Right-wing media appear stunned as Justice Anthony Kennedy refused to join his more radical conservative colleagues on the Supreme Court and strike down affirmative action in higher education, instead reaffirming modern civil rights law that holds race-conscious admissions policies remain necessary for equal opportunity in today's society.
Kennedy's 7-1 majority opinion in Fisher v. University of Texas at Austin is essentially the reiteration of his controlling analysis in Parents Involved v. Seattle School District No. 1 (2007), which affirmed the constitutionality and continued necessity of race-conscious programs that seek to prevent the resegregation of public education.
In lockstep with conservative activists who are using the closely split Supreme Court as an opportunity to overturn decades of civil rights law, right-wing media have been repeatedly clamoring for the opposite of what just occurred in Fisher. So far, right-wing media coverage has been muted or is incorrectly pretending Kennedy's opinion breaks significant new ground.
Fox News host Megyn Kelly on America Live - in addition to dredging up the myth that the plaintiff in question was rejected in the admissions process because of her race - was shocked at Fisher's utterly unsurprising reminder that government's use of race typically requires strict scrutiny from the courts. From University of California Irvine School of Law Dean Erwin Chemerinsky's leading treatise, Constitutional Law, Principles and Policies, most recently updated in 2006:
It now is clearly established that strict scrutiny is used to evaluate all government affirmative action plans. In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court said: "[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." The Court reaffirmed that strict scrutiny is the test for affirmative action programs in its most recent cases, Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
In Fisher, Kennedy wrote for a near-universal Supreme Court that has now sent a challenge to the University of Texas' affirmative action program back down to the U.S. Court of Appeals for the Fifth Circuit because it had not correctly applied the Court's precedent in this area of equal protection law. As has been the law since 1978, upheld most recently in 2003, the use of race as one factor among many in individualized and holistic considerations of applicants to institutions of higher education remains both necessary and constitutional to ensure the diversity of America's future leaders.
Right-wing media are dishonestly arguing that senators have not had enough time to read the approximately 1,200-page immigration reform bill the weekend before a scheduled vote on it. In fact, the majority of the bill has been online since May, a fact even Karl Rove acknowledged on Fox News to push back against conservative criticism.
The bulk of the bill's 1,200 pages are available online and have been since May 21. On June 21, the Senate added enforcement provisions submitted by Sen. Bob Corker (R-TN) and Sen. John Hoeven (R-ND) to the main text of the bill, which total 119 pages.
Those opposed to the legislation, such as The Weekly Standard's Bill Kristol jumped on the Corker-Hoeven addition to make the misleading claim that the Senate only had the weekend to review the entire bill before voting on it. As highlighted by Breitbart.com, the Washington Post's Bob Woodward also implied that the Senate was rushing to pass immigration reform, saying on the June 23 edition of Fox News Sunday: "It's proven time and time again, when you pass complicated legislation and no one has really read the bill, the outcome is absurd." Other conservative outlets, like Red State, picked up the misleading narrative, with The Drudge Report showing a picture of Sen. Marco Rubio (R-FL) drinking from a water bottle with the headline, "Senate to vote on bill before reading it":
Right-wing media outlets cherry-picked data from a Congressional Budget Office (CBO) report on the Senate's immigration reform proposal to incorrectly claim that the bill would hurt American workers. In fact, the CBO report found that the Senate immigration reform bill would have temporary and small negative effects but over the long term would greatly benefit both American workers and the economy, which is reinforced by past studies.
Right-wing media outlets cherry-picked data from a Congressional Budget Office report on the Senate's immigration reform proposal to claim that immigrants who would benefit under the bill will drive down the wages of U.S. workers. In fact, while CBO predicts a slight decrease in wages in the first decade, that decrease would be outweighed by the larger increase in wages in the following decade. CBO also noted that its estimates "do not necessarily imply that current U.S. residents would be worse off" in the first decade.
A post on Breitbart.com asserted that CBO found that "illegal immigrants who would receive amnesty, or legalized status, would see a spike in their income while Americans' incomes dropped." The post added that "it would be harder for Americans to find jobs if the bill passed." Similarly, on her radio show, Fox News contributor Laura Ingraham aired comments by Sen. Jeff Sessions (R-AL) claiming the bill would depress U.S. wages, then stated that the bill "goes beyond all common sense":
In reality, the CBO report on the economic impact of the Senate immigration bill states that "average wages for the entire labor force would be 0.1 percent lower in 2023 and 0.5 percent higher in 2033 under the legislation than under current law." CBO continues:
The estimated reductions in average wages and per capita GNP for much of the next two decades do not necessarily imply that current U.S. residents would be worse off, on average, under the legislation than they would be under current law. Both of those figures represent differences between the averages for all U.S. residents under the legislation--including both the people who would be residents under current law and the additional people who would come to the country under the legislation--and the averages under current law for people who would be residents in the absence of the legislation.
As noted, the additional people who would become residents under the legislation would earn lower wages, on average, than other residents, which would pull down the average wage and per capita GNP; at the same time, the income earned by capital would increase. [emphasis added]
The Drudge Report is reframing a Senate vote on a border enforcement amendment to the Senate immigration bill as Sen. Harry Reid (D-NV) blocking a "fix" to the border. In fact, the Senate bill as drafted already includes tougher border enforcement measures while the amendment Sen. Chuck Grassley (R-IA) proposed continues an enforcement first policy that has been deemed ineffective.
On June 13, the Senate voted to table an amendment by Grassley which would have required strict border controls be in place before undocumented immigrants are able to begin the path to citizenship process.
The Drudge Report highlighted the vote using the headline, "Senate Fight: Reid Blocks Border Fix," and linked to a piece at Breitbart.com by Matthew Boyle that blamed Reid for killing the amendment:
Boyle highlighted Reid's decision to file a motion to table Grassley's amendment and said that Reid "made a move to formally kill" the amendment that would "require border security."
Conservative media are distorting a New York Times article that explained scientists' research on how the ocean has absorbed much of recent global warming to deny manmade climate change. A prime example is the conservative website The Daily Caller, whose article is easily refuted by one of its own sources, a scientist who stated that "people should be exactly as concerned as before about what climate change is doing."
Here's The Daily Caller claiming that scientists have "lowered their warming estimates," (it actually means estimates of climate sensitivity, or the amount that the surface temperatures would warm in response to a doubling of atmospheric carbon dioxide):
Researchers from the UK recently reported that global temperatures will only rise between 0.9 degrees Celsius and 2.0 degrees Celsius. Before that, Norwegian researchers found that the earth may warm only 1.9 degrees Celsius.
"The most extreme projections are looking less likely than before," Dr. Alexander Otto of the University of Oxford told BBC News.
In fact, Patrick Michaels of the libertarian Cato Institute compiled a partial list of studies that have lowered their warming estimates:
"Richard Lindzen gives a range of 0.6 to 1.0 C (Asia-Pacific Journal of Atmospheric Sciences, 2011); Andreas Schmittner, 1.4 to 2.8 C (Science, 2011); James Annan, using two techniques, 1.2 to 3.6 C and 1.3 to 4.2 C (Climatic Change, 2011); J.H. van Hateren, 1.5 to 2.5 C (Climate Dynamics, 2012); Michael Ring, 1.5 to 2.0 C (Atmospheric and Climate Sciences, 2012); and Julia Hargreaves, including cooling from dust, 0.2 to 4.0 C and 0.8 to 3.6 C (Geophysical Research Letters, 2012)."
Here's the scientist that The Daily Caller cites, Dr. Otto of the University of Oxford, saying to the BBC that "We would all like climate sensitivity to be lower but it isn't":
The IPCC said that climate sensitivity was in the range of 2.0-4.5C.
This latest research, including the decade of stalled temperature rises, produces a range of 0.9-5.0C.
"It is a bigger range of uncertainty," said Dr Otto.
"But it still includes the old range. We would all like climate sensitivity to be lower but it isn't."
Right-wing media have urged Senator Marco Rubio (R-FL) to abandon comprehensive immigration reform efforts in their continued effort to thwart the Senate's attempt to overhaul the nation's immigration system.
The Equal Pay Act was signed into law on June 10, 1963, by President Kennedy to prohibit wage discrimination based on sex. Fifty years later, as the issue of gender income inequality continues to affect America, conservative media figures have consistently tried to downplay and minimize these concerns.
Right-wing media outlets are hyping a new study by the Center for Immigration Studies (CIS) -- a Southern Poverty Law Center-labeled nativist organization -- which claims that the Senate's immigration bill would double the number of guest workers admitted into the country each year. The study, however, is just the latest in a series of flawed, debunked studies that CIS has released.
The outlets - including the Daily Caller, Newsmax, The Washington Times, Breitbart.com, and Drudge Report -- have all highlighted the study which claims that in the first year of the Senate's proposed comprehensive immigration reform bill, "nearly 1.6 million more temporary workers than currently allowed" will be admitted to the United States. The study also claims that the bill would double the number of temporary workers admitted each year compared to current levels.
What these outlets fail to mention is that, like many of CIS' previous studies -- and others they have latched on to in order to undermine immigration reform -- this study is flawed and its conclusions are bogus.
Philip Wolgin, senior policy analyst for immigration at the Center for American Progress, emphasized the top five reasons the CIS study "misses the mark," including its lack of methodology, double-counting temporary and permanent immigrants, misrepresenting who will actually compete with American workers, and the miscounting of visa categories. Wolgin explained that CIS makes significant statistical errors, including what he calls the "absurd" idea that 950,000 people would apply for and be granted the V Visa in the first year after the immigration reform bill's passage.
The V visa is a temporary visa that allows the family members of legal permanent residents to remain in the country legally until they are granted permanent residency as well. As the Center for American Progress explained, even though 75 percent of spouses and children of permanent residents are exempted from per-country quotas, some families still face up to 19 years apart due to backlogs in the immigration system.
Wolgin also pointed out that among the three visa categories that make up 83 percent of the increases in the CIS study, CIS over-counted by more than 255,000 people.
Right-wing media are continuing to follow GOP talking points opposing filibuster reform by pretending President Obama's attempts to fill judicial vacancies are dangerously unprincipled.
By shamelessly repeating Sen. Chuck Grassley's debunked analogy that the president's current nominations to the important U.S. Court of Appeals for the D.C. Circuit are a "type of court-packing reminiscent of FDR's era," right-wing media appear to be running out of excuses for rampant Republican obstructionism. Consequently, this "radical and different" treatment of the president's nominees as opposed to that of past Republican presidents has led to the real possibility that Senate rules will be changed in July to require up-or-down votes for executive and judicial nominees.
GOP insistence on clinging to an ahistorical characterization of the president's moves to fill existing seats on the D.C. Circuit as tantamount to former President Franklin Roosevelt's proposal to create new seats on the Supreme Court has been dismissed as "silly on its face" and incapable of "passing the laugh test" by multiple experts.
Nevertheless, The Weekly Standard has parroted the false line, declaring that the "nominations are simply a power play" so the court will "vote in his administration's favor all the time." The Wall Street Journal similarly warned that the president wanted judges who "rubber stamp liberal laws," leading him to his "flood-the-zone strategy" for the D.C. Circuit, "a liberal power play that shows contempt for traditional political checks and balances." Breitbart.com is breathlessly proclaiming the nominations show "Obama has declared war on judicial independence" and is "trying to declare law by executive fiat."
Ironically, Grassley and now Rep. Tom Cotton have introduced bills that would block the president's nominations by eliminating the vacant seats -- literally court-packing in reverse. In a companion move to their bad sense of history, the GOP is relying on bogus numbers to claim the D.C. Circuit doesn't need the president's nominees because of its workload, an assertion refuted not only by the nonpartisan Judicial Conference of the United States (which recommends the size remain the same), but also by the court's former Chief Judge and the Chief Justice of the Supreme Court. Right-wing media are nonetheless repeating this discredited spin, in support of the unprecedented Republican blockade of judicial nominees.
The additional GOP threat of filibusters of the president's executive nominees to head the Labor Department, the Environmental Protection Agency, and the Consumer Financial Protection Bureau has led Senate Majority Leader Harry Reid to warn he will demand a simple majority vote for all of the president's nominees in July.
Right-wing media have been pushing multiple dubious claims related to the recent revelation that the IRS used inappropriate criteria to scrutinize some conservative groups seeking tax-exempt status. Media Matters has compiled five of the worst offenders.
Right-wing media are falsely claiming that excerpts of interviews with IRS employees prove that improper targeting of conservative groups applying for tax-exempt status originated from IRS supervisors in Washington, D.C. But House Oversight Committee Chairman Darrell Issa admitted on CNN that no such proof is contained in the excerpts.
Right-wing media are wildly distorting facts and criminal procedure to pretend Attorney General Eric Holder "lied" to Congress when he testified about government surveillance of journalists and prosecutorial discretion at a May 15 hearing.
Now that the possible chilling ramifications of legal searches of reporters' work product have been widely condemned not only by the press, both political parties, and President Obama and Holder, right-wing media have resorted to misrepresenting search warrant procedure, criminal law, and basic facts of what the Department of Justice (DOJ) actually did in their investigation of how a State Department employee may have violated the Espionage Act of 1917.
Specifically, right-wing media claim Holder's May 15 testimony is inconsistent with a two-year-old affidavit DOJ filed in support of a search warrant request for an email account associated with Fox News' James Rosen, as part of their investigation into the government official's unauthorized disclosure of classified information. Fox News host Sean Hannity was the most recent example, who showed a clip of the testimony on his May 29 show and then stated "what you just witnessed was the United States Attorney General lying while under oath before Congress."
Continuing in a vein set by Fox News host Megyn Kelly on the May 28 edition of America Live when she complained "it is one thing for the DOJ to go into a courtroom and try to get your records, your phone records, your email records. It's quite another for them not to give you any notice[,]" right-wing media is complaining that the underlying legal rationale behind the warrant request was incorrect. In support of this argument, the Drudge Report has been pushing claims made on Breitbart.com that Holder went "judge shopping" in pursuit of approval for this supposedly flawed search warrant.
Right-wing media figures argued that Internal Revenue Service official Lois Lerner waived her Fifth Amendment rights at a congressional hearing by declaring her innocence before invoking those rights. By contrast, legal experts say Lerner's statement did not negate her constitutional protections.
Breitbart.com is promoting the theory that Hitler was secretly gay, playing into one of the most extreme and damaging anti-gay smears in right-wing politics: that gay men were responsible for the Holocaust.
In a May 9 post, Breitbart.com touted "new evidence" that Hitler was gay, citing a Washington Examiner article that highlighted notes taken from interviews with several of Hitler's doctors. The "evidence" of Hitler's alleged homosexuality includes the claims that Hitler took female hormones and did not sleep in the same bedroom as his girlfriend and eventual wife, Eva Braun:
There is new evidence that Adolph Hitler was gay. Doctors who treated Hitler were interviewed by the U.S. Army after World War II, and the notes from those interviews have now been made public.
Army interrogator Herman Merl, who was a medical technician who interviewed Hitler's doctors, Karl Brandt and Hitler's primary physician, Theodor Morell, wrote "Homosex" in the space provided for Hitler's sexuality. The doctors told Merl that Hitler did not sleep with girlfriend Eva Braun in her bedroom, and he himself received female hormones. Merl wrote, "Eva Braun = separate rooms" and "female hormone - injection 50,000 units." He added, "His sexual life and intercourse with Eva Braun was told to me."
The theory that Hitler was secretly gay isn't new in right-wing circles - anti-gay extremists like Bryan Fischer of the American Family Association have been making similar claims for years. In fact, the "Hitler was gay" claim is part of a broader anti-gay smear which posits that gay men were responsible for the Holocaust and that Hitler intentionally sought out homosexuals for his "inner circle" because their "unusual brutality" made them well-suited to carry out mass genocide.
That myth has been widely debunked, of course, and the reality is that gay people were the victims, not the perpetrators, of the Holocaust.
Breitbart.com's post, with its blaring headline and ominous picture, continues a long tradition in right-wing media of grasping at straws to suggest some link between homosexuality and one of worst human rights atrocities in history.