As first reported by Matt Cover at the Media Research Center's news wing CNSNews.com, Kagan offers up this gem:
"If there is an ‘overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,' rather than skew, public discourse."
So if talk radio suffers from an "overabundance" of conservative voices, government action to "un-skew" this particular public discourse is just fine by her.
Hello so-called "Fairness" Doctrine. Not to mention Federal Communications Commission (FCC) Diversity Czar Mark Lloyd's liberally "skewed" interpretations of FCC "media diversity" and "localism" rules.
Brent Baker remembered NPR reporter Nina Totenberg found Judge John Roberts carried conservatism to wretched excess. On NPR's All Things Considered back in 2005, she prefaced “conservative” with three verys, describing him as “a very, very, very conservative man.” But in a taped soundbite on the next day's Good Morning America on ABC, she cut back to merely “a very, very conservative man.”
But Totenberg matched other media liberals in finding no measurable ideology in Elena Kagan when her nomination was announced. Within minutes (for the West Coast stations still in Morning Edition time), Totenberg could only exclaim Kagan was "was a star student at Princeton, at Oxford, at Harvard Law School -- then clerked for the man she calls her mentor, Supreme Court Justice Thurgood Marshall, who used to refer to her as Shorty."
CNN's Jack Cafferty expressed skepticism of President Barack Obama's nomination of Elena Kagan to the Supreme Court during a commentary on Tuesday's Situation Room. After outlining Kagan's elite background, Cafferty noted that many thought that "someone who has spent so much time in elite academic settings is out-of-touch with average Americans."
The CNN commentator began by pointing out a promised made by the President in the past: "President Obama promised us all Supreme Court candidates who can relate to the real world and how the law affects ordinary Americans, but there are questions about whether Elena Kagan fits that description. Kagan comes from a world unknown to most Americans: from Manhattan's Upper West Side, to Princeton University, and on to Harvard Law School."
60 Minutes journalist Lesley Stahl on Monday appeared on Morning Joe and touted Barack Obama's Supreme Court pick as a "mediator" who was chosen "in his image." The CBS correspondent enthused that a conciliator is "what [Obama] was." [Audio available here.]
Continuing the media spin that Elena Kagan might not be a liberal, Stahl proclaimed the judge's moderation: "And that he went for that instead of a brilliant ideological liberal to sort of balance Scalia."
In a seemingly contradictory moment, Stahl extolled, "I love that she's a woman and it's not a big deal." But, she then lobbied for a quota system for females on the court: "And we need to have six. We're halfway there."
But the early stories on President Obama’s nomination of Elena Kagan routinely avoided describing her as a liberal. In six evening news stories and eight morning news segments since her official press conference on Monday morning, the broadcast networks have employed only one liberal label, on CBS. ABC and NBC offered none.
In an interview with Vice President Joe Biden on Tuesday's CBS Early Show, co-host Harry Smith lamented President Obama's nomination of Elena Kagan to the Supreme Court: "Liberals feel let down because she would be filling a seat left by John Paul Stevens, they don't feel like she's enough – has enough gravitas to fill his shoes."
In his first question to Biden, Smith fretted: "Some people have said she's a person so careful as to leave no footprint. Do you really know what you're getting? Do the American people know what they're getting?" Smith went on to question Kagan's qualifications: "she's never been a public defender, she's never been a prosecutor, she's never been a judge. Most of her career has been in Washington or in an ivy or ivory tower."
In an interview with Republican Senator Jeff Sessions immediately following the Biden interview, co-host Maggie Rodriguez went so far as to wonder if Kagan would have a conservative influence on the court: "When she worked for the Clinton administration, Ms. Kagan asked the President to support a ban on all abortions of viable fetuses except when the mother's health was at risk. And some analysts have used that example to show that she may actually shift the court to the Right, compared with Justice Stevens. How do you respond to that?"
Twice in the span of ten minutes, MSNBC on Tuesday ran segments touting left-wing complaints that Elena Kagan may not be "liberal enough." News Live host Peter Alexander seriously speculated of the Supreme Court pick: "...But who is really most frustrated with the pick? It seems as many liberal groups are upset by this as are conservatives."
Later in the 10am hour, Alexander worried, "And also right now on the left, she may not be liberal enough. That's the complaint there. Some progressives say she's too much of a blank slate to know how she stands on any issue." He also uncritically listed the issues Kagan is supposedly conservative on, including "supporting banning late term abortions."
At The New Yorker website (his other gig), CNN legal analyst Jeffrey Toobin explained that he is a longtime friend of Supreme Court nominee Elena Kagan and went to law school with her, even studied with her in a small group -- and yet, her political views are somehow a "mystery" to him. Not even liberals are buying this (take Matthew Yglesias at Think Progress). Toobin stated:
The justices are not really managers of people, certainly not in comparison to the dean of a major law school. Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.
In quite a contrast to the immediate tagging of the Bush and Obama Supreme Court nominees as “conservative” (and that includes Sonya Sotomayor), on Monday night ABC and NBC refrained from applying any ideological description to Supreme Court nominee Elena Kagan while CBS snuck in one. CBS's Jan Crawford declared “her career has put her solidly on the left,” but contended “she will have significant conservative support among academics and lawyers” and warned “that support alarms some liberals.”
Amongst the non-ideological superlatives: ABC's Diane Sawyer trumpeted the “historic nomination” of the “five foot three inch powerhouse,” CBS's Crawford insisted “her interests reflect her openness. She loves softball and poker” (poker reflects “openness”?) and NBC's Pete Williams hailed her as an “accomplished poker player, opera lover.”
ABC, CBS and NBC all highlighted Kagan's high school yearbook picture of her in a robe and holding a gavel (ABC's Moran: “Even in high school, check out her yearbook photo here, she had her sights set on the high court”), but none pointed out the explicitly very liberal polemical points she made just a year or two later, nor did CNN's The Situation Room.
In the 7:30AM ET half hour on Monday's CBS Early Show, co-host Maggie Rodriguez lobbed softballs to disgraced former New York Governor Eliot Spitzer about his college friend and Supreme Court nominee Elena Kagan: "She's been labeled as moderate. If you had to put a label on her, would you say that one is accurate?" A headline on screen read: "Who is Elena Kagan?"
Spitzer replied: "I guess you could say moderate....it's very hard to pigeon hole her." Rodriguez's question was prompted by his insistence that Kagan "is not an ideologue of the Left or the Right and that is clear from what she did as dean of Harvard Law School. Just a perfect temperament to be a justice." Of course, during Kagan's tenure as dean of Harvard Law, she pushed for military recruiters to be barred from campus because of her opposition to 'Don't Ask, Don't Tell' policy.
Rodriguez wondered about Kagan's college days: "Can you think of a story or an anecdote from back then?" Spitzer recalled: "a friend and I were going back and forth about who could eat more, she goaded us into having a spaghetti eating contest." Rodriguez looked for the best way to spin the story to make it relevant: "I'm trying to take something from that, could it be that she's persuasive, can bring people together, which is what the President is hoping?" In response, Spitzer declared that once on the Supreme Court, Kagan "will get the fifth vote."
President Barack Obama's second nominee to the Supreme Court, Elena Kagan, is drawing fire from both liberals and conservatives to such an extent that her challenge in the confirmation hearings "will be to show that while she may hail from Harvard, she has the heart of an empathetic, all-American patriot."
At least that's Stuart Taylor Jr.'s take in a May 10 Newsweek "Web exclusive" that garnered prominent real estate on the magazine's Web site today (see screencap above at right).
Taylor presented Kagan more as a technocratic "establishmentarian" than an ideologue or partisan, despite her current and former affiliations with the Obama and Clinton administrations respectively:
On Monday's GMA, ABC's George Stephanopoulos dealt with the Elena Kagan Supreme Court nomination by interviewing former Obama official Greg Craig, but no one from the conservative/Republican side as a guest. The anchor did raise potential threats to Kagan's nomination, but failed to follow through when Craig omitted a key detail about the nominee's anti-military record as dean of Harvard Law School.
Stephanopoulos led off the interview, which began 8 minutes into the 7 am Eastern hour, with a softball question: "What's the single thing that impresses President Obama most about Kagan?" After the former White House counsel and former Clinton administration official played up Kagan's allegedly "extraordinary" amount of experience, the ABC anchor then asked, "What do you think is the single greatest threat to her nomination- to confirmation?"
NBC and ABC on Thursday night framed stories around concerns of “abortion rights” advocates who want proof Supreme Court nominee Sonia Sotomayor is on their side, but both cloaked their pieces around the proposition “both sides” of the debate are equally worried.
With “Where Does She Stand?” as the on-screen heading, as if there is genuine belief Obama would have selected the judge without knowing she'd uphold Roe v Wade, NBC anchor Lester Holt set up a story through the prism of pro-abortion activists as he announced that White House “spokesman Robert Gibbs says the President did not specifically ask her about the right to privacy, a key issue in the abortion debate.” Reporter Pete Williams proceeded to declare that Sotomayor's stand on abortion is “a mystery” as “both sides on the abortion issue agree...they're eager to know exactly what Sonia Sotomayor thinks about abortion and the constitution.” Viewers then heard only from one side, an “abortion rights advocate.”
During live CBS News coverage on Monday of President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, Face the Nation host Bob Schieffer argued that the Senate confirmation process would be "nasty....Not because of Elena Kagan....she is eminently qualified" but because Republicans are "very wary of what the right part of their party is thinking about them."
As evidence of his theory, Schieffer pointed to the primary defeat of Republican Utah Senator Bob Bennett on Saturday: "it is a very toxic election year. You saw over the weekend that Bob Bennett, the very conservative Republican senator from Utah lost the Republican nomination out in his home state because people there, including a lot of tea party people, thought he was not conservative enough." He concluded: "I think in the end, she will probably be confirmed, but I think it's going to be a very tough vote for a lot of Republicans and I think it's going to take some time before they get to that final vote."
In response to Schieffer's assertion, CBS Evening News anchor Katie Couric, who broke into CBS daytime programing at 10AM ET with a special report on the nomination, lamented: "Nothing is easy or simple in Washington these days, Bob."
A baffled CBS. The CBS Evening News, which in 2005 had no doubt about how John Roberts and Samuel Alito were dangerous conservatives, expressed bewilderment Wednesday evening over where Obama's Supreme Court nominee stands. “Pundits usually label judges as either liberal or conservative, but that won't be easy with Judge Sotomayor,” Katie Couric propounded in setting up a piece from Wyatt Andrews, who concluded:
President Obama, then, has found a judge with 17 years experience but no clear ideology on discrimination, gay rights, or abortion and who can't be easily defined by political labels.
At least not by the CBS newscast, which back in 2005 asserted Roberts would move “the court further to the right” and fretted over the Alito pick “tilting the Supreme Court in a solidly conservative direction for years to come.”
Amazingly, after showing no reluctance in 2005 to describe John Roberts and Sam Alito as “conservative” or worse, the Tuesday network evening newscasts, particularly ABC and NBC, applied more “conservative” tags to Supreme Court nominee Sonia Sotomayor's critics than “liberal” labels to her, as the coverage suggested calling her a liberal was a hasty judgment from accusatory partisans. In total, ABC's World News and the NBC Nightly News combined for a piddling two uses of the “liberal” term while issuing a “conservative” tag eight times. (CBS viewers heard “liberal” four times and “conservative” just once.)
Setting up a look at Sotomayer's record, ABC anchor Charles Gibson fretted about how conservatives had “already” assessed her: “Even before the President announced his decision, conservatives were reviewing Judge Sotomayor's judicial record and were already saying she would be an activist on the court.” Jan Crawford Greenburg then framed any notion of Sotomayer as liberal as based on accusations from conservatives: “...which conservatives have called code for,” “...conservatives today seized on this comment” and “already, conservatives have jumped on the decision.”
Over on NBC, Pete Williams presumed a conflict between her rise from poverty and being liberal: “Despite her remarkable personal odyssey, Judge Sotomayor is already being called a liberal activist by some conservative groups.” (That sentence included NBC's only liberal label utterance during four segments.)
During ABC’s live coverage of President Obama’s nomination of Elena Kagan to the Supreme Court, Diane Sawyer and a quartet of correspondents failed to find a single thing to criticize about the new nominee. Instead, Sawyer touted it as a “history making day” (although why is unclear, since she's the fifth woman to be nominated), and touted Kagan as a feminist “trailblazer” and a “conciliator” between “the conservative and liberal wings of the Court.”
Good Morning America co-anchor George Stephanopoulos agreed Kagan had a “reputation for bringing conservatives and liberals together,” and recounted how he and Kagan worked side-by-side in Bill Clinton’s White House: “She does have a great temperament, very easy-going, a good sense of humor.” Then, as Kagan and President Obama strode to the podium, Sawyer quoted the nominee complimenting herself: “We had a soundbite from her saying she had a reputation for being a very good teacher.”
Network anchors and reporters didn't hesitate to apply strong ideological labels (not just quoting others) to President Bush's two Supreme Court nominees, John Roberts and Samuel Alito. Will they be as willing to tag President Obama's nominee, U.S. Appeals Court Judge Sonia Sotomayor, as “staunch,” and “hardline” and “ultra” liberal, or at least as “very liberal”? [No, see Flashbacks: #1, #2 and #3]
In July of 2005, on the night Bush announced Roberts, ABC's George Stephanopoulos and Ted Koppel both described him as not just conservative, but as “very conservative.” NBC's Brian Williams called Roberts “a kind of 'bedrock conservative,' not what is called a 'movement conservative.'”
The next night, CBS Evening News anchor John Roberts (now with CNN) wanted to know of his namesake: “Has President Bush attempted to move the court further to the right with this pick?” On NBC, Chip Reid (now at CBS) highlighted how one liberal activist “says he worries that Roberts might be a stealth candidate, moderate on the outside but as conservative as Justices Scalia and Thomas on the inside.”
When Supreme Court Justice John Paul Stevens announced his retirement, President Obama promised he would appoint someone like Stevens, who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
In the world of politics, that phrase is self-explanatory. In the cultural arena, it’s more murky. When it comes to First Amendment cases on broadcast indecency, who is the “powerful interest” and who was the “ordinary citizen”? The roles are now reversed.
The president can’t use that analogy, because the powerful interests are now in Hollywood, facing the millions of regular Americans who oppose graphic violence, gratuitous sex, and avoidable profanity on television. Sadly, judges like Stevens have labored ever harder to protect perverse televised “expression” like orgy scenes or “wardrobe malfunctions” on CBS as somehow the sun-kissed summit of all free-speech causes.
National Public Radio correspondent Nina Totenberg severely misquoted a conservative legal scholar to make it seems as if he considered Clarence Thomas a radical Supreme Court justice. An examination of his full statement clearly demonstrates that this was not what he actually said.
In an April 16 NPR segment, Totenberg, picture right in a file photo, sought to paint radical Berkeley law professor, and Obama nominee to the Ninth Circuit U.S. Court of Appeals, as the left's equivalent to Justice Thomas. She quoted Curt Levey, executive director of the conservative Committee for Justice as saying "Goodwin Liu is not your typical liberal. He’s very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas." (Audio embedded below the fold.)
But the spliced audio in Totenberg's segment actually mis-represented what Levey said. He was not comparing Liu's and Thomas's stances on constitutional law. Here is his full statement, according to Big Journalism's Matthew Vadum (italicized portions quoted by Totenberg):
On Thursday's Good Morning America, ABC journalist Sam Donaldson touted a liberal hero for the Supreme Court, one that even made George Stephanopoulos chuckle: Al Gore. After arguing that Barack Obama should choose a politician, Donaldson enthused, "Let's go further...I give you Al Gore." [Audio available here.]
The veteran reporter, who was participating in GMA's Morning Mix panel, argued his case for the former Democratic presidential nominee: "He's 62. But, he's still a few years kicking [sic]. I think he's confirmable, although there would be a fight to some extent. I think he might make a very good justice."
Stephanopoulos, a former Democratic operative, incredulously responded, "There would be a massive fight!" He then broke out laughing. Donaldson, perhaps realizing the unlikely nature of this liberal fantasy, conceded, "I said to some extent." He, too, started laughing.
Here's the thing about the vast right-wing conspiracy: it doesn't really exist. The left's latest attempt to invoke the notion has ended in rebuttals from commentators on both sides of the political spectrum.
Conservative blogger Ben Domenech noted the White House's apparent desire to appoint a homosexual to the Supreme Court. He noted in a post at the New Ledger that at least three nominees -- Pam Karlan, Kathleen Sullivan, and Elana Kagan -- are gay. The White House vehemently denied the latter. The left was not happy.
Huffington Post contributor Sam Stein quoted a spokesman for Human Rights Campaign, who alleged a "shameless … whisper campaign" started by the "far right," echoing other groups' statments to the same effect.
But there is no evidence of any such campaign. Indeed, the extent of the evidence offered by Human Rights Campaign and other left-wing groups seems to be that propagating rumors regarding sexual orientation is "straight out of the right-wing playbook."
Timothy Egan, a New York Times reporter for 18 years before turning into a liberal blogger at nytimes.com, demanded in a Wednesday night posting that the next Supreme Court justice hail from a law school other than Harvard or Yale: "Supreme Club."
At last count, there were about 200 law schools in the United States accredited by the American Bar Association, but apparently only two of them -- Harvard and Yale -- can be a path to serving on the highest court in the land.
It was surprising enough to see that with the retirement of Justice John Paul Stevens, the Supreme Court will not have a single Protestant among its black-robed elite. But equally jaw-dropping was the fact that without Stevens, every member of the court has attended Harvard or Yale law school.
Fair enough. But he goes off the rails claiming that Stevens, who has held down the liberal wing of the court for years, is actually a moderate. In fact, Egan seems to go further than even liberal former Supreme Court reporter Linda Greenhouse in bizarrely claiming that there are no liberals on the court, just four moderates, balanced, presumably, against five conservatives! This on a court that includes, besides Stevens, former ACLU lawyer Ruth Bader Ginsburg.
Stevens, one of four moderates on the Court, has held that seat. He is not just the last World War II veteran to serve, but as a product Northwestern University Law School, he succeeded a very iconoclastic justice, William O. Douglas, whose law school days were not spent in Cambridge or New Haven.
The front pages of the New York Times over the weekend were dominated by the announced retirement of Supreme Court Justice John Paul Stevens, with stories looking back at his legacy as well as looking toward the upcoming political battle over replacing him.
....some conservatives who led the fight against Justice Sonia Sotomayor's confirmation last year said they should learn from mistakes made then, like making grand claims about raising vast sums of money only to find that Republican senators were not as committed to an all-out battle.
"We will all be laughed at -- including laughed at by Republican senators -- by raising the war cries too loud and too early, when in fact the senators will not deliver what we are promising," said Manuel Miranda of the Third Branch Network, who organizes regular conference calls of like-minded conservatives about judicial nominations. Instead, he said, conservatives should take a more "modest" and "measured" approach at first.
Biskupic, a regular on PBS's Washington Week who left the Washington Post for USA Today ten years ago, contented “President Reagan and the first President Bush used their second Supreme Court nominations to make bold choices that strongly advanced their ideological interests” with Reagan picking “conservative jurist [Antonin] Scalia” while George H.W, Bush, after selecting “a moderate appeals court judge, David Souter,” settled on Clarence Thomas, “now one of the court's most conservative justices.”
In contrast, “when President Clinton got his second court vacancy, he opted for the pragmatic liberal Stephen Breyer rather than a real firebrand.” Repeating her point, with Clinton she saw more nuance than with the GOP Presidents: “His first pick was pragmatic liberal judge Ruth Bader Ginsburg, in 1993. His second pick Breyer, in 1994, was in the same mode.”
Retiring Supreme Court Justice John Paul Stevens is actually a conservative according to Newsweek columnist Andrew Romano, who apparently hasn't read any Supreme Court decisions in the last 20 years or so.
Romano rejects the notion that Stevens is a liberal, going so far as to chastise his fellow members of the media who frequently get suckered by "whichever shorthand, cheat-sheet label gets repeated most frequently." Romano further writes that the current coverage is "myopic" and that the lowly uniformed "laypeople are being given little choice but to remember the hunched, bow-tied Stevens, 89, as really, really liberal—Dennis Kucinich in robes."
In his end-of-the-show commentary on Sunday's Face the Nation on CBS, host Bob Schieffer cited a Saturday New York Times article celebrating retiring Supreme Court Justice John Paul Stevens: "that Justice Stevens 'may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court.'"
Schieffer agreed with that assessment and declared that for President Gerald Ford "sending John Paul Stevens to the Supreme Court is not a bad legacy." He concluded: "As Justice Stevens's fine service was being rightly celebrated last week, I couldn't help but think of that as well."
Prior to his commentary, Schieffer spoke with CBS legal analyst Jan Crawford about possible nominees to replace Stevens. Crawford argued that President Obama and Democrats would attempt to "counter" Republican efforts to "beat up on their candidate," "by continuing to portray the Supreme Court as out of touch with everyday Americans."
Mike Barnicle just wrapped up the Obama Parrot of the Week. That's the award I hand out on my local TV show to the MSMer doing his sycophantic best to parrot the Obama party line. Barnicle gave his award-winning performance on today's Morning Joe, in the course of tossing two super-softballs to David Axelrod.
Barnicle's first lob bemoaned the difficulties of governing in this hyper-partisan, cable-TV age. His second softball chastised Republicans for their announced intention to oppose Pres. Obama's Supreme Court nominee. Which raises the question: do the names Robert Bork—or Clarence Thomas—mean anything to Mike Barnicle?
On the front of Sunday's Washington Post, Supreme Court reporter Robert Barnes unfurled the first liberal spin line of the battle over a new Supreme Court justice: that there's no way whoever Obama nominates will be more liberal than retiring John Paul Stevens. Barnes said "almost certainly" the court will be more conservative after Obama's second nominee is confirmed.
Can anyone imagine the media buying that spin for a second after, say, Chief Justice Rehnquist passed away? Oh, Bush can't possibly make the court more conservative. "Almost certainly," the court will be more liberal now.
Barnes completely accepted Justice Stevens laying down a marker for his half of the court, and made it the newspaper's own front-page spin:
On ABC’s This Week, when retired ABC newsman Sam Donaldson recommended that President Barack Obama nominate, to replace Supreme Court Justice John Paul Stevens, someone who “is going to stand up for the principles – on the left, if you will – that he believes in,” Cokie Roberts jumped in: “I’m not so sure he is so far to the left.” Donaldson agreed: “Well, I’m not sure either.”
Minutes later, Roberts contended the efforts of state attorneys general, to get a federal court to rule unconstitutional ObamaCare’s requirement every citizen get health insurance, reminded her of the “nullification” which led to the Civil War:
You have these fourteen states attorneys general saying that they want to have the court overturn the recently passed health care law. I must say, I was just with my grand kids at Fort Sumter, and the notion of nullification made me extremely nervous because it was, of course, the first step toward the Civil War.