Judiciary

With its editorial of this morning, Justice After Guantanamo, the Los Angeles Times has raised the bar when it comes to expressing exquisite sensitivity for the rights of accused terrorists. The Times waxes indignant that in trials of Gitmo denizens the Bush administration favors - brace yourself - the admission of hearsay evidence. Send in the smelling salts.

Says the Times:

"New draft legislation to bring the military commissions established by the administration into compliance with a Supreme Court decision borrows heavily from the Uniform Code of Military Justice. That's the good news. The bad news is that on some issues — particularly the use of hearsay and evidence obtained by coercive or inhumane interrogation — the administration still clings to the notion that the end justifies the means."

The Andrea Yates jury spent 36 days listening to testimony and argument, trying to get inside the mind of a woman who had drowned her five children. But with just one sentence, ABC's Chris Cuomo accorded us a stunning look inside the mind of a certified MSMer: sympathy first, last and always for the accused.

Commenting on the not-guilty-by-reason-of-insanity verdict, Cuomo had this to say:

"Ironically, treatment might be the harshest punishment for Yates, because she has said the healthier she becomes, the more pain and regret she's able to feel."

Somebody please tell me what is funny or - more importantly - true about this cartoon.

Is this really the view of Dan Wasserman and by extension the paper that employs him - the Boston Globe? Do Wasserman and the Globe really believe that, in his heart, President George W. Bush is a torture-master of medieval proportions? Do they truly think that only international agreements and court decisions stand between him and the barbarous flaying of prisoners?

The cartoon is presumably referencing a recent Supreme Court decision that ruled against the administration's use of military tribunals for the trial of Gitmo detainees.

MRC intern Chadd Clark found that CNN had the same old pattern of centering the day's big state court decisions on "gay marriage" as a ruling for "proponents" first. This report aired Thursday in the 4 pm hour of "The Situation Room." Perhaps the newspapers were merely copying from the CNN stylebook. Or maybe it's the GLAAD stylebook.

John King: "Moving on, though. Proponents of gay marriage are reeling today from a one-two legal punch. Courts in Georgia and in New York State issued new rulings now having an impact on the culture wars. CNN's Allan Chernoff has more from New York. Hi, Allan."

Just as the New York Times firmly centered its coverage of so-called "gay marriage" decisions from state courts on the gay left's horror, The Washington Post report from Amy Goldstein also presented the issue first and foremost as a question of how "gay rights advocates" felt:

The highest courts of New York and Georgia ruled yesterday that same-sex couples are not entitled to marry, delivering a twin blow to gay rights advocates that leaves Massachusetts as the only state in which such unions are legal.

As usual, the story is illustrated by a photo of gay activists, as it almost always is. Gay media theorists used to protest that their problem was "invisibility," but now, it's the social conservative activists that almost never get their picture in the paper when the story is gay "civil rights." Perhaps the most classic Goldstein paragraph is the one where she describes the great ideological battle on this issue, between conservatives and liberals -- oops, make that advocates of "civil rights."

Today's New York Times leads off with a local story with national ramifications, a 4-2 defeat of gay marriage in the Court of Appeals of New York, the state's highest court.

Anemona Hartocollis reports:

"New York's highest court rejected yesterday a broad attempt by gay and lesbian couples across the state to win the right to marry under state law, saying that denying marriage to same-sex couples does not violate the State Constitution.

"By a 4-2 majority, the Court of Appeals found that the State Legislature, in laws dating back nearly 100 years, intended to limit marriage to a union between a man and a woman, and that the Legislature had a rational basis for doing so."

When America marches off to war, do we want lawyers on the front line? OK, I can already hear the thunderous response: 'Yes! Put those tassel-loafered shysters out there as cannon fodder!"  But Jim Pinkerton, conservative columnist at Newsday and TCS, was making a more profound point this morning when he and Ellen Ratner of Talk Radio News made their 'Long & Short' appearance on Fox & Friends Weekend.

The subject was the recent Supreme Court ruling that it is impermissible to subject Gitmo prisoners to military tribunals.  In fairness, short-'n-liberal Ellen Ratner did stop short of suggesting they should have full US-style trials.  But she predictably applauded the ruling, advocating significantly expanded due process for the detainees.

The Today show had many important subjects to discuss today, issues such as examining the details of Star Jones’ firing from The View in excruciating detail. However, co-host Campbell Brown did manage to squeeze in a quick interview with Senator John McCain on the Supreme Court’s military tribunal ruling. The segment, which aired at 7:07AM EDT, featured the typical media employment of leading questions and suggestions that "many" people believe Guantanamo Bay should be shut down. In this "balanced" question, Brown wondered what effect the ruling would have on President Bush’s other anti-terrorism policies:

Reporting on today’s 5-4 Supreme Court decision upholding a Kansas death penalty law, the Associated Press headlines:

"Alito breaks tie, Kan. death penalty stays"

The AP story begins:

New Supreme Court Justice Samuel Alito broke a tie Monday in a ruling that affirmed a state death penalty law and also revealed the court's deep divisions over capital punishment.

What the AP hypes about Alito’s vote is wrong. Alito didn’t break a tie. His was one of five votes cast by the majority of justices who upheld the Kansas law. Alito’s vote no more “broke a tie” than did the vote of any of the other four justices who formed the majority. And the AP knows that.

In today’s terror-stricken world, which is more vital to the public’s interest: being safe, or being informed?

This very question has come before the management of the New York Times twice in the past six months. On both occasions, even though it went completely contrary to the national security requests of the White House, their conclusion was that ignorance is indeed not bliss.

Sadly, it appears that the Times doesn’t agree with the old maxim “Tis better to be safe than sorry,” for on June 23, in what is starting to become a semi-annual event, the Times’ Pulitzer Prize-winning team of Eric Lichtblau and James Risen disclosed to America and her enemies the existence of another highly classified national security program designed to identify terrorist activity before it occurs.

In this case, since shortly after 9/11, the Central Intelligence Agency has been working with a Belgian international banking cooperative called the Society for Worldwide Interbank Financial Telecommunications. SWIFT provides

Advice to any Republican loyalists planning to watch a replay of this evening's Hardball: hide the sharp objects, put the firearms under lock and key, flush any potentially poisonous potions. With lovely-but-lethal Norah O'Donnell sitting in for Chris Matthews, this might have been the most unrelenting gloom-a-thon since Watergate. Riffing off the latest polls showing W at 33%, it was one guest after another - from Bob Shrum to Kate O'Beirne to a panel of "hotshots" - painting a decidedly unrosy scenario. And just when things couldn't get any more dread, a former Clinton administration official popped in to predict millions might die from bird flu thanks to government inattention "in recent years."

Kudos to CNN reporter Drew Griffin for reporting on a potential Democratic scandal that the majority of the mainstream media seems to have ignored. Griffin highlighted allegations that liberal Democratic Congressman John Conyers violated House ethics rules by ordering members of his staff to perform such non-official duties as tutoring and baby-sitting his children. These complaints of rules violations were filed against Conyers, the powerful ranking member of the House Judiciary Committee, by former members of his staff. Griffin reported:

"What this is about, Soledad, is ethics on Capitol Hill and who is and who is not doing anything to investigate when members of Congress are accused themselves of violating the rules. What we found out is former staff members of Congressman John Conyers of Detroit had been complaining about him for years. One says she was expected to baby-sit the boss’ kids for weeks at a time."

Mark Levin's radio show began with a cannon blast at Supreme Court Justice Ruth Bader Ginsburg, who claimed in a recent speech that threats against her life from the "irrational fringe" are encouraged by congressional Republican and conservative criticism of the court. (See all the rhetorical highlights on Levin's NRO blog.) AP reporter Gina Holland wrote up Justice Ginsburg's speech with energetic emphasis on Ginsburg's thesis that conservative criticism apparently/inevitably leads to violence:

Supreme Court Justice Ruth Bader Ginsburg said she and former Justice Sandra Day O'Connor have been the targets of death threats from the "irrational fringe" of society, people apparently spurred by Republican criticism of the high court.

It's not exactly news to the GOP base that John McCain is not one of them. But it was perhaps noteworthy to hear Chris Matthews, ostensibly a McCain man [at least when it comes to his preference among Republican presidential hopefuls], acknowledge that fact on this evening's Hardball. He might also have raised eyebrows on the other side of the aisle by ripping Democrats for their weakness on illegal immigration.

Speaking of the issues that were stressed at this past weekend's Republican coffee klatsch in Memphis, Matthews stated "all I heard was . . . no gay marriage, immigration - lock it up, stop illegals - keep cutting taxes and keep appointing conservative justices."

On Friday's Countdown show, MSNBC's Keith Olbermann highlighted recent comments by former Supreme Court Justice Sandra Day O'Connor, delivered during a speech at Georgetown University, seemingly directed at such conservatives as Tom DeLay and President Bush for some of their criticisms of the judiciary, criticisms which O'Connor argued put America's government at risk of heading toward dictatorship. Olbermann, who has several times compared the state of post-9/11 civil liberties in America to George Orwell's novel 1984, began his show seeming to trumpet the boost in credibility afforded to this comparison when a Supreme Court justice raises similar concerns: "It's one thing for us to throw around references to what seemed to be details from George Orwell's novel 1984 springing to life, thanks to post-9/11 thinking. It's quite another when the same kind of comments come from a just-retired justice of the U.S. Supreme Court..." Olbermann also compared actions by Republicans to those in communist countries that had "allowed dictatorships to flourish." Guest Mike Allen of Time magazine later gushed with hope that Olbermann's attention to the matter would inspire greater coverage of O'Connor's comments and "launch a thousand op-eds." (Complete transcript follows.)

It’s a question that has been asked many times: If Supreme Court Justice Ruth Bader Ginsburg fell asleep during a case, would the media notice? The answer, apparently, is no. On March 1, the Supreme Court heard arguments on the constitutionality of a Texas redistricting plan. One only has to look at the accompanying graphic to see how exciting Justice Ginsburg found the case. FNC correspondent Megyn Kendall reported it this way on Wednesday's Special Report:

"It is one of the biggest redistricting cases the high court has heard in years, but the special two hour argument proved less then compelling to Justice Ruth Bader Ginsburg who at times appeared to be, well, asleep.

The Times finds the burgeoning property rights movement (set in motion by the Supreme Court’s controversial decision in Kelo vs. New London upholding a broad interpretation of eminent domain) worthy of a Tuesday front-page story by John Broder, “States Curbing Right to Seize Private Homes.”

That negative headline reads as if the paper takes for granted that overturning property rights is something a government has a right to do, a “right” that’s now at risk of being “curbed.”

As Matt Welch noted in Reason Magazine after the eminent domain decision was handed down, the Times editorial page was one of the few and definitely the most enthusiastic supporters of the 5-4 decision upholding a Connecticut town’s right to condemn private homes to make way for private development. The chilly title of the Times editorial: “The Limits of Property Rights.”

The mention of Sam Alito voting "Catholic ticket" on the Supreme Court reminds me that Greg Pierce summarized a new magazine article in his "Inside Politics" column in the Washington Times this week. When President Clinton appointed Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, there obviously wasn't any concern of them voting on a "Jewish ticket." Their religion was rarely discussed -- in fact, most might be surprised at how little their nominations were discussed at the time. But Ginsburg ostentatiously displays her objection to the "outrageous" anti-abortion sermon she could hear at the Catholic "Red Mass" held ceremonially before each term of the Supreme Court:

Tonight President Bush will deliver his annual State of the Union Address, and Harry Smith of the "Early Show" previewed the speech this morning. Smith interviewed Dan Bartlett, Counselor to the President in the 7:00 half hour and Senator Edward Kennedy (D-MA) in the 7:30 half hour. There were stark differences in the tone Smith took with each of his guests, and in the amount of time allotted to each. Bartlett was on the program for only 3 minutes, and fielded 3 questions, while Senator Kennedy was given 7 minutes to answer four, two of which related to the passing of Coretta Scott King, the widow of Dr. Martin Luther King Jr.

Following a routine introduction of Dan Bartlett, Harry Smith asked some tough questions which in itself is not bias, but when that is combined with the negative tone that was taken and compared to the way Senator Kennedy was treated, it raises questions about fairness. The following are Smith’s questions for Bartlett.

If you thought Teddy Kennedy’s pratfall over Samuel Alito’s membership in a conservative Princeton alumni group was embarrassing (quoting magazine satire articles as if they were real), you should see what ABC’s “Nightline” tried to pull last week.

The subject was the ethics of judicial travel. As investigative reporter Brian Ross explained in the middle of the piece, “Justices at all ends of the political spectrum take plenty of these trips to lots of nice places, all paid for by somebody else." But this was no expose on justices “at all ends of the political spectrum.” It was a shameless hit piece on conservatives, complete with hidden-camera cheap shots.

Catching up with a distorted story from early in the week: On Monday's Nightline, ABC ran a silly story by Brian Ross impugning the integrity of the two most conservative Supreme Court justices, for a "judicial junket" in Colorado where at a Federalist Society conference Antonin Scalia played tennis and the acceptance by Clarence Thomas of a NASCAR jacket. Over hidden-camera video of Scalia on a tennis court, Ross stressed how Scalia missed the swearing-in of Chief Justice Roberts and featured law professor Stephen Gillers, "a recognized scholar on legal ethics," as his expert, running seven soundbites from him (compared to just two from a Scalia-defender). But Ross failed to note how Gillers is a left-winger who in The Nation in 1999 fretted about the "nightmare" of more conservative Supreme Court justices. Ross, however, tagged the Federalist Society as "a conservative activist group" as he buried a brief mention of how the group "says this was no junket at all but a legal seminar, in which Justice Scalia taught a ten-hour course." Ross even tried to smear Scalia with a link to scandal: "Scalia also attended the scheduled cocktail receptions, one of which was sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked."

Ross acknowledged, after his taped story aired, that "it isn't just Justice Scalia. Justices at all ends of the political spectrum take plenty of these trips to lots of nice places, all paid for by somebody else." But Ross didn't go beyond Scalia and Thomas and the Tuesday Good Morning America version plastered on screen, over video of Scalia playing tennis, "ABC NEWS EXCLUSIVE: SCALIA CAUGHT ON TAPE.” (Full transcript, and more on Gillers, follows.)

MRC's Mike Rule reports that CBS's "Early Show" had a typical breakdown of the debate over Oregon's assisted-suicide law. It's "patients" vs. "conservatives."

As Wyatt Andrews reported: "The ruling legalizes the right of terminally ill Oregon patients, patients like Jack Newbold, to end their lives when they choose with a doctor prescribed dose of barbiturates. Newbold died of his bone cancer but felt that his lethal prescription gave him power to the end...(Followed by old Newbold soundbite)...Patient groups in Oregon cheered the decision, and they predicted that other states will pass laws like Oregon's. Conservatives, however, will ask Congress to ban assisted suicide." (Introducting a soundbite from pro-life lawyer James Bopp.)

Up front in the "Periscope" section of Newsweek, it's reported that Sen. Joe Biden, stung by all the arrows about his blah-blah-blah at the Alito confirmation hearings, suggested that perhaps Supreme Court nominees should face a murder board of liberal media inquiries instead. He suggested confirmation hearings before the Senate Judiciary Committee should just be junked:

Critics point out that such a plan deprives nominees like Alito the chance to speak in their own behalf. But Biden, who notes that Judiciary Committee hearings haven't always been part of the confirmation process, says ditching hearings would leave nominees to make their cases in the media, where holding back and being boring won't necessarily fly. "Then [the press] would actually write about how they're not answering the questions," Biden says. "You people might get some answers out of them."

This morning's AP article on the Alito hearings from yesterday is actually fairly straight, at least by the Associated Press' normal standards. But there are still examples of typical AP anti-conservative bias.

Supreme Court nominee Samuel Alito said Tuesday he would deal with the issue of abortion with an open mind as a justice, though he defended his 1991 judicial vote saying women seeking abortions must notify their husbands.

In the first place, the construction of that sentence clearly implies that he won't deal with the issue with an open mind. Basically what they've written is Alito "said" he'd do this, but he defended the time when he did that. Secondly, they've have, yet again, misconstrued what happened in 1991. This is not the first time. He did not say that "women seeking abortions must notify their husbands." The state of Pennsylvania did. All he said was that, according to the Supreme Court's precedents on the issue, the state was constitutionally allowed to do so.

Alito pledged in 1990 that he would recuse himself from cases involving the Vanguard companies. Some Alito opponents say his participation in a 2002 Vanguard case raises doubts about his fitness for the Supreme Court. Alito holds six-figure investments with Vanguard. "If I had to do it over again there are things that I would do differently," said Alito, although he also said he did nothing wrong.

As do all of the legal ethicists who have been asked about it. It was interesting to watch Senator Hatch walk him through the issue, as the completely answered the question about what had happened, how he'd taken the case without recusal, and what happened later (he urged the court to vacate the opinion, and have the case re-heard by a new panel. This was done, with the same unanimous result.) He also instituted new procedures in his office to prevent the situation from arising again. "Some...opponents" may think the case raises doubts, but an unbiased reading of the situation suggests, as the AP does not, that those opponents oppose Alito for other reasons and are raising this non-issue in a purely political attempt to defeat the nomination.

He defended his 2004 dissent in which he supported the strip search of a 10-year-old girl, explaining that his interpretation was based on "common sense" that a warrant included searches of anyone on the premises of a drug suspect.

"Supported" is loaded language. It makes it sound as if he were standing there watching the search with pom-poms. He didn't "support" the search, he merely determined that a police officer could reasonably have taken the search warrant to allow that search. That doesn't sound nearly so sinister, though, does it?

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