When the Supreme Court sat yesterday to hear the matter of NLRB v. Noel Canning, virtually every justice was highly skeptical of the Obama administration's claim that President Obama's January 2012 "recess appointments" were a valid exercise of his constitutional authority. After all, the president made the appointments when the U.S. Senate was technically in session -- a minutes-long pro forma session, but in session nonetheless. Even former Obama solicitor general Elena Kagan, no conservative she, seemed critical of the White House's arguments.
And yet when MSNBC's Adam Serwer covered the story for the Lean Forward network's website, he predictably spun the matter as the conservative wing of the Court leading the way for an outdated, dust-covered "horse and buggy" reading of the national charter. "Supremes may let GOP block Obama recess noms," blared an early msnbc.com teaser headline, although that misleading, inaccurate headline was changed shortly thereafter to read "Supreme Court questions Obama's power," a slightly less erroneous headline but one which cast's the dispute in personal terms, not constitutional and institutional ones. (see below the page break for screen captures). Here's how Serwer opened his story (emphasis mine):
So, Politico jumped the shark on gay marriage yesterday in reporting that Justice Elena Kagan that she had a ‘gotcha’ moment during yesterday’s hearings on the Defense of Marriage Act.
But a real ‘gotcha’ moment would have been if Politico did their homework and resurrected Kagan’s past comments about gay marriage from 2009, when she was awaiting confirmation to the post of solicitor general and she insisted in the answer to a questionnaire that “there is no federal constitutional right to same-sex marriage.”
In Elena Kagan's DOMA 'Gotcha' Moment, Jennifer Epstein and Josh Gerstein gushed that:
The Obama administration's assault on the Second Amendment in reaction to Newtown is not a serious solution. It's a Band-Aid on cancer. The NRA's call for armed guards in every school also misses the point. When is anyone going to get serious? The problem is violence, a violence of monstrous and horrific proportions that has infected America's popular culture.
The Hartford Courant reported on Sunday that during a search of Newtown grade-school killer Adam Lanza’s home after the shootings, “police found thousands of dollars worth of graphically violent video games.” Detectives are exploring whether Adam Lanza might have been emulating the shooting range or a video-game scenario as he moved from room to room at Sandy Hook Elementary.
Readers are advised to remove all food, fluids, and flammables from proximity to their computers before proceeding. You've been warned.
NBC News justice correspondent Pete Williams on this weekend's syndicated Chris Matthews Show actually said that when it comes to nominating judges, "A Democratic president is more likely to appoint somebody near the middle who is less ideological" (video follows with transcript and commentary):
While NBC, ABC, and CBS all reported on the Supreme Court's decision Monday to rule on the constitutionality of ObamaCare, none of the coverage made any mention of calls for liberal Justice Elena Kagan to recuse herself from the case due to her advocacy for the legislation as Obama's solicitor general.
Of the three networks, only ABC's World News even noted public opposition to the legislation, as White House correspondent Jake Tapper explained: "The health care law is tremendously unpopular with a new high of 51 percent of Americans viewing it unfavorably and new low of 34 percent approving of it."
The Washington Post puffed up the rookie performance of liberal Supreme Court justice Elena Kagan on the front page Monday. The headline was “Kagan made her mark in a bold rookie term.” But inside the paper was the more obvious conclusion, in the headline: “Kagan soothed liberal fears by shoring up the court’s left flank.”
Reporter Robert Barnes is one of many liberal reporters who like pretending that Kagan was somehow an ideological mystery during the confirmation process, despite being picked to be Barack Obama’s solicitor general before the high court.
NPR's Nina Totenberg spent more than 4 minutes on Wednesday's Morning Edition to supposed ethical conflicts of interest for conservative Supreme Court Justices Clarence Thomas, Samuel Alito, and Antonin Scalia. By contrast, Totenberg devoted only 17 seconds to the more current issue of liberal Justice Elena Kagan's service in the Obama administration as a factor in upcoming cases before the Court.
Host Renee Montagne introduced the correspondent's report by noting how both "liberal groups have chastised conservative justices for attending private conferences put on by conservative political interests, and conservative groups have responded by leveling some criticism in the other direction." However, the journalist devoted the first three minutes of a seven-and-a-half minute segment on the criticism launched at Clarence Thomas's wife from the left:
The House Judiciary Committee is launching an investigation to probe the involvement that Supreme Court Justice Elena Kagan had in “health care legislation or litigation” when she was serving as President Barack Obama’s solicitor general and was responsible for defending the administration’s position in federal court cases.
The investigation will look at whether Kagan is required by law to recuse herself from judging cases challenging President Obama’s health-care law and whether her answers to questions posed by the Senate Judiciary Committee during her confirmation process were accurate.
NPR's Nina Totenberg strangely cast doubt on the liberal credentials of Supreme Court Justices Elena Kagan and Sonia Sotomayor on Saturday's Early Show on CBS, claiming that "they're not nearly as liberal as justices were...thirty years ago." Totenberg also hinted that the other members of the Court were right-wing radicals: "Compared to the much more conservative members of the Court, they are liberal."
Anchor Russ Mitchell brought on the journalist for her take of the most recent term of the Supreme Court. Near the end of the interview, Mitchell noted how "this was the first full term for President Obama's two appointees, Elena Kagan and Sonia Sotomayor" and asked, "What do you think? Did we see a shift in the Court's philosophy this year at all?"
On Election Day, the Supreme Court heard arguments in the case Schwarzenegger vs. Entertainment Merchants Association. The irony of this case name was obvious: the celebrated violent-action-hero governor of California had signed a bill into law in 2005 forbidding the sale of ultraviolent video games to minors, a law that lower federal courts prevented from ever going into effect.
Why should the Supremes care about this? After all, a year before that, Gov. Schwarzenegger signed a law making it illegal for anyone under 14 years old to tan indoors under any circumstances. (Children from 14 to 18 can tan – with parental consent.) The fine for salon operators for each violation is as much as $2,500 per day. Somehow this did not become a cause celebre, and was not fought all the way to the Supreme Court. Indeed, 32 states are inhibiting the freedom of minors to tan, and no one cares.
But interfere with their right to fry their minds and there’s hell to pay. Video-game manufacturers don’t want politicians tampering with their sales to minors, so here comes the march of the First Amendment fundamentalists, who argue that the principle of freedom of speech covers the enthusiastic distribution and sale of every kind of child-corrupting media horror. For them there must be no helpful hurdle or brake for children to go around their parents and grab what Justice Samuel Alito called “the most violent, sadistic, graphic video game that can be developed.”
One wonders how Ed Whelan of the Ethics and Public Policy Center managed to get a hold of a private letter sent to President Obama by Harvard law professor Laurence Tribe advising him against nominating Sonia Sotomayor to the Supreme Court, but be that as it may, its contents are quite interesting and show just how nakedly political Tribe’s view of a justice really is and also how little he thinks of Sotomayor.
In the May 2009 letter (PDF link here), Tribe advises Obama to refrain from choosing Sotomayor because “she’s not nearly as smart as she seems to think she is” and also that she is a “bully” who would would be unable to try to persuade frequent SCOTUS swing vote Anthony Kennedy to a “pragmatically progressive direction,” something that Tribe believes former justice David Souter had managed to do on occasion.
As liberal Justice Elena Kagan takes her place on the Supreme Court next week, she could thank The New York Times for making her confirmation process smoother. Ever since Ronald Reagan nominated Robert Bork and he was rejected by the Senate in 1987 for his views and not his character or qualifications, confirmation battles for liberals have become less like judicial seminars and more like political campaigns.
For almost 20 years, in this new era of activist groups and activist reporters, TheNew York Times has covered Supreme Court fights with a heavy finger on the scales of justice, tipping the balance. They have painted conservatives as highly controversial and dangerously ideological, while liberal nominees were presented as "brilliant" moderates who were only newsworthy in that they were often laudably "historic" choices, or, in Kagan's case, she was not only "brilliant," but "very funny, warm and witty."
For Supremely Slanted, Times Watch analyzed the arc of coverage over the last two decades and the last seven Supreme Court justices, from Clarence Thomas's nomination in 1991 to Elena Kagan's confirmation in 2010, and found stark differences in how the Times reported on the four Justices nominated by Democrats versus the three nominated by Republicans.
Times Watch examined every substantive New York Times news story on each nomination, starting with the official presidential announcement and ending with the Senate vote confirming the nominee to the Supreme Court. Among the findings:
A stark pro-Democratic double standard in labeling:
The Times demonstrated a 10-1 disparity in labeling "conservative" justices nominated by Republicans compared to "liberal" ones nominated by Democrats.
In all, the three Republican-nominated justices were labeled "conservative" 105 times, while the four justices nominated by Democrats were labeled liberal on just 14 occasions.
Kagan a 'Brilliant Woman...Who Is Also Very Funny and Warm and Witty'
"Let's not forget that Elena Kagan has been an academic. She is a brilliant woman. She's somebody who is also very funny and warm and witty, and I think Americans will see that when they-when she comes before the Senate today." -- Reporter Sheryl Gay Stolberg, on the June 28 edition of TimesCast, at nytimes.com.
Venezuela Dictator Chavez a 'Good-Hearted Man of the People'
"During 'South of the Border' Mr. Stone schmoozes with several left-wing political leaders, including his good buddy the Venezuelan president, Hugo Chávez; he takes Mr. Stone to his childhood home, where Mr. Chávez mounts a children's bike that collapses under him. Mr. Chávez comes across as a rough-hewn but good-hearted man of the people whose bullheaded determination is softened by a sense of humor. At a corn-processing factory, he jokes: 'This is where we build the Iranian atomic bomb. A corn bomb.' Ho, ho, ho." -- Movie critic Stephen Holden, in his June 25 review of Oliver Stone's left-wing documentary "South of the Border."
During the July 2 edition of Bloomberg Television’s Political Capital, Bloomberg News columnist Margaret Carlson exalted Supreme Court nominee Elena Kagan. Carlson stated she would vote for Kagan "twice" because "It has been so long since I saw someone in public life joyful about being there." [audio available here]
The gushing didn't stop there for Carlson who continued to adorn Kagan for her impeccable "intellectual ability" and "temperament," despite admitting that there was little substance known about Kagan. This however was not important to Carlson who then proceeded to fawn over Kagan's joke that "brought the house down."
There have been a lot of complaints from the left over the opposition Supreme Court Justice nominee Elena Kagan has faced from Senate Republicans in her battle to win confirmation. But Kagan proponents should have seen this day coming when Democrats in the Senate did the same things to try to slow the confirmations of Justices John Roberts and Samuel Alito.
On CBS's July 4 "Face the Nation," CBS legal correspondent Jan Crawford explained why. Previously throughout these types of confirmation processes, the Senate would approve a President's nominee, assuming the candidate was qualified. But President Barack Obama, Vice President Joe Biden and Senate Judiciary Chairman Sen. Patrick Leahy, D-Vt. all set a new precedence when George W. Bush was president.
"Historically, [Kagan] would have been confirmed like Justice Ginsburg was, 96-3, or Justice Breyer, 87-9, but things changed. I mean, things changed 10 years ago, when Democrats started filibustering President Bush's qualified nominees," Crawford said. "I had a talk about all this -- I guess, what, five or six years ago with Mitch McConnell. You know, he said memories are long in the U.S. Senate. People remember what the Democrats -- including President Obama, Vice President Biden, Judiciary Committee Chairman Patrick Leahy -- did."
During the 'Early Wrap' segment on Friday's CBS Early Show, co-host Harry Smith discussed the confirmation hearings for Supreme Court nominee Elena Kagan with a panel of media pundits: "The almost unknown, practically under the radar, the Supreme Court nominee, Elena Kagan, before committees this week being funny. She was downright funny."
GQ Magazine's Washington correspondent Ana Marie Cox agreed with Smith and added: "...a Saturday Night Live skit made live, in part because she looks exactly like Rachel Dratch. And it's perfect because Al Franken is on the committee. And I kept on watching like waiting for someone to burst into song or Unfrozen Caveman Senator." Radio host Jane Pratt chimed in: "Her joke was good, the Chinese food joke was good." Smith remarked: "Very funny. Sunday night, and Christmas."
On Wednesday's Good Morning America on ABC, news reader Juju Chang noted Kagan's "lively sense of humor" and later asked co-hosts George Stephanopoulos and Elizabeth Vargas "who is going to play her in the SNL skit?" Vargas replied: "I don't think they could be as funny as Elena Kagan was!"
Wednesday's evening news shows and Thursday's morning programs continued to minimize or leave out important moments of Supreme Court nominee Elena Kagan's confirmation hearings. ABC's Good Morning America, for instance, has offered only 67 seconds of coverage over three days. Today and The Early Show each provided a single ten second news brief on Thursday.
It's not as though the second day of testimony lacked interesting developments. The New York Times on July 1 reported the intense questioning by Senator Orrin Hatch on an abortion memo written by then-Clinton White House Counsel Kagan.
Hatch demanded, "Did you write that memo?...But did you write it? Is it your memo?"
In covering Elena Kagan's confirmation hearings, CNN and MSNBC have repeatedly lauded the Supreme Court nominee for her "flashes of humor" and "disarming ease."
In tune with the reverberations of the network morning shows' echo chamber, correspondents like CNN's Dana Bash and anchors like MSNBC's Rachel Maddow on Tuesday praised Kagan for her ability to inject humor into otherwise "hollow and vapid" hearings and charm hostile Republican senators into docility.
"But just on a color note, what struck me, Candy, has been the way Elena Kagan has tried to use a sense of humor to really disarm the senators, particularly Republicans," noted Bash.
Maddow's guest, Dahlia Lithwick of the liberal Slate magazine, gushed over Kagan's "gut-wrenching" sense of humor, her masterful ability to balance "seriousness and levity and humor," and her "disarming and charming and kind of likeable" personality.
"A likeable liberal. Dear me, I know," quipped Maddow.
The White House has gone to extraordinary lengths to prevent the press corps from having meaningful access to Supreme Court nominee Elena Kagan. Such measures are hardly unprecedented, though they stand in stark contrast to then-candidate Barack Obama's message of openness and press transparency.
But now the White House has outdone itself in media opacity. It apparently blocked a New York Times reporter from sitting in on Kagan's brother Irving's constitutional law class at Hunter College High School. Yes, that's right. The White House is now trying to determine who can or cannot sit in a school class for teenagers.
According to watchdog group Judicial Watch, White Hosue Deputy Press Secretary Joshua Earnest intervened after hearing of Times reporter Sharon Otterman's intention to sit in on one class. "I'm definitely not comfortable with this at this point," Earnest told Kagan, according to documents it obtained from the school.
On Tuesday's Rick's List, CNN's Jessica Yellin harkened back to her college days at Harvard as she defended Supreme Court nominee Elena Kagan against charges by conservatives that she is anti-military: "When I was at Harvard, a full decade before she was dean of the law school, there was already institutional opposition to 'don't ask, don't tell'....it steeps the whole university."
Yellin, actually, was a key left-wing student agitator during her time at the university, as revealed in several interviews with The Crimson, the student newspaper at Harvard. She was labeled a "prominent feminist activist in her own right" in a June 10, 1993 profile of Sheila Allen, her first-year roommate and self-proclaimed "dyke of the Class of '93." The then-student certainly earned this label, as she helped resurrect Harvard-Radcliffe Students for Choice after a "relatively inactive period," was a women's studies major, and, in an April 10, 1992 interview, bemoaned how Harvard was apparently opposed to her feminist agenda: "For people interested in women's issues or gender studies, this is an overtly hostile environment."
In a May 1, 1992 article, Yellin expressed how the acquittal of the four police officers involved in the controversial Rodney King arrest was "the most blatant evidence of the indelible racism... in this country."
All three morning shows on Wednesday made sure to tout the "lively" sense of humor of Supreme Court nominee Elena Kagan, this as ABC continued to ignore the hearings. Over two days, Good Morning America has devoted a scant 67 seconds to Barack Obama's nominee.
After a news brief featuring Kagan cracking jokes at her hearings, former Democratic operative George Stephanopoulos gushed, "...If this Supreme Court thing doesn't work out, she's got another career in stand-up." [Audio available here.]
Guest host Elizabeth Vargas hyperbolically asserted that Saturday Night Live couldn't "be as funny as Elena Kagan was!"
It's not cute when reporters play dumb. Last year, when Barack Obama nominated Sonia Sotomayor for the Supreme Court, CBS anchor Katie Couric said labeling her “won't be easy.” CBS reporter Wyatt Andrews found “no clear ideology” in her public record. This week, the Washington Post embarrassed themselves with a front-page story claiming “Obama has not chosen outspoken liberals in either of his first two opportunities to influence the makeup of the court.”
That ridiculous sentence collides with a June 8 report by liberal Los Angeles Times legal reporter David Savage. “The early returns are in, and Justice Sonia Sotomayor is proving herself to be a reliable liberal vote on the Supreme Court. Cases this year on campaign speech, religion, juvenile crime, federal power and Miranda warnings resulted in an ideological split among the justices, and on every occasion, Sotomayor joined the liberal bloc.”
Supreme Court Justice nominee Sonia Sotomayor came off as a 2nd Amendment defender when she was being questioned during her confirmation hearings. She voted the other way when a gun rights case came to The Court.Can we now trust Supreme Court nominee Elena Kagan?
A liberal panel led by MSNBC anchor Chris Matthews injected sexism into the Kagan confirmation hearings on Tuesday morning, suggesting that Republican senators should curtail the tenacity of their questioning because the Supreme Court nominee happens to be a woman.
Invoking the Clarence Thomas hearings, which focused on the testimony of Anita Hill, who accused Thomas of making inappropriate sexual comments, Matthews asked, "Am I wrong in hearing flashes here of the Anita Hill testimony way back when in the Clarence Thomas confirmation hearings?"
Despite the absence of a sexual scandal, Matthews persisted with the bizarre analogy: "Are we past the sensitivity about a male member of the Senate grilling a female?"
The "Hardball" host failed to clarify exactly who in 2010 is sensitive about male senators posing tough but legitimate questions to a woman nominated to the nation's highest court.
Democrats described her as a brilliant thinker with what Senator Charles E. Schumer of New York called "unprecedented practical experience."
Stolberg had expressed the same feelings about Kagan the day before, roughly two minutes into the Monday edition of TimesCast, a brief news preview that airs every weekday at nytimes.com.
Kagan is so "brilliant," gushed Stolberg, that she didn't even need help from White House staffers in preparing to face her Republican critics. Stolberg was confident the GOP would "have a tough time" confronting the "very funny and warm and witty" Kagan.
They will try to paint her as a partisan, as a political lawyer, as someone who is more interested in a politically driven agenda than in applying the law in an even-handed way to judicial cases. And they'll take her to task for never having been a judge. But I think they'll have a tough time.
While ABC's Good Morning America and NBC's Today spent little time on the confirmation hearings for Supreme Court nominee Elena Kagan on Tuesday, the CBS Early Show featured a report from legal correspondent Jan Crawford, who cheered Kagan finally being able respond to Republican "attacks" in a "very agile" way.
Good Morning America devoted only a single news brief early in the 7AM ET hour to the hearings as news reader JuJu Chang noted how Kagan "will be questioned by Republicans who say she is too liberal and too political." Chang added: "Kagan promised to take a modest approach to judging."
On Today, correspondent Kelly O'Donnell offered only a brief 7:09AM report on the hearings: "Weeks after her nomination, seated in silence for hours, finally Elena Kagan gets to make her case....[she] describes herself as a daughter of the American dream." O'Donnell described the arguments from both sides of the aisle: "No surprise, Democrats praised her intellect and the chance to broaden the Supreme Court....Saying they would be respectful, Republicans did not hesitate to get tough. From abortion rights to immigration, they found various ways to call her liberal." In an 8:04AM news brief, news reader Natalie Morales declared: "Republicans portrayed Kagan as a liberal activist with no judicial experience. Kagan promised an even-handed approach to the law."
All three network evening newscasts on Monday downplayed the start of Supreme Court nominee Elena Kagan’s confirmation hearings, with NBC Nightly News squeezing in just 24 seconds for Kagan at the tail end of a story about the Supreme Court’s ruling in favor the 2nd Amendment. For their part, CBS and ABC offered full stories outlining Kagan’s first day before the Judiciary committee after packages devoted to the gun rights’ ruling.
Only CBS’s Jan Crawford suggested the hearings were more than a ritual leading to Kagan’s inevitable confirmation: “When President Obama nominated her in May, her confirmation was considered a sure bet. But Republicans are emboldened by what they see as a weakened president and sense that support for Kagan in the country has dropped.”
Both Crawford and ABC correspondent Jonathan Karl included Republican criticisms of Kagan’s lack of experience and the hostility to the military she displayed at the Harvard Law School. As for NBC, they mentioned none of those issues, and only included a brief soundbite of Kagan promising to be “impartial.”
Here’s the entirety of NBC’s brief discussion of Monday’s hearing:
Did you know that calling attention to an area where a Supreme Court justice nominee is from, which happens to be a well-known bastion of liberalism, is bigoted?
If you didn't, you want to take a look at the wisdom of Salon.com's Joan Walsh. In her June 28 post "It's not even coded bigotry anymore," Walsh argued that references to SCOTUS nominee Elena Kagan's Upper West Side of Manhattan roots are bigoted -since the neighborhood has Jewish features, references to it are anti-Semitic and as she puts it, "not even coded."
"That said, Republicans on the Senate Judicial Committee are trying to make the case she's outside the mainstream of American jurisprudence, by attacking her clerking for (and admiring) legal giant Thurgood Marshall, the first African American Supreme Court justice, while singling her out as a denizen of ‘Manhattan's Upper West Side' - you know, the neighborhood known for Zabar's and bagels and, well, Jews," Walsh wrote.