Judiciary

The following was written for NewsBusters by Jason Aslinger, a private practice attorney from Greenville, Ohio. Portions in bold below reflect the editor's emphasis.

The media’s contempt for the conservative U.S. Supreme Court reached new lows this week when it used a dishonest play on words to imply that the Court was against racial diversity in public schools.

That distortion, however, paled in comparison to MSNBC's Keith Olbermann, who announced on his blog (appropriately named “The News Hole”) that the landmark case of Brown v. Board of Education had been overturned!

Olbermann would have you believe that the U.S. Supreme Court had returned us to the days of segregated public schools.

Under the intentionally inflammatory heading “TURNING BACK HISTORY,” Olbermann's "Countdown" staff wrote:

CNSNews.com staff writer Monisha Bansal has done something I've seen very little, if any of, in mainstream media coverage. Reporting on yesterday's Supreme Court ruling striking down two race-based preference structures that governed public school districts in Louisville, Ky. and Seattle, Ms. Bansal documented the reaction of the lawyers who won the lawsuits in question.

As NewsBusters has repeatedly noted, most of the media focus has been on the political dimensions of a "rightward" shift in the Court, in Kennedy as the new swing justice, etc.

Below is an excerpt of Bansal's June 29 article, portions in bold are my emphasis:

The following is submitted by Jason Aslinger, a NewsBusters reader and a private practice attorney from Greenville, Ohio. Cohen pictured at right (file photo).

In his June 28 "Court Watch" article, CBS News legal analyst Andrew Cohen laments the conservative bent of the U.S. Supreme Court under Chief Justice John Roberts. But rather than give readers sound legal critiques, Cohen sounds out a decidely political lament.

With a title like “Rightward Ho!” you might think that Cohen would attack the Court’s conservative justices, and he does, dismissing Justice Samuel Alito as a "rigid starboard-facing ideologue" while he derides Chief Justice John Roberts as "silly and condescending."

Cohen lists several cases from the 2007 term in which, in Cohen’s view, Justice Alito delivered the deciding vote. Cohen writes:

I could not leave this untouched. Joan Biskupic, the same Supreme Court reporter I accused of sounding like a John McCain press flack, has given us a gem of a skewed report on a 5-4 decision today about the use of race as a factor in managing public school registration.

Let's walk through it shall we?

When reporting on a key Supreme Court ruling, it's kind of nice to give readers a glance of the reasoning of the majority first. Makes sense, right. After all, the focus is supposed to be the party at suit that, well, WINS. But Chief Justice Roberts, who wrote for the majority, isn't quoted until the 9th paragraph. Justice Kennedy's more restrained concurring opinion is referenced in the fourth, but it's dissenting liberal Justice Stephen Breyer who draws first ink in the third paragraph.

Below are the first four paragraphs (my emphasis in bold), punctuated by my commentary:

As a follow-up to my previous post, I thought I'd take a look at the inane headlines for coverage of the 5-4 ruling today that restricts school districts from using race to manage school populations. Time and the Los Angeles Times are real howlers:

• High Court rejects public school diversity plan (AP via Chicago Sun-Times)
• Supreme Court rejects public school diversity plans (USA Today)
• Supreme Court Limits Integration Plan (AP story via Time.com)
• Supreme Court strikes down school integration policies (LA Times)

Oh, and the Detroit Free Press goes with this gem: "Supreme Court rules race cannot determine school choice."

Two things: Hasn't that been the law of the land since Brown v. Board of Education, and, since when is it school "choice" when its a government body that selects for you where you MUST attend school?

In a landmark 5-4 case today, the U.S. Supreme Court found that two school systems had improperly used race as a consideration in managing the public school districts. Web sites for many newspapers have carried Associated Press coverage of the ruling, and the later the revision of the AP report, the more information tends to be packed in them.

As of 1:15 a.m. Eastern when I started this post*, the Los Angeles Times front page linked to an AP story published just before 11 a.m. Eastern. But in that version of the AP story, Chief Justice John Roberts, who wrote the majority opinion, is not quoted at all. Yet a similar AP story (perhaps the same story but with fewer paragraphs edited out) was published just minutes later in the Washington Examiner.

Myra Langerhas of "Snarking Dawg" had this pointed take on those vaunted "campaign finance reform" champions at the liberal New York Times that I thought I'd share with you:

Typical editorial from every litterbox's paper of record. Boil it down to bones - 'Bong hits 4 Jesus' banner by a high school student during class hours demands 1st Amendment protection, but an ad from a private group that asks Senators to vote on judicial nominees needs to be censored by the Federal Gubmint.

Wow, and the 'smart guys' read this fodder.

Our very own Clay Waters scoops out that litterbox regularly. You can track his record of the Times' droppings at TimesWatch.org.

In its rush to paint yesterday's Supreme Court ruling that struck down an issue ad ban contained in the so-called McCain-Feingold Law, the Chicago Tribune described the case as a win for President Bush and the GOP, even though the Bush administration's lawyers lost the case in question and even though the case benefits liberal activist groups as much as it does conservatives. What's more, Bush's appointees to the court actually restrained the conservative majority from taking a bigger swipe at the campaign finance law.

Here's the lede from the Tribune staffer David Savage:

WASHINGTON -- The Supreme Court gave President Bush and Republican leaders two important 5-4 victories Monday by clearing the way for corporate-funded broadcast ads before next year's election and by shielding the White House's "faith-based initiative" from challenge in the courts.

Oh really? President Bush signed the campaign finance bill into law, it was his Federal Election Commission that pleaded and lost the case, and he's not able to run again for reelection, yet somehow he won yesterday by virtue of his Federal Election Commission losing?

What's more, Republicans, conservatives, and business interests can certainly benefit from the change in the law, but so can Democrats, liberals, and labor unions, a point that the Washington Post's Robert Barnes picked up on in his reporting, which tracked favorable reaction from labor and business leaders:

And now for something completely insipid…

As the media and their alarmists like soon-to-be-Dr. Al Gore have shamefully convinced enough of the population that man can actually impact the climate, law firms around the nation are gearing up to sue possible offenders.

I kid you not.

As reported in Monday’s Dallas Morning News (h/t NBer alamojb, emphasis added throughout):

CBS legal analyst Andrew Cohen found the rulings from the Supreme Court today to be a boon for conservatives, but he couldn't resist hinting about his personal opinions about those cases. He didn't seem to agree with any of them. (emphasis mine):

Conservatives go 4-4 today at the Supreme Court

Let's stay with our baseball theme today.

Legal and political conservatives hit for the cycle Monday morning when they "won" four long-awaited rulings from the United States Supreme Court. The Justices further chipped away at the wall that separates church and state, took some of the steam out of the McCain-Feingold campaign finance law, neutered federal regulators in environmental cases to the benefit of developers and slammed a high school kid who had the temerity to put up a silly sign near his high school.

Today the U.S. Supreme Court ruled that it was unconstitutional to ban interest groups from running issue ads close to an election. The McCain-Feingold Act bans any issue ads by interest groups that mention a candidate running for reelection from airing within 60 days of a general election (and 30 days before a primary), even if the ad does not expressly advocate voting for or against the named candidate.

The way Ariane de Vogue of ABCNews.com reports it, the ruling is not a victory for free speech and political participation, but a blow to "reform." (emphasis mine):

Reigniting the debate over campaign finance regulation, the Supreme Court struck down a part of the 2002 Bipartisan Campaign Reform Act on Monday.

That legislation, also known as the McCain-Feingold law, restricts corporations and labor unions from broadcasting ads at election time using general funds. Proponents of campaign finance reform fear Monday's ruling will create a major loophole in the legislation and cause an influx of so-called "sham issue" ads that McCain-Feingold was created in part to combat.

Brian Fitzpatrick of our Culture and Media Institute passes along the latest nugget of wisdom from CNN legal analyst Jeffrey Toobin (also of The New Yorker magazine), on the Supreme Court and partial birth abortion:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both.

Writes Brian, as he nominates this for stupidest quote of the year: "Oh, sure. As if an abortionist takes risks to the fetus into account!" What genius from the Harvard man (B.A. 1982, J.D., 1986)!

In the MSM world of NBC, the only "rights" groups are liberal ones. And Supreme Court justices, at least women ones, are there to serve as advocates for their sex.

That was evident from the segment "Today" ran this morning, focusing on Supreme Court Justice Ruth Bader Ginsburg. The gist was that with Sandra Day O'Connor gone, it's a lonely struggle for Ginsburg as the high court's sole woman. "Today" portrayed that struggle not between liberals and conservatives, but between conservatives and various "rights" groups.

Campbell Brown introduced the segment.

'TODAY' WEEKEND TODAY CO-HOST CAMPELL BROWN: One thing as clear as the Court moves into its final weeks of the current session, it is much different place with just one female place among nine high court justices."

Ruth Bader Ginsburg, the liberal Supreme Court justice, took the unusual step of reading from the bench her dissent against the Court's recent 5-4 ruling in a case against pay disparity in the workplace. The New York Times' Supreme Court reporter Linda Greenhouse celebrated Ginsburg's activism in her Thursday "Supreme Court Memo," "Oral Dissents Give Ginsburg a New Voice on Court."

"Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.

"Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Justice Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

Update posted below w/link to NRO's Bench Memos.

"Over Ginsburg's Dissent, Court Limits Bias Suits," blared the May 30 front page headline by the Washington Post Supreme Court reporter Robert Barnes. While the 5-4 ruling in Ledbetter v. Goodyear Tire and Rubber Co. hinged on a plain and simple application of a 1964 federal law, Barnes front-loaded his article with the dissent of liberal Associate Justice Ruth Bader Ginsburg, buried the majority's rationale deep in the article after pro-Ginsburg feminist talking points, failed to include comment from Goodyear Tire, and gave readers an unbalanced portrait of the ruling focused on feminist reaction.

Let's take a look at how Barnes's bias unfolded, starting with the lede and second paragraph:

Update/Related (17:38 EDT): The Wall Street Journal's Law Blog started an open thread on Thomas's lack of questions during oral arguments here.

USA Today's "On Deadline" blog this morning picked up on a 5-day old McClatchy Newspapers item that showed Justice Clarence Thomas spoke exactly zero words during Supreme Court oral arguments since February. The original article it referred to seemed to take subtle swipes at the 58-year old George H.W. Bush-appointed jurist.

The May 16 item by reporter Michael Doyle began:

Mum's the word for Supreme Court Justice Clarence Thomas. Very, very mum.

Taking reticence to new heights, Thomas zips his lip during the robust intellectual combat known as the oral argument. While his eight colleagues joke, thrust, parry and probe, Thomas leans back in silence. And that's how he stays.

Yet rather than leaving Thomas's silence to his quiet demeanor or personality, Doyle went on to suggest to readers that the taciturn Thomas was not intellectually engaged in his work (emphasis mine):

In today's Washington Post, staff writer Carol Leonnig heavily skewed in favor of the District of Columbia gun ban. The stringent 1976 gun law was overturned earlier this year by a three-judge panel of the D.C. Circuit Court of Appeals but may be appealed to the Supreme Court. Notice the skew of the article in favor of the D.C. government's position in the first two paragraphs of "Gun Ban Ruling Puts Fenty on the Spot.":

D.C. Mayor Adrian M. Fenty must make a risky choice about the District's gun ban: defend it before the Supreme Court or write new, looser laws governing how city residents can keep guns in their homes.

As he wades into a high-stakes debate over the Second Amendment, the new mayor of the nation's capital faces the possibility that the city could lose the case and undercut decades of hard-fought gun-control legislation across the country.

Yeah, because it's a darn shame when laws that undercut a constitutional right might, you know, be repealed by the highest Court in the land.

On his must-read "Best of the Web Today" column for Opinion Journal, the online home of the excellent Wall Street Journal editorial page, James Taranto did a nice analysis on Associated Press reporter Mark Sherman:

An Associated Press dispatch about Justice Sam Alito includes this gem of legal analysis:

Alito has voted with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas in every case in which the court has been ideologically divided.

Really? We found 15 cases in which Alito did not vote the same way as Roberts, Scalia and Thomas, including five in which Alito was on one side and all of the other three were on the other.

On his blog at National Review, talk-show host and longtime conservative legal eagle Mark Levin reports that New York Times reporter William Glaberson called him for comment, but couldn't seem to abide putting conservative counterpoints in his story on attempts to limit the attorney-client communications surrounding terrorist suspects at Guantanamo: "Apparently my comments didn't fit his scenario." Levin described his conversation with the Times reporter:

I told him that prior to 2004, unlawful enemy combatants held outside the United States had no access to federal courts; that if these lawyers had access to classified information they would be ethically compelled to discuss it with their clients in order to properly and zealously represent them; that they were constantly trying to move the bar by expanding the supposed due process rights of the detainees; and many other things. Of course, none of this made it into his story. I could tell when he interviewed me that he was basically carrying water for the terrorists' lawyers when he took exception to my calling them "defense counsel." I said, "If they're not defense counsel, then what are they?" He had to concede the point, which seemed rather obvious to me.

On April 19, the ladies of "The View" offered their analysis of the Gonzales v. Carhart decision upholding a federal partial birth abortion ban. Most of the segment was a back and forth between Rosie O’Donnell, who clearly opposed the decision and Elisabeth Hasselbeck, who supported it. Joy Behar and Barbara Walters chimed in occasionally with Behar clearly in the abortion rights camp and Barbara Walters mildly there. Video: Real (1.4 MB) or Windows (1.6 MB); plus MP3 (256 KB)

Rosie expressed horror that there are five Catholics on the Supreme Court and Catholics on the Court apparently violate the "separation of church and state"

I noticed an excellent item by Patterico today on selective reporting from the Los Angeles Times's David Savage regarding the "safety" of partial-birth abortion as compared to other methods of abortion and thought I'd excerpt it for you below:

Savage highlights the fact that some doctors say that the ban creates “significant health risks.”

What he doesn’t mention is that many others disagree. This disagreement is a major point of the opinion, and is stated again and again (though not mentioned by Savage). Here are some representative quotes from the opinion:

As a followup to NB editor Brent Baker's examination of network coverage of the Supreme Court ruling upholding the ban on partial-birth abortions, I thought I'd take a look at how four major newspapers, USA Today, The Washington Post, the Los Angeles Times, and The New York Times reported the story in today's papers.

All four papers included descriptions of the gruesome abortion procedure, although none described the suctioning of the unborn child's brain from the skull as the manner of ending the fetus's life, and the NY Times failed to mention the brain suction at all. While all four papers also put "partial-birth abortion" in quotes or chalked the label up to pro-life rhetoric, the NY Times's

Linda* Greenhouse piled on, calling the label "provocative" and describing the ruling as a shift from a focus on the "rights" of women to the "fate of fetuses."

CBS "Public Eye" editor Brian Montopoli explained in an April 18 post that when covering today's Supreme Court ruling upholding an abortion ban, "CBSNews.com has decided to go with this phrasing whenever possible: 'what the law calls a partial birth abortion.'"

And the reason?

"Both 'late term abortion' and 'partial birth abortion' are now phrases that signify a position, so we will use this phrasing though it is cumbersome," CBS editorial director Dick Meyer noted in an e-mail to CBS staffers.

Of course, it's cumbersome and ridiculous to imagine that language being used to describe a number of other things defined under federal law, but on a more basic level, "partial-birth abortion" is not political invective, it's descriptive layman's language to describe a medical procedure.

Earlier this morning the U.S. Supreme Court upheld a federal ban on partial-birth abortion. What's more, Justice Anthony Kennedy, whom many in the media often focus on as the "moderate" and "swing" justice on the Court, penned the majority opinion. While the mass murder at Virginia Tech is still the top story in the media, Fox News found room to give this landmark ruling prime real estate on its Web site. CNN, however, relegated the story to a link nine entries deep into its "latest news" list.

The screenshots I've included in this post are taken from Fox News and CNN's Web sites from around 11:30 a.m.

Update (April 13 | 10:46 EDT): The April 13 edition of Fox News Channel's "Red Eye" briefly addressed Moran's blog entry. I've added a screen capture from the program.

Leave it to a liberal journalist to bring racial tension and class warfare into a story about three men exonerated of rape allegations after a year of prosecutorial misconduct.

ABC's Terry Moran found the outpouring of sympathy for the exonerated Duke lacrosse players is a bit much because, in a nutshell, they're white guys from wealthy families who attended a private university. In fact, in an April 12 "Pushback" blog post at ABCNews.com, he suggested that in a way, they were victimized less than the Rutgers women's basketball team by Imus. Portions in bold are my emphasis. Video Clip: Real (2.7 MB) or Windows (3 MB), Plus MP3 (477 KB)

UPDATE (14:18 EDT): See bottom of post.

The front-page teaser headline for today's front page Washington Post article on the Supreme Court's CO2 ruling (emphases below are mine):

Court: EPA Violated Clean Air Act

Supreme Court rebukes Bush administration for refusing to regulate greenhouse gas emissions.

The link takes readers to today's front page article by Robert Barnes and Juliet Eilperin, "High Court Faults EPA Inaction on Emissions."

But both headlines not only skew the issue that was before the Court -- turning a legal matter into a political drama, and making the Supreme Court into a veritable high court of climate science -- they mislead readers about the actual finding of the Court's majority.

I'm no fan of the majority's reasoning or their ruling, but as Barnes and Eilperin themselves report deep in their article, Justice John Paul Stevens, writing for the majority, noted that "We need not and do not reach the question" of whether the EPA "must make an endangerment finding." In other words, the ruling is not some stern Al Gore-like command for the EPA to regulate carbon dioxide emissions.

Indeed, while the scientific geniuses in the Court majority in Commonwealth of Massachusetts v. EPA did hold that carbon dioxide may be defined as a pollutant under the Clean Air Act and hence may result in future EPA regulation, the ruling is not a rebuke to the Bush, and Clinton, administrations* for years of non-regulation.

UPDATE (13:45 EDT): The White House transcript is now available online here.

I'm watching the presidential press conference live and will update it and the coverage of CNN in real time as it rolls along. Stay tuned for more coverage this afternoon and evening.

10:15 EDT

* First question about Nancy Pelosi's Syria trip and if its sends mixed signals about U.S. foreign policy.

10:17 EDT

* Second question on British sailors and marines held hostage in Iran.

10:17 EDT

* question from Peter Baker on the role "loyalty" played in Bush's firing of US attorneys

10:19 EDT

* CBS's Bill Plante asks about a failure of the surge in Iraq. "People question the continued sacrifice of U.S. troops to make it work"

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Time's Joe Klein raves that the Supreme Court ruling that EPA can regulate carbon dioxide as a pollutant is "fabulous":

This is fabulous news from the Supreme Court. Let's hope it lifts some of the remaining diffidence in DC regarding actual solutions--as in, carbon taxes or cap-and-trade programs, or a bit of both.

"Court trumps Bush on global warming," read the teaser headline on the front page of ABCNews.com, as accessed by this reader at 12:15 p.m. EDT today. No, the Supreme Court is NOT the high court of all things scientific, but ABC and other liberal media outlets are essentially portraying the new ruling as such, although it pertains merely to what the EPA may choose to regulate as an air pollutant.

When I clicked the link it took me to a two-paragraph Reuters squib about a Supreme Court ruling on carbon dioxide regulation that came down this morning:

Apr 2, 2007 — WASHINGTON (Reuters) - In a defeat for the Bush administration, a closely divided Supreme Court ruled on Monday that a U.S. government agency incorrectly determined it lacks the power to regulate greenhouse gas emissions that spur global warming.

The nation's highest court said the U.S. Environmental Protection Agency "has offered no reasoned explanation" for its refusal to regulate carbon dioxide and other emissions from new cars and trucks that contribute to climate change