The National Review Online continues to misinform on a civil rights case in front of the Supreme Court, and its right-wing talking points on the supposed harm of affirmative action to students of color have now found their way into oral arguments by the conservative justices.
In an October 15 blog post discussing Schuette v. Coalition to Defend Affirmative Action, frequent NRO contributor Roger Clegg and attorney Joshua P. Thompson mischaracterized race-conscious admissions policies as a "racial preference" program for the unqualified. NRO has a long record of misinforming on affirmative action in general and Schuette in particular. Clegg and Thompson continued that trend in their piece, which recommended that the Court uphold a Michigan state constitutional amendment that effectively banned affirmative action by selectively making it more difficult for minorities to participate in the political process, a clear violation of decades-old precedent that prohibits this type of political restructuring. The NRO not only advocated for the conservatives on the Court to strike down these civil rights precedents, but to also reach beyond the four corners of the case and decide legal questions that aren't even at issue:
Today the U.S. Supreme Court heard oral argument in Schuette v. BAMN, a case in which a federal appellate court held -- astonishingly -- that Michigan voters somehow violated the U.S. Constitution's Equal Protection Clause by endorsing equal treatment for everyone regardless of race or sex.
At issue is Proposal 2 (the Michigan Civil Rights Initiative), a 2006 ballot measure that amended the state constitution to provide that state and local government agencies (including public universities) "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
[T]he Court should take this opportunity to make some amends to those who have been fighting for the principle of colorblind law but have been thwarted by bad judicial decisions. It can do so by reaffirming the strong presumption against any government use of racial and ethnic preferences -- not only in education, but also in contracting and employment, the two other arenas in which they are commonly found, and which are also addressed by Proposal 2.
The lower-court decision here complained that Proposal 2 makes it harder for some groups to lobby for preferential treatment. But the Equal Protection Clause is in the Constitution precisely because racial preference is not to be left to everyday politics, academic or otherwise. The United States has seen institutionalized discrimination in favor of whites be replaced with institutionalized discrimination against whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state and local actors.
It is not at all clear that Proposal 2 hurts African Americans (especially in light of the mismatch problem it removes -- that is, the fact that admitting students with significantly lower qualifications simply sets them up for failure since they are more likely to flunk out, drop out, get poor grades, and switch majors); and it clearly helps other minorities, like Asians, who typically are at the short end of preferences. And the logic of the Sixth Circuit's decision would also make it illegal to ban discrimination and preferential treatment through simple legislation, which would call into question a colorblind law like the 1964 Civil Rights Act, as well as state-constitutional civil-service rules.
Of concern is how the conservative misinformation advanced by NRO (and elsewhere by conservative Wall Street Journal columnist James Taranto) cropped up in the Schuette oral arguments. For example, in addition to the mistaken insistence that the U.S. Constituton is colorblind, the NRO also repeated the theory that those who get into elite positions through affirmative action, such as Justices Antonin Scalia and Sonia Sotomayor, are possibly doomed to failure. This "mismatch" argument as applied to higher education admissions, a favorite of right-wing media, has been widely debunked, but was still advanced at oral arguments by Michigan solicitor general John Bursch - and echoed favorably by both Chief Justice John Roberts and Justice Scalia.
On October 15, the Supreme Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, a case that challenges a 2006 ballot initiative in Michigan that amended the state's constitution to prevent state universities from using race or sex as one of many equal factors in admissions. Although proponents of what was formerly known as Proposal 2 say this resulting affirmative action ban is consistent with the law, it appears to be specifically prohibited by the "political restructuring" doctrine of the Supreme Court.
The Wall Street Journal's James Taranto argued that George Zimmerman was simply "guilty of being male" when he allegedly threatened his estranged wife with violence. Taranto's tweet echoes his established pattern of dismissing acts of violence against women.
George Zimmerman was taken into police custody on September 9 after his estranged wife told 911 emergency operators that Zimmerman had punched her father and was threatening the lives of her and her family. Zimmerman was later released, and his estranged wife has said she will not press charges.
Wall Street Journal editorial board member James Taranto took to his Twitter account to weigh in on the domestic incident. Linking to a Slate article titled, "Shellie Zimmerman Won't Press Charges Against Her Husband. Alleged Domestic Violence Victims Often Don't," Taranto wrote:
Taranto's characterization of the alleged attack and threats maintains his history of offensive comments regarding women. Taranto previously claimed that efforts to address the epidemic of sexual assault in the military amounted to a "war on men" and an "effort to criminalize male sexuality." He also blamed "female sexual freedom" for a "war on men" and called "contemporary feminism" a "sweet deal for hedonistic men."
Taranto has also spoken out against laws that protect women, dismissing the validity of Roe v. Wade and advocating for GOP-backed "life begins at fertilization" legislation. He has called for "a rebalancing of the burden of proof in sexual-harassment cases," because the current legal structure is "highly indulgent of sexual-harassment allegations."
Senator Claire McCaskill (D-MO) criticized The Wall Street Journal editorial board member James Taranto's "bizarre and deeply out of touch understanding of sexual assault," following Taranto's claim that efforts to address the epidemic of sexual assault in the military constitutes a "war on men."
In a June 17 WSJ column, Taranto dismissed the epidemic of sexual assault in the military, claiming that Sen. McCaskill's efforts to address the growing problem contributed to a "war on men." McCaskill has blocked the promotion of Lt. Gen. Susan J. Helms, who ignored her legal advisors to overturn the ruling of an Air Force jury that found an officer guilty of sexual assault. Taranto blamed the victim of the assault for "recklessness" and claimed that McCaskill's work was an "effort to criminalize male sexuality."
McCaskill responded to Taranto on June 27 in an op-ed at the Daily Beast, writing that he has a "disregard for the severity of sexual assault" and highlighting his "bizarre and deeply out of touch understanding of sexual assault":
Mr. Taranto says that I'm involved in a crusade to "criminalize male sexuality." For decades, from my time as a courtroom prosecutor and throughout my career in public service, I have indeed done my best to criminalize violence. And I have never subscribed to Mr. Taranto's bizarre and deeply out of touch understanding of sexual assault as somehow being a two-way street between a victim and an assailant.
Mr. Taranto's arguments contribute to an environment that purposely places blame in all the wrong places, and has made the current culture and status quo an obstruction to sorely needed change.
My colleagues and I are fighting not to criminalize men, but to bring the cowards who commit sexual assault to justice. And our fight won't stop until we give the brave men and women of our military the resources and justice they deserve.
Wall Street Journal editorial board member James Taranto defended his recent column that dismissed the epidemic of sexual assault in the military as a "war on men." Taranto has a long history of making sexist remarks.
From the June 18 edition of WSJ Live's Opinion Journal Live:
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The Wall Street Journal's James Taranto dismissed the epidemic of sexual assault in the military, claiming that efforts to address the growing problem contributed to a "war on men" and an "effort to criminalize male sexuality."
In May, the Department of Defense released its "Annual Report on Sexual Assault in the Military," which found that up to 26,000 service members may have been the victim of some form of sexual assault last year, up from an estimated 19,000 in 2010. The report also found that 62 percent of victims who reported their assault faced retaliation as a result. Defense Secretary Chuck Hagel responded to the report by calling the assaults "a despicable crime" that is "a threat to the safety and the welfare of our people," and General Martin Dempsey affirmed that sexual assaults constitute a "crisis" in the military.
In an effort to address this longstanding problem, Sen. Claire McCaskill (D-MO) has blocked the promotion of Lt. Gen. Susan J. Helms, who granted clemency to an officer found guilty of sexual assault, in an effort to obtain more information about why the officer was effectively pardoned. As The Washington Post reported, an Air Force jury found the officer guilty of sexually assaulting a female lieutenant in the back seat of a car, and sentenced him to 60 days behind bars, a loss of pay, and dismissal from the Air Force.
Helms' decision to effectively pardon the officer "ignored the recommendations of [her] legal advisers and overruled a jury's findings -- without publicly revealing why." The Post explained that McCaskill has not placed a permanent hold on the promotion, but is "blocking Helms's nomination until she receives more information about the general's decision."*
Taranto, a member of the Journal's editorial board, dismissed these facts to claim that McCaskill's effort to address the growing problem of sexual assault in the military was a "war on men" and a "political campaign" that showed "signs of becoming an effort to criminalize male sexuality." He also claimed that the female lieutenant who reported that she had been assaulted acted just as "recklessly" as the accused attacker, apparently by doing nothing more than getting into the same vehicle as him.
But McCaskill is not trying to re-litigate the case; she is trying to determine why Helms ignored her legal advisers and overturned a jury of five Air Force officers. As the Post explained, advocacy groups charge that "any decision to overrule a jury's verdict for no apparent reason has a powerful dampening effect," contributing to a culture in which the majority of sexual assaults in the military remain unreported.
The Department of Defense report on sexual assault found that while 26,000 service members said they were assaulted last year, only about 11 percent of those cases were reported. The findings listed several reasons why individuals did not report the assault to a military authority, including that they "did not want anyone to know," "felt uncomfortable making a report," and "thought they would not be believed." The report also noted that concerns about "negative scrutiny by others" keeps many victims from reporting their assaults.
Taranto's dismissal of the victim's accounts and his insistence that they were equally responsible for the reported assault is a form of victim-blaming -- the very type of stigmatization that the Department identified as encouraging victims to remain silent about their assault.
While speaking out against the growing epidemic of sexual assaults, Defense Secretary Hagel noted that the Department of Defense should "establish an environment of dignity and respect, where sexual assault is not tolerated, condoned or ignored." But Taranto's victim-blaming approach -- and insistence that efforts to address this growing problem are attacks on men and male sexuality -- is a perfect example of the rhetoric that contributes to the very culture and environment the DOD seeks to eliminate.
UPDATE: Taranto doubled down on his claim that the effort to reduce sexual assaults in the military is leading to a "war on men" on The Wall Street Journal's webshow Opinion Journal Live.
Right-wing media are increasingly and uniformly pushing the "personhood" position in their anti-choice attacks, an absolutist argument that equates fetuses with persons and goes beyond repealing Roe v. Wade to banning all abortions.
As recently as the 2012 presidential campaign, the GOP standard bearer claimed that although he opposed Roe v. Wade, he supported standard exceptions to abortion restrictions, and overturning 40 years of reproductive rights precedent would merely "return to the people and their elected representatives the decisions with regards to this important issue." This so-called moderate Republican position on "limits on abortion" was endorsed by prominent right-wing media figures such as Jennifer Rubin of The Washington Post, who assured her readers that "the GOP isn't waging a 'war on women'; it is waging a war on abortion on demand."
Now that the election is over, Rubin is following the lead of right-wing media and using convicted murderer Kermit Gosnell to attack extremely rare and mostly prohibited late-term abortions, by arguing a "baby is far more than a fetus" or a "a clump of cells" because "there's a lot of science out there that...allows us to save these children." From Rubin's appearance on the May 13 edition of Fox News' America Live:
We're talking about infants that if they would be operated on, for example, by a surgeon at 24 weeks, would likely survive. As you say, you can take sonogram, you can see them sucking their thumb, they respond to music, there's all sorts of indications that that baby is far more than a fetus, which is the way the pro-abortion lobby likes to refer to it. And I think this makes Americans confront that. The president doesn't want to talk about it. He goes out and talks to Planned Parenthood, and says I'm all with you folks, and those are the people who want abortion on demand for any reason, any place, any time.
I think one of the problems that the abortion lobby is having is the science. They say conservatives don't like science. Well, there's a lot of science out there that not only allows us to save these children but also allows you to see them. And to obtain an indication that this is something far more than just a clump of cells.
In falsely comparing Gosnell's killing of newborns with legal abortion, Rubin is making an important rhetorical shift that is being repeated elsewhere on Fox News. On May 14, Fox News co-host of The Five, Andrea Tantaros, did the same:
[Gosnell's conviction] gives the pro-life movement an argument against the pro-abortion movement, which is they continue to argue, argue, argue in favor of abortion. However, this court just said, you kill a baby outside the womb, it's murder. But what about a baby inside of the womb? That question has to be answered. And I think that this does give the pro-life movement some fuel for their fight.
Wall Street Journal online editorial page editor James Taranto ignored the thousands of hate crimes committed against minorities each year, misleadingly fixating on four allegedly falsified incidents to claim minority oppression "scarcely exists."
In a May 2 Journal post, Taranto focused on four incidents in which individuals allegedly falsely claimed they were the victims of hate crimes, and claimed that these "phony" accusations were "common, especially on college campuses." He concluded:
Oppression of minorities, and certainly of women, scarcely exists in America in the 21st century. Genuine hate crimes happen, but they are very rare. Few societies in history have offered more security to the previously downtrodden. But the presence of security only makes the need for identity and stimulation more pressing. Hate-crime hoaxes are an extreme way of meeting those needs.
Taranto's fixation on a small number of discredited cases hides the reality that hate crime in the United States is not as rare as he claims. According to the FBI's most recent data, law enforcement agencies reported thousands of hate crimes in 2011 alone:
- In 2011, 1,944 law enforcement agencies reported 6,222 hate crime incidents involving 7,254 offenses.
- There were 6,216 single-bias incidents that involved 7,240 offenses, 7,697 victims, and 5,724 offenders.
- The 6 multiple-bias incidents reported in 2011 involved 14 offenses, 16 victims, and 7 offenders.
These crimes included murder, rape, assault, intimidation, and destruction or theft of property. According to the data, most of the crimes were motivated by racial bias, followed by bias against sexual orientation, religion, ethnicity and national origin, and disability.
However, these numbers likely underestimate the true amount of hate crime in the United States. Business Insider explained that hate crimes are vastly under-reported to the FBI, as the data "is highly dependent on reports from local police, some of whom are better at reporting hate crimes than others."
Indeed, according to the Bureau of Justice Statistics, a subdivision of the U.S. Department of Justice, only 35 percent of hate crimes from 2007 to 2011 were reported to the police. Accounting for hate crimes not reported to authorities, the Bureau of Justice Statistics found that there were 181,190 violent hate crimes in 2011. An additional 13,200 violent hate crimes were motivated by gender bias, which the FBI does not track. The percentage of violent hate crimes that resulted in an arrest declined from 10 percent in 2003 - 2006 to 4 percent in 2007 - 2011.
Taranto's baseless dismissal of oppression is unsurprising given his history, including claiming that the "legal regime ... is highly indulgent of sexual-harassment allegations" and attacking the Voting Rights Act.
Wall Street Journal columnist James Taranto questioned the authenticity of a New York Times op-ed authored by former Rep. Gabrielle Giffords by claiming that the op-ed appeared online too quickly to have been written by someone "who has severe impairments of her motor and speech functions."
Giffords' April 18 op-ed was written in response to the failure of expanded background checks legislation. On January 8, 2011, Giffords was shot in the head during a constituent meeting in an attack that killed six and left 13 wounded.
Taranto's comments occurred on the April 19 edition of the National Rifle Association's news show, Cam & Company, where he said it was "odd" that the Times op-ed, which Taranto described as "Giffords' personal reaction as somebody who's been wounded by gun violence," was published approximately five hours after the Senate voted on background checks. Taranto cast doubt on the idea that Giffords had authored the piece, commenting, "So we are supposed to believe that somehow in less than five hours a woman who has severe impairments of her motor and speech functions was able to produce 900 publishable words and put in an appearance in the White House in the course of it."
From Cam & Company:
TARANTO: One fascinating thing about this is this piece was published no later than 9:03 PM on Wednesday evening, because that's when it first appears on the New York Times' Twitter feed. The last Senate vote on amendments to the gun bill was a bit after 6 [PM]. Giffords appeared at the White House at 5:35 [PM] when we saw that enraged rant by the president. The Manchin-Toomey [background check] provision was the first vote. That was at 4:04 PM. So if you read this piece it's presented as a cry from the heart, as Giffords' personal reaction as somebody who's been wounded by gun violence to the betrayal of these Senators. So we are supposed to believe that somehow in less than five hours a woman who has severe impairments of her motor and speech functions was able to produce 900 publishable words and put in an appearance in the White House in the course of it. So I think that's a little bit odd.
Taranto offers no evidence for his offensive insinuation that Giffords would not have been capable of authoring the piece herself. He also ignores the possibility that Giffords could have authored the op-ed ahead of time in expectation of the widely-predicted outcome - hardly an unusual practice.
The argument by conservative media that former Congresswoman Gabrielle Giffords and other survivors of gun violence who supported a failed Senate compromise to expand background checks on firearms sales are "props" of the Obama administration is both hypocritically partisan and logically flawed.
Right-wing media are unable to acknowledge that President Obama's gun violence prevention agenda mirrors the priorities of gun violence survivors, who are not mere "props," to pass stronger gun laws. As Greg Sargent of The Washington Post notes, "the families want to stand with the President at events for a fairly obvious reason: Obama is fighting for the same things they want":
All of this aside, the "props" line is actually an insult to the families, posing as a defense of them. It implies that the families, in lobbying on these issues, are not thinking for themselves. In reality, the families want to stand with the President at events for a fairly obvious reason: Obama is fighting for the same things they want. Indeed, one of the family members, Mark Barden, who lost his son Daniel in the shooting, voluntarily stood with the president at the White House yesterday as Obama reacted to news of the Senate vote, and thanked Obama for his leadership. Needless to say, if Barden felt like he was being exploited or used as a prop, he wouldn't be thanking the president. [emphasis in original]
Logical flaws aside, those who would call Newtown families and other gun violence survivors "props" fail to acknowledge that presidents routinely evoke the experiences of victims in advocating for policies that would prevent future tragedies.
In 1991, former President Ronald Reagan evoked his own experience of being shot by a would-be assassin, as well as the experiences of others wounded in the 1981 attack in order to advocate for background checks on gun sales. In a New York Times op-ed Reagan wrote about his press secretary, Jim Brady, who was grievously wounded in the attack by a man who acquired a gun despite a lengthy history of serious mental illness. Brady would go on to lend his name to the legislation -- the Brady bill -- that mandated a background check for gun sales conducted by licensed dealers:
Wall Street Journal editorial board member James Taranto downplayed a new Kansas bill that significantly restricts reproductive rights and ignored the consequences of a "personhood" provision that declares life begins "at fertilization."
Writing in reference to articles by the Associated Press and Reuters that describe the "sweeping" Kansas bill, reported as "one of the most restrictive abortion laws in the nation," Taranto instead characterized the restrictions in the bill as "modest" and mocked reproductive rights advocates who are raising alarm about the bill's thinly-veiled "personhood" provision. From the WSJ editorial:
[A]bortion proponents are especially exercised about a provision "declaring that life begins 'at fertilization' "
Holly Weatherford, another ACLUer, frets that the stipulation could "be used as a tool of harassment."
Hey Holly, did you know the word "gullible" isn't in the dictionary? Just kidding, it's there, as we noted in October. You know what else is there? "Fertilization." Here's Merriam-Webster's definition 2(b), the relevant one for this discussion: "the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated."
This is basic reproductive biology. The assertion that life begins at fertilization is a tautology. [Deputy director of the ACLU Reproductive Freedom Project Talcott] Camp and Weatherford might as well be objecting to a legislative finding that A is A or 2+2=4 or a tautology is true by definition.
If your goal is to maximize sexual freedom, then it's expedient to answer the abortion question in the most permissive way possible. We suppose in that case simply defying science and logic, as Camp and Weatherford do, is a tempting shortcut. But when your position depends on denying a tautology, you may find it a difficult one to defend.
A Wall Street Journal op-ed acknowledged the constitutionality of race-conscious law, breaking from the traditional narrative of right-wing media that touts a non-existent "colorblind" Constitution, but incorrectly described the issues in a new Supreme Court case that will examine state bans on affirmative action.
In the case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court has decided to examine whether amendments to state constitutions that ban race-conscious equal opportunity programs violate the 14th Amendment of the U.S. Constitution by impermissibly rigging a state's political process. Contrary to editorial board member James Taranto's description of the case in a recent WSJ op-ed, Schuette is not properly understood as "an opportunity to revist" the constitutionality of affirmative action in higher education admission policies.
Grutter v. Bollinger, which reaffirmed the permissible use of race-conscious admissions in furtherance of the educational benefits of diversity, is indeed at risk in the as-of-yet unreleased decision of Fisher v. University of Texas. Schuette, on the other hand, examines what political means of prohibiting race-conscious admissions are acceptable under the U.S. Constitution and what means unconstitutionally manipulate state political processes to the detriment of persons of color and others who support the use of race-conscious affirmative action.
Described as the crown jewel of civil rights law, the Voting Rights Act has been the target of right-wing misinformation for decades, and a parallel legal assault against its constitutionality will be argued before the Supreme Court in Shelby County v. Holder on February 27. The VRA, enacted to stem voter suppression on the basis of race in the South, contains a provision within it - Section 5 - which identifies the worst historical offenders and requires that election changes in those jurisdictions pass federal review. The current legal challenges to the VRA focus on Section 5, and are the continuation of the same discredited claims lodged against this anti-discrimination law since its inception.
The Wall Street Journal's James Taranto illogically claimed that recent comments from a National Urban League activist prove that voter ID laws do not suppress minority votes. Despite Taranto's defense of his flawed theory, research clearly indicates that voter ID laws target minority voters.
In his Wall Street Journal column, Taranto highlighted comments by Chanelle Hardy, a vice president at the National Urban League. According to Talking Points Memo, Hardy stated that Republican efforts to pass voter ID laws may have backfired by increasing enthusiasm among African American voters and increasing turnout. Taranto argued that Hardy's comments contradict claims from voter ID opponents that the laws restrict the rights of eligible minority voters.
Taranto's argument is absurd: an increase in voter enthusiasm in a specific group does not prove that other members of that group did not have their voting rights restricted. This claim is similar to one made in 2011 by Taranto's fellow voter ID proponent Hans von Spakowsky who argued at the time that high turnout in Georgia in 2008, following the passage of voter ID laws, proved that the legislation had no effect on voting rights. Justin Levitt, a professor at Loyola Law School, pointed out that von Spakowsky's logic was also flawed: