A federal agency's new preliminary report debunks the popular right-wing myth that private contracts that require people to take their complaints to an arbitrator are an effective alternative to class-action lawsuits.
Right-wing media outlets have consistently supported what are known as "forced-arbitration clauses" -- contractual provisions that often force consumers to give up their right to join a class action lawsuit and instead require them to go before an arbitrator individually, even if the amount in dispute is so small that it wouldn't make sense to pursue outside of a collective, mass action. Support on the right has grown since 2011, when the conservative majority of the Supreme Court held that such forced arbitration clauses trump consumer protection laws.
The right-wing media has relied in part on that Supreme Court ruling to dismiss criticism of forced arbitration as "unfair." For example, Ammon Simon at National Review Online has called forced arbitration clauses "especially generous towards consumers," and called class-action lawsuits "a cash cow for trial lawyers ... [that] don't usually help consumers, who are systemically under-compensated in such cases." Simon continued:
While trial lawyers would benefit from strictly limiting arbitration, consumers would suffer. ... [C]lass action lawsuits last an average of 3 years from start to completion, while arbitrations last slightly under 7 months. What's more, while consumer claims go on the backburner to trial attorney fees in class action litigation, consumers can actually be successful in arbitration, and prefer arbitration to the alternatives.
Hans von Spakovsy, also an NRO contributor and a legal fellow at the ultra-conservative Heritage Foundation, argued that forced arbitration clauses are "an efficient and fair alternative to our costly and burdensome litigation system":
Given the arbitration process's many benefits over the only real alternative -- expensive and time-consuming litigation that in many cases does more to line trial lawyers' pockets than redress consumers' injuries -- any action to curtail arbitration would only injure consumers and workers.
Simon and von Spakovsky agree that arbitration clauses provide consumers with a better chance of fair compensation than do class-action lawsuits.
The Wall Street Journal's editorial board has accused the Environmental Protection Agency (EPA) under President Barack Obama of violating federalist principles for a rule that would limit air pollution that drifts across state lines. However, the same editorial page previously urged President George W. Bush to implement similarly designed policies during his presidency.
In 2005, the Bush administration's EPA issued the Clean Air Interstate Rule to address pollution that drifts across state lines, "contribut[ing] significantly" to other state's smog problems. At that time, the WSJ did not appear to have an issue with programs that limit one state's pollution to help other states meet Clean Air Act obligations. For example, on July 12, 2006, the WSJ argued that "[o]ne of the great revolutions in environmental policy has been the adoption of the 'cap-and-trade' method for controlling air pollution, starting with the 1990 Clean Air Act. The basic idea is to have the government set overall limits and let the market figure out how most efficiently to achieve the goal. And it has been a major success" (retrieved via Factiva).
Now that President Obama is in office, the WSJ believes such cap and trade designs violate federalist intentions. Writing about a Supreme Court challenge to EPA's "Transport Rule," which has been proposed to replace the now-overturned Bush-era rule, the WSJ complained that it violated "the federalist structure of the Clean Air Act" because it "no longer gave states a chance to develop their own plans to meet their required 'good neighbor' emissions targets." The WSJ editorial ultimately concluded that "[t]he Supreme Court should overturn [the rule] for violating the federalist intentions of Congress[.]"
In a recent investigative report, NBC News debunked right-wing media's insistence that lawsuits brought against gas can companies whose products explode were "frivolous." As reported by NBC, its findings not only led the federal Consumer Product Safety Commission to recommend that the industry remedy the gas can defect at the heart of the lawsuits, but also prompted co-defendant Wal-Mart to propose a $25 million settlement.
Last year, Blitz USA, the number one manufacturer of red gas cans who refused to put flame arrestors in their products' spouts, closed its doors. Flame arrestors are a commonly used device that is "almost two hundred years" old and inexpensively prevents gas vapor from igniting the contents of the can.
Right-wing media, however, blamed multiple "frivolous" lawsuits for Blitz USA's decision to cease operations. Despite the fact that the plaintiffs in the cases had been severely burned or killed after gas cans exploded when the spout was close to a heat source, The Wall Street Journal compared their lawyers to "19th century marauders" and characterized the gas can companies as "victims" of "modern robbery" by the trial bar. From the WSJ's editorial:
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.
Until recently, Blitz USA -- the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma -- was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.
Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.
Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.
The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.
Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.
The WSJ has a long record of opposing "frivolous lawsuits," so it's no surprise it would ignore the evidence on gas can explosions and side with the corporation. But the WSJ wasn't alone in its criticism of the gas can lawsuits. International Business Times went further than the WSJ, blaming victims for "product misuse and lawsuit abuse," and positively cited a spokesperson from the Institute for Legal Reform (ILR) -- a partner of the pro-business lobbying group U.S. Chamber of Commerce.
The Wall Street Journal misled about a new Supreme Court case that could make it more difficult for the Environmental Protection Agency (EPA) to enforce regulations that would reduce cross-border air pollution, pretending that it was inappropriate for the federal government to regulate this quintessential interstate problem.
On December 10, the Supreme Court heard oral arguments in EPA v. EME Homer City Generation, a case challenging the EPA's authority to implement regulations to manage and reduce air pollution that drifts from source states into neighboring jurisdictions. Even though the EPA is empowered by Congress to promulgate rules to alleviate these coal plant pollutants through the Clean Air Act (the Act), a number of states and private companies sued the agency, arguing that it had exceeded its regulatory authority.
In a recent editorial, the WSJ complained (again) about the EPA's supposed regulatory overreach in its various attempts to curb acid rain and smog. But the WSJ ignores that air pollution that crosses state lines is a complicated and inherently federal problem with no easy solution, and one that states have failed at solving on their own. Because of national wind patterns, eastern states have become the dumping ground for midwestern and southern air polluters, even while they themselves "have squeezed all the pollution they can out of their own economies."
From the December 9 editorial:
The Environmental Protection Agency's habit of stretching its legal authority faces another reckoning ... when the Supreme Court considers whether the agency can rewrite the Clean Air Act to usurp state responsibilities. This one ought to be in Justice Anthony Kennedy's federalist sweet spot.
The case focuses on the Clean Air Act's "good neighbor" provision that gives EPA the power to oversee remedies when pollution in one state blows into a neighboring state. An upwind state that EPA judges to "significantly contribute" to a downwind state's failure to meet federal standards can be required to limit emissions by a commensurate amount.
Texas and more than a dozen other states as well as private companies challenged EPA in Environmental Protection Agency v. EME Homer City Generation, and in August 2012 the D.C. Circuit Court of Appeals struck down the rule. Judge Brett Kavanaugh wrote for a 2-1 majority that "Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable." Democrats cried foul and blamed Judge Kavanaugh for being a Bush appointee, but it's telling that the full D.C. Circuit denied en banc review.
The EPA says in its defense that business should love the rule because it is the most cost-effective, but that isn't necessarily true for certain states. The Administration is also arguing that the states didn't raise their objections loudly enough during the rule-making process, but the states also didn't know how far this EPA would go until the rule was final.
The D.C. Circuit only rarely overturns EPA rules, which shows how out of bounds the cross-state regulation is. The Supreme Court should overturn it for violating the federalist intentions of Congress, but there is also the added judicial incentive to show this increasingly rogue agency that it can't rewrite the law as it pleases.
WSJ also complained that the new rules promulgated by the EPA to minimize the spread of air pollution from one state to another "violate the federalist structure of the Clean Air Act" because they evidently "no longer [give] states a chance to develop their own plans" to meet their "good neighbor" requirements. But this argument ignores the fact that not only has the WSJ itself previously acknowledged that "The EPA is within its legal discretion to reinterpret clean-air laws," but states that refuse to incentivize polluters within their borders to act responsibly in the face of a devastating public health crisis have only themselves to blame when the federal government steps in.
Washington Times columnist Robert Knight falsely claimed that a lawsuit of the American Civil Liberties Union (ACLU) is an assault on religion that is trying to "force Catholic hospitals to perform abortions." In fact, if the complaint is accurate, it is a straightforward negligence claim that alleges a pregnant woman's life was needlessly put in harm's way when she was denied appropriate care by a Catholic hospital adhering to binding directives of the United States Conference of Catholic Bishops (USCCB).
On November 29, the ACLU filed a lawsuit on behalf of Tamesha Means, a Michigan woman who alleges she was denied proper and ethical medical care for an emergency miscarriage by Mercy Health Partners (MHP), a Catholic hospital under the authority of the USCCB. The USCCB forbids hospitals like Mercy from assisting in or facilitating abortions.
According to Means' complaint, she went to the emergency room at Mercy when she started to miscarry at just 18 weeks. Despite the fact that the fetus would most likely be stillborn or "die very shortly thereafter," doctors at Mercy never provided information about the option of an abortion, even though prolonging the pregnancy was life-threatening. Instead, Means says, the hospital sent her home twice -- even though she was having contractions, was in pain, and bleeding. On Means' third visit to Mercy's emergency room -- the only hospital reportedly within a half-hour's drive of her home -- she went into labor. Means' baby died just two hours after delivery.
In his December 5 editorial, Knight mischaracterized the basis of the lawsuit, complaining that the ACLU is attempting to "force Catholic doctors everywhere to violate their faith by facilitating abortions":
The ACLU wants Catholic hospitals to practice medicine without morals.
The American Civil Liberties Union is so upset that a Michigan baby died just after being born that the group is suing the Catholic Church for not deliberately killing the child earlier.
In a lawsuit filed on Nov. 29 against the U.S. Conference of Catholic Bishops in U.S. District Court in Michigan, the ACLU contends that the church's medical directives reflecting a pro-life stance against abortion resulted in negligent care for a woman with a troubled pregnancy who eventually lost the child.
"It's not just about one woman," said Kary Moss, executive director of the Michigan ACLU, in a Newsmax report quoted in The Washington Times. "It's about a nationwide policy created by nonmedical professionals putting patients in harm's way."
Translation: Either the Catholic Church directs Catholic hospitals to perform abortions or it will be bankrupted, courtesy of the ACLU, which fights for the "right" to abort even full-term, healthy babies.
This is about far more than Ms. Means' tragic situation or one hospital's alleged negligence. It's about forcing Catholic doctors everywhere to violate their faith by facilitating abortions. It strikes at the very heart of religious freedom and freedom of conscience. It's a corollary to the Department of Health and Human Services' mandate under Obamacare that faith-based institutions or businesses run by devoutly religious owners provide contraceptives regarded as abortifacients or face ruinous fines.
Since only the Catholic Church bothered to build a hospital within 30 minutes of Ms. Means' home, the ACLU contends that the facility should operate without religious principles guiding it or simply switch to the ACLU's brand of moral relativism, where unborn children are merely options.
It's like building the only power plant and providing electricity where there was none and then getting sued for not electrocuting the people that the ACLU thinks are expendable.
But this complaint is not questioning the religious faith of Catholic doctors. Following basic personal injury law and theories of vicarious liability, the ACLU alleges that because the USCCB required an anti-abortion policy at the Catholic hospital, the USCCB was responsible for egregiously substandard medical care.
In a post on National Review Online about a series of lawsuits challenging the Affordable Care Act's (ACA) contraception mandate, editor at large Jonah Goldberg misled about the mandate, how contraception actually works, and then asked why conservatives are considered the "aggressors in the culture war".
On November 26, the Supreme Court agreed to hear oral arguments in Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Even though the plaintiffs are for-profit, secular corporations, they want to claim an unprecedented exemption from a generally applicable law -- the ACA's contraception mandate -- because the individual owners of the companies claim their religious opposition to birth control is constitutionally more significant.
Goldberg viewed this opposition as evidence of Democrats "getting deeply involved in the reproductive choices of nearly every American," arguing that the "conventional narrative" that "conservatives are obsessed with social issues" is thus unfair. Goldberg also significantly underestimated the impact a Supreme Court ruling in favor of Hobby Lobby and Conestoga would have on well-established First Amendment and corporate precedent.
From Goldberg's December 5 post:
Maybe someone can explain to me how, exactly, conservatives are the aggressors in the culture war? In the conventional narrative of American politics, conservatives are obsessed with social issues. They want to impose their values on everyone else. They want the government involved in your bedroom. Those mean right-wingers want to make "health-care choices" for women.
Now consider last week's decision by the U.S. Supreme Court to consider two cases stemming from Obamacare: Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Democratic politicians and their fans on social media went ballistic almost instantly. That's hardly unusual these days. But what's revealing is that the talking points are all wrong.
Suddenly, the government is the hero for getting deeply involved in the reproductive choices of nearly every American, whether you want the government involved or not. The bad guy is now your boss who, according to an outraged Senator Patty Murray (D.,Wash.), would be free to keep you from everything from HIV treatment to vaccinating your children if Hobby Lobby has its way. Murray and the White House insist that every business should be compelled by law to protect its employees' "right" to "contraception" that is "free."
[B]irth-control pills really aren't the issue. Both companies suing the government under Obamacare have no objection to providing insurance plans that cover the cost of birth-control pills and other forms of contraception. What both Hobby Lobby and Conestoga Wood Specialties object to is paying for abortifacients -- drugs that terminate a pregnancy rather than prevent one. (Hobby Lobby also opposes paying for IUDs, which prevent implantation of a fertilized egg.) The distinction is simple: Contraception prevents fertilization and pregnancy. Drugs such as Plan B may terminate a pregnancy, albeit at an extremely early stage.
The plaintiffs in these cases aren't saying the government should ban abortifacients or make it impossible for their employees to buy them. All they are asking is that the people using such drugs pay for them themselves rather than force employers and co-workers to share the cost. In other words, Hobby Lobby and Conestoga Wood want such birth-control decisions to be left to individual women and their doctors. Leave the rest of us out of it.
To answer Goldberg's initial question: conservatives are generally thought of as "the aggressors in the culture war" because they have dedicated countless legislative hours to passing unconstitutional abortion laws, have attempted to confer personhood on fertilized eggs, and often voted to defund clinics like Planned Parenthood, eliminating access to crucial family-planning services. In 2012, Republicans in Virginia tried to pass a bill that would have forced women to have a transvaginal ultrasound before obtaining an abortion -- a requirement that would have violated the federal definition of rape. Most recently, congressional Republicans threatened to shut the government down due to their opposition to access to contraception.
From the December 5 edition of Fox News' America's Newsroom:
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The New York Times reported on a dangerous legal challenge to the Affordable Care Act (ACA) brought by officials in states who refuse to implement their own healthcare exchanges, which has been widely trumpeted in right-wing media. But these lawsuits are based on a far-fetched theory that the law only authorized essential tax credits in state exchanges, not federal ones, a counterintuitive claim that has been widely discredited.
New York Times columnist Joe Nocera called recent asbestos litigation a "scam" and complained that "tens of thousands" of asbestos cases are "bogus" and "phony," despite no evidence of widespread fraudulent asbestos claims.
Nocera dedicated his most recent column to attacking victims of asbestos exposure and their attorneys. Not only does Nocera significantly overstate the problem of fraudulent asbestos claims, he accused asbestos litigants of falsely attributing lung cancers to asbestos exposure to obtain damage awards.
From Nocera's December 2 column:
It's hard these days for smokers to sue tobacco companies because everyone knows the dangers of cigarettes. Instead, [Rep. Carolyn] McCarthy has become part of a growing trend: lung cancer victims who are suing companies that once used asbestos.
With asbestos litigation well into its fourth decade -- the longest-running mass tort in American history -- you'd think the plaintiffs' bar would have run out of asbestos companies to sue. After all, asbestos lawsuits have bankrupted more than 100 companies. Yet McCarthy has found more than 70 additional companies to sue, including General Electric and Pfizer. Asbestos litigation, says Lester Brickman, a professor at Yeshiva University and perhaps the most vocal critic of asbestos lawsuits, "is a constant search for viable defendants." Because asbestos was once such a ubiquitous product, there is always somebody else to sue.
Let me stipulate right here that exposure to asbestos can be deadly. The worst illness it causes is mesothelioma, a rare form of cancer that essentially suffocates its victims to death. If it were only the real victims of asbestos-related diseases who sued, there would be no issue. That's how the tort system is supposed to work.
But, over the years, plaintiffs' lawyers have brought tens of thousands of bogus cases. They took doctors on their payroll to industrial sites, where all the employees would be screened for signs of an asbestos-related disease. They found some real cases, of course -- along with many that could never have stood up in court. Nonetheless, by bundling real cases with phony ones -- and filing giant lawsuits -- they took down one company after another.
Nocera is disturbed by the fact that McCarthy, a smoker, has opted to sue asbestos manufacturers instead of tobacco companies. But regardless of the individual merits of McCarthy's suit (which hasn't been decided yet), it is wholly irresponsible for Nocera to use it as evidence of "tens of thousands" of other bogus claims -- especially since there's no concrete evidence of widespread asbestos litigation fraud. When Congress asked the United States Government Accountability Office to audit these trusts (set up at the asbestos companies' initiative), the GAO reported that audits had not "identified cases of fraud."
National Review Online Senior Editor Ramesh Ponnuru dedicated his Bloomberg View column to misleading about two unprecedented Supreme Court cases that could make it easier for for-profit, secular corporations to refuse to provide insurance coverage to its employees that includes comprehensive preventive care.
On November 26, the Supreme Court agreed to hear arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two cases that would allow some corporations to obtain exemptions from the contraception mandate in the Affordable Care Act (ACA). The ACA already provides exemptions and accommodations for non-profit, religiously-affiliated organizations like churches and hospitals -- but the plaintiffs in Hobby Lobby and Conestoga are for-profit businesses that sell crafts and wood cabinets, respectively.
But that didn't stop NRO's Ponnuru from complaining that the contraception mandate runs afoul of the Religious Freedom Restoration Act (RFRA) because it imposes a "substantial burden" on Hobby Lobby and Conestoga. Ponnuru insisted that corporations are well within their rights to refuse to pay for coverage of preventive care such as contraception for their employees, but didn't seem to mind that allowing corporations to dictate the personal health choices of its employees could very well infringe on those employees' religious beliefs.
From Ponnuru's December 1 editorial:
From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What's at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is "the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them."
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers' imposing their views on contraception on employees, nobody talked about it.
What's actually new here is the Obama administration's 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it's the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it's doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful.
Ponnuru's characterization of these lawsuits as entirely mainstream is misleading. Although the Supreme Court held in Citizens United that corporations had the right to engage in political speech without undue government restrictions, for the Court to hold that a corporation is a "person" capable of religious belief or conscience would be a radical reimagining of both First Amendment and corporate law precedent. As David Gans of the Constitutional Accountability Center pointed out, "it is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons. No decision of the Supreme Court has ever recognized such an absurd claim."
CBS Evening News left out some important details in its report on a Supreme Court case that could extend the concept of corporate personhood outlined in Citizens United by allowing secular, for-profit corporations to dictate reproductive decisions for its employees.
On Tuesday, the Supreme Court agreed to hear oral arguments in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, two cases in which business owners argue they should be exempt from certain Affordable Care Act (ACA) requirements. In reporting on this case, CBS opted to highlight Denver-based Hercules Industries, a company with Catholic owners who are protesting the contraception mandate in court. But Hercules is not actually a plaintiff in either of the cases that have been accepted for review. The actual plaintiffs before the Supreme Court, while not Catholic, nevertheless claim that their religious beliefs preclude them from providing health insurance for their employees that covers comprehensive preventive care, because of their personal opposition to certain forms of birth control.
From CBS's November 26 report:
REPORTER ANNA WERNER: Denver-based heating and air condition manufacturer Hercules Industries has a health plan for its employees, one that doesn't include contraception. The family-owned company is one of 44 businesses suing to stop the federal government from forcing it to cover birth control.
Andy Newland is company president.
NEWLAND: This case isn't about saying that people not having access to those things. This case is saying we just don't want to pay for them.
WERNER: Newland's family is Catholic. The religion views artificial contraception as a sin. Under the Affordable Care Act, companies like Hercules with 50 or more employees, must cover contraception.
NEWLAND: Can Americans, including family-business owners, live and do business according to our faith?
WERNER: How is that different from telling your employees you can't use birth control pills?
NEWLAND: We're not saying don't go buy them. We're not putting barricades in front of Wal-Mart. We're saying we simply don't want to pay for them.
Though CBS profiled a company owned by Catholics, it did not mention that many non-profit Catholic and other religiously-affiliated entities are already provided exemptions from the mandate. Whether these exemptions should be extended to for-profit, secular corporations is a separate and novel question that could extend even farther the radical concept of "corporate personhood" outlined in the recent Citizens United decision.
Fox News correspondent Shannon Bream misleadingly claimed that filling the vacancies on the second-most important court in the country was less pressing than filling seats in so-called "judicial emergency" jurisdictions, while ignoring how Senate Republicans have contributed to those emergencies.
In a November 25 segment on Special Report with Bret Baier, Bream suggested that, because the D.C. Circuit is not classified as a "judicial emergency," there is no reason to quickly confirm President Obama's highly-qualified nominees to that bench, such as Georgetown Law Professor Cornelia "Nina" Pillard:
BREAM: Critics say there is no reason for the president to insist these nominees, including Pillard, be approved as quickly as possible. Across the country there are four federal appellate courts so lacking in judges that there are, quote, "judicial emergencies." And this court, the D.C. Circuit, it's not one of them.
But the body that determines these "judicial emergencies," the U.S. Judicial Conference, has recommended that the D.C. Circuit retain its 11-judge complement, a capacity the current GOP filibusters are preventing.
In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
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, while claiming to support a change in Senate procedure in order to "overcome partisan obstruction," refused to acknowledge that it was hyper-partisan obstructionism that forced Senate Democrats to embrace the so-called "nuclear option."
On Thursday, Senate Democrats approved a rule change that will finally allow an up-or-down vote for President Obama's nominees, who have been the victims of unprecedented Republican obstructionism. NRO, like other right-wing media outlets, colorfully responded to the rule change, with John Fund calling Democrats "snake-oil salesmen."
From NRO's November 21 editorial:
The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees.
The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue's gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: "Don't tell me what the law is. Tell me who the judge is." He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, "We are remaking the courts." Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.
The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid's Senate is conspiring with him to do so. The voters missed their chance to forestall these shenanigans in 2012. They made the wrong decision then, and have a chance to make partial amends in 2014, when they will be deciding not only what sort of Senate they wish to have, but what sort of courts, and what sort of country.
Fund joined the chorus in a separate post, minimizing GOP obstructionism and advancing the myth that new judges are not needed on the D.C. Circuit because the court's caseload is "provably so light." Fund went on to imply Senate Democrats were hypocrites because they spoke out against the use of the nuclear option by the GOP to push through President Bush's ultra-conservative jurists back in 2005.