After President Obama called out conservatives for professing to oppose activist judges while simultaneously rooting for the Supreme Court to strike down the Affordable Care Act, the conservative media have spent days straining to argue that it would be perfectly legitimate for the Court to rule the Affordable Care Act unconstitutional. Today, Fox News' Jon Scott and his guest Curt Levey tried yet again, suggesting that if the Court strikes down the law, it would be acting in accordance with "fairly recent" precedent.
But Scott and Levey are wrong: It has been more than 75 years since the Supreme Court struck down federal economic legislation on the grounds that Congress did not have the power to pass that legislation under the Commerce Clause.
Scott asked: "Hasn't the Supreme Court already in fairly recent history overturned rulings of Congress that it found to be unconstitutional?"
Levey, the executive director of the Committee for Justice, responded: "Yes it did, and under the Commerce Clause it did so. In '95, the Gun Free School Zones Act and then in about the year 2000, part of the Violence Against Women Act."
The Affordable Care Act indisputably regulates economic activity. The individual mandate at the heart of the Supreme Court case requires people to obtain health insurance. Overall, the law regulates how health care and insurance are provided and paid for. And, while the Supreme Court regularly struck down federal regulation of economic activity in the mid-1930s as an improper exercise of Congress' Commerce Clause power, it has not done so since.
As Media Matters has previously reported, Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the ninth Circuit. Despite bipartisan support for Liu by prominent conservative politicians, the right-wing media have continuously attacked the nominee, and in some cases called for a filibuster of the nomination.
Senate Majority Leader Harry Reid has filed a cloture petition on President Obama's nomination of Goodwin Liu to be a judge on the U.S. Court of Appeals for the Ninth Circuit, and the usual suspects in the right-wing media are rehashing their reasons for opposing Liu.
You wouldn't know it from the vitriol of the right-wing media, but Liu actually has a large number of conservative and Republican supporters.
Among those supporters are former independent counsel and federal appellate judge Kenneth Starr; former Bush Justice Department official John Yoo, who authored the infamous "torture memos"; former GOP Rep. Tom Campbell (CA); conservative legal activist Clint Bollick; former Secretary of Transportation William T. Coleman; and law professor Richard Painter, who served as the chief White House ethics lawyer during the Bush administration.
Kenneth Starr. A letter supporting Liu that Starr co-wrote with Yale Law Professor Akhil Amar stated: "What we wish to highlight, beyond his obvious intellect and legal talents, is his independence and openness to diverse viewpoints as well as his ability to follow the facts and the law to their logical conclusion, whatever its political valence may be."
John Yoo. According to The Los Angeles Times, Yoo said of Liu's nomination: "[H]e's not someone a Republican president would pick, but for a Democratic nominee, he's a very good choice."
Tom Campbell. Campbell -- former dean of the business school at the University of California-Berkeley and an unsuccessful candidate for the 2010 Republican nomination for U.S. Senate in California -- stated that Liu "is one of the most capable colleagues I've had in my three decades in academia. I hate the thought of Berkeley losing him, but it's a higher calling and the nation's gain. His ability to analyze, communicate, and inspire will make him a favorite among litigants and a leader among judges."
Clint Bollick. Bollick, director of the Goldwater Institute, wrote that he "strongly support[s]" Liu's nomination, adding that, "[h]aving reviewed several of his academic writings, I find Prof. Liu to exhibit fresh, independent thinking and intellectual honesty. He clearly possesses the scholarly credentials and experience to serve with distinction on this important court."
William T. Coleman. Coleman, Secretary of Transportation during the Ford administration, stated: "I have known Goodwin Liu for many years as after he finished Yale Law School and then clerked for a Justice on the Supreme Court of the United States he worked at O'Melveny & Myers LLP in the Washington office for several years and did a tremendous job." Coleman later added, "I think he will make a tremendous Judge for the Ninth Circuit."
Richard Painter. Painter wrote: "Based on my own review of his record, I believe it's not a close question that Liu is an outstanding nominee whose views fall well within the legal mainstream. That conclusion is shared by leading conservatives who are familiar with Liu's record."
Talking Points Memo has exposed that conservative activist Curt Levey, who has been quoted in dozens of news articles this year, suggested during a Republican National Committee conference call that he might not tell the truth about President Obama's Supreme Court nominee. The media should stop quoting Levey about the nomination.
Numerous media figures have cited anonymous smears of Sonia Sotomayor's intellect and temperament reported by The New Republic's Jeffrey Rosen, though Rosen has admitted he had neither read enough of her opinions nor spoken to enough of her supporters to form a fair assessment of her.