Washington Times: Possibly "Illiterate" Obama Used "Naked Thuggery" to "Rape" the Constitution Like A "Suicide Bomber"

The title of this post is not inspired by a satirical article in The Onion.  Instead, it describes an op-ed written by Charles Hurt, a columnist for the Washington Times, a conservative newspaper.  By publishing Hurt's latest column, "President Obama's Thuggery," the Washington Times proves that it does not care about contemporary journalistic ethics.

Recess Appointments: A Brief Constitutional Analysis

Hurt's column is a racist rant that pretends to offer an analysis of President Obama's decision to make three recess appointments last week. The Constitution allows presidents to make recess appointments when the Senate is not in session and is unable to provide advice and consent. There is a legitimate constitutional debate over the legality of the recess appointments. Obama made the appointments when the Senate was in session. Accordingly, one could argue that his actions violate the Constitution.

On the other hand, it is clear that the Senate was only "in session" in a technical sense. Rather than actually meeting to discuss business, the Senate instead held multiple pro forma sessions. These sessions were designed specifically to block Obama from using his constitutional authority to make recess appointments. Ironically, the Democrats started using this subversive (and highly immature) practice during the Bush administration for the same purpose.

Legal observers who support Obama's decision argue that if Congress refused through subterfuge to offer advice and consent, the president could make the appointments on his own. The Constitution does not discuss the meaning of recess or session. Furthermore, it is possible that the Supreme Court would not intervene in this dispute. The Court could conclude that the matter presents a "political question" suitable for resolution by Congress and the President.

Racial Tirade

Hurt only discusses the recess flap for one fleeting moment. He devotes most of his analysis listing atrocities and dangers associated with Obama administration. Although Hurt's analysis is riddled with distortions, this is not its worst quality. Instead, Hurt's article is despicable because he uses graphically racist language to discuss Obama. The list below documents Hurt's racist rant. Decide for yourselves whether you consider this respectful journalism.

• Obama used the recess appointment "to utterly rape our most cherished Constitution"
  
• "Mr. Obama is now installing his henchmen to Senate-confirmed positions. . . ."
  
• Questioning whether anything could stop Obama "from simply 'recess appointing' thugs to the Supreme Court in order to uphold his socialist platform"
  
• Considering whether Obama "is learned, yet illiterate, which is entirely possible considering the perniciousness of affirmative action at places like Harvard Law School"
  
• "Obama has become our homegrown enemy. He shreds the Constitution with the unflinching calmness of a suicide bomber, uncaring that he is destroying the only system on Earth that could have given him the life and success he has enjoyed. . . ."

In the book The Color of Crime, Professor Katheryn Russell Brown of the University of Florida College of Law examines social stereotypes that subject black males to discrimination in the criminal justice system.  Russell says that collectively, these stereotypes construct individual black males as a criminalblackman (yes -- one word).

Russell's terminology accurately describes Hurt's treatment of Obama. Hurt depicts Obama as an illiterate rapist, thug, socialist, suicide bomber, domestic terrorist, and undeserving beneficiary of affirmative action.  That Hurt invokes racist imagery in his essay is beyond dispute. By publishing this rubbish that only pretends to offer pressing analysis, the Washington Times has discarded any lingering credibility that it has as a legitimate news source.

Run: Facts! Conservative Bloggers Have a "Huh?" Moment When President Obama Proclaims He Cut Taxes

Media Matters has an entertaining post that examines the disbelief among conservative bloggers for Fox News and the Washington Times, who could not grip the fact that Obama has advocated and secured legislation lowering taxes:

In response to President Barack Obama's State of the Union assertion that "we cut taxes," live bloggers for FoxNews.com and WashingtonTimes.com reacted with incredulity. However, Obama did cut taxes for most Americans: the American Recovery and Reinvestment Act of 2009 included $288 billion in tax relief.

For more information, visit Media Matters.

IMPORTANT NEWS ALERT: Former President George W. Bush Apparently Suffering from Acute Amnesia

An article in today's Washington Times indicates that former President George W. Bush is suffering from acute amnesia. The article covers a speech Bush delivered in Erie, Pennsylvania. After the speech, Bush answered questions from the audience.

The article reports that Bush, adhering to protocol that governs former presidents, declined to criticize President Obama directly. Bush's defense of many of his policies, however, implicitly criticize Obama (or at least validate many conservative critiques of Obama).

A closer reading of Bush's comments reveals that he is apparently suffering from acute amnesia. Bush, for example, stated that:

I know it's going to be the private sector that leads this country out of the current economic times we're in. . . . You can spend your money better than the government can spend your money.

This simple truism, however, hides some important issues, like the fact that Bush -- not Obama -- proposed TARP (or the "bailout") and signed it into law. Bush and Treasury Secretary Paulson advocated the passage of TARP on the grounds that pumping nearly $1 trillion of "our money" into the private sector would help end the financial crisis.

Furthermore, even after many Republicans criticized the idea of providing federal financial assistance to the automobile industry, President Bush (not Obama) proposed using TARP funds to bail out Detroit. TARP for banks and car companies began during the Bush administration, not with Obama.

To his credit, Bush resisted the opportunity to criticize Obama for closing the Guantanamo Bay detention center. Prior to leaving office, Bush said that he wanted to close the facility as well.

Nevertheless, Bush's comment on the danger of terrorists leaves the impression that he suffers from amnesia. For example, Bush stated:

[T]here are people at Gitmo that will kill American people at a drop of a hat and I don't believe that -- persuasion isn't going to work. Therapy isn't going to cause terrorists to change their mind. . . .

Although Bush mocked the idea of using therapy to reform terrorists, he sent many Saudi detainees from Guantanamo Bay to Saudi Arabia in order to participate in the "Prince Mohammed bin Nayef Centre for Care and Counseling" program, which uses a 12-step program, combined with therapy, to rehabilitate terrorists. The program enjoys mixed reviews, and some of the detainees Bush referred to the program have resumed their participation in Al Qaeda.

Furthermore, Bush seems unable to recall that President Obama apparently agrees with his comments about the dangers of Guantanamo Bay detainees. Obama, like Bush, has decided to use military tribunals, in addition to civilian courts, to prosecute suspected terrorists. Obama has also stated that the government will use the controversial practice of "preventive detention" for "dangerous" individuals who do not face prosecution in either civilian or military courts. The Washington Times article does not mention whether Bush acknowledged the overlap between his policies and Obama's policies related to terrorism, nor does it report the contradictions between Bush's words and his policies.

Finally, Bush seems unable to comprehend current proposals for health care reform. For example, he said that:

There are a lot of ways to remedy the situation without nationalizing health care. . . .I worry about encouraging the government to replace the private sector when it comes to providing insurance for health care.

Of course, President Obama has not proposed "nationalizing health care." Instead, at most, he supports a public plan option that will serve alongside private insurance. If this represents "nationalized" health care, then the country already has a nationalized system, because the federal government and the fifty states already serve as public payers of health care, under Medicare, Medicaid, the VHA, SCHIP, and various other programs. Although conservatives argue that an additional public plan option would cause the collapse of private insurance, this point is debatable, and it certainly is not a specific piece of Obama's proposals.

Major Hypocrisy Alert: Washington Times Condemns Sotomayor for Strictly Adhering to the Text of Statute When Deciding Felon Voting Case

The Washington Times is on a mission to raise questions about Sonia Sotomayor -- by any means necessary. Its latest editorial headline proclaims: The Franchise for Felons: Sotomayor Would Let Prisoners Vote. The editorial discusses Sotomayor's dissenting opinion in the 2006 case Hayden v. Pataki. In its rush to "get" Sotomayor, the Washington Times takes a position favoring judges departing from the plain language of statutes, which contradicts sacred conservative principles.

Background of the Case
The Hayden case involved a lawsuit brought by black and Latino inmates challenging a New York elections law that denies them the opportunity to vote. The inmates claimed that the law violated Section 2 of the Voting Rights Act, which applies to any state election requirement that has the "effect" of discriminating on the basis of race -- regardless of the state's underlying intent.

In 1996 the Second Circuit split evenly on the merits of an identical lawsuit. In 2006 Hayden was consolidated with a similar case and brought before the entire Second Circuit for review. The full Second Circuit dismissed the lawsuit by an 8-4 vote. Sotomayor dissented, as did esteemed judges Barrington Parker, Guido Calabresi and Robert Katzman. There were five separate concurring opinions.

In two other felon voting cases, the Ninth Circuit reached a different conclusion than the Second Circuit, but the Eleventh Circuit reached the same conclusion. The voter statutes in those two cases, however, are broader in scope, banning felons from voting even after release.

Hayden Majority's "Expansive" Statutory Interpretation
The majority in Hayden concedes that the plain language of the Voting Rights Act does not exempt felon-related voting legislation and that it applies to "any" voting requirement. Accordingly, to reach its conclusion, the majority decides to look beyond the plain language of the statute:

There is no question that the language of [Section 2 of the Voting Rights Act] is extremely broad —- any “voting qualification or prerequisite to voting or standard, practice, or procedure” that adversely affects the right to vote -— and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA’s enactment and thereafter.

We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent “plain meaning” . . . . Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. . . .

Normally, a judge's decision to look beyond the language of a statute in order to come up with an interpretation that is not supplied by the law's plain meaning would send conservatives into a lather. Indeed, Justice Scalia is known for sticking closely to the plain language and insisting that Congress change the statute if it dislikes the outcome in a particular case. Scalia also rejects efforts to "find" the meaning of legislation by resorting to legislative history -- which the Hayden majority explicitly does. Narrow statutory reading is a hallmark of judicial restraint, which conservatives claim to love. Apparently, the Washington Times does not like this rule if following it would produce a liberal result.

Hayden Dissent
The Hayden dissenters chided the majority for essentially rewriting the statute to reach its conclusion. Because the case was decided on a motion to dismiss, the court was required to treat the allegations in the complaint as facts -- meaning that the court had to accept as true plaintiffs' assertion that New York's felon law systematically excluded blacks and Latinos from voting. Therefore, the only question the court needed to decide at this stage of the litigation was whether the Voting Rights Act applied to the case. Despite the plain language of the statute which imposes a broad prohibition against discriminatory laws, the majority dismissed the case.

Sotomayor's dissent epitomizes the judicial restraint that conservatives claim to appreciate. She also seems to respect the institutional power of Congress. Sotomayor argues that:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority’s “wealth of persuasive evidence” that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act . . . includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

Perhaps appreciating the irony that its editorial attacks Sotomayor for exercising judicial restraint, the Washington Times does not even attempt to engage this portion of her argument. The newspaper's silence on this issue speaks volumes.

The Washington Times Distorted Analysis
Despite the fact that the Hayden majority concedes that its ruling looks beyond the plain language of the statute, the Washington Times inaccurately concludes that Sotomayor offers a "dubious and extremely broad reading of the Voting Rights Act." This is plainly false. Sotomayor's reading, as demonstrated above, is in fact quite narrow and limited to the text of the statute.

The Washington Times also makes hay of the fact that she only wrote a brief (but apparently very broad) dissent. But with a lead opinion, five concurrences and three additional dissents, her decision to remain brief is hardly remarkable -- except perhaps to journalists.

The Washington Times also butchers the Hayden majority's logic. The case does not turn on the fact that "the Voting Rights Act was passed to help further the aims of the Constitution's 14th and 15th Amendments [and] the 14th Amendment specifically allows states to deny the vote to those convicted of crimes." Instead, as the majority explicitly concedes (see footnote 10), the Voting Rights Act was passed to enforce the Fifteenth Amendment, which (following interpretative rules established by conservative Supreme Court precedent) places a direct limitation on state authority supplied by the Fourteenth Amendment.

Accordingly, even if the Fourteenth Amendment allows states to restrict the ability of felons to vote, they cannot exercise this power in a way that amounts to racial discrimination. The Voting Rights Act elaborates the Fifteenth Amendment antidiscrimination principle and provides that "intent" is not a requirement of a violation. On this issue, the dissent has the better argument.

The Washington Times also makes the absurd claim that Sotomayor's opinion would allow Congress to "prohibit New York from doing something the Constitution itself specifically endorses." That is absolutely preposterous. The plaintiffs only argued that New York cannot discriminate on the basis of race in the voting context. The complaint does not argue the felon disenfranchisement statutes are per se unconstitutional -- and neither does Sotomayor.

The logic employed by the Washington Times would allow states to pass laws providing that only "black and Latino" or "white" felons cannot vote because, after all, states can ban all felons from voting pursuant to the Fourteenth Amendment. But this is an absurd result. Because the Voting Rights Act does not require "intent," New York's felon voting policies could operate as the practical legal equivalent of this hypothetical (and clearly unlawful) statute. Sotomayor and the other dissenters simply would have given the plaintiffs the opportunity to prove this point.

Conclusion
The most interesting aspect of this case is the fact that it turns on statutory interpretation -- not the announcement of a new constitutional right. Accordingly, Congress could merely reverse the ruling, if it disagrees. This is precisely the course of action Congress took with respect to the Ledbetter decision. This is precisely the argument that Justice Scalia frequently makes with respect to statutory interpretation.

Driven by partisan politics rather than ideological consistency, the Washington Times criticizes Sotomayor for following Scalia's lead and issuing a narrow reading of a plainly worded statute. The Washington Times should retract its misleading, blindly partisan, and "un-conservative" editorial.

BREAKING NEWS from the Washington Times: When Eric Holder Was In Private Practice, He Did His Job!

The Washington Times has published an interesting article which reports that Attorney General Eric Holder did his job while he was a lawyer in private practice. Recently, Holder sparked a minor (if you disagree with the adjective, please feel free to choose your own) controversy, when he said that the country was a "nation of cowards" regarding issues of race.

The title of the Washington Times article -- "Holder Litigated Against Rights Claims" -- is almost as provocative as Holder's comments. The article reports that Holder "found himself on both sides of the courtroom on civil rights cases during his eight-year tenure at a high-profile Washington law firm." But the fact that litigators represent plaintiffs and defendants on the same issues is hardly newsworthy. Even in the area of criminal law, prosecutors later become defense attorneys or vice versa.

But the article's focus on Holder's representation of civil rights defendants seems particularly strange in light of the following fact: The Department of Justice, which Holder now runs, also represents defendants in discrimination claims. As the official lawyer for the United States, DOJ defends the federal government in all litigation, including cases alleging claims of discrimination. DOJ also defends the government in cases alleging deprivations of constitutional rights (including the rights to equal protection and liberty). Apparently, Holder's prior work prepares him for the complexity of his current job.

The article also states that the number of civil rights cases that went to a final verdict dropped during Holder's prior four-year stint at DOJ. But a number of reasons could have led to the decline -- including that the government settled more cases or that courts disposed of more cases on pre-trial motions (e.g., summary judgment or dismissal).

I was also struck by the inclusion of commentary from a woman whom the article reports was a plaintiff in a civil rights case against MBNA. The article reports that MBNA hired Holder to "fight off" (I have this image of Holder in fencing gear) the discrimination claim. The plaintiff in the case says she hoped that Holder did not get confirmed as Attorney General. The article does not present any of the facts of her case; it simply reports that the court ruled in favor of the company. But many factors, including the weakness of the plaintiff's case, could explain why she lost. Believing in the vigorous enforcement of civil rights does not require a concomitant belief that civil rights plaintiffs should always prevail.

Finally, the article reports that Holder also defended a bank against allegations that it provided "segregated" services to blacks. The court granted summary judgment for the bank. Summary judgment means that the undisputed facts establish victory for plaintiff or the defendant without the necessity of proceeding to trial. Although the article does not provide any facts from the case, proving race discrimination in civil rights litigation is usually very difficult. Unless the plaintiffs had pretty damning evidence, their claim of racial discrimination was doomed from the start, due in large part to conservative civil rights jurisprudence.

Final Word
In classic Dissenting Justice form, let's cut to the chase: I believe the article attempts to undercut Holder's inflammatory comments by portraying him as being on both sides of the fence with respect to racial justice. But it does a pretty poor job in this regard. Lawyers often represent defendants and plaintiffs on the same issues, and (more importantly) DOJ defends the United States against discrimination claims.

Furthermore, it's pretty difficult to draw implications about a lawyer's ideology or commitment to an issue simply because he or she represented a particular party to a case. Although lawyers often take cases for political or ideological reasons, most of the time, a case is just a case. Holder worked at a large law firm. I imagine that his representation in most cases did not reflect upon his own political values. Instead, he was just doing his job. For this reason, the comments of the civil rights plaintiff who did not want the Senate to confirm Holder seem misplaced.

Finally, I have not yet commented on the "cowards" issue because I have a natural aversion to drama, but I feel the need to address the matter briefly. Was Holder's statement inflammatory? You betcha (thanks, Sarah - I like this phrase). But underneath the surface, I thought he confirmed, even if for different reasons, what conservatives and moderates have said for many years: that "political correctness" has made people afraid to talk about race (or sex or anything worthy of discussion) for fear of being called a racist. Outside of the colorful nature of the comment, isn't it true that many people are indeed afraid of talking about race? If not - then go for it!

Man of Steele: RNC Chair Serves Major "Swagger" During Recent Interview

It's hard not to notice RNC Chair Michael Steele's recent interview with The Washington Times. Steele makes some very heavy promises about his plans to revitalize the Republican Party, which several commentators have dismissed as irrelevant. Some of Steele's ideas seem highly ambitious if not utterly impossible (e.g., luring black voters during the Obama era), but he earns points for his surprising "swagger" and for setting an "off the hook" (his words, not mine) agenda.

Here are some interesting clips from The Washington Times interview with Michael Steele:

Newly elected Republican National Committee Chairman Michael S. Steele plans an “off the hook” public relations offensive to attract younger voters, especially blacks and Hispanics. . . .

The RNC's first black chairman [says that he] will “surprise everyone” when updating the party's image using the Internet and advertisements on radio, on television and in print. . . .

"There was underlying concerns we had become too regionalized and the party needed to reach beyond our comfort" zones. . . ."We want to convey that the modern-day GOP looks like the conservative party that stands on principles. But we want to apply them to urban-surburban hip-hop settings.” [Editor's Note: Steele, please let me know how that plan goes!]

"Dissed" by Karl Rove?

At the end of 2006. . .[Karl] Rove nixed a growing movement among RNC members . . . to elect Mr. Steele as their next chairman.

Mr. Rove subsequently left the White House. . .and with President Bush on his way out of the Oval Office, the RNC was free to choose its own chairman instead of rubber-stamping the choice of a Republican White House. [Editor's Note: Is the author a little upset with Rove's prior decision?]

While other former top Bush White House and campaign officials sent congratulations on his election . . . Mr. Rove neither phoned nor wrote his congratulations, Mr. Steele told The Times.

Steele tells detractors to "stuff it."

Top party officials and officeholders have suggested that Mr. Steele name as deputy chairman someone who can run the national committee's vast operations in fundraising, communications, candidate recruitment and training, and voter identification and targeting. [Editor's Note: Overseer? Spy?]

“I can run this organization just fine,” Mr. Steele told The Times. “There will be no deputy chairman, period.”

Still, the talk among some prominent senior Republicans was that Mr. Steele would need someone with “more experience” to provide guidance and organization. . . . . “People who said I can't make the trains run on time never gave a reason. I say to them, 'Stuff it.'"

“The idea I am somehow going to handicap myself before I begin is nuts. I am not going to buy into this mind-set among a few people who probably have never run anything but their mouths.” [Editor's Note: LOL]

My Non-Republican Take: The Dissenting Justice likes "from the hip" commentary (I even liked Howard Dean), so Steele earns big points for this interview. But be careful, Mr. Steele. People do not like losing power or being told to "stuff it." You do not have the same freedom as some loudmouth cantankerous blogger. Finally, the "change" theme is apparently everywhere!