On the anniversary of the 1954 nomination of Republican Earl Warren as the Chief Justice of the Supreme Court of the United States, Ed Whelan of the National Review Online characterized as "accurate" former President Eisenhower's description of the pick as a "damned-fool mistake." Whelan did not mention that the Eisenhower quote was in reference to Warren's historic opinion in Brown v. Board of Education, the Supreme Court decision that prohibited racial segregation.
Whelan, legal expert for the right-wing NRO, regularly comments on dates of legal events in a regular series called "This Day In Liberal Judicial Activism." In selecting the nomination of Warren to emphasize his agreement that this Chief Justice was a "mistake," Whelan did not describe Eisenhower's motivations for the comment. As reported by The New York Times:
"The biggest damn fool mistake I ever made," Dwight D. Eisenhower said of his appointment of Chief Justice Earl Warren, who discomfited him with the Brown v. Board of Education ruling ordering desegregation of public schools, and other liberal opinions.
In Warren's obituary, the Times described the impact of the Supreme Court under Warren, a legacy left unexplained by Whelan:
The parts that constituted the whole [of the Warren Court] were embodied in a series of decisions that had the collective effect of reinforcing popular liberties. Among these were rulings that:
Outlawed school segregation.
Enunciated the one-man, one-vote doctrine.
Made most of the Bill of Rights binding on the states.
Upheld the right to be secure against "unreasonable" searches and seizures.
Buttressed the right to counsel.
Underscored the right to a jury trial.
Barred racial discrimination in voting, in marriage laws, in the use of public parks, airports and bus terminals and in housing sales and rentals.
Extended the boundaries of free speech.
Ruled out compulsory religious exercises in public schools.
Restored freedom of foreign travel.
Knocked out the application of both the Smith and the McCarran Acts--both designed to curb "subversive" activities.
Held that Federal prisoners could sue the Government for injuries sustained in jail.
Said that wages could not be garnished without a hearing.
Liberalized residency requirements for welfare recipients.
Sustained the right to disseminate and receive birth control information.
Fox and right-wing media figures defended Republican House Speaker John Boehner's decision to cancel a vote on an aid package for victims of Hurricane Sandy. Following sharp bipartisan criticism over that decision, Boehner agreed to a vote this week.
In a National Review Online post, author Charlotte Allen followed the lead of other right-wing media figures by suggesting that the deaths at Sandy Hook Elementary in Connecticut were the result of a "feminized setting" in which "helpless passivity is the norm."
Similarly, Newsweek and Daily Beast special correspondent Megan McArdle wrote that people, even children, should be trained to "gang rush" active shooters, in contradiction to expert opinion on how best to handle such situations.
And Washington Times columnist Ted Nugent wrote that the allegedly "embarrassing, politically correct culture" of the U.S. that "mocks traditional societal values" helped lead to the shooting. Nugent also told Newsmax that "political correctness and the sheep like behavior that goes with it" could be cured by arming teachers.
Opponents of effective voting rights enforcement have taken to right-wing media outlets to allege that the Department of Justice engaged in "collusive," "illegal," and "crooked" acts for its role in the determination of whether a California county and the state of New Hampshire qualify to opt-out of Section 5 of the Voting Rights Act (VRA). But these allegations of "trickery," most recently pushed by National Review Online contributor Hans von Spakovsky, ignore that DOJ is complying with the text of the VRA as interpreted by the courts.
Two former Bush administration DOJ officials have accused the department of acting improperly in the successful removal of Merced County, California, from the voter protection requirements of Section 5 and the ongoing consideration of such an opt-out for New Hampshire. Writing on the right-wing blog PJ Media, J. Christian Adams argued that in the Merced case DOJ had "ignore[d] the law" and "conned" a federal court as part of an "elaborate legal ruse" to preserve the VRA in Shelby County v. Holder, the case in which the U.S. Supreme Court will consider a claim that Section 5 is unconstitutional. Continuing this attack, von Spakovsky accused the DOJ in the National Review Online of similar "deception" and "manipulation" of the VRA in its considerations of the New Hampshire case, again in order to "manipulate the Supreme Court in the Shelby case." A conservative advocacy group immediately adopted their argument and filed a motion to intervene in the New Hampshire case, as was predicted by election law expert and law professor Rick Hasen:
I expect this argument to get a lot of play.
The great irony here, for those who don't follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act's coverage.
Under Section 5 of the Voting Rights Act, Southern jurisdictions who illegally denied citizens the right to vote during the Jim Crow era - and subsequent jurisdictions that engaged in similar conduct - are forbidden from changing covered election practices without federal approval. There is a legal opt-out to Section 5, by which jurisdictions can "bailout" of the "preclearance" requirements by proving they are no longer breaking the law. To encourage successful bailouts, Congress increasingly "liberalized" this process. Similarly, the Supreme Court in its last VRA case -NAMUDNO v. Holder - "rewrote" the bailout requirements to encourage even more use of the process.
Nevertheless, right-wing activists have successfully placed the Shelby case before the Supreme Court, which could release all covered jurisdictions if Section 5 is declared unconstitutional. Adams and von Spakovsky, who quote anonymous sources and internal DOJ documents to support their arguments, argue that DOJ has "designed" a "legal strategy" to avoid this outcome by aggressively following NAMUDNO.
Beyond the unremarkable fact that the DOJ - the defendant in Shelby - would prefer not to both lose the case and part of the most effective civil rights law in history, Adams and von Spakovsky misrepresent the bailout cases to claim neither Merced nor New Hampshire qualify. Adams complains that the extensive DOJ investigation of Merced's bailout request revealed that the county should have submitted certain past election changes for preclearance and because the county "settled" a Section 5 case, it was ineligible for bailout. But Merced's counsel responded to Adams' accusations, pointing out that "case law under Section 5...holds that the preclearance obligation can be retroactively satisfied":
Mr. Adams is simply incorrect about the Lopez litigation. There was no "settlement"; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
[R]egarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were "were trivial, were promptly corrected, and were not repeated." 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams's implication that Section 5 has a "no tolerance" standard--and that the Attorney General is therefore ignoring the command of Congress--is refuted by the text of Section 5 itself.
"[P]ost hoc" preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5.
Adams subsequently admitted "retroactive" preclearance was possible.
Von Spakovsky repeated Adams' claim that states seeking bailouts must not have "failed to submit for preclearance...voting changes they have made" over the past ten years, without acknowledging the retroactive preclearance that may occur for New Hampshire. Von Spakovsky used this misleading point as proof that New Hampshire is actually less qualified than Shelby County for a bailout, because New Hampshire allegedly has more unsubmitted preclearance requests than Shelby County did. But the footnote from the Shelby case on appeal that von Spakovsky partially quoted for the uncontroversial rule that unprecleared voting changes - absent retroactive approval - preclude bailout, explicitly notes that Shelby County's primary problem was DOJ's objection:
Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection...with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E). The Attorney General concedes that, in 2008, he interposed an objection [.]
In anticipation of a Senate vote on a United Nations treaty that seeks to promote equal rights for people with disabilities, conservative media have revived the debunked myth that the treaty threatens U.S. sovereignty.
The UN Convention on the Rights of Persons with Disabilities sets global standards for the treatment of people with disabilities, asking signatories to "ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability." More than 120 nations have ratified the treaty, and though the United States signed it in 2009 and the Senate Foreign Relations Committee has approved it, the Senate has been unable to obtain the required number of votes to push it through. A Senate vote is scheduled to take place today.
Conservative media claim that signing the treaty would require the United States to alter its laws to meet these standards. Writing at National Review Online, the National Review Institute's Betsy Woodruff claimed that the treaty "could potentially undermine American sovereignty" and said it would be "self-abasing" for the U.S. "to comply with the treaty." Similarly, at the Daily Caller, Walter Olson of the Cato Institute equated signing the treaty with "sign[ing] away our national sovereignty on questions of how best to accommodate the disabled."
However, these claims are baseless, as U.S. law already meets the standards the treaty requests. The Americans with Disabilities Act (ADA) "prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications." If a law, policy, or program is found to be discriminatory, the government has the power, through the Department of Justice, to enforce the ADA on both a private and public level. Thus signing the treaty would merely reaffirm the U.S. commitment to equal rights.
Both the Washington Post and The New York Times threw cold water on this fearmongering. The Post noted that the treaty "would not require the United States to change its laws." The Times further reported:
The Senate Foreign Relations Committee approved [the treaty] last July in a bipartisan vote, 13-6, while also passing a resolution to clarify, in case anybody was worried, that the United States would surrender none of its sovereign authority by joining the convention. The treaty would have no power to alter or overrule United States law, and any recommendations that emerge from it would not be binding on state or federal governments or in any state or federal court.
The baseless argument that the treaty threatens U.S. sovereignty is not new. In September, The Washington Times published an editorial warning that the "United States could soon find itself taking orders from international bureaucrats on how to treat people with disabilities."
Fox News is promoting another legal challenge to the Affordable Care Act that originated in a right-wing think-tank and was hyped by conservative blogs. The State of Oklahoma filed a lawsuit based on a problematic theory that alleges tax credits within federally-run health insurance marketplaces called "exchanges" are unauthorized, which was developed by Michael Cannon, Director of Health Policy Studies at the Cato Institute, and National Review Online contributing editor and Case Western Reserve University School of Law professor Jonathan H. Adler. But Fox News has not only failed to report the extensive debunking of this tax credit theory, it has also mischaracterized this challenge to tax credits offered in exchanges as a "serious" constitutional one, although the new constitutional arguments are even more far-fetched than the original statutory claims.
Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.
In the wake of the presidential election, National Review Online's Ed Whelan made it clear that the country can expect more of the unprecedented right-wing opposition of the past four years to President Obama's judicial nominees. However, news outlets often neglect this obstructionism and ignore the role of the GOP and conservative media in creating "judicial emergencies" where courtrooms across the country suffer from vacancies on the bench, an omission highlighted by a prominent judicial nominations expert.
Fresh off of ascribing a lack of virtues to the majority of the nation who re-elected the president, conservative legal analyst Ed Whelan urged the Republican party on November 8 to redouble its efforts in blocking judicial picks by expanding the obstruction to any and all Supreme Court nominees. In the NRO blog, Whelan wrote:
I'm surprised to see, in [a November 8] Wall Street Journal article, that one conservative legal commentator has opined (according to the article's paraphrase and internal quote) that "[b]ecause Republicans lost the presidential election and a couple of Senate seats, ... Mr. Obama was entitled to 'a lot of deference' should he wish to replace Justice Ginsburg or another liberal with a like-minded nominee."
I think that this view is badly misguided.
[C]onservatives shouldn't set a lower bar for a nominee who is replacing a liberal justice than for one who is replacing a conservative. Instead, we should make the case that conservative judicial principles are the right judicial principles and that anyone who doesn't embrace those principles is unfit for the Court.
This sentiment serves as a reminder of just how intransigent the right-wing has become in objecting to judicial nominees who aren't conservative ideologues. Although the named WSJ article at least referenced the prospect that Republicans would filibuster anyone left of centrist U.S. Court of Appeals for the District of Columbia Judge Merrick Garland for the Supreme Court, it ignored the rampant obstructionism that has ground the lower court confirmations process to a halt. The unprecedented nature of this bottleneck could become even more apparent this week, when multiple stalled nominations will be sent to the lame-duck Senate floor in hopes of receiving the due consideration of an up-or-down vote that was accorded President George W. Bush's nominees exactly ten years ago. As recounted by the Constitutional Accountability Center's Doug Kendall:
There is certainly precedent for a big crop of lame-duck confirmations--in a five-day period in November 2002, a Senate controlled by Democrats confirmed 20 Bush judicial nominees on a voice vote, including contentious picks for appellate court slots, such as Michael McConnell (confirmed to a seat on the 10th Circuit) and Dennis Shedd (confirmed to a seat on the 4th Circuit).
This precedent may be overlooked, as it has become unfortunately common for the news media to downplay the GOP's role in blocking the President's nominees. But as judicial nominations expert and University of Richmond Professor of Law Carl Tobias has repeatedly noted, ignoring obvious obstructionism and instead claiming the administration fails to prioritize nominations - "overstat[ing] Democratic responsibility, and understat[ing] Republican" - does not adequately explain the unacceptably high number of vacancies in the federal judiciary. From Tobias' November 11 editorial in the Baltimore Sun:
Some critics blamed Mr. Obama for recommending an insufficient number of nominees in 2009, but he subsequently quickened the pace. Before making nominations official, the White House has robustly pursued the advice and support of Republican and Democratic senators who represent jurisdictions where vacancies have arisen. Mr. Obama has in most cases tapped noncontroversial individuals who are intelligent, ethical, industrious and independent, possess balanced temperament, and enhance diversity vis-á-vis ethnicity, gender and ideology.
The Senate Judiciary Committee has quickly scheduled hearings and votes, sending nominees to the floor. There, many of them have languished. For instance, on Sept. 22, the Senate approved two nominees even though it could easily have voted on 19 others, most of whom the Judiciary Committee had approved with minimal opposition. The Senate recessed without acting on any of those excellent nominees because the GOP refused to vote on them.
Republicans should cooperate better. The GOP has automatically held over committee ballots for seven days without persuasive reasons. However, the major problem has been the chamber floor. Republicans have infrequently entered time accords for votes. The unanimous consent procedure, which the GOP employed in September, allows one senator to halt floor ballots. Most troubling has been the Republican refusal to vote on uncontroversial, talented nominees -- inaction that contravenes Senate traditions. When senators have eventually voted, they overwhelmingly approved many nominees.
Whelan's post is not only an excellent reminder that the Republican obstructionism highlighted by Tobias may continue unabated, but also that Republican Senators have refused to be cooperative on centrist choices. Indeed, the prospect of Republicans only filibustering those "to the left of Merrick Garland," as suggested by the WSJ article, is highly suspect in light of the treatment of similarly centrist nominees this past Congressional session.
Future coverage of federal court nominees should thus look to the influential Whelan as to why these vacancies are not being confirmed. Whatever responsibility the administration may have in not offering nominees in a timely manner, the real reasons lie in Whelan's admitted goal of a Supreme Court with a "supermajority" of conservative Scalia clones.
Conservative media outlets have falsely suggested that President Obama's tax plan will negatively affect a broad range of taxpayers, while ignoring Obama's own statements that clearly indicate otherwise. In reality, only a small portion of earners would be affected by his proposed tax increases.
Fox Business host Gerri Willis reacted to President Obama's November 9 remarks on the economy by claiming that he plans to raise taxes on "lots and lots" of middle-income people. From Fox Business' Markets Now:
The speculation that Obama's tax plans will affect a large proportion of earners was also put forth in a National Review Online article, claiming that he "seemed especially intractable on tax hikes for the 'wealthy,' a rather broadly defined term."
However, Obama's statements do not suggest that a large number of earners would be affected by his tax plan. Here's what Obama actually said in his November 9 speech about asking the wealthiest Americans to pay slightly higher taxes on some of their income:
OBAMA: I am not going to ask students and seniors and middle class families to pay down the entire deficit, while people like me making over $250,000 aren't asked to pay a dime more in taxes.
According to most recent Census data, median household income in the U.S. is $50,054, well below the $250,000 threshold suggested by Obama, and only 2 percent of households earn more than $250,000 a year, leaving the vast majority of Americans unaffected by the proposed tax increases. Furthermore, Obama's tax aspirations have a negligible effect on the economy. According to a recent Congressional Budget Office report, allowing upper-income tax cuts to expire would have a modest effect on growth.
In the wake of President Obama's re-election, right-wing media outlets and figures compared the president to a dictator, called for a revolution, and baselessly suggested impeachment.
Judicial Crisis Network chief counsel Carrie Severino praises her organization's last-minute television attack advertisement against Michigan Supreme Court candidate Bridget McCormack for assisting in the representation of Guantanamo detainees. But Severino's article, which appeared in the National Review Online, failed to mention that the right to counsel for the detainees, such as the one McCormack represented, has been defended by prominent conservative lawyers and the federal courts.
The ad in question began running the week before the election and has been heavily criticized both locally and nationally for attacking McCormack's participation in the legal proceedings for accused detainees at Guantanamo. The 30-second ad features a mother whose son was killed while serving in the military in Afghanistan, who asks "how could" McCormack "help free a terrorist"? In fact, McCormack was part of a Bush-era legal system set up to represent Guantanamo detainees, many of whom were found to be improperly detained. In defense of the ad, Severino writes that the Judicial Action Network was "proud of the service we performed by exercising our constitutional rights and bringing these facts to the people of Michigan." But this attack on the provision of attorneys for detainees - regardless of their guilt - is not new and has been repeatedly discredited by prominent conservatives.
For example, Severino recycles the argument that the detainees should not have access to counsel based on their status as "foreign enemy combatants." As conservative Professor of Law Orin Kerr has noted, this argument is "simply incorrect," as evidenced by the Bush administration's abandonment of such a claim and Supreme Court and subsequent rulings that established the constitutional right of detainees to "go to federal court to challenge their continued detention," a right not contingent on citizenship.
Kerr offered this analysis in the wake of similar attacks on Justice Department attorneys who - like McCormack - had provided representation for detainees prior to entering government service, describing the attacks as "ridiculous." Also in response to this earlier incarnation of the current smear, a "group of prominent lawyers, many of them conservatives and former Bush administration officials, signed a letter denouncing the attack as a 'shameful' effort." From the 2010 letter, which included prominent conservative attorneys David Rivkin, Lee Casey, Kenneth Starr, and Viet Dinh, among others:
The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications.
The American tradition of zealous representation of unpopular clients is at least as old as John Adams's representation of the British soldiers charged in the Boston massacre.
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantánamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
The right to counsel has been repeatedly reaffirmed by the courts. Most recently, the respected Chief U.S. District Judge Royce Lamberth, who was nominated to the bench by President Ronald Reagan and is in charge of Guantanamo proceedings, reminded the government in September that the constitutional right to access to the courts for detainees "means nothing without access to counsel" because they "are inseparable concepts and must run together." In fact, this fundamental constitutional concept is the exact point of the op-ed penned by McCormack in 2005 that the Judicial Action Network mischaracterized in their ad campaign against her as "an opinion piece in the Detroit News where she encouraged other attorneys to represent suspected terrorists." From McCormack's June 16, 2005, Detroit News op-ed (via Nexis):
The success of the emerging democracy in Iraq, which hundreds of American men and women have lost their lives fighting for, will depend on whether the rule of law takes full root. Of course, our commitment to the rule of law here at home underlies our own system of government.
That commitment in turn requires unwavering respect for due process for the accused -- to be informed of charges, to have genuine access to legal counsel and to be given an opportunity to present or contest evidence. Our commitment to such basic rights extends to our most serious transgressors, and it is upheld during our most difficult times. Such a commitment most distinguishes us from our enemies.
The urge to cut constitutional corners when fighting an evil enemy is understandable. But it is a visceral urge, and we should resist it.
Abandoning the rule of law betrays our most fundamental commitments, our noble side. America has fought and won its most important battles without abandoning the values that most define it, including most especially due process and the rule of law.
In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
Right-wing media are abetting Mitt Romney's attempt in the third presidential debate to hide his opposition to the successful U.S. automobile industry rescue. In fact, Romney condemned the auto rescue, a rescue that experts say was necessary to save the industry.
Conservative media outlets pushed at least eleven misleading attacks on President Obama's energy policies that have become talking points used by Mitt Romney's campaign. The conservative media bubble has largely prevented voters from hearing the facts about clean energy programs, fossil fuel production and environmental regulation under the Obama administration.
Mitt Romney revealed his gender-conscious hiring policies as governor of Massachusetts -- based on "binders full of women" -- during the October 16 presidential debate, a comment that was immediately recognized as an endorsement of affirmative action by several commentators in the media. But The Wall Street Journal editorial page and other conservative media outlets that have harshly condemned such affirmative action policies have yet to fully address Romney's statement.
In Tuesday's debate, an audience member asked the presidential candidates, "[i]n what new ways do you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?" In response, Romney described his past utilization of inclusive hiring practices, also known as affirmative action:
ROMNEY: Thank you. And -- important topic and one which I learned a great deal about, particularly as I was serving as governor of my state, because I had the -- the chance to pull together a Cabinet and all the applicants seemed to be men. And I -- and I went to my staff, and I said, how come all the people for these jobs are -- are all men?
They said, well, these are the people that have the qualifications. And I said, well, gosh, can't we -- can't we find some -- some women that are also qualified?
And -- and so we -- we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women's groups and said, can you help us find folks? And I brought us whole binders full of -- of women. I was proud of the fact that after I staffed my cabinet and my senior staff that the University of New York in Albany did a survey of all 50 states and concluded that mine had more women in senior leadership positions than any other state in America.
Mark Shields of PBS immediately recognized the significance of Romney's statements in post-debate analysis:
MARK SHIELDS: Can I tell you what the lead is -- OK -- what the lead is? Women in binders.
I mean, that is -- that will be the clip that will be seen around the world, Mitt Romney. And the interesting thing about that is, he told the story about the women in his Cabinet, was that was affirmative action. That is affirmative action.
He got all these men. And he said, no, no, can't we find some women? Go out and find some women. That's the definition of affirmative action.
MARK SHIELDS: And I will be interested to see The Wall Street Journal editorial page attack him on that tomorrow.
Like everyone else, I had several good laughs over the GOP candidate's "binders full of women" quote from last night's town-hall debate.
But then I realized that, creepy as that imagery is, the country would be better off if more powerful men took a cue from Romney on this one. He says that, as governor, he made "a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet." This is a pretty big statement, especially coming from a Republican candidate. We talk a lot about how diversity matters and how equal representation is important. But in most corners of society, especially the upper echelons of power, we haven't figured out the best way to walk that talk. Usually when advocates suggest that we need policies in place to ensure our elected officials and CEOs and college admission boards are making a concerted effort to go out and find women and people of color, all political hell breaks loose. Just look at conversation surrounding the Supreme Court's recent reconsideration of the University of Texas's affirmative action policies.
Watching Romney tout his appointment record at the town-hall debate last night, I couldn't help but feel a little bit proud of him. Seriously! With the binders anecdote, he was essentially describing affirmative action: He realized he needed more diversity in his cabinet, and so he sought out qualified women he may not have otherwise considered. This is laudable. Shocking, even! Especially when you consider that, also in the first year of his governorship, Romney tried to quietly roll back the state's affirmative action laws.
Contrary to Mark Shields' joking "prediction," The Wall Street Journal editorial board has not commented on Romney's support of affirmative action as of this posting, even though it recently called on the Supreme Court to "reclaim [its] constitutional and moral bearings" by rejecting a University of Texas Law School admissions policy which takes race into account in order to promote student body diversity.
The National Review Online also ignored the substance of Romney's debate comments and instead claimed the anecdote was unremarkable, in contrast to their past objection to affirmative action on the basis of both gender and race. National Review Online and The Wall Street Journal should note that Kerry Healey, Romney's Lieutenant Governor from 2003 to 2007 and a current surrogate for his campaign, further told Fox News that the "binders full of women" program amounted to a so-called quota system in which hiring targets were linked to the percentage of women in the Massachusetts population. From America Live:
MEGYN KELLY: He was claiming that he made a commitment to fill his cabinet positions in Massachusetts with more than just men, he said most of the applicants were men, and most of the guys, the candidates were men.
KERRY HEALEY: That's right. The back story here is that a women's organization, a bipartisan women's organization, the Massachusetts Women's Political Caucus, came to both candidates in the race and said if you're elected will you pledge, will you promise to put as many women in your cabinet as there are percentage of women in Massachusetts, which is about 50 percent. Both candidates said yes. So when Governor Romney was elected he set out to fulfill that promise. One thing you can know about Governor Romney is that when he makes a promise while he's campaigning, he's going to fulfill that promise. And so...
MEGYN KELLY: How did the numbers work out?
KERRY HEALEY: 50 percent. And it was the highest in the nation.