Judiciary

"In a 7-2 ruling [on Monday], the Supreme Court expanded Congressional powers just a mite, by allowing the federal government to keep sexual predators in prison beyond their terms if they are deemed too dangerous to be released," U.S. News & World Report contributor Bonnie Erbe noted in a May 18 Thomas Jefferson Street blog post.

The PBS "To the Contrary" host later snarked that:

[T]he two dissenters were arguably the most conservative on a majority conservative court: Justices Antonin Scalia and Clarence Thomas. One would think that law and order conservatives would be more concerned about keeping sexual predators away from the public than about a very minor expansion of federal powers. Apparently not.

Of course that's a patently unfair cheap shot and Erbe knows it. Thomas's dissent in U.S. v. Comstock (scroll to page 36 at this link)-- published to the Supreme Court's Web site on May 17 -- clocks in at a brief 23 pages, easily readable for a journalist, especially one who graduated cum laude from Georgetown Law in 1987.

In 2005, then-Senator Barack Obama cast doubt on President Bush's pick of Harriet Miers in part because "her [legal] experience does not include serving as a judge" and as such "we have yet to know her views on many of the critical constitutional issues facing our country today."

Yet five years later, after President Obama named his solicitor general -- who has also never served as a judge -- to the Supreme Court, the media are not picking up on the parallels between the Miers pick and Obama's choice of Elena Kagan.

Media Research Center President and NewsBusters Publisher Brent Bozell discussed this on today's "Fox & Friends" program in an interview via satellite shortly before 8:30 a.m. EDT [MP3 audio available here].:

Give that lady a Peabody!  

The Peabody folks claim they give their awards for "outstanding" journalism and "excellence."  So just how clueless do you have to be to qualify? Take Katty Kay, the BBC's chief US correspondent, in New York today to pick up her prize.  On Morning Joe, Kay got off a double-barreled dose of classic MSM-think:

1. She defended Elena Kagan's opposition to military recruiting on campus on the theory that the nominee is in the mainstream . . . of college deans.

2. Chatting with the man who made Third World micro-loans famous and who preaches business without profits, Kay fretted that the crash  "has not been long enough" to turn people off capitalism.

Good Morning America's George Stephanopoulos on Friday cited a new poll and marveled to viewers that Barack Obama "is largely escaping blame for his handling of the [oil spill] crisis." (Note the passive way he framed that sentence.)

Reporter Jake Tapper discussed the government's reaction to the disaster in the Gulf of Mexico. He proclaimed, "[Obama] is said to be angry and disappointed, not just at the delay, not just the fact that there are obviously steps that could be taken to help prevent this, but he's very disappointed about the finger-pointing that went on between all the corporations involved."

If Jonathan Alter's interview segment, on Friday's Today show with NBC's Meredith Vieira, is any indication of what to expect from his new book on the Obama presidency, readers should not look forward to an insightful, hard-hitting treatment of the President as the Newsweek columnist praised Obama as not "a phony" who has a "psychological health to him." On to plug his book, The Promise, Alter -- after being cued up by Vieira to explain why Obama's approval ratings remain "strong" in a new NBC News poll -- boiled it down to his bringing an "authenticity" and "thoughtfulness" to his presidency.

ALTER: He just doesn't seem like a phony and the people who deal with him every day feel this way. He's got a kind of psychological health to him and even if you don't like what he's doing, and I try to assess where he's succeeded and where he's failed, you have to respect the man. He, he brings a thoughtfulness to the process. And he does try to drill down into these decisions.

Alter also cited Obama's pick of Elena Kagan to the Supreme Court as an example of him being a "conciliator" that harkens back to his days at Harvard University when he brought "liberals and conservatives together."

The following is the full interview as it was aired on the May 14 Today show:

Appearing on the May 13 "Hannity" program for a "Media Mash" segment,  NewsBusters publisher Brent Bozell tackled the media coverage of the Elena Kagan nomination. After the Fox News host played some clips of network anchors focusing on how the Obama Court nominee loves opera, softball, and poker, Bozell noted it was par for the course.

While "from the moment he was nominated, [Clarence Thomas] was savaged," whenever a liberal is nominated by a Democratic president, the media label him or her a moderate and focus on humanizing them, Media Research Center President Brent Bozell noted.

[MP3 audio available here]

Also of note, Bozell argued, was how the media have been largely quiet about a promotional video the White House produced to gin up positive PR for Kagan:

Good Morning America's George Stephanopoulos on Thursday appeared frustrated that perceived successes by Barack Obama have failed to help his own party. The former Democratic operative turned journalist interviewed current Democratic operative James Carville and complained, "You know, you've seen over the last month health care passes. Jobs are being created. The President has an arms control agreement with the Russians."

Stephanopoulos added, "Yet, nothing seems to move these [poll] numbers." Back on March 1, 2010, the morning show host was more hopeful.

He repeated liberal talking points about the effect passing health care would have: "...The Democrats in the White House who are pushing for this strategy, pushing for passage, say that once this does pass, the country will get it. Democrats will be unified. They'll get a huge benefit."

MSNBC reporter Andrea Mitchell on Wednesday actually expressed some journalistic outrage over a White House PR video disguised as an interview, deriding the administration for "crossing a number of lines when it comes to journalism." An irritated Mitchell highlighted a video on the White House website that features Supreme Court nominee Elena Kagan. [Audio available here.]

Most other media outlets have ignored this story. Mitchell, however, complained to reporter Kelly O'Donnell: "But, the White House has gone overboard, I think some would suggest, in terms of the control of all of this."

Attacking the "pseudo interview," Mitchell mocked, "Doesn't this seem to you like they are really crossing a number of lines here when it comes to journalism and the proper approach to selling a justice?"

In the latest example of a pattern of opacity, the White House has cut off the press's access to Supreme Court nominee Elena Kagan. Kagan has extensive ties to journalists, which only serves as a testament to this administration's determination to control the message on its major initiatives, including Kagan's nomination.

"Tell her we're deeply frustrated," one reporter told White House press secretary Robert Gibbs of the administration's refusal to grant Kagan a traditional interview with the press. Kagan did do a short interview with a White House staff member released only online, in what CBS White House correspondent Peter Maer called "Kagan 'in her own words' without anyone else's words."

Washington Examiner White House correspondent Julie Mason was harsher in her criticism. The White House interview "doesn't count toward the administration's 'accountability' totals," she wrote on the paper's Beltway Confidential blog. "It's just another campaign commercial, masquerading as openness."

As the MRC’s Tim Graham documented yesterday, ABC and NBC's morning and evening newscasts have so far refused to tag Supreme Court nominee Elena Kagan as a “liberal,” with CBS’s Jan Crawford offering the sole ideological label of the nominee on Monday's Evening News: “Her career has put her solidly on the left.”

In contrast, all three networks made a major deal out of the last person nominated by a Republican President for a slot on the Court, Justice Samuel Alito. Out of the first 21 stories on the ABC, CBS and NBC morning and evening news shows after Justice Alito’s selection, correspondents conveyed ten explicit “conservative” labels during the first 36 hours of coverage. In contrast, Graham documented just one “liberal” label in 14 Kagan stories during the equivalent time period after her selection.

In Alito’s case, the networks began trumpeting ideology from the moment he was picked. Anchor Charles Gibson opened ABC’s Special Report announcing Alito’s nomination: “He is very conservative. This is a liberal appellate court, but he is the most conservative  member on it....The President has picked someone very conservative, but a very accomplished jurist as well.”

Supreme Court nominee Elena Kagan wrote in a 1996 article entitled "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine" that "redistribution of speech" is not "itself an illegitimate end" for government. 

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."

When George W. Bush nominated judges John Roberts and Samuel Alito for the Supreme Court, the networks routinely described them as "conservative" and even "very conservative" and "ultraconservative." Last year they applied more “conservative” tags to Supreme Court nominee Sonia Sotomayor's critics than “liberal” labels to her.

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?"

Re-post from Thursday night, May 28, 2009:

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."

Re-posted from Wednesday night, May 27, 2009:

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.”

Audio: MP3 clip (50 secs)

Re-post from Tuesday night, May 26, 2009:

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.”

Re-post of Flashback from Tuesday, May 26, 2009:

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):