National Review Online misrepresented the conclusions of a recent Department of Justice (DoJ) Office of the Inspector General (OIG) report on current hiring practices in the department's Voting Section in order to join the right-wing assault on the Labor Secretary nomination of Assistant Attorney General for Civil Rights Thomas Perez.
NRO's aversion to the effective enforcement of civil rights law is well-established and the outlet's wish that precedent in this area is overturned has been repeatedly stated. In addition to Section 5 of the Voting Rights Act and affirmative action, NRO has also expressed its dislike for the currently constitutional "disparate impact" doctrine. This doctrine proves impermissible discrimination against protected groups by demonstrating the disproportionate effects of challenged policies and laws, an evidence-based approach that has drawn the NRO's particular ire in the area of fair housing. A recent NRO post attempted to recycle these attacks as new ones on Perez by observing not many conservatives go to work for DoJ's Civil Rights Division (CRD).
The NRO accuses Perez of dismissing the fact that not enough conservatives serve in the Voting Section - a "disparate impact" - even though Perez enforces "disparate impact" law against banks that impermissibly discriminated against communities of color.
President Obama has nominated Thomas E. Perez as Secretary of Labor. Right-wing media used this announcement to push false attacks about Perez based on his service in the Justice Department's Civil Rights Division and other civil rights work and advocacy.
Fox News is using its lack of knowledge about the Voting Rights Act and basic civil rights law to smear the nomination of Assistant Attorney General for Civil Rights Thomas Perez for Secretary of Labor.
The Voting Rights Act (VRA) and Section 5, a provision within the law that requires jurisdictions with a history of racial discrimination in voting practices to submit election changes for federal review, has been a source of difficulty for Fox News. On the March 14 edition of America Live, Fox News host Megyn Kelly and frequent guest Jay Sekulow attacked Perez by incorrectly describing the role of race in race-conscious civil rights law, such as the VRA. In the lengthy segment about the Voting Section - a Department of Justice (DOJ) section under Perez's supervision - Kelly misrepresented a recent Inspector General report and allowed Sekulow to question Perez's competence even as he mangled civil rights law by insisting the Voting Rights Act is "colorblind."
National Review conservative legal commentator Ed Whelan attempts to pick apart the plaintiffs' briefs in Hollingsworth v. Perry, the challenge to California's anti-marriage equality Proposition 8 that the Supreme Court will hear on March 26, by recycling anti-gay smears fueled by the right-wing media that gay marriage is harmful and sexual orientation is not permanent.
Whelan's series of posts, which criticize the plaintiffs' brief and attempt to catch Supreme Court litigators David Boies and Ted Olson distorting facts and testimony, baselessly assert that recognizing same-sex couples' right to marry causes harm, and that in spite of scientific consensus and the experience of millions of same-sex couples, the permanence of their sexual orientation is up for debate.
In his three posts, Whelan sets out fourteen points from the plaintiffs' brief that he identifies as myths and distortions. In his most recent post he attempts to debunk the fact that sexual orientation is a stable characteristic (in other words, disputing whether gay people, per se, exist at all) by stating, "Ample trial evidence demonstrates the lack of scientific support for the notion that homosexuality is a trait that a person is born with." Meanwhile, the amicus brief submitted by the American Psychological Association, the American Medical Association, The American Psychiatric Association, and several other organizations note that "scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality."
Whelan claims that the plaintiffs' own expert - Professor Gregory Herek - acknowledged that "sexual orientation ... may vary throughout the course of a lifetime." However, a comprehensive reading of his testimony complicates this response. Herek, a psychology professor at University of California Davis, testified at length about the challenges of defining sexual orientation, and acknowledged that by the model in the study proponents cited - which defined sexual orientation as the "cumulative experiences of interaction of erotic fantasy, romantic-emotional feelings, and sexual behavior directed toward one or both genders" [[,]] - it is accurate to say that sexual orientation may vary
Herek's response was not based on his own, or the plaintiffs' own, conception of sexual orientation.
In support of his argument that sexual orientation is not an immutable trait, Whelan continued to take Herek's testimony out of context by focusing on his statement that "we don't really understand the origins of sexual orientation in men or women." However, a comprehensive reading of his testimony demonstrates that it in response to the question, "Do people choose their sexual orientation, Herek asserted "they have experienced no choice or very little choice about that.
Whelan also recycles the right-wing myth that extending marriage rights to same-sex couples causes harm. In point 6, for example, Whelan takes issue with plaintiffs' statements that the Proposition 8 proponents "never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry" and that plaintiffs claim that "Proponents suggest no reason to believe - indeed, they make no argument at all - that prohibiting same-sex couples from entering relationships designated 'marriage' will make it more likely that heterosexual couples in California will marry."
In response, Whelan claims that "the testimony and volumes of documentary evidence that Prop 8 proponents offered at trial" show that allowing for same sex marriage would ultimately result in the "deinstitutionalization" of marriage.
The assertion is not responsive to the plaintiffs' argument--there was no evidence that Proposition 8 would deter heterosexuals from marrying.
In his next attempt to identify a harm that would result from marriage equality, Whelan takes issue with the plaintiffs' statement that the proponents produced no data or studies "tending to show" that marriage equality causes harm. In response, he again uses one of the plaintiffs' experts, Professor Lee Badgett, to cite an accelerated long-term decline in the marriage rate of the Netherlands, the first country to redefine marriage in 2001.
The problem is that the facts do not show, nor did Badgett testify, that marriage equality caused the decline in marriage in the Netherlands. At trial, Badgett was asked to read a passage from a defense expert's deposition, which she did:
"In the Netherlands the total number of heterosexual marriages has slowly fallen since the introduction of same-sex marriage. Like most western countries, this is no doubt part of a larger secular trend." (emphasis added).
On cross-examination, Badgett again made clear that data on the number of different-sex marriages in the Netherlands "doesn't tell you anything about what the impact of allowing same-sex couples to marry is."
Badgett has stated her position in previous writings. In a 2004 article criticizing an analysis by Stanley Kurtz that sparked the myth that same-sex marriage affected marriage and unwed births in Europe, Badgett wrote:
Kurtz is also mistaken in maintaining that gay unions are to blame for changes in heterosexual marriage patterns. In truth, the shift occurred in the opposite direction: Changes in heterosexual marriage made the recognition of gay couples more likely. In my own recent study conducted in the Netherlands, I found that the nine countries with partnership laws had higher rates of unmarried cohabitation than other European and North American countries before passage of the partner-registration laws. In other words, high cohabitation rates came first, gay partnership laws followed.
Whelan also challenges thefollowing statement in plaintiffs brief:
"[W]hen the district court asked [proponents'] counsel point blank what harm would come to opposite-sex married couples if gay men and lesbians could marry, Proponents' counsel mustered only 'I don't know. I don't know.'" Brief at 45.
He claimed that the plaintiffs misrepresented thecomment and included the full quotation from the trial transcript, as set forth in Whelan's own amicus brief:
[T]he state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.
Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.
Whelan goes on to state that the proponents did not have to prove harm at that stage of the proceedings, but this does not support his statement that the quote in plaintiffs' brief misrepresents what counsel said.
It is not surprising that Whelan would ground his criticism of the plaintiffs' brief in the right-wing myth that marriage equality is harmful. In fact, he employed the right-wing slippery slope argument at a Senate Judiciary Committee hearing on the Respect for Marriage Act, which would repeal the Defense of Marriage Act. He claimed that "The principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage threaten to pave the way for polygamous and other polyamorous unions."
His attempt to bolster his sole legal argument--that the Court's prior cases on the fundamental right to marry does not apply to same-sex marriage, through inaccurate characterizations of sexual orientation and the impact of marriage equality--doesn't hold water.
Right-wing media are again alleging that President Obama's potential Department of Labor nominee, Assistant Attorney General for Civil Rights Thomas Perez, may have committed perjury in connection with the right-wing's New Black Panther Party voter intimidation non-scandal. But the internal Department of Justice (DOJ) report that they are citing to support these claims actually (once again) debunks these accusations.
The right-wing claim that political appointees within the Department of Justice (DOJ) improperly directed the outcome of the New Black Panther Party fiasco has already been repeatedly disproven, most notably by DOJ's Office of Professional Responsibility (OPR) and now by DOJ's Office of the Inspector General (OIG). The discredited accusation, initiated by right-wing activist J. Christian Adams, was revived in 2012 by his discredited associate, Hans Von Spakovsky, after a federal judge awarded attorney's fees to a conservative advocacy group that had obtained emails relating to this case through a Freedom of Information Act (FOIA) request. Von Spakovsky immediately analyzed the opinion, saying of statements from the judge relating to Perez's 2010 testimony on the New Black Panther Party case to the U.S. Commission on Civil Rights:
But what is most disturbing about this court order is that it strongly suggests that Assistant Attorney General Thomas Perez essentially lied in sworn testimony... A less diplomatic judge might have said that Perez testified falsely in his hearing testimony before the Commission on Civil Rights. In other words, he may have committed perjury if he knew his statements were false when uttered.
Now that Perez's Labor nomination is being floated and following the release of the Inspector General's review of the Justice Department's Voting Section (which is overseen by Perez), National Review Online columnist John Fund revived Von Spakovsky's accusation, calling the 2010 testimony "clear dishonesty." Describing Perez as "loathsome," the American Spectator likewise informs its readers (again) Perez "may have committed perjury[.]"
National Review Online (NRO) and The Washington Examiner distorted last month's jobs report, which found the economy added 236,000 jobs in the month of February, to inaccurately claim more people left the labor force than found employment.
NRO and the Examiner contrasted February job creation totals with the change in the labor force -- a meaningless comparison -- in order to downplay the good news from the job creation figures. The Washington Examiner declared in an editorial titled "False hopes in the new employment numbers," "[M]ore Americans gave up looking for work and dropped out of the labor force last month (296,000) than took new jobs (260,000)." Similarly, NRO's blog, The Corner, wrote of the new jobs report:
By most historical measures, the jobs picture remains bleak. Sure, the unemployment rate ticked down. But as I noted Friday, if today's unemployment rate were measured against the same labor participation as when President Obama took office, it would be 10.7 percent.
But wait a minute, say Obama supporters, 260,000 jobs were created in February! Yes, seems encouraging. Until you realize that even more people -- 296,000 -- dropped out of the labor market entirely.
NRO and the Examiner are misleadingly comparing numbers from two different surveys. Indeed, according to the Bureau of Labor Statistics, the economy added 236,000 jobs in the month of February. This figure comes from BLS' Current Employment Survey, a survey of over 400,000 worksites to determine the total number of jobs gained or lost during the month. In addition, BLS conducts a Current Population Survey of approximately 60,000 households to determine the unemployment rate. "There are a number of differences in how employment is counted in the two surveys," BLS clarified, and so often the surveys' findings differ.
So when the NRO and the Examiner compare the number of those who "dropped out of the labor force," a stat from CPS, to the monthly job creation, a stat from CES, the comparison is meaningless, as the surveys use different methodologies. In addition, they imply that the 296,000 not in the labor force is the number of people who were seeking work but have stopped looking for jobs. But retirees and teenagers not seeking work are included in the BLS' definition of those "not in the labor force," so this number includes people who had no intention of seeking work in the month of February:
Not in the labor force (Current Population Survey)
Includes persons aged 16 years and older in the civilian noninstitutional population who are neither employed nor unemployed in accordance with the definitions contained in this glossary. Information is collected on their desire for and availability for work, job search activity in the prior year, and reasons for not currently searching.
National Review Online contributor Heather Mac Donald attacked female veterans who have struggled as a result of sexual abuse by fellow service members, speculating that any hardships they experience is more likely a result of "bad decision-making" than the lingering effects of their "alleged sexual assault."
Responding to a New York Times article that profiled female veterans who had been victims of sexual abuse and fell into homelessness, Mac Donald offered the "tentative alternative hypothesis" that some of these women, regardless of whether they were victims of sexual assault, were predisposed to become homeless because of the environments they came from. Mac Donald went on to imply that the women should blame poor decisions they had made for their condition, instead of "alleged sexual assault":
Now here is a tentative alternative hypothesis: Some of these women come from environments that made their descent into street life overdetermined, whether or not they experienced alleged sexual assault in the military. To blame alleged sexual assault for their fate rather than their own bad decision-making is ideologically satisfying, but mystifying. Having children out of wedlock, as a huge proportion of them do, also does not help in avoiding poverty and homelessness.
Feminists claim (speciously) that a whopping one-quarter of college co-eds are sexually assaulted by their fellow students in college; I am not aware of comparable claims that huge numbers of female college graduates are as a result ending up on the street. (The difference between the outcomes for college graduates and vets does not lie in the relative availability of services: College rape crisis centers and hotlines are barely used.) I am not even aware of claims that victims of stranger rape are more likely to end up dealing drugs and homeless, but that evidence may in fact be out there. (I recently wrote about a tough-as-nails, pro-police building superintendent in the Bronx who was raped three times, including by her mother's boyfriend as a child; she is only one case, obviously, but she was not on disability benefits or on the streets.)
Mac Donald concluded by suggesting that if "it really was their sexual experiences in the military that caused their downward spiral," feminists should oppose allowing women to serve in combat roles because "[a]rguably, coming under enemy fire or falling into enemy hands is as traumatic as the behavior one may experience while binge-drinking with one's fellow soldiers or as scarring as being 'bullied and ostracized' by a female superior."
Conservative media are parroting a Republican claim that a federal report says health care reform increases the long-term deficit. In fact, the report says that the deficit would only increase if cost containment measures in the bill were phased out over time, and found that the deficit would decrease if those measures were maintained.
The Wall Street Journal published an op-ed on the Voting Rights Act by Edward Blum, founder of the in-house legal project of the right-wing's Donors Trust, but failed to disclose his ties to the Supreme Court's VRA case, Shelby County v. Holder. The op-ed, which identifies Blum as a fellow at the conservative American Enterprise Institute and director of the Donors Trust-supported Project on Fair Representation, recycles misinformation about the challenge that has been extensively and widely debunked.
Conservative media's Charlotte Allen recently wrote an extensive cover piece for The Weekly Standard that relies on discredited right-wing activists Hans von Spakovsky and J. Christian Adams to attack the Department of Justice's renewed focus on properly enforcing the Voting Rights Act. But while conservative media typically advances these sources and their debunked myths, it is disturbing that mainstream coverage of the Supreme Court case of Shelby County v. Holder is relying on von Spakovsky and not disclosing his highly unreliable background.
Allen, responsible for a piece dubbed "The Stupidest Thing Anyone Has Written About Sandy Hook" by lamenting in National Review Online that no men or "huskier 12-year-old boys" were available to protect the "feminized" victims of the Newtown massacre, takes on the "politiciz[ed]" DOJ under President Obama in her story for the The Weekly Standard. In the article, Allen manages to repeat most of von Spakovsky's and Adams' stale misinformation of years past, ranging from the non-scandalous New Black Panther fiasco and non-existent Fast and Furious conspiracy, to DOJ's "belligerent stances" on enforcement of the Voting Rights Act. Allen also successfully writes over 6,500 words on the alleged "politicizing" of DOJ without divulging von Spakovsky and Adams were poster children for such conduct when they worked for the DOJ under George W. Bush, disparages U.S. Attorney General Eric Holder because his "people" are not black enough to claim civil rights history, and finally undermines her main thesis by admitting that - under any presidency - DOJ follows the policy preferences of the White House.
Ultimately, however, that Allen uses the collected works of von Spakovsky and Adams is unsurprising. What is troublesome is that mainstream outlets are also publishing the opinions of von Spakovsky and Adams as the "conservative" perspectives on Shelby without disclosing their extremist background.
Conservative media are gearing up to target Caitlin Halligan - President Obama's nominee to the D.C. Circuit Court of Appeals - in their ongoing campaign to block the administration's judicial nominees, a practice that has led Justice Ruth Bader Ginsburg to lament "we are destroying the United States' reputation in the world as a beacon of democracy."
Right-wing media have a long history of insisting that the Republican Party filibuster and otherwise obstruct judicial nominees who are insufficiently conservative. The resulting court vacancies have led to "judicial emergencies," but right-wing media have made it clear they will not let up as the Senate considers President Obama's nominees to the crucial D.C. Circuit.
Directly after President Obama was re-elected, National Review Online's Ed Whelan urged the Republican Party to block the president's Supreme Court nominees because those without "conservative judicial principles" are "unfit for the Court." On February 14th, the Senate Judiciary Committee once again sent to the full Senate the nomination of former New York Solicitor General Halligan to the second most important court in the country, the D.C. Circuit, which is considered the last stop on the way to the Supreme Court. Whelan has consistently and prolifically joined the right-wing media opposition to Halligan's nomination, and recently made clear he will continue to extend his right-wing litmus test to the entire federal judiciary.
Before and after every major election, John Fund can be found on Fox News and elsewhere in the conservative media hyping allegations of voter fraud that he insists are tainting our democracy and require legislative remedy, usually in the form of strict voter ID laws. And, sure enough, he's taken to National Review Online to wave around a Hamilton County, Ohio, investigation into 19 cases of possible voter fraud in the 2012 election. Unfortunately for Fund, those 19 cases represent a minuscule percentage of the hundreds of thousands of votes cast, and just two of the cases involve voters casting more than one in-person ballot, a type of fraud that strict voter ID laws are supposed to prevent.
Critics of voter ID and other laws cracking down on voter fraud claim they're unnecessary because fraud is nonexistent. For instance, Brennan Center attorneys Michael Waldman and Justin Levitt claimed last year: "A person casting two votes risks jail time and a fine for minimal gain. Proven voter fraud, statistically, happens about as often as death by lightning strike."
Well, lightning is suddenly all over Cincinnati, Ohio. The Hamilton County Board of Elections is investigating 19 possible cases of alleged voter fraud that occurred when Ohio was a focal point of the 2012 presidential election. A total of 19 voters and nine witnesses are part of the probe.
Note that Fund's example of someone arguing that voter fraud is "nonexistent" is Waldman and Levitt arguing that it's exceedingly rare, which is obviously not the same as "nonexistent." So already he's refuting an argument no one is making.
But what about the Hamilton County investigation that has Fund so excited? A whole 19 cases of possible voter fraud! Fund doesn't bother to mention that there were 421,997 ballots cast in Hamilton County in 2012*. So even if every single one of those 19 cases involved the fraudulent casting of a ballot, they would represent just 0.0045 percent of the total. That's pretty rare -- which is exactly the point Waldman and Levitt made.
Gun researcher and FoxNews.com columnist John Lott is ignoring the evidence in an attempt to undermine claims from supporters of strengthening gun laws that a large percentage of guns are purchased without the buyer undergoing a background check.
In a National Review Online article, Lott wrote that President Obama's recent claim that "as many as 40 percent of guns are purchased without a background check" is false, instead stating that "it closer to 10 percent." However, research shows that significant numbers of firearms are in fact sold without a background check - perhaps a figure greater than the 40 percent cited by Obama.
It is true that the 40 percent figure is based on a 1994 poll with a small survey sample, and that the authors of the study have said that they estimated that the actual figure for gun sales from private sellers ranges from 30 to 40 percent of all sales. But no data has been compiled that contradicts that figure, while several more recent data points support a figure in that range.
In finding that the "40 percent" statistic is "Mostly True," Politifact pointed out that neither the National Rifle Association nor the National Shooting Sports Foundation, groups that oppose expanding background checks to private sales, provided data contradicting that figure.
As Washington Post fact checker Glenn Kessler reported, part of the problem in obtaining up-to-date figures on the private sales of firearms is that National Rifle Association lobbyists have been successful in convincing Congress to block funding for such research. In his analysis of the 40 percent figure, Kessler quoted one of the authors of the 1994 study, Jens Ludwig, who stated, "While there is no perfect estimate in social science, we'd have a better estimate for this proportion had the federal government not decided to get out of the business of supporting research on guns and gun violence several years ago."
But the data that has been made available since the 1994 report lends credence to that estimate. For example, a 2012 analysis of how handguns are sold in Michigan, the Michigan State Police reported that 48 percent of all handguntransfers in the state are conducted through private sales where no background check is required. Criminals in particular tend to seek weapons from sources where they are not subject to background checks - only 11 percent of inmates incarcerated for gun crimes said that they got the weapon from a licensed gun dealer, according to a 2004 survey.
Data from the gun industry itself also suggests sales without a background check are commonplace. According to 2010 data from the National Shooting Sports Foundation, only 45 percent of assault weapon owners reported buying their firearm from a retail location, including independent and chain retail stores. Approximately half of respondents reported buying their firearm from venues where a background check is not necessarily required, including over the Internet, from gun shows, or through a face-to-face sale.
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.
Commemorating the 40th anniversary of Roe v. Wade in its editorial "An Enduring Wrong," the National Review Online mischaracterizes the ruling, claiming that the decision and its companion case, Doe v. Bolton, made abortion "legal at any stage of pregnancy for any reason, which is a considerably more liberal policy than that encoded in the law of any state or supported by public opinion then or now."
In fact, the NRO got it wrong. In Roe v. Wade, the Supreme Court made clear that states may limit access to abortion:
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
In Roe, the Court also recognized the state's interest in protecting "potential life.":
In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.
[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.
NRO criticized The New York Times for reporting on January 23, 1973 that the decision pertained only to restrictions on abortions in the first trimester. It stated that the Times got "the story wrong from the beginning." In fact, the Roe opinion states that as a pregnancy progresses, the right to terminate a pregnancy is balanced by the state's interest in protecting the fetus:
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [p165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.
Doe v. Bolton, which was decided the same day as Roe, also makes clear that states may enact restrictions on abortion:
Roe v. Wade, supra, sets forth our conclusion that a pregnant woman does not have an absolute constitutional right to an abortion on her demand. What is said there is applicable here, and need not be repeated.
NRO's argument, though unfounded, is not new. Bench Memos Blog's Ed Whelan resurrects it every year in his "This Day in Liberal Judicial Activism" post, stating that:
Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.
"Unrestricted abortion throughout pregnancy" is not the "predominant" reading of Roe and Doe, and it has not been adopted by the Supreme Court. In fact, the Court [['s]] restated the opposite in Planned Parenthood v. Casey, a case that upheld several abortion restrictions but preserved Roe's basic holding:
Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e.g., Doe v. Bolton, 410 U.S., at 189 . Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State.
NRO's characterization of Roe is simply false.