In the lead up to next week's landmark Supreme Court hearings on the constitutionality of marriage equality, Fox News' Bill O'Reilly is amplifying a fringe -- and absurd -- right-wing campaign calling on Justices Ruth Bader Ginsburg and Elana Kagan to recuse themselves because they have officiated same-sex marriages. But these actions, along with Ginsburg's comments noting the American public is rapidly turning against anti-LGBT discrimination, are not grounds for legitimate recusal.
In January, the American Family Association (AFA) -- a notorious anti-gay hate group -- announced a campaign titled, "Kagan and Ginsburg: Recuse Yourselves!" In a statement, the AFA, best known for its infamous anti-gay spokesman Bryan Fischer, called on the justices to recuse themselves ahead of next week's oral arguments before the Supreme Court on same-sex marriage. The group argued that Kagan and Ginsburg "should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies."
On April 20, Fox legal correspondent Shannon Bream twice reported on "public calls, petition drives, and appeals directly to Justices Ginsburg and Kagan to recuse themselves from hearing next week's case on same-sex marriage." During Fox News' Special Report, Bream pointed to the justices' past history officiating same-sex weddings and a February 2015 interview during which Ginsburg said that it "would not take a large adjustment" for Americans to get used to nationwide marriage equality. On April 21, Fox News' Bill O'Reilly picked up the argument in his "Is It Legal" segment on The O'Reilly Factor, declaring "these ladies have to recuse themselves," because "[t]he Supreme Court is supposed to be an incorruptible institution, but reports say Judge Ruth Bader Ginsburg has herself performed three gay marriages, and Justice Elena Kagan, one":
From the April 21 edition of Fox News' The O'Reilly Factor:
Loading the player reg...
Conservative media fabricated perjury charges against former Secretary of State Hillary Clinton, demanding to see a copy of a separation form they argued she violated through her use of her personal email. Those same media figures did not demand to see the same form from Colin Powell -- whom State Department officials say did not sign the same form.
Fox News is sending a mixed message about whether or not President Barack Obama has the legal authority to address the immigration crisis through executive action, even though legal experts agree that such action is perfectly lawful.
After Republicans in the House failed to consider a comprehensive and bipartisan immigration reform bill passed by the Senate, President Obama announced that he would take steps to address the issue through lawful executive actions. One possibility is the expansion of the Deferred Action for Childhood Arrivals (DACA) program, which temporarily halts deportation proceedings for young law-abiding undocumented immigrants -- an exercise of standard prosecutorial discretion typical of law enforcement agencies. After the Democrats lost control of the Senate on November 5, the president repeated his promise to move on immigration reform in the absence of congressional action, explaining at a press conference that "we're gonna take whatever lawful actions that I can take that I believe will improve the functioning of our immigration system."
Some Fox News hosts were skeptical about whether the president has the authority to take unilateral executive action, however. On the November 7 edition of Outnumbered, co-host Andrea Tantaros complained that Obama "doesn't care about the constitution" and that he would "get away with" executive action on immigration because "some pointy-nosed Harvard lawyers [will argue] whether or not this is constitutional."
Tantaros' complaints echoed her Fox colleague Sean Hannity, who on the November 6 edition of his show criticized the president's pledge to take executive action on immigration. In an interview with Sen. Mike Lee (R-UT), Hannity argued that the president "may not have the authority do this" and that "immigration law does not allow for the amnesty that the president wants to grant." Lee agreed with Hannity's assessment, and suggested that the proposed order would "lead us from behind into a constitutional crisis":
Fox News hosts repeatedly attacked a federal court opinion that found that the New York Police Department's (NYPD) version of stop and frisk was unconstitutionally applied by arguing stop and frisk in general is constitutional, a misleading conflation of the NYPD's enforcement tactics and proper stop and frisk procedure.
From the August 13 edition of Fox News' The O'Reilly Factor:
Loading the player reg...
Bill O'Reilly and Fox News legal analysts Kimberly Guilfoyle and Lis Wiehl dismissed and mischaracterized a lawsuit alleging that a citizenship question on certain Michigan ballot applications illegally burdens the right to vote. But the "citizenship checkbox" may keep citizens from voting, as the state's Republican Governor anticipated when he vetoed an earlier attempt to implement the practice.
The ACLU of Michigan has filed a lawsuit accusing Michigan Secretary of State Ruth Johnson (R) of once again violating state and federal law by including a checkbox to re-determine a voter's citizenship on absentee and election-day ballot applications. Although supporters defend the practice as a means to prevent noncitizens from voting, election experts have pointed out redundant citizenship verification is a solution to an almost non-existent problem, contrary to the claims of Johnson and Fox's Guilfoyle.
O'Reilly characterized the ACLU lawsuit seeking to eliminate the citizenship checkbox as "madness and stupidity," and threatened that if a "crazy judge" granted the injunction, he would "put the judge's face on the screen and then send [Fox's Jesse] Watters out to see him." Fox's legal analysts not only agreed with O'Reilly's evaluation of the facts and law, but also his unsupported allegation regarding the motive behind the lawsuit:
What the ACLU wants is they don't want people committing perjury when they register. They do want people voting, who are not American citizens, to advance. They believe that most of those people would vote for the Democratic candidate in Michigan. That's exactly what's going on here.
No one acknowledged the actual arguments behind the lawsuit, namely that including a checkbox for citizenship affirmation on these ballot applications violates state and federal law and suppressed voters in Michigan's most recent primary election. It was this concern that led Governor Rick Snyder (R) to veto the proposed citizenship checkbox law in July. In his veto message, Snyder, a conservative Republican, stated the citizenship question could impermissibly "create voter confusion."
Voting by noncitizens is not a problem nationally or in Michigan. Indeed, according to the authoritative and exhaustive News21 study of thousands of alleged instances of voter fraud in the U.S., voter fraud such as noncitizen voting is "virtually non-existent." With respect to Michigan, an analysis by Wayne State University Law Professor Jocelyn Benson of the Michigan Center for Election Law demonstrates that:
[Secretary of State] Johnson has irresponsibly declared that 4,000 noncitizens vote in Michigan's elections, falsely claiming that the federal government is forcing her employees to register ineligible voters.
Her data is incomplete and unverified. The 4,000 number is no more than a general estimate of how many of Michigan's 7.5 million registered voters are not citizens.
In reality, she claims to have discovered 54 noncitizens who may have voted in Michigan's elections in the past decade, and as many as 900 others who are registered but have not voted. Yet the secretary of state is able to provide details on only two noncitizens who have recently voted. That's a far cry from 4,000.
State efforts, such as Michigan's, duplicate federal law that already prohibits and punishes ineligible voting and place excessive burdens on eligible voters. A recent Advancement Project report indicates that the Latino vote in particular is susceptible to the low turnout caused by redundant citizenship screens. According to the Michigan Election Coalition, this sort of unconstitutional burden was precisely what occurred during the 2012 Michigan primary election when poll workers across the state gave contradictory and erroneous instructions to eligible voters about the voluntary nature of the checkbox. It was this inconsistent treatment of voters across the state that led the ACLU to challenge the checkbox as a violation of the federal equal protection clause of the U.S. Constitution, not the due process clause as Fox's Wiehl incorrectly stated.
Furthermore, Johnson may not even have the power to place the citizenship question on the ballot. The state legislature originally tried to pass the election change in a bill, and Michigan law does not appear to allow the Secretary to unilaterally adopt this failed legislation. Even if it did, there does not appear any justification for the Secretary to then ignore the standard administrative notice and comment procedure behind the introduction of new state rules. Finally, the Secretary appears to have passed an election practice change statewide, despite the fact that the federal Voting Rights Act -- in order to prevent illegal racial or national origin discrimination -- requires certain townships in Michigan to pre-clear any such changes with the U.S. Department of Justice before they are put into effect.
From the April 27 edition of Fox News' Your World with Neil Cavuto:
Loading the player reg...
On The O'Reilly Factor, Bill O'Reilly and Fox News legal analysts Lis Wiehl and Kimberly Guilfoyle all agreed that the Supreme Court would strike down the individual mandate provision in the Affordable Care Act. None of these Fox personalities saw fit to mention that the one appellate court to rule on the issue thus far has upheld the constitutionality of the mandate.
From the May 31 edition of Fox News' The O'Reilly Factor:
Loading the player reg...
Continuing its assault on the Dream Act, Fox News has repeatedly attacked and pushed falsehoods about the bill, which would provide a path to legal status for certain immigrants who came to the United States as children.
On The O'Reilly Factor, Bill O'Reilly and Fox News legal analysts Lis Wiehl and Kimberly Guilfoyle criticized President Obama's administration for not pursuing criminal charges against members of the New Black Panther Party. In fact, it was the Justice Department under President Bush that decided not to pursue criminal charges in the case.
From a May 10 FoxNews.com opinion piece by Fox News legal analyst Lis Wiehl:
On the Kagan nomination, its hard for me to stay fair and balanced. Why? I've been a guest in her home many times when teaching and lecturing at Harvard Law School (my alma mater), and I found her to be an absolute gem. The Harvard Law School faculty is a contentious one, filled with large egos. Elena, the first female Dean of the Law School ran it with grace and clarity of judgment, from what I heard and observed.
A little known fact: she would have poker parties in her home, bringing together both liberal and conservative minded professors to hash out their differences over a friendly (if competitive) game.
She loves the opera, so much so that the faculty awarded her with season tickets to the Washington, D.C. opera when she left to Harvard to become President Obama's Solicitor General.
Some will question her lack of judicial experience, but that perceived prerequiste is relatively new...don't forget Justice Warren (of the Warren court) was never a judge before ascending to the Court.
At Harvard, she was known as an avid listener, who could get to the heart of the matter with a measure of both logical analysis and compassion. Sound like excellent qualifications to me.
Attacking Media Matters on his radio show for noting that his previous claim that Sen. Norm Coleman "was certified the winner" in the Minnesota Senate race was false, Bill O'Reilly repeated the falsehood, claiming: "[W]hat I said was, Coleman's victory was certified by the state because it was. He had 215 more votes, which is absolutely true." In fact, the Minnesota State Canvassing Board did not "certif[y]" a "victory" for Coleman or Al Franken, having authorized an automatic recount of ballots for that race; Minnesota election law states that "no certificate of election shall be prepared or delivered until after the recount is completed."
Fox News' Bill O'Reilly, Megyn Kelly and Lis Wiehl falsely claimed that the ACLU has not raised privacy objections to the search by Ohio government officials of "Joe the Plumber" Wurzelbacher's records, with O'Reilly saying the organization's response has been "nothing." In fact, ACLU of Ohio executive director Christine Link wrote in a letter that she "was deeply disturbed to hear that state officials approved the use of government databases to obtain information" Wurzelbacher, and the legal director for the ACLU of Ohio told Media Matters, "We would be very happy to talk to him and see if there's something we could do to pursue redress for this violation of his privacy rights."