The Wall Street Journal's editorial board attacked Democrats for passing a filibuster rule change as "radicals" who "view the minority as an inconvenience to be rolled," though the Journal supported the same change in 2005, when it pushed Republicans not to "let a willful minority deny the President's nominees a vote."
On November 22, the Journal editorial board attacked the rule change -- which allows the Senate to confirm judicial nominees with a simple majority vote -- as "Rules For Radicals," and claimed that the Democrats' vote was prodded through by "younger liberals in a hurry" who "view the minority as an inconvenience to be rolled." The Journal falsely claimed that the Senate rule change was "bloody-minded" behavior which would allow Democrats "to pack the D.C. Circuit Court of Appeals," but found a "silver lining" in the prospect of Republicans using the change for their benefit in the future:
The silver lining is that the end of the nominee filibuster will work for conservatives too. The next time they hold the Senate and White House, Republicans should employ the same weapon. Democrats are pretending that they are only breaking the filibuster for lower-court nominees, not for the Supreme Court. They can dream on.
The Journal seems to have forgotten the fact that it supported a similar push for filibuster reform in 2005. A May 2005 editorial urged Republicans not to "let a willful minority deny the President's nominees a vote on the Senate floor" (emphasis added):
This will not be the world's greatest deliberative body's greatest moment, and the only thing we know for sure about what will happen next is that the reputation of the Senate will suffer. It's a shame it has come to this. But at this point it would be worse if Republicans let a willful minority deny the President's nominees a vote on the Senate floor.
This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader. The one Democrat from a red state who won last year, Ken Salazar of Colorado, did so by promising to oppose judicial filibusters; he now seems to have changed his mind after sipping the Beltway's partisan punch.
Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done. And who knows? If Democrats can't succeed any longer in legislating through the courts, maybe they'll even return to trying to win power the old-fashioned way, through elections.
A January 2005 Journal editorial also said that a move to change the Senate rules would "restore the Founders' intent when they gave the Senate the responsibility of confirming or rejecting a President's judicial picks. The Constitution requires a simple majority vote and says nothing about a super-majority of 60 being needed to stop a filibuster." The paper added: "Whether it's nuked or not, the judicial filibuster deserves to be defeated."
The Journal's current opposition to the rule change further hides the fact that President Obama's nominees have faced a significantly more hostile political environment than any previous administration. While Democrats under President Bush blocked a handful of nominees whom they considered ideologically extreme, Republicans have engaged in an unprecedented effort to obstruct the confirmations of virtually all Obama nominees, including some positions for which they say they will accept no nominee at all. In fact, almost half of all filibusters of presidential nominees in the history of the United States have occurred during Obama's presidency:
Source: Senate Democrats
The language in this post has been updated for clarity.
Multiple media outlets have targeted young Americans in an attempt to spread misinformation and myths about the Affordable Care Act (ACA), claiming that coverage is too expensive, the ACA provides too much coverage to young adults, and that Millennials are better off not signing up for coverage, despite vast evidence showing that young people both need and want coverage under the ACA.
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.
On November 13, the Supreme Court heard oral arguments in Unite Here v. Mulhall, a case that could make it even more difficult for unions to organize workers. One of the issues in the case is whether a "neutrality agreement" -- where management agrees to remain neutral during a union organizing campaign in exchange for union concessions -- is illegal under a labor statute that prohibits employers from giving unions a "thing of value."
In an editorial, The Wall Street Journal glossed over the fact that these are voluntary agreements, instead claiming that they are the result of union intimidation and collusion. Moreover, the WSJ ignored that neutrality agreements have been an increasingly useful tool for both unions and employers during organization campaigns since a wave of Republican anti-union legislation has placed obstacles between workers and union representatives and disrupted opportunities for workplace productivity.
From the November 13 WSJ editorial:
With their membership declining, unions have become more politically creative and one of their tactics has been to cut deals with management to replace bottom-up organizing on the shoproom floor. On Wednesday, the Supreme Court heard oral arguments on whether so-called neutrality agreements between Big Labor and business are collusion that infringes on the rights of employees.
Martin Mulhall (Unite Here v. Mulhall) is a groundskeeper at the Mardi Gras greyhound racetrack in Florida, where he has worked for 40 years. In 2004, Unite Here's Local 355 struck a deal with the company to grease the skids for unionization.
Mr. Mulhall didn't want to join a union and objected to the company entrapping him in a unionized workplace. He sued, arguing that Mardi Gras's collusion with Unite Here is forbidden by the 1947 Labor Management Relations Act, aka Taft-Hartley. Under Section 302 of that law, employers are forbidden from giving any "thing of value" to a union that wants to organize its employees.
While unions typically win only 45% of secret ballot elections, they succeed in 78% of organizing efforts using card check, when the union needs merely to collect signed cards from 50% of the work force to automatically become the monopoly bargaining agent.
If the Justices agree that Mardi Gras's concessions represent a "thing of value," organizers will have a harder time getting companies to sign off on deceptive procedures like card check. Unions will have to spend more time convincing individual workers that they can provide a service worth having. That would be a real thing of value.
WSJ also says unions who bargain for neutrality agreements somehow "intimidate" management, even though in exchange for neutrality, management is assured that the union will not strike in the event of a dispute over the agreement.
The editorial board of The Wall Street Journal attacked constitutional race-conscious admissions policies in higher education, but completely botched Supreme Court precedent as well as the Department of Justice's current legal position on this topic.
Trying to drive a wedge between Justice Anthony Kennedy's recent majority opinion in Fisher v. University of Texas, which reaffirmed that considering race as one among many factors in a holistic admissions policy is constitutional, and DOJ's recent legal brief in the now-remanded case, the WSJ declared that Kennedy "is getting an unpleasant lesson in the Obama Administration's respect for Supreme Court authority." From the November 11 WSJ, timed for Wednesday's oral arguments before the U.S. Court of Appeals for the Fifth Circuit:
In June, Justice Kennedy wrote the opinion for a 7-1 majority in Fisher and remanded it for a rehearing. His opinion stopped short of ending racial preferences in education, but it did emphasize that the use of race in admissions had to be held to the "strict scrutiny" standard laid out in the 2003 University of Michigan case Grutter v. Bollinger. Under Fisher, Justice Kennedy explained, race preferences should be carefully drawn and universities were entitled to "no deference" when courts examined how colleges used race in admissions.
So much for that. According to the Justice Department's brief, strict scrutiny needn't be strict, or even amount to much scrutiny.
[R]ather than looking at percentages of students of varying races admitted or matriculating, the Justice Department argues, the court should make "a qualitative assessment of the educational experience of the university." This is the admissions version of a shell game, dodging the Supreme Court's explicit strict scrutiny instructions by letting a school define its own criteria for using race.
But the Supreme Court never held that universities are accorded "no deference" in judicial review of their consideration of whether and how to diversify their institutions through race-conscious admissions policies, and DOJ never denied the appropriateness of strict scrutiny for this use of race.
Under long-standing affirmative action law, educational institutions can constitutionally use the consideration of race among other characteristics in an individualized holistic review of applicants. As reaffirmed by Fisher, contrary to the WSJ's inaccurate claim, when a university is deciding whether or not its diversity is at the "critical mass" necessary for its educational mission, a court's deference to educational judgment on this evaluation is entirely appropriate. From Kennedy's Fisher opinion:
According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" that a diverse student body would serve its educational goals.
The Wall Street Journal hid widespread popular support for Obama administration initiatives, including immigration reform, expansion of early childhood education, and increasing the minimum wage.
A November 10 Wall Street Journal article suggested that a recent dip in the president's approval ratings created "new complications for his second-term agenda" and could hinder his efforts to "enlist the public as allies in the push to pass an immigration overhaul, expand access to early-childhood education and raise the minimum wage." The Journal's suggestion ignores that immigration reform, early childhood education, and a minimum wage increase already draw high levels of popular support.
Public support for immigration reform is high. A January Associated Press poll on Americans' view of immigration reform found "major increase in support" for immigration reform efforts following the 2012 election, as "more than 6 in 10 Americans now favor allowing illegal immigrants to eventually become U.S. citizens." Politico reported on November 7 that recent polling reveals this support has remained strong; a majority of Americans are now "more likely to support a candidate who backs immigration reform," and 73 percent of voters surveyed nationwide would support a pathway to citizenship, "if it includes requirements to cough up penalties, learn English, pass background checks, pay taxes and wait at least 13 years."
The President's immigration proposal includes those provisions, creating a pathway that requires applicants to wait multiple years before obtaining citizenship, pay their taxes and a penalty, learn English, and undergo background checks. A Congressional Budget Office found that the proposal would greatly benefit American workers and the economy over the long term, increasing wages and GDP over the next twenty years.
Studies from the National Bureau Of Economic Research and the Economic Policy Institute have also found that immigration tends to increase average wages for native-born workers over the long term, and UCLA professor and immigration expert Raúl Hinojosa-Ojeda found that passing comprehensive immigration reform would add at least $1.5 trillion to the U.S. economy over 10 years.
Early Childhood Education
Gallup polling found that 84 percent of Americans believe that investing in early childhood education is either "very important" (61 percent) or somewhat important (23 percent) to America's future, and found that almost two out of three Americans are willing to support preschool programs for children from low-income households with taxes.
Obama has proposed the Preschool for All Initiative, aimed to improve quality and expand access to preschool for low- and moderate-income children, in addition to expanding Head Start, a grant program that funds comprehensive early childhood education programs across the country, which include health, nutrition, and social services.
Studies from Health and Human Services have shown that Head Start programs had significant health benefits for children and parents, and the National Bureau of Economic Research found that many Head Start participants were more likely to complete high school. The National Education Association (NEA) says that early childhood education programs generate a twelve percent return on investment, making it "one of the best investments our country can make," which "yields significant long-term benefits" for students later in life.
A strong majority of Americans support increasing the minimum wage. In July 2013, a poll by Hart Research Associates found that 80 percent of Americans supported President Obama and Senate Democrats' proposal of increasing the minimum wage to $10.10. Among Republicans, 62 percent agreed. Support for such proposals is consistently high. In February 2013, after President Obama pushed for a minimum wage increase to nine dollars during his State of The Union Address, a USA Today/Pew Research Center poll found that 71 percent of Americans supported the plan.
At the ballot box, all of the statewide minimum wage increases that have been proposed since 1998 have passed, including a recent constitutional amendment in New Jersey which voters overwhelmingly supported. Business owners also favor an increase: an April poll by Small Business Majority found that a "67% majority of small business owners agree the current federal minimum wage of $7.25 per hour should increase, and that it should be adjusted annually to keep pace with the cost of living."
The National Employment Law Project (NELP) says that a minimum wage increase to $10.10 would be a "win for workers," positively impacting "nearly one in every five workers in the country." A February 2013 survey of economists conducted by the University of Chicago's Booth School of Business found broad support for President Obama's previous call for raising the minimum wage to $9.00. The Center for Economic and Policy Research has explained that raising the minimum wage has no "discernible impact" on employment, and that wage increases often result in more jobs rather than less.
The Wall Street Journal came out swinging in favor of a Supreme Court decision that could force state-based lawsuits brought by state attorneys general out of their jurisdictions and into federal court despite complaining about federal encroachment on state powers in another Supreme Court case the very same day.
In a November 5 editorial, the WSJ supported an outcome in Mississippi v. AU Optronics that would make it more difficult for states' attorneys general to bring successful lawsuits on behalf of their citizens by forcing state cases into federal court under the Class Action Fairness Act (CAFA), a forum where class actions are increasingly harder to win. The WSJ, clearly a fan of insulating the wealth of large wrongdoer corporations from class action lawsuits, not only disfavors attorneys general filing lawsuits to protect its citizens, but also erroneously called CAFA an "illegal loophole":
When Congress rewrote the law on class-action lawsuits in 2005, it didn't figure on being thwarted by the nation's top law enforcers. Now the Supreme Court has a chance to close what has become a large and illegal loophole.
The High Court on Wednesday will hear arguments in Mississippi ex rel. Jim Hood, Attorney General vs. AU Optronics. The protagonist is Mississippi AG Jim Hood, who is famous for moonlighting as a job creator for his trial-lawyer donors. The question is whether Mr. Hood's "state" lawsuits are really an attempt to circumvent the 2005 federal Class Action Fairness Act (Cafa).
In 2006 the Justice Department conducted a grand jury probe into alleged price-fixing by makers of liquid crystal display screens (LCDs). Some companies settled with the feds, others refused and weren't charged. The trial bar piled on with 100 or so copycat class actions.
In 2011 Mr. Hood filed his own lawsuit on behalf of his state, municipalities and Mississippians who purchased LCDs. His suit named the same six manufacturers targeted by the private class-action litigation, and 176 of his 206 paragraphs of allegations were verbatim or near-verbatim copies of the private litigation. This was no surprise since one of the two law firms Mr. Hood hired to prosecute his state suit -- Zimmerman Reid -- has also filed private LCD class actions.
This all looks like a run around the 2005 class-action reform. That law allows defendants hit with civil claims by 100 or more persons to seek removal to federal court, where the rules on classes are stricter and defendants can avoid biased state juries.
Mr. Hood also claims that he can bring his suit because he is its only "named plaintiff." He wants the Justices to ignore that he is asserting claims on behalf of thousands of LCD purchasers, and that Cafa is clearly aimed at any "mass action" that could result in a "monetary" judgment.
The WSJ seems happy to throw the idea of states' rights under the bus, even though in a different November 5 editorial, it lamented "dagger[s] aimed at the heart of federalism," protesting that "[t]he last century has seen Washington wrest ever more power from the states" and that "Congress needs constitutional guardrails or it will drive the states off the road." But when corporate wealth is at risk, the WSJ is suddenly terrified at the thought of states handling their state law-based legal issues in their own courts.
Health and Human Services Secretary Kathleen Sebelius is the Cabinet official responsible for implementing the Affordable Care Act. That she would testify before Congress about the problems with the law's implementation makes all the sense in the world, given that it is her responsibility. In certain corners of the conservative media, however, Sebelius' October 30 testimony before the House Energy and Commerce Committee was an act of political cowardice by President Obama, who, by sending Sebelius before Congress, was using her as a "human shield."
Here's the lede to Wall Street Journal columnist Daniel Henninger's October 31 column:
A reader remarked last week that Barack Obama is running out of human shields. With the father of ObamaCare unavailable to explain the greatest fiasco of his presidency to Congress, the American people had to settle Wednesday for his surrogate, Kathleen Sebelius.
And here's Fox News pundit Andrea Tantaros on the October 30 edition of The Five:
The Los Angeles Times recently announced it does not publish Letters to the Editor that deny man's role in climate change, but most major newspapers are not following suit. A study from Media Matters found that 14 letters that deny manmade climate change have been printed in The Wall Street Journal, USA TODAY, The Washington Post and The New York Times so far in 2013.
The Wall Street Journal criticized a recent class-action opinion but completely misrepresented its holding, all while falsely accusing a group of federal appellate judges of "ignoring Supreme Court precedents" in a series of decisions that would allow consumers to hold huge corporations liable for selling defective products.
The WSJ, hardly the first right-wing media outlet to support pro-business legal reforms that would make it nearly impossible for consumers to sue large corporations, painted the appellate courts' decision to allow the class actions to proceed as inappropriately partisan, despite the fact that a diverse group of judges agreed that the suits were appropriate. It also rather egregiously misunderstood the ruling in the Scott v. Family Dollar case, which did not, as the WSJ asserts, "grant class certification" to the plaintiffs.
From the October 24 editorial:
Elections have judicial consequences, and nowhere is that more evident than on the Fourth Circuit Court of Appeals, which last week brushed off a Supreme Court class-action ruling like a lapful of cracker crumbs. The case has damaging consequences for business and highlights a growing trend of lower-court rejection of High Court precedents.
In Scott v. Family Dollar Stores, 51 current or former managers allege that the low-cost retail chain uses "subjectivity and gender stereotyping that causes disparate impact to compensation paid to female store managers." A Fourth Circuit panel by 2 to 1 overturned a lower court ruling and granted class certification despite clear rules set down in 2011 by the Supreme Court in Wal-Mart. v. Dukes.
This latest ruling continues a troubling trend of lower appellate courts ignoring Supreme Court precedents, perhaps on the assumption that the Justices can't take every case. Think of it as a war of attrition against lover-not-a-fighter Chief Justice John Roberts.
Similar behavior was in evidence recently in the Sixth Circuit's Whirlpool v. Glazer and the Seventh Circuit's Sears v. Butler over whether to certify class actions among consumers with allegedly moldy washing machines. In Sears, Judge Richard Posner clearly disregarded the Supreme Court's certification guidelines. The High Court vacated those judgments and remanded them in light of their ruling in 2013's Comcast v. Behrend, but the lower courts simply reinstated their prior decisions. Both cases are now bidding for another High Court hearing.
The Family Dollar majority was made up of Obama appointee Barbara Keenan and Clinton recess-appointee Roger Gregory, who was later renominated by George W. Bush as an olive branch to Senate Democrats. Democratic Presidents have appointed 10 of the 15 active Fourth Circuit judges, including six by President Obama.
Consider this disdain for precedent a preview if Mr. Obama gets a new majority on the Supreme Court. Chief Justice Roberts and his colleagues need to deliver some remedial instruction in class-action law and legal hierarchy.
As an initial matter, the October 16 decision in the Family Dollar case explicitly states (in the first paragraph of the opinion) that the court had issued its ruling "[w]ithout resolving the class certification issue," and remanded it "for the district court to consider whether, based on our interpretation of Wal-Mart, the proposed amended complaint satisfies the class certification requirements of [the Federal Rules of Civil Procedure]."
Even if the WSJ had analyzed the Family Dollar case correctly, its characterization of the recent class-action cases as a "troubling trend" indicative of "disdain" for the law is odd -- especially given the fact that the judges who wrote these decisions were appointed or nominated by Democratic and Republican presidents alike.
In the week following the end of the 16-day government shutdown, major print media outlets shifted their attention to upcoming bipartisan budget negotiations. This coverage of budget priorities was far more likely to mention the need for deficit and debt reduction than economic growth and job creation, despite economists warning that growth is the more pressing concern.
In a misleading editorial about the Supreme Court's decision to hear a case on the Environmental Protection Agency's (EPA) ability to regulate greenhouse gas emissions, The Wall Street Journal accused the agency of "regulatory overreach," despite decades of legal precedent that permits such discretion.
On October 15, the justices accepted for review a narrow legal question from a broad industry-led attack on the authority of the EPA to fight climate change under the Clean Air Act (CAA). The WSJ celebrated this limited decision despite it being yet another in a long line of obstructionist lawsuits filed against the federal government by Republican-led states.
From the October 15 editorial, which applauded "[s]tate attorneys general [who] have challenged the Administration's agenda on everything from ObamaCare to the plan to get rid of the Yucca Mountain waste depository":
The Obama Administration's Environmental Protection Agency has spent the last few years stretching its legal authority, and now it will have to defend its actions before the Supreme Court. On Tuesday, the Justices agreed to review how far the agency can go in regulating greenhouse gases under the Clean Air Act.
In Utility Air Regulatory Group v. EPA, the Court consolidated six cert petitions and will consider a single legal question: Does the EPA's authority under the Clean Air Act to regulate greenhouse gas emissions from "mobile sources" like cars also apply to emissions from "stationary sources" like power plants? To put it another way: Can the EPA make up the rules as it goes along?
This story started in 2004, when environmentalists sued to force the EPA to regulate CO2, even though the Clean Air Act never defined it as a pollutant. The Justices nonetheless ruled 5-4 (Massachusetts v. EPA, 2007) that the agency could do so for mobile sources such as cars under Title II of the Act. Gentleman, start your regulatory engines.
When Congress wrote the Clean Air Act, it created numerical thresholds specifying that the government could only start regulating after a plant was shown to be putting out more than 100 tons a year of a pollutant.
By the EPA's own estimates, applying that 100-ton threshold to greenhouse gases would require some six million buildings to get environmental permits, including such grand polluters as churches and farms. Recognizing that such a rule would create "absurd results" like shuttering the entire economy, the EPA rewrote Congress's numbers and adjusted the threshold to 75,000 tons from 100 tons. EPA's clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.
The EPA says that its rewrite is no big deal, and that plaintiffs should have no standing to sue since the agency was doing everyone a favor by lifting the thresholds. But regulatory agencies don't have the power to rewrite laws on their own without the authority granted by Congress.
However, the WSJ editorial fails to mention that Congress has granted the EPA authority to enforce the Clean Air Act (CAA) - including the power to promulgate rules to implement it.
The Wall Street Journal misleadingly praised the government shutdown, suggesting it could help the economy. In fact, the shutdown has already cost the economy billions and is predicted to harm economic growth even further.
A study of coverage of the recent United Nations' Intergovernmental Panel on Climate Change (IPCC) report finds that many mainstream media outlets amplified the marginal viewpoints of those who doubt the role of human activity in warming the planet, even though the report itself reflects that the climate science community is more certain than ever that humans are the major driver of climate change. The media also covered how recent temperature trends have not warmed at as fast a rate as before in nearly half of their IPCC coverage, but this trend does not undermine long-term climate change.
The Wall Street Journal attacked the Affordable Care Act's (ACA) Medicaid expansion by claiming that Medicaid beneficiaries would have better health outcomes with no insurance at all. But the Journal's analysis relies on an inaccurate reading of an Oregon health care study and ignores that Medicaid has been shown to lower rates of depression, reduce financial strain, and benefits low-income children, mothers, and veterans.