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.
Conservative media viciously attacked Texas State Senator Wendy Davis after she announced her candidacy for governor, linking Davis to infanticide and calling an image of her with kids "sick" and "disgusting."
The National Review Online simultaneously questioned the legitimacy of the Affordable Care Act (ACA) and overstated the constitutionality of voter ID laws that require citizens to produce unnecessarily redundant photo identification.
In an attempt to normalize Republicans' refusal to accept a duly enacted law already ruled on as constitutional by the Supreme Court - a degree of obstructionism that The New Yorker recently observed was last seen in the wake of Brown v. Board of Education - the NRO recently defended the GOP shutdown of the government by comparing it to the opposition to overly stringent voter ID laws. From an October 3 column:
[H]ow many times in the past 24 hours have you heard [President Obama and congressional Democrats] or their allies make the argument that Obamacare is a settled issue because 1) it was enacted by duly elected federal lawmakers and signed by a duly elected president, 2) the U.S. Supreme Court said it passed constitutional muster, and 3) it was championed by a reelected Obama and opposed by a defeated Romney? That's not how republics work -- no issue is ever truly settled -- but more important it's not how these same folks behave on other issues.
Take voter ID. Many states, including my own North Carolina, have seen voter ID became law through the actions of duly elected state lawmakers and governors. The U.S. Supreme Court has recently ruled that voter ID passes constitutional muster. State officials enacting voter ID have subsequently been reelected. But in the eyes of the Obama administration, voter ID is about as far away from "settled" as an issue can be. Attorney General Eric Holder has just announced a lawsuit challenging North Carolina's new election law, including the photo-ID requirement. The Justice Department continues to pursue or threaten similar litigation in other states.
A fair comparison? I think so. But there is an important difference between Obamacare and voter ID. The former is unpopular. The latter is supported by the vast majority of voters, including most Democrats, independents, and minorities. So conservatives are fighting an uphill battle to defeat an unpopular law. Liberals are fighting an uphill battle (I suspect) to defeat a popular law.
NRO's false equivalence between the ACA and voter ID laws is awkward at best. The ACA is well-settled federal law of the land. The constitutionality of state voter ID laws, on the other hand, is still very much in doubt.
The National Review Online smeared class action lawsuits in its attack on a recent report on forced arbitration by Public Citizen, the prominent consumer advocacy organization.
The conservative wing of the Supreme Court has been on a tear in recent years, issuing one big-business opinion after the other that strengthens corporate immunity against civil justice. Right-wing media have cheered this trend, especially those decisions that rewrite precedent to make it harder for consumers and small businesses to vindicate their rights. From NRO, which dismissed class actions as "a cash cow for trial lawyers [that] don't usually help consumers":
Earlier this month, Public Citizen released a report that praised the work of private consumer lawsuits to make parallel state enforcement efforts possible. The report cites the tobacco litigation and various insurance abuse cases, and calls for strictly limiting arbitration by, among other things, banning forced arbitration clauses in consumer and employment cases, the subject of the Arbitration Fairness Act. Not surprisingly, this report distorts the truth, which is that trial lawyers, not consumers, would benefit from such a radical campaign against arbitration.
But Public Citizen was not objecting to arbitration in general, rather to forced arbitration and class action bans. From the report, which examined how arbitration law too often disfavors state consumer protections, a posture that has allowed businesses to begin a "widespread practice of inserting forced arbitration clauses into consumer contracts":
These clauses require that any potential disputes must be settled through private arbitration. Consumers are harmed by these clauses because they are denied the opportunity to have their case heard in a neutral court of law that is subject to public oversight. In forced arbitration, the company selects the arbitration firm that will conduct the hearing, giving the arbitration firm a financial incentive to favor the business. Moreover, arbitration proceedings are often conducted in secret, may be adjudicated in a manner that does not follow the law, and frequently limit many common legal principles, including the use of discovery. Also, there is scant opportunity to appeal an arbitrator's ruling.
The Supreme Court's 2011 ruling in AT&T Mobility LLC v. Concepcion compounded the effects of [previous anti-consumer rulings] by permitting companies to insert language banning the use of class actions into arbitration clauses. Class action bans often have the practical effect of preventing consumers from seeking redress of any sort, whether in arbitration or in court, because the alleged harms to individual consumers often are not large enough to make it economically feasible to bring a case.
This is not a "radical" position and arbitration voluntarily entered into is not the issue. In addition to consumer advocates and the liberal Supreme Court justices who disagree with the anti-class action decisions NRO defends, even arbitrators have joined groups like Public Citizen in criticizing forced arbitration clauses combined with bans on class actions.
National Review Online is calling fears about the effects of the government shutdown "hysterical," ignoring the uncertain future for both the Department of Justice and the federal court system if House Republicans refuse to fund federal obligations.
Right-wing media have repeatedly trivialized the impact of the shutdown since Congress failed to pass a resolution to continue government funding, referring to it as a mere "slimdown" and insisting that "no one is going to starve" even without essential government nutrition programs. NRO joined this chorus, calling the reaction to the shutdown "almost comical." From a September 30 column:
The hysterical fears about the effects of a government "shutdown" being voiced by many in Washington, such as Senator Tom Harkin (D., Iowa), who claims it is "as dangerous as the break-up of the Union before the Civil War," are almost comical.
The truth from the experience of prior shutdowns, applicable federal laws, Justice Department legal opinions, and Office of Management and Budget (OMB) directives, is that crucial government services and benefits would continue without interruption even if Congress fails to agree on a continuing resolution (CR) or President Obama vetoes it. That includes all services essential for national security and public safety -- such as the military and law enforcement -- as well as mandatory government payments such as Social Security and veterans' benefits.
In fact, as the Justice Department said in a legal opinion in 1995, "the federal government will not be truly 'shut down' ... because Congress has itself provided that some activities of Government should continue." Any claim that not passing a CR would result in a "shutting down" of the government "is an entirely inaccurate description," according to the Justice Department.
The "legal opinion" cited in the post is actually a memorandum opinion--a strictly advisory memo that was not legally binding, but offered legal guidance to the director of the Office of Management and Budget during the government shutdown in 1995. The memo provided only "advice regarding the permissible scope of government operations during a lapse in appropriations."
In the weeks leading up to the release of the U.N. Intergovernmental Panel On Climate Change's (IPCC) fifth assessment report summarizing climate science on Monday, conservative media have spread a variety of myths about the process, credibility and findings of the group. Contrary to misinformation, the report reflects that scientists are more convinced than ever that manmade climate change is real and dangerous.
National Review Online reporter Katrina Trinko criticized mainstream media outlets for characterizing the homophobic head of Barilla Pasta as "anti-gay."
In a September 28 article titled, "The Gay-Marriage Double Standard," Trinko defended recent comments made by Barilla Chairman Guido Barilla in which he stated that he would "never" run an ad with a "homosexual family," adding "Ours is a classic family where the woman plays a fundamental role." Barilla went on to say that if gay customers "don't like it, then they will not eat it and they will eat another brand."
Trinko criticized media outlets for describing Barilla's comments as "anti-gay," asserting that other anti-gay comments had failed to generate similar condemnation:
The mainstream media is giving widespread -- and negative -- coverage to comments made by pasta king Guido Barilla.
Just check out these headlines: "Italian pasta baron's anti-gay comment prompts boycott call" (Reuters); "Pasta maker Barilla under fire for anti-gay comments" (CNN Money); "Pasta Barilla boycotted after CEO's 'homophobic' remarks" (MSNBC); and "Barilla pasta executive in hot water for anti-gay comments" (New York Daily News). Even a post on the Los Angeles Times website that has a more neutral headline ("Guido Barilla says pasta maker will never show gay families in ads") goes straight for the anti-gay accusation in the first sentence: "Is Barilla pasta taking a page out of the Chick Fil-A anti-gay playbook?"
So what exactly did Barilla, who heads a huge pasta company, say that was so awful? Did he propose that gay relationships be illegal? Did he make hateful comments about gays and lesbians, like movie star Alec Baldwin, whose July homophobic tweets such as "I'm gonna find you George Stark, you toxic little queen, and I'm gonna f**k you . . . up" not only didn't get him axed from his Capital One spokesman role, but also didn't prevent him from getting hired to host an MSNBC show? No. What Barilla did was to announce that he doesn't approve of adoption by gay couples, and he doesn't plan to feature a family with gay parents in Barilla ads. That's it. In fact, Barilla even added that he supports gay marriage.
However, supporting gay marriage, but not gay adoption, isn't good enough to suit the mainstream media, which has a long history of ditching objectivity when covering LGBT issues. [emphasis added]
According to Trinko, comments can't be accurately described as "anti-gay" unless they explicitly include hate speech or call for the outright criminalization of homosexuality. It's an absurd standard, meant to whitewash the homophobic content of Barilla's statements.
In his comments, Barilla suggested that gay people aren't fit to be parents, and families headed by gay couples aren't real families. To Barilla, the mere existence of same-sex parents is so objectionable that it deserves to be censored from his company's advertising. That's not a mere disagreement about adoption policy; it's an example of clear anti-gay animus.
ACORN, the disbanded community organizing group and conservative boogeyman that was baselessly credited with everything from the financial crisis to stealing the 2008 presidential election, has been resurrected to attack the Democratic nominee for New York City mayor, Bill de Blasio, over his history with the group and its last chief organizer, Bertha Lewis.
The organization, which for decades worked to help the poor, became a favorite conservative media target after discredited conservative activist James O'Keefe released videos purporting to show ACORN employees helping child prostitution traffickers. The "severely edited" videos gave the false impression that O'Keefe visited various ACORN offices in a pimp costume -- a lie that was parroted by mainstream media outlets such as CNN and The New York Times. The videos were so misleading that O'Keefe reportedly paid a $100,000 settlement to a former ACORN employee who filed suit against him, claiming that O'Keefe had illegally taped their conversation in a California ACORN office.
Despite conservatives' assertions that the videos exposed criminality on the part of ACORN, three separate investigations cleared ACORN employees of any criminal wrongdoing -- and law enforcement officials criticized O'Keefe for the misleading nature of his videos.
Reporting throughout 2008, from both conservative and mainstream media sources, also tarred the organization with overhyped claims of voter registration fraud. These reports criticized ACORN for turning in forms from its voter registration drives that were possibly fraudulent. But those reports omitted that many states have laws that require organizations collecting voter registration forms to turn in every single form -- even forms that the organizations suspect are fraudulent. This misleading media narrative was so persistent that a 2009 poll found that a majority of Republicans believed that ACORN stole the 2008 election for Obama.
Now, more than three years after ACORN formally disbanded, conservative media are reviving the specter of ACORN after de Blasio won the Democratic nomination for New York City mayor. A September 24 New York Post story explored de Blasio's relationship with ACORN and Lewis, and quoted de Blasio saying that he is proud of his past work with her.
National Review Online is hyping a partisan lawsuit aimed at obstructing the ability of working Americans to obtain health insurance under the Affordable Care Act (ACA) as one that Republican governors should be "especially eager" to join.
The NRO applauded the Oklahoma attorney general for filing a lawsuit challenging the federal government's authority to offer tax credits in the new health insurance Exchanges set to open on October 1, blasting the "lawless" fashion in which the Obama administration is implementing the ACA. From Ramesh Ponnuru's September 25 column:
The attorney general of Oklahoma has filed a lawsuit that, if successful, would cripple Obamacare by challenging the lawless way the Obama administration is implementing it. (Implementing it lawfully, that is, would cripple it.) Most states have not created exchanges, and in those states the law as written does not authorize the administration to offer tax credits-and, because of that, limits its ability to impose its penalties on employers and individuals. As far as I can tell, there would be no downside for conservative attorneys general to launch their own lawsuits-or for Republican politicians at the state and federal level to support them, whether by filing briefs or speaking on their behalf.
I'm persuaded that the merits of the case are on the side of Oklahoma. I suspect, though, that courts will have an easier time seeing it that way if politicians help to create a sense that it is a respectable position and not something coming out of left field.
Though NRO is "persuaded" that Oklahoma has a winning case in its goal of denying affordable health insurance to low- and moderate-income people, it appears to be only one of a few. The legal argument Oklahoma Attorney General Scott Pruitt is making is an extremely strained reading of what is, at worst, an unintended ambiguity in the ACA. Pruitt is essentially arguing that, if a state refuses to establish its own exchange, the federal government is not legally permitted to provide crucial tax subsidies to consumers attempting to buy insurance through the default federal exchange instead. The Center for Budget and Policy Priorities notes that this counterintuitive reading of the law is clearly incorrect -- participants must be eligible for tax credits regardless of whether they obtain insurance through a state-run or federally-run exchange. The affordable care law is designed to make the federal exchanges affordable.
National Review Online is attacking the Department of Justice's decision to hold the state of Louisiana accountable for apparently failing to comply with the terms of several longstanding court orders, incorrectly framing these enforcement efforts as an attempt to force minority students to attend failing schools.
This is not the first time that the NRO has advanced these outlandish claims against the DOJ and the Obama administration, but they continue to be dishonest. From a September 24 column on NRO's The Corner:
The Department of Justice's fight against school vouchers for poor children in Louisiana has not been popular, and the Obama administration knows it. So last night, in a particularly cynical move, the DOJ filed an additional motion, amending its suit in phrasing but not spirit.
This political maneuvering threatens the future of thousands of minority children who may soon be banished to failing schools.
The DOJ is making two main demands: First, it wants information about how the voucher program would affect the racial composition of public schools; and second, it wants parents to get pre-clearance from federal courts before they're allowed to transfer their own children to a school of their choice.
And if the DOJ succeeds, that would have repercussions not only within Louisiana, which has emerged as a national school-choice leader, but also across the United States; education reformers would have to assess how offering academic options to parents and their children might affect "desegregation."
The DOJ filed its suit because Louisiana is under numerous federal court orders that require the state to assess the impact of new educational policies on decades-long efforts to desegregate Louisiana public schools, not because it believes, as NRO puts it, "Minority kids mustn't leave for better schools." Louisiana Gov. Bobby Jindal ignored this legal obligation and went ahead with a voucher program before providing any information to the court regarding its effects, even after the DOJ warned the voucher program appeared to have "impeded the desegregation process."
Right-wing media have mischaracterized the Affordable Care Act (ACA) provision that requires certain preventive health care services be included in employer-provided health insurance at no cost as a violation of the religious freedoms of corporations who object to contraception. In reality, this mandate, currently before the Supreme Court, accommodates religious employers' First Amendment rights without allowing secular, for-profit corporations to skirt federal law, and there is no legal precedent that gives corporations the right to exercise religious freedom.
A recent incident in which 7,500 songbirds died after flying over a liquefied natural gas (LNG) plant has been ignored by the same conservative media outlets that often exaggerate the danger posed to birds by wind turbines, including hyping an incident in which a single bird was killed in Scotland.
The birds killed by the LNG facility, which may have included some endangered species, were headed south for the winter when a routine "flare" release at the Canaport LNG facility in Canada, used to burn off excess natural gas, drew them in. Though company officials apologized for the episode and said they are modifying equipment to reduce flaring, one manager at the plant admitted "At the moment there's not a whole lot I can do to resolve it in the short term." The dead reportedly included "a large number of red-eyed vireos" (see photo above).
Three months prior, another migrating bird, the white-throated needletail, died after flying into a wind turbine off Scotland. The needletail is not endangered or threatened, but it is sighted only rarely in the United Kingdom.
Can you guess how conservative media covered these two cases?
Searches of Nexis, Google and an internal video database indicate that the thousands of birds that died after flying into a Canadian gas flare have not been mentioned by any U.S. conservative outlet to date (or any major U.S. outlet other than the environmental sites Treehugger and National Geographic).
Conversely, the single bird that flew into a wind turbine became a big story in the conservative media bubble. Right-wing outlets used the episode to smear green energy, sometimes betraying sheer glee, as when National Review Online blogger Greg Pollowitz wrote "Your [sic] laughing as you read this, aren't you?" or Rush Limbaugh remarked "[a] bunch of environmentalist whackos watched a precious windmill kill a rare bird."
Conservative media's fixation on a single bird death -- albeit regrettable -- while completely ignoring thousands more seems to let slip that feigning an interest in conservation is simply a convenient way for these outlets to attack wind power, which they have depicted as an agent of "mass slaughter " or an "open-ended aviary holocaust," while overlooking far more elementary, existential threats to wildlife, including climate change. Lest we forget, conservative media figures have regularly mocked those who are concerned about the impact that humans are having on animals -- one Fox News contributor declared "lots of species may be about to leave the planet, and I don't care" -- and attacked conservation efforts for endangered species from lizards to polar bears.
Media outlets are ramping up their pushback against a highly questionable PolitiFact Virginia analysis of the proposed elimination of no-fault divorce law supported by Ken Cuccinelli, the Republican candidate for governor of Virginia and favorite of "father's rights" groups.
Obsessed with an uncontroversial 2007 academic article she wrote on reproductive rights, National Review Online continues to smear judicial nominee Cornelia Pillard, whose approval vote before the Senate Judiciary Committee is today.
Nominated to the second-most important court in the nation, Pillard should be voted out of committee on her way to a Senate confirmation vote based on her stellar qualifications for the U.S. Court of Appeals. Because of right-wing media attacks started by National Review Online and repeated almost verbatim by GOP Senators on the committee, the vote is expected to be straight down party lines.
In anticipation of the vote, last night the editorial board of the NRO regurgitated the same smears.
Pivoting off of a sliver of her academic work while misrepresenting it, right-wing media have attacked Pillard for her mainstream support of family planning, comprehensive sex education, and overall adherence to established sex equality law.
Right-wing media have been so desperate to pretend her legal writings are "extreme" that not only have they dismissed the inconvenient fact that half of the Supreme Court agreed with her perspectives on reproductive rights and abortion, but her invocation of the relevance of "sex stereotypes" that NRO and others like Tony Perkins condemn was endorsed by arch-conservative former Chief Justice William Rehnquist.
But the attacks are not really about Pillard.
Rather, they are a reflection of how much the right-wing apparently loathes the decades-long development of sex equality under Fourteenth Amendment law. Make no mistake- most of these Pillard smears have nothing to do with fidelity to precedent. Right-wing media like NRO apparently desire nominees who don't support civil rights precedent.
Cornelia "Nina" Pillard is President Obama's pick for one of three vacant seats on the federal appeals court for the District of Columbia Circuit. She is a well-respected professor at Georgetown Law School; co-director of its Supreme Court Institute; a former lawyer at the ACLU, the NAACP Legal Defense Fund, and the Justice Department; and a successful Supreme Court litigator.
She is also a "feminist."
A "feminist" insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's "radical feminism" appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.
Despite increasing evidence of a pro-corporate slant in recent Supreme Court decisions, right-wing media continue to insist that there is no such bias.
In a Bloomberg View editorial, National Review Online senior editor Ramesh Ponnuru accused Sen. Elizabeth Warren (D-MA) of "hyperbolic" grandstanding because she accurately cited a comprehensive study that showed that the current Supreme Court of the United States is one of the most pro-business in history. Ponnuru's September 16 editorial called Warren's statements the result of "flawed thinking":
Citing "a recent study"... she said: "The five conservative justices currently sitting on the Supreme Court are in the top 10 most pro-corporate justices in a half-century -- and Justices Alito and Roberts are numbers one and two -- the most anti-consumer in this entire time."
The study doesn't tell us what Warren thinks it does, or anything we should care about. It gives equal weight to every vote by a justice, even though decisions plainly vary in importance for businesses, and for everyone else. It ignores decisions that matter a great deal for businesses but don't have business litigants.
Jonathan Adler, a law professor at Case Western University, notes that the study excludes Massachusetts v. Environmental Protection Agency, one of the two or three most important Supreme Court cases for business of the past decade. The court ruled that the Clean Air Act authorizes the EPA to fight global warming. Because neither named party in the case was a business, the study excludes it.
The study that Ponnuru dismisses, "How Business Fares in the Supreme Court," analyzed nearly 2,000 Supreme Court decisions over the last 65 years. Although Ponnuru doesn't say so, the study was co-written by esteemed--and conservative--federal judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. It has been described, even by its detractors, as "the most comprehensive examination of the Supreme Court's handling of business-related cases in the post-New Deal era."