Judiciary

Imagine that in  a week in which George W. Bush was dogged by not one or two but three scandals -- one of which was the IRS singling out liberal groups for stricter scrutiny -- a federal appeals court invalidated a recess appointment the Republican president made, finding he improperly ran an end run around the U.S. Senate. The national media would, no doubt, pick up on the story as evidence that the president was abusing power, weaving the development into a larger narrative about the president's untrustworthiness in light of the aforementioned scandals.

Well, yesterday the Third Circuit Court of Appeals issued a ruling invalidating an Obama recess appointments that was made when the Senate was on a short break in between meetings. This is the second such ruling in four months as the D.C. Circuit Court of Appeals issued a similar ruling in late January. Predictably, however, both the May 16 broadcast network evening newscasts and the May 17 broadcast network morning shows completely ignored the ruling.

New York Times columnist Maureen Dowd offensively roped Clarence Thomas into her column on the arrest on sexual battery charges of Jeffrey Krusinski, the Air Force officer in charge of sexual assault prevention programs for the branch: "There was a fox-in-the-henhouse echo of Clarence Thomas, who Anita Hill said sexually harassed her when he was the nation’s top enforcer of laws against workplace sexual harassment."

On your bike! New York Times's roaming critic Neil Genzlinger reviewed Constitution USA with Peter Sagal, airing Tuesday night on PBS. Judging by the headline, "The Philosophical Rumble Of That Living Document," Genzlinger's editor didn't know what to do with his puzzling, cranky review of the documentary (starring Sagal, liberal host of the NPR game show Wait Wait ... Don’t Tell Me!).

Should federal prosecutors be allowed to pack heat?  It’s a good question given the recent assassinations of a District Attorney and his assistant in Kaufman County, Texas.  While not federal prosecutors, the recent assassinations illustrate that prosecutors have become a target for violence, particularly in federal cases where drug cartels – or terrorists – may be involved.

Recently, Sen. John Cornyn (R-Texas) sent a letter to Obama Attorney General Eric Holder, seeking clarification on federal policy about the ability of federal prosecutors carrying firearms on federal property. The Washington Post covered this development in Friday's paper, but buried the item on page A10. What's more, within the story itself, reporter Ed O'Keefe buried in the next-to-last paragraph the fact that the National Association of Assistant U.S. Attorneys, which represent federal prosecutors, are supportive of the initiative that would permit their clients to carry firearms.

The PBS NewsHour went into everyone’s favorite subjects last Friday, gays and guns, and discussed the overwhelming cultural shift concerning gay marriage. New York Times columnist David Brooks and syndicated columnist Mark Shields both commented on how this shift could be irreversible, but noted that the Supreme Court could “Roe v. Wade” the decision. That is, the faux conservative and the liberal pundit both agreed that a court decision could just breath new life and fresh controversy into the same-sex marriage fight.

Yes, this is NOT an April Fools' joke. Brooks and Shields were actually saying that sweeping decisions, if not taken responsibly, could create more problems in the long run.  It's a refreshing moment hearing shields, unlike others among his liberal colleagues, acknowledging how social change is best achieved through the political process rather than the courts. It is, however, a shame that Brooks failed to give a conservative constitutional case for why DOMA and Prop 8 should stand, aside from the deleterious effects of a court ruling:

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:

Wednesday's CBS This Morning turned exclusively to David Boies, one of the main attorneys who argued against California's Proposition 8 at the Supreme Court on Tuesday. The morning newscast failed to bring on any of the prominent supporters of the voter-approved ban on same-sex "marriage" in the Golden State, and granted Boies over three and half minutes to promote his cause.

During the interview, Gayle King trumpeted how, supposedly, "many people were touched...by Justice [Anthony] Kennedy, who raised the welfare of the children in same-sex marriages."

On Tuesday's Morning Edition, NPR's Carrie Johnson played up the positive financial impact for same-sex couples if the Supreme Court strikes down the Defense of Marriage Act. All of Johnson's talking heads came from the left side of the political spectrum – the plaintiff challenging the 1996 law at the Supreme Court; an accountant who caters to same-sex couples; a fellow for the liberal Tax Policy Center; and an openly homosexual law professor.

The correspondent touted how the litigant before the Supreme Court "inherited a huge estate tax bill – a bill she would have avoided if her marriage had been recognized under federal law."

New York Times reporter Michael Barbaro promoted billionaire New York City Mayor Mike Bloomberg's bankrolling of his latest liberal crusade on Sunday's front page: "TV Blitz on Guns Puts Swing Senators on the Spot."

Barbaro, who covered the Romney campaign in hostile fashion and hated Wal-Mart's occasional donations to conservative groups (dwarfed by the corporation's liberal giving), didn't ask whether big-money Bloomberg was playing an unfairly influential role by trying to buy legislation he favors through his group Mayors for Illegal Guns.

New York Times columnist Frank Bruni, a former White House reporter for the paper, followed Sen. John McCain in mocking attendees of the latest Conservative Political Action Conference (aka CPAC) as "wacko birds" in his column Sunday on gay marriage at the Supreme Court.

In a brief item Friday at Politico, Donovan Slack reported that President Obama has withdrawn his nomination of Caitlin Halligan for the U.S. Court of Appeals, District of Columbia Circuit.

Concerning Republican senators' opposition to her nomination, Slack said it was "because they said she had a record of advocacy and an activist view of the judiciary" without citing specifics. It's almost as if Slack knew he had to write something, but wished to keep a rare Republican success at stopping an objectionable court nominee as vague and quiet as possible. In early March, the folks at Eagle Forum compiled a useful list of how awful Halligan would have been had her appointment made it through the Senate (bolds are mine throughout this post):

Editors for CNN's breaking news emails delivered subscribers a 50-word alert on how "[a] state judge invalidated a New York City law banning certain venues from selling sugary drinks in containers larger than 16 ounces." [Update: By contrast, Fox News's email breaking news alert simply reads, "State judge halts New York City's ban on large sugary drinks, calling the ban 'arbitrary and capricious'" | see screen grabs below page break]

But rather than couch the stay on the new regulation as a victory of individual liberty, the editors described the ruling as "a setback for Mayor Michael Bloomberg, who has backed several laws aimed at improving the health of New Yorkers."

"He's a troll...He's like the guy in your blog comment threads using the N-word."

So actually said MSNBC's Rachel Maddow about Supreme Court Justice Antonin Scalia on Comedy Central's Daily Show Thursday (video follows with transcript and commentary):

Ten years ago,  then-Minority Leader Tom Daschle (D-S.D.) held together a Democratic filibuster of President Bush's nomination of Miguel Estrada to the Circuit Court of Appeals for the District of Columbia. Tom Curry of NBCNews.com notes that Republicans tried to end debate and proceed to an up-or-down vote seven times before eventually giving up. Frustrated with Daschle's obstructionism, President Bush called for filibuster reform, which Daschle dismissed out of hand, insisting,"The Senate is always going to be the Senate."

Fast forward to February 19, 2013. Appearing on MSNBC's The Cycle in part to promote his new book about the U.S. Senate, co-host Krystal Ball dutifully read back to Daschle a line from his new tome about the filibuster being abused. At no point, however, did Ball or anyone else on the panel, including token conservative S.E. Cupp, point out the Center for American Progress fellow’s hypocrisy.

What gall. A Saturday New York Times editorial actually managed to blamed the Republican Party for forcing Obama to violate the constitution: "A Court Upholds Republican Chicanery."

For most of President Obama’s first term, Republicans used legislative trickery to try to prevent the functioning of two federal agencies they hate, the National Labor Relations Board and the Consumer Financial Protection Bureau. First they would filibuster the president’s nominees to the agencies, knowing that neither agency could operate without board members or a director. Then they would create fake legislative sessions for the Senate during its recess, intended solely to prevent Mr. Obama from making recess appointments as an end run.

Every January tens of thousands of people participate in the March for Life in Washington at the anniversary of the Supreme Court's Roe v. Wade decision legalizing abortion. And for five years in a row the New York Times failed to run a single story on the march in its print edition (it marked the 2011 march with a couple of photos on page 12).

This year, the 40th anniversary of the March, the Times broke its streak with a so-so 815-word story by Ashley Parker that made the bottom of the front of the paper's National section, on page 9.

In a segment this morning discussing the breaking news that a panel of judges on the Court of Appeals for the District of Columbia unanimously ruled that some of President Obama's recess appointments had been made in an unconstitutional manner, MSNBC's Thomas Roberts turned to network contributor and former Democratic Senate staffer Jimmy Williams for his reaction.

Williams conceded the the court had ruled correctly, but rather than chiding the president for violating his oath of office with unconstitutional appointments, he blamed Senate Republicans for driving Mr. Obama to do so. For his part, Roberts agreed, mumbling "mm hmm" in reply to the ex-lobbyist's partisan swipe [MP3 audio here; video follows page break]:

Supreme Court reporter Ariane deVogue of ABCNews.com covered the 40th anniversary of the Roe v. Wade abortion decision in a strange and very slanted way: in light of how an "abortion backlash persists" and the high court will rule on “gay marriage” in the coming months. At this point, her liberal experts are willing to admit Roe was too broadly decided – at least in terms of how it unintentionally spurred a vibrant pro-life movement and elected conservatives like Ronald Reagan to office.

All of deVogue’s quoted experts were looking for a way for the Supreme Court to give the leftist LGBT lobbyists a victory without helping conservatives in any political way:

As many of you are doubtless already aware, the "Roe" in Roe v. Wade, Norma McCorvey, converted to Christianity in the mid-1990s and became a pro-life activist, repentant of her role in the lawsuit that 40 years ago today legalized abortion.

So you'd think that any interview with McCorvey's attorney before the Court, Sarah Weddington, would include at least one question about McCorvey's change of heart. But alas, that wasn't in the cards with TIME magazine's Valerie Lipinski in her January 22 interview with Weddington. Indeed, the entire affair was a succession of softball question after softball question, concluding with a query about whether Weddington ever goes back to listen to audio recordings of her arguments before the Supreme Court (emphasis mine):

In part two of an interview with liberal Supreme Court Justice Sonia Sotomayor on Tuesday's NBC Today, co-host Savannah Guthrie wondered: "Your mom fell in love again late in life....Do you ever wonder if that might happen for you?...Where do you take a Supreme Court justice on a date?"

In the first part of the exchange aired on Monday, Guthrie asked about the role of the Court, on Tuesday, it was all about promoting Sotomayor's memoir, My Beloved World. Guthrie asked about the Justice's childhood and narrated: "Here, from the church she once attended with her aunt, to the library where she voraciously gobbled up books, the future Supreme Court justice was cultivating a love of the law from two unlikely legal influences: Nancy Drew and Perry Mason."

Interviewing Supreme Court Justice Sonia Sotomayor about her new memoir on Monday's NBC Today, co-host Savannah Guthrie worried that political division was undermining the high court: "Do you think that it's bad for the credibility of the Court as an institution if people have the perception that it is splitting along partisan or ideological lines?"

Sotomayor countered: "Yes. If I believed that that was the reason for the split, which I don't. The fact that there's a circuit split makes it clear that there are different ways of looking at the situation and that the answer is not a slam dunk." In response, Guthrie argued that "so-called liberals" take one side of a case, while the "conservative ideological bloc" takes the other.

Reporting on the Supreme Court taking up the issue of gay marriage for the first time, on Friday's NBC Nightly News, justice correspondent Pete Williams proclaimed: "The fact that the Court has agreed to take up both cases could mean that the Justices are prepared to get to the heart of the same-sex marriage issue, and that could result in what would essentially be the Roe v. Wade of gay rights." [Listen to the audio or watch the video after the jump]

At the top of the broadcast, anchor Brian Williams billed the upcoming report as "big news...that could change everything." Introducing a repeat of the story on Saturday's Today, co-host Lester Holt announced: "Game changer? The U.S. Supreme Court plans to tackle two cases involving same-sex marriage. So will this become the law of the land?"

New York Times reporter Sheryl Gay Stolberg penned an obituary in Monday's edition for former Sen. Arlen Specter of Pennsylvania, who died Sunday morning.

Specter served as a liberal Republican for most of his career before switching to the Democratic Party in 2009 in an unsuccessful attempt to preserve his seat. But while Specter battled conservative icon Judge Robert Bork and helped deny Bork a seat on the Supreme Court, it's a later Supreme Court dust-up the Times and liberals refuse to forgive him for: His tough questioning of Anita Hill after she accused Clarence Thomas of sexual harassment during Thomas's 1991 Supreme Court hearings.

In a report on Tuesday's NBC Today, correspondent Kelly O'Donnell described "awkward stumbles" for Senator Scott Brown and challenger Elizabeth Warren in a Massachusetts senatorial debate on Monday. Brown's supposed stumble was that he "first named an ultra-conservative" Antonin Scalia as an example of "a very good judge" and model Supreme Court justice.

O'Donnell described Warren's stumble being that she named "retiring" Indiana Senator Dick Lugar as a Republican she could work with if elected. In reality, Lugar was defeated by Richard Mourdock in the Republican primary.

In a pre-recorded interview which ran on Wednesday's Piers Morgan Tonight, CNN's Piers Morgan pressed Supreme Court Justice Antonin Scalia from the left on abortion rights and Scalia's views on Roe versus Wade.

After earlier articulating the argument that a Supreme Court should perhaps be flexible as times change, Morgan again brought up the issue of "changing times" and seemed to lump abortion in with other rights that women acquired in the 20th century, as he asserted, "Everybody believed that was the right thing to do."

In her latest nytimes.com column, posted Wednesday night, "The Mystery of John Roberts," Linda Greenhouse, former Supreme Court reporter for the New York Times, retraced previous conservatives losses at the Supreme Court from the pre-Internet days of the early '90s and the relatively muted response of conservative activists.

That set the stage for Greenhouse to criticize the "torrent of right-wing leaks" and "invective" that poured over Roberts after his shock decision upholding Obama-Care. Greenhouse, whose strident liberal moralizing is obvious now that she is no longer a reporter, suggested Roberts may have "evolved" to his position partially due to "the breathtaking radicalism of the other four conservative justices," and quoted one of her favorite judges in suggesting Roberts may read the criticism and think to himself "What am I doing with this crowd of lunatics?"