My reaction to a feature on PolitiFact Bias called “Nothing to See Here,” which publishes statements designed to show those important claims it thinks PolitiFact is not selecting (after all, the lynchpin of where PolitiFact's Truth-o-Meter rating system fails is supposedly "selection bias") because they’re less favorable to Democrats (or more favorable to Republicans), was to show other rulings PolitiFact could have done but chose not to, those which PolitiFact Bias conveniently skips over (i.e., biasly doesn't select) since they don’t help their case. But I could do this another way: there had to be a time when their proclamation that PolitiFact wasn’t checking something turned out wrong, and PolitiFact did check it. And that time is now.
The statement came from Obama on the Supreme Court’s review of the Affordable Care Act (“Obamacare”):
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
PolitiFact Bias’ Bryan White ends his brief prediction for a claim which should be unfavorable to Democrats with “It's perhaps even money that PolitiFact will address this statement. If it does, I'll be interested to see the spin (if any).”
Within 48 hours, PolitiFact did address the statement, and awarded it a False in a 1,700-word tome by Molly Moorhead (which may have explained the short delay, and why the Wall Street Journal beat them to it).
I noted this in a Facebook comment with only one word “Really?” PolitiFact Bias’ Bryan White responded to me directly (despite my blocking) that he put a disclaimer on it with the “even money” bet, and that he already explained in introducing the feature “Nothing to be Found Here” that PolitiFact could ultimately do a fact-check. But that’s what anyone would do (myself included), and is a poor excuse. He wants to be known for his predictive power because of his underlying belief in PolitiFact’s liberal-leaning bias, and when he’s more often wrong than right, it doesn’t serve him well. If he had eight predictions in a row and PolitiFact produced a fact-check for all of them, he might as well throw his new feature in the garbage can. He needs to point out those statements for which he has more certainty that PolitiFact would likely not be checking them.
But PolitiFact Bias’ hack-on-board did not stop with his excuses for a wrong call: he later added his promised spin in his analyses of PolitiFact’s False ruling at co-blog Sublime Bloviations, claiming it was not only False but ridiculously so, and should have been rated a Pants on Fire, therefore assuring himself of PolitiFact’s liberal bias. Naturally, he ignored the most important underlying context he lauds so often about the rest of his remark emphasized here:
And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.
I believe PolitiFact recognized this underlying context to Obama’s message, but did not explore it and kept the context narrowed, because reviewing what conservative commentators have said about lack of judicial restraint would have revealed Obama's real message and could have lifted the ruling from False, implicating “PolitiFact’s Bias” as writer White so craves. Obama’s comment was obviously directed at Conservatives in a slam at their complaints about judicial activism, for which there are numerous, numerous examples. But that underlying context to Obama’s remark, so often strongly stressed as something PolitiFact "missed" by Grading PolitiFact, was totally ignored.
Writer White starts out by showing how Obama greatly exaggerated the “strong majority of a democratically-elected congress” passed the ACA law. He boasts that even some Blue Dog Democrats voted against it, to which I say, that’s how it’s supposed to be, should they be voting in lock-step because that is how the Republicans do it? We all know the answer to that. But good enough, Obama did exaggerate when he said “strong majority.” However, that was not the point.
The next complaint by writer White is PolitiFact’s over-charitableness (read: left wing bias) in its interpretation of Obama’s remarks regarding “unprecedented, extraordinary step of overturning a law.” When writer Moorhead writes that this part of his statement “puzzled us” White elaborates:
It's probably a puzzling head-scratcher because of its ridiculousness (read: "Pants on Fire") if PolitiFact was not aware that Obama is the smartest person to live in the White House since Hillary Clinton. Since Obama is so smart, there must be a logical explanation.
Saying “Obama is the smartest person to live in the White House since Hillary Clinton” is, to use White’s own term, snark….cynical snark. He is making his contempt for PolitiFact known, and nothing else. But to provide a better “perspective” on what was meant by “unprecedented and extraordinary”, here is Jon Perr of the blog Perrspectives:
Tuesday, President Obama clarified exactly what he meant by an "unprecedented, extraordinary step." He obviously wasn't calling into question the Supreme Court's power of judicial review, but instead was merely highlighting the 70 years of history during which the Court has not overturned Congressional laws aimed at regulating national economic activity:
Let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner. Right? So we're going back to the '30s, pre New Deal.
And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. [Emphasis mine.]
In his speech to the Associated Press, the President was putting a spotlight on a much bigger issue than the constitutionality of the ACA. While the Supreme Court did indeed strike down labor laws in the infamous 1905 case of Lochner v. New York and nullify early New Deal legislation in Schechter and other rulings, beginning in 1937 the Court showed tremendous deference to Congress acting under its Commerce Clause power. (The Court's 1996 ruling barring federal regulation of guns near local schools may have been an exception, but it only served to highlight the national scope of Congress' commerce power.)
… All in all, President Obama's point this week that the Supreme Court since the New Deal has almost always upheld laws of Congress exercised in support of its commerce power happens to be both true and commonplace. Nevertheless, mainstream press, Republican politicians and right-wing pundits (and some liberal ones, too) called the Obama's comments "unsettling", "intimidation" and rhetoric that has gone "too far." (Politifact called Obama's remarks on Monday "false.") Echoing Fifth Circuit Court of Appeals Republican Judge Jerry Smith, Charles Krauthammer on Friday pretended President Obama was calling into question the Court's power of judicial review dating back to Marbury v. Madison over two centuries ago…
In other words, it was “extraordinary and unprecedented” in terms of the court overturning laws, since the Great Depression, in regard to economic activity, because they had always given deference to the commerce clause. In that sense, a case could well be made that PolitiFact’s ruling could be better than False (for a place in “Grading PolitiFact Liberal-Style”), but they took it more at “face value” as Bryan White complained, to make it a False as opposed to Half True.
As the Rude Pundit Lee Papas re-interpreted in so many words as posted April 3 (really “cleaned up” with asterisks and emphasis added):
Essentially, what he [Obama] was saying was, "The idiot c*******ers on the right have been h*ffing on the b*ne of 'unelected judges' outrage for years now whenever their sh*t was at stake, like, say, DOMA. Now that someone else's sh*t is at stake, all of a sudden 'unelected judges' are good shepherds of the Constitution. You're a bunch of hypocritical f***s. Go f*** yourselves." That last part might be a bit of a stretch, but mostly, that was it. It was calling out m********** for f***** t**** m******. It wasn't addressed to the court. It was addressed to conservatives.
However, for the media and some on the right, it was an "oh-my-stars-and-garters" moment. "Unsettling," said the Washington Post's Ruth Marcus. "Unnerving," exclaimed the New York Post's John Podhoretz. "Shocking," said someone or other on MSNBC's Morning Starbucks. It was a "warning" or a "threat" to the Court, they say, when, in reality, it was a mocking of a cherished right-wing talking point.
But there was nary one word about who this was really addressed to in the “Grading PolitiFact Light” post. Nothing about the economy or the court’s adherence to the jurisprudence of the commerce clause. Nothing addressing the judicial activism about which conservatives constantly complained but for this case now favor. And another false choice presented in the conclusion that Obama’s statement could only be interpreted literally. Bryan White is obviously (per Jay Carney) “one of those handful of people didn’t understand what [Obama] was referring to” which was ….him.
But Bryan shouldn’t feel too bad—FactCheck.Org called it “absurdly wrong.” Apparently they didn’t look at the context either, but as I noted, decided it might be better to ignore this allusion to the hypocrisy of conservatives when it comes to the judiciary.