questioned Kagan's "background" and implied she was a socialist, citing "Jewish socialist culture in New York" and misrepresenting an academic paper Kagan had written in college. Pat Buchanan similarly invoked Kagan's religion and New York roots, writing, "Are Liberals Anti-WASP?" and lamenting that, if Kagan were confirmed, the court would have too many Jewish justices and too many justices from New York City. In June 2010, the Drudge Report highlighted a CNS News article quoting Rabbi Yehuda Levin of the Rabbinical Alliance of America -- who believes "the sodomy agenda" caused the 9/11 terrorist attacks, Hurricane Katrina, and the earthquake in Haiti -- attacking Kagan for turning "traditional Judaism on its head" because she supposedly wants to "homosexualize every segment of society." Days later, far-right radio host Michael Savage referred to Kagan as a "bagel and lox Jew" who "shuns her own religion." Savage had previously said Kagan "looks like she belongs in a Kosher deli." Attacks invoking Kagan's religion were not limited to known bigots, either: Conservative writer Kathleen Parker parroted Buchanan in a Washington Post column, contrasting the number of Jews, New Yorkers, and Catholics on the Supreme Court with "ordinary people" and "the vast rest of the country." [Media Matters, 4/12/10, 5/17/10, 5/17/10, 6/25/10, 7/1/10]
Right-Wing Media Pivoted To Anti-Muslim Smears In Questioning Kagan's Credentials. Following a line of questioning from Sen. Jeff Sessions (R-AL) -- then-ranking Republican on the Senate Judiciary Committee -- during Kagan's confirmation hearing, anti-Muslim extremist Frank Gaffney and The Washington Times seized on Kagan's connections to a research center at Harvard University to unleash rampantly anti-Muslim attacks. In June 2010, The Washington Times printed a column penned by Gaffney charging that Kagan was "enabling efforts to insinuate" Shariah law in the United States. Gaffney cited Sessions' questions about a donation from a pro-American member of the Saudi royal family and major U.S. investor to establish a Center for Islamic Studies at Harvard during Kagan's tenure as dean of Harvard's law school, and the Islamic Finance Project that Kagan helped to establish at Harvard Law School in 2003, a type of program also sponsored by major banks and the Bush administration. In July, a second Gaffney column in The Washington Times, titled "Kagan's Shariah problem," doubled down on these claims. Both columns were accompanied by images of Kagan wearing a turban -- the first a doctored photo that was not identified as such, and the second a cartoon illustration. Weeks later, The Daily Caller blared the headline "Justice Sharia: Critics allege Kagan is sympathetic to Islamic law," citing Gaffney's attacks. [Media Matters, 6/23/10, 7/20/10, 8/5/10]
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