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:
It was Justice Alito whose vote in Gonzales v. Carhart helped deliver from despair the Congressional ban upon a type of what the law calls a partial birth abortion procedure — and, in the process, undercut the precedent set forth in Roe v. Wade.
Very few sentences can hold so much bitterness all at once. Most liberals refuse to use the term “partial birth abortion,” and hold the term to be a distortion of the actual procedure.
In the Gonzales decision, Justice Ruth Bader Ginsburg wrote: “Seven years ago … the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed ‘partial birth abortion.’”
The pro-choice lobby will say that the procedure in question is a “D&E,” which stands for dilation and extraction. It doesn’t take much imagination to imagine what dilation and extraction mean, however, as with most euphemisms, there is a lot that is left out between the “D” and the “E.”
Nonetheless, Cohen dutifully parrots Justice Ginsburg's sentiment in his blog.
Cohen also complains that the Gonzales decision “undercuts” Roe v. Wade. Cohen’s choice of the word “undercut” is curious from a legal perspective, because it is not one of the usual terms of appellate law such as “affirmed” or “reversed.”
In reality, the Supreme Court in Gonzales followed and affirmed the precedent of Roe v. Wade (as clarified by Planned Parenthood of Southeastern Pa. v. Casey, to be precise), with partial birth abortion being deemed illegal within the framework of the current case law. In other words, the Court crafted Gonzales to lay within the bounds of Roe, it wasn't a radical departure from it.
So much for the Court listing hard to starboard.
In addition to the decision on partial birth abortion, Cohen also blames Justice Alito for voting to help “hamstring employees seeking remedies for past workplace discrimination” and blocking “taxpayers from complaining about the executive branch’s self-promotion of religion,” among other things. These problems are all due to Justice Alito, apparently, despite him being just one of nine justices.
Perhaps because Alito is a Bush appointee, one might say, but that's a decidedly political distinction for CBS's LEGAL analyst.
Cohen’s saves his sharpest criticism, however, for moderate Justice Anthony Kennedy, and again his indignation is based on political, not legal considerations.Cohen writes:
In each of these cases, and many more, the Court's self-professed Hamlet, Justice Anthony M. Kennedy, could have done something to change the outcome — but didn't. The man anointed by deep thinkers in the media — and also me — as the likely "new" swing vote on the Court, the successor-in-interest and moderation to O'Connor, didn't, in the end, look or talk or act like any sort of savior for independent or soft-right causes. Instead, Justice Kennedy voted in the vast majority of cases — the big global warming case and Thursday’s public school affirmative action case being the remarkable exceptions — the way you would expect any appointee of Ronald Reagan to vote.
When you combine Justice Kennedy's general inability or unwillingness to become the new O'Connor model for moderation and add to that Justice Alito's eagerness to tack to O'Connor's jurisprudential right, you get a strong, vibrant Supreme Court majority this term that was even more willing than its recent predecessors to overturn existing precedent to come to a decision — especially when that decision skewed right.
Prior to her retirement, many Supreme Court opinions were forged by Justice O’Connor casting the deciding vote. Because of this, she was considered the “moderate” or “swing vote.” She retired and was replaced by the admittedly conservative Justice Alito. If you were to score the new Court politically, many would move Justice Kennedy to the “moderate” or “swing” or “#5” position.
From his comments, Cohen now expects Justice Kennedy to become the “new Justice O’Connor.” Cohen apparently wants Justice Kennedy to abandon his convictions and principles for the sake of “changing the outcome” of cases, presumably toward the political leaning of Cohen himself (which coincidentally would not be toward Justice Alito). The mere absence of Justice O’Connor should cause Justice Kennedy to shuffle “leftward,” to continue Cohen’s logic and terminology.
The idea that any legal analyst would expect a Supreme Court justice to adjust his convictions due to the political make-up of the Court is remarkable.
Indeed, his remarks would prove instructive should Cohen ever be nominated for the federal bench himself.
I will give him this, Cohen makes one point with which I will agree, albeit for different reasons: “The nation has the Court it said it wanted — and, indeed, the Justices it deserves.”
—Ken Shepherd is Managing Editor of NewsBusters
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Comments Policy
So, he's a political commenta
June 29, 2007 - 12:55 ET by Chris NormanSo, he's a political commentator, not a legal analyst. I guess this can be said for a lot of the analysts of a lot of topics in the media.
The dogs bark, but the caravan moves on.
- Arabian Proverb
I've not watched CBS "Ne
June 29, 2007 - 18:21 ET by Del DolemonteI've not watched CBS "News" on teevee for ages, but sometimes by necessity am forced to listen to their radio version, where Andrew has been performing for years as well. He's always showed a bias, especially so during the Clinton impeachment.
Thank God for Roberts and Alito
June 29, 2007 - 13:35 ET by Lame CherryWhile I have not agreed with President Bush on anything lately, Thank God for John Roberts and thank God conservatives prodded Bush to dump Miers and put Sam Alito on the court.
As Cohen would not like anyone who is not a Cuban communist voting to destroy America, his is high praise for Roberts and Alito.
Chief Justice Roberts has proven to the Peyton Manning of the Court with Alito, Thomas and Scalia the best offense ever. It has even inspired Justice Kennedy to start playing for the home team.
If only cheerleader Souter would become a man, I think even Brier would start seeing the light and at least start voting like an American.
There is nothing like having liberal regressives single you out for scorn as you are then doing the best for God, America and the world.
This is why we voted for George Bush and I still hope that he can put one more person on the court, I am simply enraptured about Janice Rogers Brown. That is a mind and character to make the American heart swoon.
*HIC IACET ARTORIVS REX QVONDAM REXQVE FVTVRVS
While I have not agreed with
June 29, 2007 - 14:00 ET by NewsbusterbrownWhile I have not agreed with President Bush on anything lately, Thank God for John Roberts and thank God conservatives prodded Bush to dump Miers and put Sam Alito on the court.
Which is why staying home on Election Day as a protest is silly, IMO. Whatever you think about the Republicans, the Democrats would be that much worse (and then some).
}}----> Thanks, busterbrown
June 29, 2007 - 14:10 ET by Cool ArrowI needed that pep talk. It's harder to respect the president these days unless I'm reminded of the hope he's installed in SCOTUS.
How many previous Republican Presidents were duped by Sleeper Judges?
Haha! Ask Dubyah's Pappy abou
June 29, 2007 - 18:23 ET by Del DolemonteHaha! Ask Dubyah's Pappy about the guy from New Hampshire he nominated to SCOTUS.
...or Reagan and O'Connor...
June 29, 2007 - 18:25 ET by bigtimer...or Reagan and O'Connor...
SCOTUS issues
June 29, 2007 - 18:26 ET by LionKingI think conservatives get appointed, but then the libs convince them that they can be an activist from the bench...they enjoy usurping power.
Andy has his panties all in a
June 29, 2007 - 14:26 ET by ncstevemAndy has his panties all in a wad. Liberal males are such girly men. All emotion and no logic.
I have been blessed with the
June 29, 2007 - 14:44 ET by ChrisMatthewsiswackI have been blessed with the privilege of obtaining a legal education and becoming an attorney. I am certainly no legal scholar, but I do at least have a unique perspective when it comes to legal matters in the news. That said, words don't describe how infuriated I am the MSM's reporting of Supreme Court and lower appellate court decisions. Its beyond shocking how bad it is. The reporting is SO consistently innacurate, misleading, and biased. There is aboslutely ZERO honest reporting of the legal principles a case was decided on, and any accurate reporting of the legal analysis used by the justices. Often, the MSM seems to be outright lying in these pieces. And, as noted above, there is constant intermingling of the concepts of political conservatism and judicial conservitism.
While blaming the great Justice Alito for hamstringing employee's, I suspect Cohen offered NO discussion about what the statute in question said or any of the on point precedents said.
To be fair, I realize that such a discussion might not make for interesting reading to alot of people, but there MUST be a better way for the MSM to put out a more accurate product, at least in regards to legal news, than they currently do. It might result in the general public having a better understanding of the law.
I don't think the MSM is inte
June 29, 2007 - 15:02 ET by Chris NormanI don't think the MSM is interested in the general public understanding the law, any more than they're interested in the public understanding economics or business. If they did explain any of this accurately, a lot more people would turn away from Liberals and their crazy ideas...
The dogs bark, but the caravan moves on.
- Arabian Proverb
One of the best examples of t
June 29, 2007 - 18:25 ET by Del DolemonteOne of the best examples of this would be their failure to report the beginning of the economic recovery that began in March of 1991. They had to ignore that story, solely so that their side could win the White House 18 months later.
In line with this, check out
June 29, 2007 - 15:42 ET by KC MulvilleIn line with this, check out the hilarious whining from Emily Bazelon on Slate yesterday. Remember, Bush promised to nominate true conservatives to the court. All of the decisions prior to nomination show that Roberts and Alito follow an originalist, conservative philosophy of law. They testified that they believed in following the law as written. Remember Roberts said, “If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution.” But, Bazelon argues, they (who’s they, by the way?) were assured by liberal and moderate legal scholars that Roberts and Alito weren’t going to be rigidly conservative.
In her mythology, “they” didn’t fight hard enough against Roberts and Alito because the scholars persuaded them to withhold their fire. Never mind the shameless demagoguery from the likes of Kennedy, Durbin, and the rest. In Bazelon’s mythology, the liberals and moderates “allowed” Roberts and Alito to pass through without a proper fight.
Now it turns out that Roberts and Alito are exactly as conservative as promised. Bazelon is weaving the threads of what will become the liberal story line: “We were lied to!” They can’t accept that they lost on the merits. The only explanation (to them) is that something nefarious or underhanded happened. They’re mad that Roberts and Alito haven’t pulled a Souter. Cohen even has the audacity to argue that “They warned over and over again during the Alito and Roberts confirmation hearings that the nominees were playing possum; hyping up their humility while downplaying their ideology.” Cohen is literally arguing that the nominees were deceitful because they delivered their philosophy exactly as they said. He's also trying to argue that ... gosh... we were all deceived when they said they weren't stubbornly ideological. Apparently to Cohen and Bazelon, by that promise, Roberts and Alito were therefore promising to abandon their former philosophy and adopt liberalism. (Talk about disingenuousness!) He’s arguing that they were disingenuous because they did what they said they would do.
Socrates is giggling.
Shocking fact: Emily went to
June 29, 2007 - 18:29 ET by Del DolemonteShocking fact: Emily went to the same law school as Bill Clinton.
CBS Legal Analyst Slams Conservative Court, Kennedy for Key Vote
June 29, 2007 - 19:59 ET by Alfred J. LemireAndrew Cohen referred to "the Court's self-professed Hamlet, Justice Anthony M. Kennedy." So I Googled. Justice Kennedy thought of the "Trial of Hamlet" 13 years ago and approached the Kennedy Center in Washington on it. He served as a jurist, not Hamlet. One can read about the Hamlet venture at http://www.pbs.org/n...
You are correct to write that Mr. Cohen's writing has more to do with politics than the law. The readers of the CBS blog have to look elsewhere to read an analysis of the substance of the Supreme Court decisions. This layman suggests http://powerlineblog... Paul Mirengoff will analyze the opinions in the race-assignment cases there; he began today with a review of Chief Justice Roberts's opinion. He should, however, have repeated the Roberts aphorism, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."