Former Obama adviser David Plouffe went on ABC News' This Week to discuss the Affordable Care Act, and he noted that the program "is going quite well" in states where health care exchanges and Medicaid expansion have been implemented, and other states may follow suit after President Obama leaves office, at which point "it'll work really well." Plouffe's point was that the law is working where it has been fully implemented, and will work even better if Republican-led state-level opposition to expanding Medicaid disappears after the 2016 elections. Several conservative media outlets, however, have mischaracterized Plouffe's remark to claim that he said the ACA will not work until 2017.
National Review Online writer Charles C. W. Cooke urged fellow conservatives not to criticize the use of anti-gay slurs, writing that such "political correctness" would stifle public debate.
In a December 2 column, Cooke weighed in on the controversy surrounding actor and former MSNBC host Alec Baldwin's apparent use of anti-gay speech during a confrontation with a photographer. Video captured by TMZ appeared to show Baldwin calling the photographer a "cocksucking fag." After announcing that it would suspend Baldwin's program for two weeks, MSNBC decided to end his Friday night show Up Late entirely.
Cooke wrote that it wasn't surprising that Baldwin - a public supporter of LGBT equality and other progressive causes - would generate a backlash for his outburst, asserting that "[t]hose who live by the sword must watch out lest they die by it, too." Despite his political disagreements with Baldwin, however, Cooke argued that "passes" should be distributed to all users of anti-gay slurs "equally" (emphasis added):
As sequels go, this was the last-ditch effort that even the most generous of critics couldn't excuse. Among the notable public figures who felt compelled finally to leave his side were the American-British writer Andrew Sullivan and GLAAD's own Rich Ferraro. Sullivan, who has evidently decided that Baldwin "cannot be defended any longer," contended that Baldwin's instincts under pressure "reveal who he actually is" and that what he "actually is" is a "raging, violent bigot." Ferraro simply lamented that Baldwin had declined to turn his shouting into a learning opportunity. As a reward for their troubles, Sullivan and Ferraro were termed by Baldwin as part of "the fundamentalist wing of gay advocacy" and accused of "killing" his show.
The latter part of this is possibly true: Baldwin has certainly lost his act, and the signals that Sullivan and Ferraro sent presumably had no small part in opening the floodgates to the condemnation that poured down on Baldwin. But the claim that Baldwin was undone by extremists? No, he wasn't. In truth, he was undone by a movement of which he is a fully paid-up member. I agree wholeheartedly with The Partially Examined Life's Wes Alwan, who resisted the hive mind last week and postulated that judging individuals by their outbursts is unwise. But I am not sure that this is the most important point here, which is instead this: Those who live by the sword must watch out lest they die by it, too. [added space]Alec Baldwin is an outspoken progressive who as recently as last week was referring derisively to "libertarian trash" and who flies off the handle at the slightest misrepresentation of his private life. He himself has promised to end countless careers. To expect to be treated differently than he treats others is naïve and entitled.
Nevertheless, we can all react to these things, and how we react matters. However tempting it might be for the Right to celebrate when one of their antagonists is canned, it should take a deep breath and resist. One does not beat the would-be arbiters of speech by joining them, nor does one persuade people that a reflex is wrong by indulging in it when the other side is on the hook. As a rule, the Right has long prided itself on its disinclination to call for scalps, on the eminently reasonable grounds that such a precedent merely opens the door for all sorts of witch-hunting and leaves anyone even remotely controversial at the mercy of rapidly changing fashions. As a rule, it has recently been conservatives who have led the fight against speech codes, against political correctness, and against trying to punish people for what they believe. Why stop now?
Andrew Sullivan is correct to observe that, because Baldwin is simpatico with the progressive agenda, doyens of the professional Left have long given him "a pass when they would never dream of doing so with anyone who was conservative or Republican." He is also correct to say that this represents "a glaring double standard" and one that "cannot stand any more." Still, there are two ways of ending a double standard. And, in a country that puts a premium on open discourse, it is infinitely preferable to insist that passes be handed out to everybody equally than to request that they be taken away from progressives -- the one political group that, however unfairly, still enjoys their protection.
Cooke doesn't explain how calling someone a "cocksucking fag" contributes meaningfully to an "open discourse," but a writer who defends the armed intimidation of political activists is bound to harbor bizarre views about what words and actions should be part of a healthy public dialogue.
In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.
After an agreement was reached with Iran to halt parts of their nuclear program, right-wing media figures responded by calling the compromise "abject surrender by the United States" and comparing negotiations between the United States and Iran to British appeasement of Nazi aggression in the lead up to the Second World War.
National Review Online, while claiming to support a change in Senate procedure in order to "overcome partisan obstruction," refused to acknowledge that it was hyper-partisan obstructionism that forced Senate Democrats to embrace the so-called "nuclear option."
On Thursday, Senate Democrats approved a rule change that will finally allow an up-or-down vote for President Obama's nominees, who have been the victims of unprecedented Republican obstructionism. NRO, like other right-wing media outlets, colorfully responded to the rule change, with John Fund calling Democrats "snake-oil salesmen."
From NRO's November 21 editorial:
The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees.
The filibuster is not sacred writ, and we are on record supporting procedural changes to overcome partisan obstruction. The more serious concern here is that the Democrats are attempting to pack the courts, especially the D.C. Circuit court, with a rogue's gallery of far-left nominees. That is worrisome in and of itself, but there is a deeper agenda: Much of what President Obama has done in office is of questionable legality and constitutionality. The president no doubt has in mind the sage advice of Roy Cohn: "Don't tell me what the law is. Tell me who the judge is." He is attempting to insulate his agenda from legal challenge by installing friendly activists throughout the federal judiciary. That is precisely what he means when he boasts, "We are remaking the courts." Republicans are in fact obstructing those appointments; unlike the nomination of John Roberts et al., these appointments deserve to be obstructed.
The filibuster is a minor issue; the major issue is that President Obama is engaged in a court-packing scheme to protect his dubious agenda, and Harry Reid's Senate is conspiring with him to do so. The voters missed their chance to forestall these shenanigans in 2012. They made the wrong decision then, and have a chance to make partial amends in 2014, when they will be deciding not only what sort of Senate they wish to have, but what sort of courts, and what sort of country.
Fund joined the chorus in a separate post, minimizing GOP obstructionism and advancing the myth that new judges are not needed on the D.C. Circuit because the court's caseload is "provably so light." Fund went on to imply Senate Democrats were hypocrites because they spoke out against the use of the nuclear option by the GOP to push through President Bush's ultra-conservative jurists back in 2005.
National Review Online employed scare tactics about filibuster reform and its potential to embolden Senate Republicans to force through their extreme judicial nominees in the future, all while ignoring that the federal judiciary is already stacked with conservative jurists and that the GOP's current mass filibustering is unprecedented.
NRO contributor Ed Whelan warned that Senate Majority Leader Harry Reid's (D-NV) use of the "nuclear option," which would allow a simple majority vote on President Obama's judicial nominees, could embolden Republicans to use the same maneuver if they were to gain control of the Senate in the future. From Ed Whelan's November 20 post (emphasis original):
I don't see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.
It would be funny indeed if folks on the Left who evidently rue Senate Democrats' opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.
Whelan's NRO colleague, Carrie Severino, joined the "make my day" chorus in a similar post on Reid's decision to invoke the nuclear option, saying, "I hope he does conservatives the favor." Severino later reiterated that point on PBS Newshour with Gwen Ifill:
I hope that Harry Reid does pull the trigger on that, because what's happening now is, he holds the filibuster hostage every time he wants something, without having to abide by the rules.
But then, when the shoe is on the other foot one day and he's going to -- he -- the Senate Democrats were very liberal in their use of the filibuster, unprecedented level of filibustering of judges. I think we should have the same rules on both -- for both teams.
It should be noted that it is actually Obama's mainstream nominees that have faced unprecedented blanket obstruction from Senate Republicans -- not George W. Bush's picks. In fact, it is this rampant blanket filibustering of Obama's nominees, both judicial and executive, that have forced Senate Democrats to consider invoking the "nuclear option" just to get a vote. Bush, on the other hand, still managed to have four of his extreme nominees confirmed to the D.C. Circuit.
National Review Online turned to a researcher with a history of dubious scholarship and inflammatory racial theories to defend the University of Texas sociologist Mark Regnerus' deeply flawed study attacking same-sex parenting. The researcher, Jason Richwine, resigned from the Heritage Foundation after it came to light that he had written that new Latino immigrants are likely to have "low-IQ children."
In a November 18 blog post for NRO, Richwine depicted Regnerus as the victim of a left-wing conspiracy, citing a recent court order to release records concerning the 2012 publication of Regnerus' study, which purported to find that children raised by same-sex parents fare worse than those raised by heterosexual parents. Experts strongly condemned the study, citing its methodological flaws. Regnerus didn't compare children of married same-sex parents to those of married straight parents, and he failed to establish a causal relationship between same-sex parenting and negative outcomes for children.
Most damning was the revelation that the rabidly anti-LGBT Witherspoon Institute funded and helped plan the study. Given that Regnerus' research has figured prominently in anti-equality debates around the world, the call for greater transparency on the study's funding and design is understandable. That's what spurred the recent court order.
Ignoring those concerns, Richwine argued that those holding Regnerus accountable have embarked on a "witch hunt" (emphasis added):
Modern-day America is civilized in that, while we conduct plenty of witch hunts, we do at least stop right before the burning-at-the-stake part. That's progress! But it's not much consolation for Mark Regnerus, whose scholarly research questioning same-sex parenting has drawn a seemingly unprecedented level of ire from left-wing activists and their academic allies.
Jennifer Marshall and I detail here the furious reaction that Regnerus sparked, but suffice to say that it involved hysterical condemnations in the press, a frivolous "scientific misconduct" investigation conducted at the behest of a blogger (!), emotion-laden joint statements, evidence-free accusations of corruption on the part of the journal, and more.
Now the journal's editor will have his e-mails scrutinized for the slightest inappropriate thought. The point of all of this, of course, is to scare away scholars from conducting research that the Left doesn't like. This isn't a free-speech issue in the strict sense that the government is threatening to throw Regnerus in jail (or burn him at the stake), but the effect is the same: the silencing of unpopular ideas.
It's telling that rather engage with the substantive issues raised by the blogger (!) who flagged Witherspoon's role in shaping Regnerus' study, Richwine simply asserted -- falsely -- that critics' arguments were "evidence-free."
Immediately after President Barack Obama nominated the highly-qualified and widely respected Debo Adegbile to be the next assistant attorney general for civil rights at the Department of Justice, right-wing media attacked this top lawyer of the NAACP Legal Defense Fund for purportedly being a "racialist."
Writing on an obscure right-wing blog, J. Christian Adams, a frequent Fox News guest who served in the highly politicized and disgraced Bush-era DOJ and "whose claim to fame as a federal lawyer seems to be his penchant for accusing black people of discriminating against whites," accused Adegbile of "racialis[m]" and the venerable NAACP Legal Defense Fund of a "radical racial agenda." From a November 14 post on Pajamas Media:
Adegbile hails from the NAACP Legal Defense Fund, an organization that has pushed a radical racial agenda including attacks on election integrity measures, opposition to criminal background checks for hiring, and racial hiring quotas for state and local governments.
Adegbile's name was mentioned as a possible nominee to the federal bench. Because of his advocacy for racialist policies, such a nomination would face serious confirmation difficulties. But in Eric Holder's Justice Department, nakedly racialist policies are standard fare, and Adegbile will fit right in.
This is an an-your-face nomination. This is the White House sending a message to Republicans and conservatives that the radical racial policies of the Justice Department will continue full speed ahead.
[I]n the Obama Justice Department, the law is not as important as the cause. And with Adegbile, the cause is racialist.
In another context, the venue and content of this thinly-veiled insinuation of so-called reverse racism could be easily ignored. Unfortunately, on the topic of executive and judicial nominees of the current president, Adams' attack is disturbingly similar to the same sort of race-baiting that jumps from little-read blogs to prominent right-wing platforms like Fox News, the editorial page of The Wall Street Journal, National Review Online, and even the mouths of GOP congressmen engaged in the ongoing blanket filibustering of the president's diverse nominees.
Accusing select presidential nominees of racialism or anti-white bias is a tired page of right-wing media's playbook against those who litigate and uphold longstanding civil rights precedent, a body of law that tends to help most those systematically disadvantaged by racism. This rant has been directed with more or less subtlety at Labor Secretary Thomas Perez (who previously led the DOJ's Civil Rights Division), Supreme Court Justice Sonia Sotomayor, and Attorney General Eric Holder.
Assumedly, these charges have some sort of salience with those unfamiliar with American history and basic civil rights law.
National Review Online writer Charles C.W. Cooke defended approximately 40 individuals who brought guns -- including assault weapons -- outside of a Dallas, Texas area restaurant to protest a meeting of four members of gun violence prevention group Moms Demand Action (MDA). While Cooke acknowledged that protestors "got close to 'intimidation'" in one of the three articles he authored on the incident, he also excused Open Carry Texas' (OCT) conduct in other articles by suggesting that MDA may have been "lying" about feeling intimidated.
The controversy occurred on November 9 when four members of a Texas chapter of MDA conducted a meeting at Blue Mesa Grill in Arlington, Texas. As the MDA members met, members of OCT began gathering in the parking lot to protest the meeting. In Texas, it is legal to openly carry a rifle so long as it is not displayed in a menacing way. The OCT protesters were largely comprised of men with military-style assault weapons.
MDA founder Shannon Watts told USA Today that the MDA members and other patrons of the restaurant were "terrified," and, "They felt like in an armed ambush and had no idea why it was taking place." According to a Forbes interview with a representative of Blue Mesa Grill, a manager called police who sent a squad car but also advised that OCT members were within their rights to openly display rifles in public. According to the representative, by the time police arrived, members of OCT began to move away from the restaurant, which may explain why an MDA member was unsuccessful in filing a police complaint against OCT on November 11.
While disagreeing with their tactics, Cooke defended the right of OCT to wait outside of a gun violence prevention meeting with assault weapons largely by quibbling in three articles over whether pictures of the event supported claims of intimidation and by promoting the largely self-serving account of OCT that claimed MDA interactions with their group proved that MDA was not intimidated.
But this hairsplitting over the exact details of the confrontation ignores the larger point, that it is de facto intimidation when approximately 40 members of an extreme and insurrectionist group known for vitriolic confrontations with law enforcement mill around in a parking lot outside of a meeting of their political opponents while openly displaying guns.
National Review Online is pointing to instances of trouble at Texas polling places as proof that the state's overwhelmingly stringent voter ID law is "a good thing."
NRO contributors Roger Clegg and Hans von Spakovsky argued that because four prominent, white Texans were eventually able to vote after experiencing problems with their identification, complaints about the voter ID law are "hysterical." They went on to claim that a New York Times article that characterized the new ID law as "mak[ing] a dent at the polls" is overblown.
From Clegg and von Spakovsky's November 9 post:
A New York Times headline Thursday declared: "Texas' Stringent Voter ID Law Makes a Dent at the Polls." A careful reading of the article will leave many readers scratching their heads about that title.
The article begins by noting that three prominent Texans -- state judge Sandra Watts, state senator Wendy Davis, and state attorney general Greg Abbott -- all had photo IDs that did not quite match their names on official voter rolls, and so all had to sign affidavits before they could vote. But ... they all could and did vote.
Jim Wright -- another Texan, whom the Times helpfully identifies as a former U.S. Speaker of the House -- had an expired driver's license, and so he had to produce a birth certificate. But ... he also voted.
So, when all is said and done, where's the "dent"?
It's worth noting that these four voter-ID "victims" are hardly the poor, minority voters that the Left asserts are targeted by these laws. To the contrary, all four are white and quite prominent, one a Republican. They not only got to vote, they were alerted to discrepancies in their voter registrations that they can now get corrected.
This is the new Jim Crow?
The post went on to conclude that "there was really no problem after all" and that "there apparently are not large numbers of Texas voters who lack identification."
Evidently, the fact that one in 10 registered voters in Texas lacks valid identification is of no great concern to NRO. Although Texas will provide "election identification certificates" to voters free of charge, voters must provide proof of citizenship and identity in order to get one. The documentation required to obtain a certificate -- such as a U.S. passport -- is generally not free.
National Review Online has joined Fox News contributor Erick Erickson in smearing Wendy Davis, Democratic candidate for governor of Texas, for using boilerplate legal language in a defamation and intentional infliction of emotional distress (IIED) lawsuit filed on her behalf against a local Fort Worth newspaper nearly 20 years ago.
Earlier this week, Erickson questioned Davis' "mental health" and corresponding suitability for public office after learning about a civil lawsuit her lawyers filed in 1996 in response to disparaging editorials directed at Davis during her unsuccessful run for city council, information he sourced to a website run by the Republican Party of Texas. NRO picked up the story, clumsily characterizing the complaint as "light on subtlety and nuance," without realizing that the language it highlighted are standard legal elements for an IIED claim. From NRO:
Following an unsuccessful bid for a seat on the Fort Worth city council in 1996, Davis sued the Fort Worth Star-Telegram, along with parent companies ABC and Disney, for libel, alleging that the paper's coverage of her campaign had been biased and "demonizing," caused harm to her physical and mental health, and infringed on her "right to pursue public offices in the past and in the future." Davis demanded "significant exemplary damages" in return.
The suit, which was roundly dismissed on three separate occasions after Davis appealed all the way to the Texas Supreme Court, centered on a series of "libelous and defamatory" articles about her candidacy, which, she alleged, were authored "with an intent to inflict emotional distress" and to deny her rights under the First Amendment.
The complaint itself was light on subtlety and nuance, arguing that the paper's conduct "was extreme and outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, as to be regarded as atrocious and utterly intolerable in a civilized community." As a result of the paper's actions, Davis alleged, she had "suffered and is continuing to suffer damages to her mental health, her physical health, her right to pursue public offices in the past and in the future, and to her legal career" and deserved financial compensation.
Like Erickson, NRO failed to mention the role the Texas GOP played in pushing this 20 year-old non-story. Moreover, it ignores the fact that the suit follows basic pleading practice for this type of personal injury -- any plaintiff claiming IIED would file substantially similar boilerplate language with the court. In fact, plaintiffs who claim IIED must plead an almost identical variation of the "extreme and outrageous ... in a civilized community" phrasing that NRO quoted. This is the sort of thing covered in the first year of law school, or that can be easily discovered on Google. Elementary competence in writing legal complaints on the part of her lawyers doesn't make Davis "crazy or a liar," as Erickson erroneously claimed -- it makes her an average plaintiff.
Right-wing media have relentlessly attacked Davis, including going after her record on reproductive justice and referring to her as "Abortion Barbie." This latest smear based on her purported unsuitability for office due to alleged emotional distress in 1996 demonstrates that, at least in this case, their ignorance is catching up to their viciousness.
Right-wing media claimed opposition to the Affordable Care Act influenced the Virginia governor election despite polls that show the health reform law was an insignificant factor in the race.
Following Republican Ken Cuccinelli's defeat in the Virginia gubernatorial race, conservative media blamed the Republican Party establishment for not supporting Cuccinelli's right-wing agenda.
The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.
In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.
Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.
Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged "solution" to the virtually non-existent "problem" of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had "been taken in" by the "Left's well-oiled propaganda machine." NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.
Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.
Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."
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.