National Review Online is pushing an accusation that Virginia attorney general Mark Herring is "politicizing" his office because he has refused to defend that state's same-sex marriage ban in court. In reality, Herring's decision is a common one -- state officials on both sides of the political aisle have frequently refused to defend laws they consider to be unconstitutional, and he is not alone in his legal analysis.
Absurd smears against a highly-qualified judicial nominee for her support of family planning, sex equality, and conservative attempts to dismantle gender stereotypes made the jump from right-wing blogs to the Fox News Channel.
On November 25, Fox News' Shannon Bream correctly reported that the former Connecticut attorney general, among a wide collection of bipartisan legal experts, supports the nomination of the eminently qualified Georgetown Law Professor Cornelia "Nina" Pillard to the U.S. Court of Appeals for the D.C Circuit. Unfortunately, Bream proceeded to repeat right-wing media myths accusing Pillard of "radical feminis[m]" and hosted National Review Online contributor Carrie Severino to recycle the smears. From America's Newsroom, with co-host Martha MacCallum:
MACCULLUM: What are the critics saying that are opposed to her?
BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny. Here's a bit of what she has said when writing about abortion issue. Here's a quote from one of her articles: "Anti-abortion laws and other restraints on reproductive freedom not only enforce woman's incubation of unwanted pregnancies, but also prescribe a 'vision of the woman's role' as mother and caretaker of children in a way that is at odds with equal protection." Here's Carrie Severino of the Judicial Crisis Network.
SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the Equal Protection Clause and feeling like women are being objectified as breeders in the country.
BREAM: She has used that word referring to women as breeders if they are forced to carry pregnancies that they don't want to have. But at this point it looks like there is no blocking her, it is likely she will take a seat on that very important court.
Since Pillard was nominated, she has been subjected to sexist, retrograde, and false accusations that her views on reproductive rights are not in the mainstream. In fact, they are based on decades-old constitutional law, including a decision written by arch-conservative former Chief Justice William Rehnquist.
For example, the quote that Bream yanked out of context from a 2007 academic article in which Pillard noted that "antiabortion laws and other restraints on reproductive freedom not only enforce women's incubation of unwanted pregnancies, but also prescribe a "vision of the woman's role" as mother and caretaker of children in a way that is at odds with equal protection[,]" is an explicit reference to the fact that justices on the Supreme Court have already incorporated equal protection principles into their reproductive rights precedent. Unmentioned by Bream, the quote was part of a discussion of the 1992 decision of Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed the constitutionality of Roe v. Wade.
The notion that damaging gender stereotypes can be at the core of restrictions on reproductive rights is also based on long-standing constitutional precedent.
National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.
NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the "nuclear option," which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):
I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.
Whelan's NRO colleague, Carrie Severino, joined the "make my day" chorus in a similar post on Reid's decision to invoke the nuclear option, saying, "I hope he does conservatives the favor." Severino later reiterated that point on PBS Newshour with Gwen Ifill:
I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.
But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.
It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the "nuclear option" just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.
(Photo by Flickr user peacearena)
National Review Online is downplaying the seriousness of an Oklahoma law currently before the Supreme Court that forces doctors to ignore safe and accepted medical practice when prescribing the drug RU-486 for medication abortions.
In response to a New York Times blog by legal expert Linda Greenhouse highlighting Oklahoma's appeal of a state supreme court decision that held its new restrictions on the use of RU-486 blatantly violated reproductive rights precedent, the NRO accused Greenhouse of "put[ting Supreme Court Justice Anthony] Kennedy on notice of how he will be treated by the liberal media if he doesn't toe their line in this term's controversial cases." From NRO:
[The case from Oklahoma, Cline v. Oklahoma Coalition for Reproductive Justice,] gives the Court the opportunity to clarify the ambiguous "undue burden" test Casey [v. Planned Parenthood, a 1992 Supreme Court case that allowed states to impose restrictions on access to abortion as long as they did not create an "undue burden" on women] applied to regulations of abortion. Given Kennedy's affection for Casey, there is little likelihood the Court would use this opportunity to overturn that decision, but it could give some a content to the characteristically amorphous standard conceived by Kennedy, Souter, and O'Connor in their plurality opinion. And, from my perspective at least, it seems evident that only an incredibly broad reading of "undue burden" would suffice to overturn the Oklahoma law. After all, it simply adopts the determination of the FDA and still leaves ample other methods of abortion open to women.
But in discussing the Supreme Court's decision to review Cline, NRO fails to mention that in order to "adopt the determination of the FDA," doctors will have to follow guidelines that most consider to be woefully outdated.
Judicial Crisis Network chief counsel Carrie Severino praises her organization's last-minute television attack advertisement against Michigan Supreme Court candidate Bridget McCormack for assisting in the representation of Guantanamo detainees. But Severino's article, which appeared in the National Review Online, failed to mention that the right to counsel for the detainees, such as the one McCormack represented, has been defended by prominent conservative lawyers and the federal courts.
The ad in question began running the week before the election and has been heavily criticized both locally and nationally for attacking McCormack's participation in the legal proceedings for accused detainees at Guantanamo. The 30-second ad features a mother whose son was killed while serving in the military in Afghanistan, who asks "how could" McCormack "help free a terrorist"? In fact, McCormack was part of a Bush-era legal system set up to represent Guantanamo detainees, many of whom were found to be improperly detained. In defense of the ad, Severino writes that the Judicial Action Network was "proud of the service we performed by exercising our constitutional rights and bringing these facts to the people of Michigan." But this attack on the provision of attorneys for detainees - regardless of their guilt - is not new and has been repeatedly discredited by prominent conservatives.
For example, Severino recycles the argument that the detainees should not have access to counsel based on their status as "foreign enemy combatants." As conservative Professor of Law Orin Kerr has noted, this argument is "simply incorrect," as evidenced by the Bush administration's abandonment of such a claim and Supreme Court and subsequent rulings that established the constitutional right of detainees to "go to federal court to challenge their continued detention," a right not contingent on citizenship.
Kerr offered this analysis in the wake of similar attacks on Justice Department attorneys who - like McCormack - had provided representation for detainees prior to entering government service, describing the attacks as "ridiculous." Also in response to this earlier incarnation of the current smear, a "group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a 'shameful' effort." From the 2010 letter, which included prominent conservative attorneys David Rivkin, Lee Casey, Kenneth Starr, and Viet Dinh, among others:
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
The right to counsel has been repeatedly reaffirmed by the courts. Most recently, the respected Chief U.S. District Judge Royce Lamberth, who was nominated to the bench by President Ronald Reagan and is in charge of Guantanamo proceedings, reminded the government in September that the constitutional right to access to the courts for detainees "means nothing without access to counsel" because they "are inseparable concepts and must run together." In fact, this fundamental constitutional concept is the exact point of the op-ed penned by McCormack in 2005 that the Judicial Action Network mischaracterized in their ad campaign against her as "an opinion piece in the Detroit News where she encouraged other attorneys to represent suspected terrorists." From McCormack's June 16, 2005, Detroit News op-ed (via Nexis):
The success of the emerging democracy in Iraq, which hundreds of American men and women have lost their lives fighting for, will depend on whether the rule of law takes full root. Of course, our commitment to the rule of law here at home underlies our own system of government.
That commitment in turn requires unwavering respect for due process for the accused -- to be informed of charges, to have genuine access to legal counsel and to be given an opportunity to present or contest evidence. Our commitment to such basic rights extends to our most serious transgressors, and it is upheld during our most difficult times. Such a commitment most distinguishes us from our enemies.
The urge to cut constitutional corners when fighting an evil enemy is understandable. But it is a visceral urge, and we should resist it.
Abandoning the rule of law betrays our most fundamental commitments, our noble side. America has fought and won its most important battles without abandoning the values that most define it, including most especially due process and the rule of law.
President Obama's policy to ensure that women have access to insurance coverage for birth control has garnered support from Catholic hospitals, Catholic universities, Catholic Charities USA, other religious leaders, and Catholic voters. Ignoring this widespread support, right-wing media have claimed that Obama is engaged in a "war on religion" because of this policy.
Now a right-wing media figure has finally admitted that Catholics don't think that Obama is at war with them. In a Daily Beast op-ed, National Review Online blogger and Judicial Crisis Network chief counsel Carrie Severino wrote: "Many Catholics, despite the overwhelming evidence, have convinced themselves that President Obama is good for them and for people of faith."
Sadly, rather than using this evidence to rethink her premise that Obama is bad for Catholics, Severino posited that it must be the majority of Catholics who have it wrong. Indeed -- in what we can only hope is an extremely poorly thought out attempt at humor -- Severino compared Catholics who support Obama to the victims of abusive relationships.
In her op-ed, headlined "Catholics, Get Real: President Obama Is Abusing You," Severino wrote:
Let's hope Americans who still care about freedom of religion -- particularly Catholics, who have experienced the brunt of Obama's abuse -- wise up soon and seek help. After all, as the Mayo Clinic reminds us, "It can be hard to recognize or admit that you're in an abusive relationship -- but help is available. Remember, no one deserves to be abused."
National Review Online's Carrie Severino is still pursuing her quixotic quest to have Supreme Court Justice Elena Kagan recused from any cases dealing with the Affordable Care Act. In a recent blog post and report, Severino has concluded that based on the evidence she has seen, Kagan should "recuse herself from any consideration of [the Affordable Care Act's] legality before the Supreme Court."
The charge is baseless. Kagan has said that she had not been involved in any substantive discussions of the health care reform law, the constitutionality of the law, or litigation involving the law.
And importantly, faced with the same evidence that she's now citing, Severino acknowledged back on April 11 that she didn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The facts haven't changed, but Severino's conclusions certainly have. It seems that Severino hoped she would find a smoking gun that required Kagan's recusal. And when she failed in that attempt, Severino simply reversed herself on what those facts mean.
In a blog post yesterday, National Review Online's Carrie Severino attempted to downplay two decisions by the U.S. Court of Appeals for the Fourth Circuit that threw out challenges to the Affordable Care Act.
Severino wrote: "Both decisions rest on grounds that will not affect the other appellate decisions now en route to the Supreme Court." However, Severino obfuscated the fact that two of the three judges also said that the challenged portions of the Affordable Care Act were valid under the Constitution, while the third judge declined to say one way or the other.
In Liberty University, Inc. v. Geithner, a two-judge majority said it did not have jurisdiction over the case, because of a federal statute, the Anti-Injunction Act, that bars lawsuits "for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." The majority ruled that the law constituted a tax for purposes of the Anti-Injunction Act and dismissed the case.
Unmentioned by Severino, however, was that one judge, Andre Davis, dissented and wrote that "both the individual and employer mandates pass muster as legitimate exercises of Congress's commerce power." In doing so, Judge Davis arrived at the same result as Judges Jeffrey Sutton and Boyce Martin on the U.S. Court of Appeals for the Sixth Circuit, which upheld the Affordable Care Act. Davis also joined dissenting Judge Stanley Marcus on the U.S. Court of Appeals for the 11th Circuit, who also wrote that the law was unconstitutional.
But that's not all: one of the two Fourth Circuit judges who joined the majority decision dismissing the case, Judge James Wynn, wrote that the dissent's position that the law was constitutional under the Commerce Clause "is persuasive." Wynn also stated that the Affordable Care Act was constitutional for another reason: It was a legitimate exercise of Congress' taxing power.
In a concurring opinion, Wynn said: "[W]ere I to reach the merits, I would uphold the constitutionality of the Affordable Care Act on the basis that Congress had the authority to enact the individual and employer mandates under its plenary taxing power."
So, to the extent that the Supreme Court places any significance on the views of lower court judges, a majority of the lower court judges who have decided the issue have said that the Affordable Care Act is constitutional.
Hope springs eternal. Despite more than a year of fruitless digging, the right-wing media can't let go of their hope that Supreme Court Justice Elena Kagan will be disqualified from hearing cases about the constitutionality of the Affordable Care Act.
Recently, conservative media have been hyping letters from House Judiciary Committee Chairman Lamar Smith (R-TX) as well as 49 other congressional Republicans seeking documents to determine if Kagan was involved with health care litigation during her time as solicitor general (the position she held immediately before being appointed to the Supreme Court).
Conservative media don't bother hiding the reasons for hoping that Kagan must be recused. As Judicial Watch head Tom Fitton wrote on BigGovernment.com, "The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama's socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare."
In addition to Fitton's post on BigGovernment.com, HotAir.com's Ed Morrissey breathlessly hyped the 49 House members' letter, asking, "Did Elena Kagan mislead the Senate Judiciary Committee during her confirmation hearing when answering questions about her level of involvement in ObamaCare?" The Washington Times also hyped the same letter, as did Newsmax. And National Review Online blogger Carrie Severino and Glenn Beck's website TheBlaze.com hyped both the 49 House members' letter and Smith's letter.
But CNS News may take the cake for the most overwrought reaction. CNS reported that Smith had begun an "investigation" into whether Kagan had been involved in health care litigation as solicitor general. It subsequently had to append an "editor's note" to the article explaining that the House Judiciary Committee "requested a correction of the story" because Smith had not launched a "formal investigation" but had merely made a "request for addition information."
CNS's overreaction to Smith's letter to the Justice Department epitomizes the right-wing's campaign to have Kagan recuse herself from health care litigation. The right-wing media keeps demanding further inquiry into the issue of whether Kagan should recuse herself. The additional information shows that there is no reason for Kagan to recuse herself. But the right-wing media claims that all it needs is a little more information, and it will become clear that Kagan did recuse herself.
Below the fold is a brief recap of the right-wing media's recusal campaign so far.
After the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of the individual mandate provision of the Affordable Care Act, many right-wing bloggers criticized the decision or downplayed its significance. But one of the judges who voted to uphold the statute was Jeffrey Sutton, an appointee of President George W. Bush who was such a proponent of states' rights during his legal career that he once proclaimed that he became involved in states' rights issues because "I really believe in this federalism stuff."
National Review Online blogger Carrie Severino keeps pushing the argument that Supreme Court Justice Elena Kagan may need to recuse herself from cases dealing with the constitutionality of the health care reform law. However, after a series of posts suggesting that Kagan might have lied when she said she was not involved in strategizing over how to defend the health care law, Severino has acknowleged that she doesn't "see enough evidence to know whether Justice Kagan must recuse herself from considering the upcoming Obamacare challenges."
The campaign to stop Kagan from hearing health care cases began last summer during her confirmation hearings.
The Wall Street Journal argued that Kagan might have participated in strategizing over litigation involving the constitutionality of the health care reform law and therefore might have to recuse herself from health care reform-related cases. The Journal suggested a series of questions for Republicans to ask Kagan before voting on her nomination.
When Republicans asked those questions, Kagan responded that she had not been involved in discussions of the health care reform law or litigation involving the law. That appeared to settle the matter for the Journal, which subsequently said, "We have no reason not to take Ms. Kagan at her word."
However, others in the right-wing media have since filed Freedom of Information Act (FOIA) requests in order to try to prove that Kagan was lying. A FOIA request by the right-wing media outlet CNS News turned up no evidence that Kagan discussed the health care reform bill or litigation, but Severino still argues that at some point in the future, perhaps some documents showing that Kagan was involved will surface.
Conservative media figures have attacked Republicans for voting to repeal a provision of the health care reform bill that mandates the businesses file 1099 forms to the IRS when they purchase more than $600 worth of goods or services from a vendor. These media figures also warn Republicans not to support similar measures in the future. They say the 1099 provision hurts business, but argue that voting for such provision is a "trap" for Republicans who want to repeal the entire health care reform bill.
On February 2, 81 senators voted in favor of a repeal of the 1099 provision, which both Republicans and Democrats, including President Obama, have called overly burdensome. Since then conservative media figures have been attacking Republicans for their vote:
Erickson and Thiessen both state that the 1099 provision was harmful to businesses. So why do they argue against its repeal? In Erickson's words: "[D]oing this, instead of keeping the pain in place until Obamacare is repealed, makes the pain less and less. And as the pain becomes less and less because Republicans work with Democrats to 'fix' Obamacare, it becomes less and less likely that Obamacare will actually get repealed."
But are these conservative commentators really deluded enough to think that repeal of the Affordable Care Act is just around the corner? Perhaps. Or perhaps they are afraid that with a few fixes, calling for repeal of the health care reform law will become a real loser politically.