Judiciary

In a softball interview with retired liberal Supreme Court Justice John Paul Stevens on Sunday's 60 Minutes, correspondent Scott Pelley touted Stevens's opposition to the court ruling on the 2000 presidential election: "He thinks [Bush v. Gore] is one of the Court's greatest blunders....There were many people in this country who felt that the Supreme Court stole that election for President Bush."

Pelley introduced the segment by proclaiming that Stevens "has shaped more American history than any Supreme Court justice alive" and made "decisions that have changed our times." The decisions Pelley focused on were the Justice's most liberal: "It was Stevens who forced a showdown with President Bush over the prisoners at Guantanamo Bay, and Stevens who tried to stop the court from deciding the presidential election of 2000."

Yesterday the California Supreme Court ruled "that illegal immigrants are entitled to the same in-state tuition breaks that are offered to citizens who attend public colleges and universities."

The Associated Press reports that "[t]he high court unanimously upheld a state law that says any student, regardless of immigration status, who attended a California high school for at least three years can qualify for in-state tuition that's much less than what out-of-state students pay."

The losing party in the case plans an appeal to the U.S. Supreme Court, so this may not be the final word on the issue.

Given that the Golden State is flat broke and illegal immigration is a hot button issue nationally, this sounds like a story worthy of mainstream media attention.

Yet it appears the story has been largely ignored or buried by the MSM thus far.

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.”

In the wake of Virginia Thomas requesting an apology from Anita Hill, on Thursday's CBS Early Show, fill-in co-host Chris Wragge used the story to raise questions about Thomas's political involvement: "That phone call is bringing up new scrutiny upon Virginia Thomas, who is not just an angry spouse but also a long-time advocate of conservative causes."

In the report that followed, CBS chief legal correspondent Jan Crawford implied that since Virginia Thomas is the wife of Supreme Court Justice Clarence Thomas her conservative activism in a conflict of interest: "She has long advocated for conservative causes....she formed a grassroots conservative group called Liberty Central and has spoken at tea party conventions....Critics have raised questions about her role in the group as the wife of a sitting Justice, and Mrs. Thomas, not one to suppress her opinions, has felt the heat."

In broadcast network stories on how Ginni Thomas left a phone message for Anita Hill (“I would love you to consider an apology sometimes and some full explanation of why you did what you did with my husband”) , a revelation which ABC and NBC decided merited their lead slot, the network journalists couldn't resist scolding her for her conservative political activity.

“Ginni Thomas has long stretched our idea of what a spouse of a non-partisan Supreme Court justice should be,” ABC's Sharyn Alfonsi contended, explaining: “A long-time conservative activist, she now heads Liberty Central, an advocacy group opposing what she characterizes as the leftist tyranny of President Obama.”

On CBS, Jan Crawford declared the wife of Supreme Court Justice Clarence Thomas “has come under scrutiny” because “she formed a grass-roots conservative group and speaks at Tea Party conventions.” NBC's Andrea Mitchell echoed: “Recently, Virginia Thomas has emerged as a high-profile Tea Party activist and skilled fundraiser,” calling that “an unusually partisan role for a Supreme Court spouse, as the New York Times wrote on the 19th anniversary of the hearings, the same morning Mrs. Thomas called Anita Hill.”

CNN devoted several segments on Tuesday and Wednesday to Delaware Republican Christine O'Donnell's apparent gaffe on the First Amendment, but barely acknowledged her opponent Chris Coons's own gaffe on the amendment. Analyst Jeff Toobin spun O'Donnell's remark as demonstrating that "she didn't seem to know" the amendment. It took conservative Dana Loesch on AC360 to bring up Coons's own gaffe.

Opening his October 18 article on a tight House race in Maryland that's garnered national attention, Baltimore Sun's Paul West trotted out the typical liberal lament about corporate money in politics (emphasis mine):

With low poll approval ratings and the prospect of his congressional allies in Congress taking a drubbing in November, it's hardly surprising the liberal media are looking for any silver lining for Obama that it can find.

Enter Time magazine's Kate Pickert, who on the magazine's Swampland blog yesterday claimed that a ruling upholding ObamaCare's constitutionality yesterday was a "significant victory for the Obama administration."

A temporary boost, perhaps, but significant? The ruling was at the District Court level, and the public interest firm representing the plaintiffs plans to appeal to the 6th Circuit Court of Appeals. Plus Pickert herself noted that there are plenty of other court challenges against ObamaCare, and they are not all bound to come down the same way District Court Judge George Steeh ruled yesterday.

What is significant is how Judge Steeh's reasoning profoundly obliterates the scope of the Constitution's interstate commerce clause to define refraining from commerce as commerce. It's an open question if appellate courts agree.

From the ruling (emphasis mine):

The New York Times, which is opposed to First Amendment protections for political advertising, has an untrammeled view of free speech when it comes to violent video games and even the picketing of soldiers' funerals by the family of Fred Phelps, infamous for their "God Hates Fags" signs and other despicable messages.

The New York Times Co. has filed a "friend of the court" brief with the Supreme Court (along with 20 other news outlets) in support of Phelps's church, which is being sued by the family of fallen Marine Matthew Snyder for picketing his funeral, displaying signs like "Thank God for dead soldiers" and "God hates you."

The Times found the matter important enough to devote Thursday's lead editorial to it -- "Lamentable Speech."

To the American Nazi Party, Hustler Magazine, and other odious figures in Supreme Court history, add the Rev. Fred Phelps Sr. and the members of the Westboro Baptist Church in Topeka, Kan. Their antigay protests at the funeral of a soldier slain in Iraq were deeply repugnant but protected by the First Amendment.

All of the sympathy in the case of Snyder v. Phelps, which was argued on Wednesday at the Supreme Court, goes to the family of Lance Cpl. Matthew Snyder, the fallen Marine. But as the appeals court in the case observed, using words of Justice Felix Frankfurter, "It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people." That happened when the court protected Hustler's right to mock the Rev. Jerry Falwell and the right of American Nazis to march in Skokie, Ill.

Appearing as a guest on Monday’s Charlie Rose show on PBS, CNN legal analyst Jeffrey Toobin seemed to misunderstand conservative complaints about judicial activism as he seemed to suggest that any court rulings that strike down legislative action could be considered part of judicial activism. The CNN analyst charged that the Supreme Court of the United States has recently engaged in "conservative judicial activism" in its enforcement of the First and Second Amendments.

Missing the point that "judicial activism" often involves a distortion of the Constitution's words to find legal precedent that does not exist, Toobin characterized recent decisions by a "very aggressive conservative wing" of the court as activism: "But what we have seen in recent years is conservative judicial activism, telling Congress you can't ban, you can't regulate campaign finance the way you thought, you can't – state legislatures, city councils – you can't impose gun control. So you have a very aggressive conservative wing of the party telling the democratically elected branches what to do."

Minutes earlier, he had described Chief Justice John Roberts as "very, very conservative."

“On this first Monday in October, the Supreme Court opened its new term today,” an excited Diane Sawyer announced Monday night, trumpeting how it's “making history for America's mothers, sisters and daughters.” ABC reporter Terry Moran was even more thrilled, marveling that “the most remarkable thing in that courtroom today, on this historic day, was how unremarkable it was.”

Despite the lack anything “remarkable,” however, Moran found new Justice Elena Kagan's performance quite remarkable, trumpeting “the one word that leapt to my mind was 'ready,'” touting how “she was confident and well prepared and fluent and probing” and, at one moment, “you could almost...imagine some of the other justices...looking down the bench at Justice Kagan like a major league scout might say, 'you know, that kid's got some real pop on her fastball.'”

An eager Sawyer wondered: “How was Justice Kagan on her first day?” A giddy Moran expounded:

Times Watch's new study "Supremely Slanted -- How the New York Times Pounds Conservatives and Coddles Liberals When Nominated for the Supreme Court," was discussed by Fox News contributor Liz Trotta on "America's News Headquarters" just before the one o'clock hour on Saturday afternoon.

After some discussion of a Gallup poll showing Americans have little trust in the mainstream media, host Uma Pemmaraju shifted the discussion to the new Supreme Court study from Times Watch. (Watch the video here.)

Fox News Host Uma Pemmaraju: "But there's another poll, out right now that looks at media behavior as well and specifically how the media handles the Supreme Court nominees, how are those related?"

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, The New 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.

It is truly remarkable to observe how press outlets continue to misreport and misinform the public in the area of stem cell research.

One of the latest examples came yesterday at the Associated Press. In a report covering a court ruling on government funding of embryonic stem cell research (ESCR), the AP's Nedra Pickler completely failed to acknowledge that there are any other kinds of stem cells. Every single use by Pickler of the terms "stem cell" or "stem cells" has no modifying adjective, except the very first, whose modifier is "embryonic."

It's as if there are no other avenues besides ESCR for "scientific progress toward potentially lifesaving medical treatment." In fact, Pickler's less-informed readers would have no reason to believe that there is any form of stem cell research besides ESCR. The reality, which will be shown later for the umpteenth time, is that non-embryonic stem cells, often referred to as adult stem cells, have already shown that they can do virtually everything embryonic cells can with far less potential for side effects and, of course, no loss of human life. The word "adult" does not appear in the AP report.

Here are several paragraphs from Pickler's pathetic piece, which also includes a deeply deceptive quote (is there any other kind?) from Obama White House Press Secretary Robert Gibbs (bold is mine):

"The justices have not struck down a major piece of legislation, let alone a president's signature initiative, as beyond Congress's power to regulate commerce in some 75 years."

That's how Newsweek's Stuart Taylor Jr. today all but argued that, political ideology of the Supreme Court's majority aside, a Supreme Court decision declaring unconstitutional the "individual mandate" of ObamaCare is quite unlikely.

But while Taylor may be right  that no signature presidential initiative post-New Deal has been declared unconstitutional by the Court on the grounds that it violated the interstate commerce clause, he neglected to mention there are two key cases in the past 15 years where the Supreme Court did set outer limits to Congress's exploitation of the commerce clause as a fountain of federal power.

NBC tonight (10 PM EDT/PDT, 9 PM CDT) debuts a new drama, Outlaw, centered on a conservative Supreme Court justice who, as a gambler and a philander, is a hypocrite played by Jimmy Smits. Realizing his political misdirection, he resigns from the court so he can become a crusading lawyer for liberal causes. But the program is so awful, even MSM TV critics are ridiculing it. (Joe Scarborough has at least one cameo in it.) “The show is so ludicrously dumb that your eyeballs will hurt from rolling so much,” Hank Stuever warned in Tuesday's Washington Post.

In USA Today, Robert Bianco pleaded: “Surely NBC's joking. There's awful, and then there's atrociously, hilariously awful -- a line NBC and Jimmy Smits soar across with Outlaw.” He proceeded to describe the show's premise:

A gambling, womanizing, conservative Supreme Court justice who chucks the court to become a crusader for the outcast and oppressed? That's not a prime-time show, it's a Saturday Night Live  sketch. We meet Smits' Justice Cyrus Garza as he's being thrown out of a casino for counting cards. Outside, he stops to debate a case he's due to decide with a pretty ACLU protester (because you know those justices, yak, yak, yak) -- whom he then beds. But her words move him, and he resigns to become a trial lawyer.

ABC's George Stephanopoulos on Tuesday wondered if a Florida pastor's threat to burn a Koran could "change" and "challenge" the meaning of the First Amendment. [MP3 audio here.]

Talking to Supreme Court Justice Stephen Breyer, the Good Morning America host speculated, "When you think about the internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment, to how you interpret it?"

Stephanopoulos followed-up, "Does [the threat of the Koran burning] change the nature of what we can allow and protect?" The ABC host didn't explain expand on how the First Amendment "changes" in light of an unpopular action such as a Koran burning.

Giving Supreme Court Justice Stephen Breyer an unusual evening newscast platform to plug a book, on Monday’s NBC Nightly News anchor Brian Williams brought viewers back to the Left’s ten-year-old grudge, cuing up Breyer to agree: “Do you think Bush v Gore hurt the credibility of the modern court?” Breyer replied with a simple “yes” and Williams suggested: “Irreparably?” “No,” Breyer said in rejecting Williams’ overwrought premise, so Williams pressed: “For how long?”

Williams introduced the September 13 segment by marveling:

We can’t remember a sitting justice on the U.S. Supreme Court ever stopping by our studios here, but it happened today. We spent some time with Justice Stephen Breyer, appointed by President Clinton and residing on the liberal side of the court. Justice Breyer is out with a new book today. It’s about how the court works, including mistakes the court has made over the years. I started out by asking Justice Breyer, given his love of the Supreme Court, if he's concerned that just one percent of those Americans polled, in a recent survey, knew his name?

On Monday's Situation Room, CNN's Jeffrey Toobin used dire language to describe a federal judge's decision which struck down federal funding for embryonic stem cell research: "The bottom line is this is a major setback for stem cell research and for the Obama administration....it will certainly cut way back on federal funding." Anchor Suzanne Malveaux labeled it a "potential wedge issue."

Malveaux led the 5 pm Eastern hour with the "breaking news" about Judge Royce Lamberth's decision, who issued a preliminary injunction against federal funding for the life-destroying research. The anchor brought in Toobin and asked, "What does this mean today?" Toobin immediately gave his "major setback" assessment and described the grounds on which Judge Lamberth gave in his 15-page opinion.

The CNN senior legal analyst, like many in the media, omitted that embryonic stem cell research isn't the only field when it comes to stem cell research. The federal government has actually spent much more on adult stem cell research. According to a July 18, 2008 report by PBS, the NIH "spent $200 million funding non-embryonic stem cell research, and only $38 million on embryonic stem cells." Less than a month ago, on August 2, the Associated Press actually highlighted the successes of adult stem cell research.

How dense and forgetful does Newsweek think socially conservative voters are?

Apparently so much so that the magazine's Ben Adler predicts yesterday's stay on Judge Vaughn Walker's ruling permitting same-sex marriages in California will blunt the hopes Republicans have of social conservatives coming out in force on Election Day to help push the GOP to victory in the midterms on Election Day.

In his August 17 The Gaggle blog post, "9th Circuit Stays Pro-Gay Marriage Ruling, Takes Away GOP Issue,"  Adler argues that:

Social conservatives were set to use the images of gay couples getting married in California as grist to motivate their base to turn out in the midterm elections. Republicans look certain to gain seats in both Houses of Congress in November, as opposition parties typically do during midterms. Whether they will pull the inside straight they need to take over either, or both, the House and Senate, will depend on any number of factors, but turnout is sure to be one of them.

Further, Adler maintained, because "the Democrats have not done much to invite images of an American Gomorrah" what with President Obama moving "very gingerly" and tentatively on issues like repeal of "don't ask, don't tell," social conservatives need the visual impact of gay and lesbian couples at the altar this fall to incense social conservatives and drive them like angry hornets to the ballot box.

Crazies on the left allow journalists to see themselves as under siege from both sides of the spectrum, and thus must be playing it down the middle. To wit: Saturday’s Washington Post carried a letter from a reader upset the newspaper had reported the Supreme Court has “four firm liberals.”

Robert B. McNeil Jr., of Alexandria, insisted “there hasn't been even a single ‘liberal’ on the court in years.” He recommended:

The Post should recognize philosophical reality and refer to the “moderate” and “conservative” wings of the court, although “moderate” and “radical-conservative” would be more accurate.

During a discussion of California's Proposition 8 being overturned on CBS's Face the Nation on Sunday, fill-in host John Dickerson questioned Family Research Council President Tony Perkins's assertion that the federal judge who made the ruling was openly gay: "You mention this claim that he's openly homosexual. I'm not sure if that's, in fact, the case."

Perkins replied by citing his source on Judge Vaughn Walker's sexual orientation: "Well, that, according to The San Francisco Chronicle, that he is openly homosexual, one of two federal judges." Thursday's Good Morning America on ABC reported that fact as well, even while NBC's Today and the CBS Early Show failed to mention it.

Dickerson followed his doubt of Perkins by arguing: "...whether [Walker] is or isn't, what basis – what bearing does that have on the case?" Perkins responded: "...had this guy been a – say, an evangelical preacher in his past, there would have been cries for him to step down from this case. So I do think it has a bearing on the case." Dickerson countered: "You think it's made his ruling skewed?"  

U.S. District Judge Vaughn R. Walker, who ruled last week that a voter-approved amendment to California's constitution that limited marriage to the union of one man and one woman violated the Fourteenth Amendment of the U.S. Constitution, based that ruling in part on his finding that a child does not need and has no right to a mother.
 
Nor, he found, does a child have a need or a right to a father.
 
"Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted," the judge wrote in finding of fact No. 71 in his opinion.

Analysts that spend their time critiquing the media normally don't have very good things to say about what they observe these days, but the final segment of Sunday's "Face the Nation" on CBS was a marvelous exception.

Substitute host John Dickerson invited on the network's chief legal correspondent Jan Crawford and the Washington Post's Dan Balz for a refreshingly open and honest discussion of two pivotal legal issues facing our nation: a judge's decision to overturn California's controversial Proposition 8 which banned same-sex marriages, and; whether or not the 14th Amendment should be revised to address illegal immigration.

What ensued was a tremendously informative seven minute report about these two issues without any cheer-leading or accusatory finger-pointing: Crawford gave the facts about both legal matters as she saw them; Balz addressed the political ramifications for both parties as well as the White House, and; Dickerson asked great questions to keep the conversation moving.

With that as pretext, sit back and watch - or read if you're so inclined - the way these kinds of issues should be discussed on a television news program (video follows with transcript and commentary): 

Rosie O'Donnell was in the news this week when she signed to do another TV talk show on the forthcoming Oprah cable network. But she's still serving up leftist political goodies on her satellite radio show. Brian Maloney at Radio Equalizer found her declaring her "wedding" ceremony in San Francisco to former girlfriend Kelli Carpenter was a political protest stunt:

George Bush, in the middle of a war, had an all-station news conference to announce how horrible it was for the safety of America that gay people were getting married in San Francisco, which pissed me off enough to get on a plane and go get married.

Okay, first of all, on February 24, 2004, President Bush didn't call "an all-station news conference." He made a rather routine statement (not a press conference) in the Roosevelt Room of the White House. And he didn't say it was "horribly for the safety of America" that gays would marry. He did say the people had voted to endorse the traditional definition of marriage, and some activist judges in Massachusetts and city officials in San Francisco were overturning the will of the people of California. But to Rosie, everything she hears is exaggerated into hate, even as Bush called for civility and calm. She was making it sound like the Nazis were rounding people up:

On Wednesday, CNN's daytime coverage of a federal judge's decision on California's Proposition 8 leaned mostly towards those who opposed the voter-approved amendment to the state's constitution, which banned same-sex marriage. When the judge's ruling was released, which found Prop 8 to be unconstitutional, the network went so far to get immediate reaction to the ruling at a "gay" bar in West Hollywood.

Don Lemon was the first CNN anchor to bring on guests on the issue 15 minutes into the 12 noon Eastern hour, none other than Gary Spino and Tony Brown, the two subjects of their pro-homosexual parenting documentary "Gary and Tony Have a Baby." Minutes before the two appeared, the network replayed a glowing report by senior political analyst Gloria Borger, which originally aired on June 16, profiling Ted Olson and David Boies who are fighting to overturn Prop 8.

Lemon began his interview of the same-sex couple with a softball question: "So listen, Gary, I want to get you in here. Are you- how are you guys feeling? Are you anxiously awaiting this judge's decision, or what- is it just something that's in the back of your minds now?" He asked a similar question of Brown: "Are you feeling anxiety about this?"

On Wednesday night's "Anderson Cooper 360," CNN analyst Jeffrey Toobin claimed that the federal judge in the Arizona immigration case doesn't possess "a strong political profile one way or another," which is a sign the decision is well-supported by the law.

Cooper asked Toobin if Judge Bolton, who decided the case, was a liberal, noting that she was appointed to the post by President Clinton."She's a Clinton appointee, but she was recommended by Jon Kyl," Toobin responded, "who is a very conservative senator from Arizona."

"She's clearly not a strong partisan, but we are a long way from the last word on the constitutionality of this law," Toobin added. "This is a hard case. You are going to see other judges come out other ways on this."

Toobin's points were also echoed by liberal blogs such as Media Matters and ThinkProgress, a liberal blog.