Judiciary

Elena Kagan's record clearly demonstrates she's a liberal, but to Rachel Maddow, she's just not liberal enough to be an "actual liberal." While she did a bit of a victory lap with Newsweek's Dahlia Lithwick on Tuesday night that the Republicans failed to scare people about Kagan and "nobody was terrified," Maddow still felt Obama wimped out by not picking an obvious radical leftist: 

LITHWICK: At the end of the day you have a nominee who just utterly slid under the radar. And I don't know how the fundraising went but I know that the narrative was "She's fine, yawn. She's fine."

MADDOW: Yes. Well, should liberals look back at this experience? I mean, we're not out of it yet but should they essentially look back and say, "An actual liberal, a real -- a more liberal justice could have gotten through here?"

LITHWICK: I think so. It seems to me that to the extent that Obama had a moment to put someone a little bit more -- a little closer to a Stevens legacy or a Brennan legacy, a little closer to a passionate firebrand, this would have been the moment to put them up if the rumors are -- and they're only rumors -- true that Ginsburg is going to leave while Obama is still in office.

The shallow and promotional TV coverage of Elena Kagan’s confirmation hearings illustrated once again how the shamelessly ABC, CBS, and NBC shape the political Play-Doh they offer to the American people as “news.”

First, there was the amount of coverage.Let’s put it this way: “coverage” is the wrong word. Entire days of hearings, filled with tough exchanges with Republicans on issues like the military, “gay marriage,” and abortion were swept under the rug. Instead, the one talking point every viewer was supposed to remember was this: Kagan is funny! She is really, really funny!

At one point in the hearings, they discussed the Obama administration’s very unfunny failure to stop the Christmas Day bomber from almost blowing up a plane as it landed in Detroit. That somehow turned into a joke about Kagan’s Jewishness. Sen. Lindsey Graham, who has seemed desperate to ingratiate himself with Obama’s nominees, set Kagan up to joke that she probably spent Christmas at a Chinese restaurant.

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!"

Given that our tax dollars are subsidizing her salary, is it too much to expect PBS's Bonnie Erbe to have at least some intelligent command of the issues of the day?

On second thought, don't answer that.

In her latest blogging misadventure at USNews.com, the "To the Contrary" host portrayed yesterday's 5-4 ruling in McDonald v. City of Chicago as a blow to "local rights":

The Supreme Court's decision, taking away important local rights to control gun ownership, marks another sad day in America's now seemingly endless political appetite for increasing the number of privately owned guns in this country.

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.

Despite referring to it as "landmark" and "huge," the network morning shows on Tuesday mostly ignored Monday's Supreme Court ruling, which declared the Second Amendment a fundamental right that cannot be violated by state governments. Good Morning America, The Early Show and Today devoted just two minutes and 34 seconds to discussing the important decision.

ABC's GMA offered 21 seconds with a single Juju Chang news brief during the two hour program. This didn't stop the show's hosts from covering crucial topics, such as spending eight and a half minutes dissecting whether Michael Douglas' ex-wife deserves residuals from his upcoming Wall Street sequel.

CBS's Early Show allowed 25 seconds for Jan Crawford to explain the significance of the decision. Host Chris Wragge rushed, "Now what's the importance, if you can just tell us, quickly, of this 5-4 decision?"

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."

MSNBC's Chris Matthews framed Sen. Jeff Sessions' criticism of Supreme Court nominee Elena Kagan as a "brutal assault," during MSNBC's live coverage of the Senate hearing Monday afternoon.

"It's a brutal assault on this nomination," Matthews complained about the Alabama Republican's remarks.

Matthews also seemed to cast Sessions as an unsophisticated country bumpkin challenging Kagan's prestigious Ivy League background.

"It's a strong cultural shot at her, and she does represent, if you will, academic excellence of the highest degree, coming from the best schools, dean of Harvard Law," Matthews crooned. "It's hard to get above that, to a person out in the country, from Alabama, like Jeff Sessions represents. That is probably a pretty rich target."

He accused Sessions of describing Kagan as pro-terrorist and tried to get liberal Sen. Dick Durbin (D-Ill.) to say that Sessions' "assault" would whip up a storm.

Are the Elena Kagan confirmation hearings an occasion for media explanation...or celebration? The Washington Post Express tabloid ran this headline Monday: "Kagan's Big Day Finally Arrives." The copy underneath by AP reporter Nancy Benac sounds like a proud mother more than an objective journalist. She suggested "it may be her own words that best explain her success at charting an undeviating course to the front steps of the high court." She elaborated about Kagan's career, in sympathetic tones: 

She's excelled by dint of hard work, smarts and what she describes as good "situation sense" - the ability to size up her surroundings and figure out what truly matters, as she put it during confirmation hearings for her last job, as President Barack Obama's solicitor general, the government's top lawyer.

It's what allowed Kagan to channel the thinking of legal giant Thurgood Marshall when she was a "27-year-old pipsqueak" clerk to the justice.

It's what allowed Kagan to navigate through the land mines of government policy on abortion, tobacco and other contentious issues as an adviser to President Bill Clinton.

The Monday morning shows on CBS, ABC, and NBC all worked to portray President Obama's Supreme Court nominee Elena Kagan as a moderate and open-minded legal scholar, downplaying her liberal views. All three network programs also minimized her controversial decision to ban military recruiters on campus while Dean of Harvard Law School.

On CBS's Early Show, legal correspondent Jan Crawford touted Kagan as "an intellectual heavyweight and consensus builder." Crawford noted how Republicans had "several lines of attack" against Kagan and would "try to paint her as a liberal activist." Crawford herself recently described Kagan as having "stood shoulder to shoulder with the liberal left."

On ABC's Good Morning America, correspondent Claire Shipman did a fawning segment on Kagan in the 8AM ET hour, describing the former Dean as "intellectual" and "full of personal charm" during her tenure at Harvard. Shipman claimed that Kagan had "a determination to be open-minded," despite banning military recruiters from the university's campus over the 'Don't Ask, Don't Tell' policy. On that issue, Shipman explained that despite Kagan's decision being unpopular "among student military vets....Iraq War veteran Kurt White says they were won over by Kagan's persistent outreach, another example of her political skills." Shipman failed to mention that White would be testifying on Kagan's behalf during the confirmation hearings.

"Supreme Court extends gun rights" a headline on the Web site for the Chicago Tribune erroneously claims today.

The link on the page brought readers to a story entitled "Supreme Court extends gun rights in Chicago case." Here's the opening paragraph:

WASHINGTON -- The Supreme Court reversed a ruling upholding Chicago's ban today and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe the "right to keep and bear arms."

But that language suggests that the Court invented a right out of whole cloth rather than grounded its decision in the Constitution itself. In truth, what the Supreme Court found in McDonald v. City of Chicago was that the 2nd Amendment's guarantee of the individual's right to firearm ownership is incorporated to the states via the 14th Amendment's Due Process Clause.

"The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an even handed manner," Justice Alito wrote for the Court. 

When President Bush nominated John Roberts and Samuel Alito to the Supreme Court in 2005, the media did not hesitate to describe both men as "very conservative," but when President Obama nominated Sonia Sotomayor in 2009 and Elena Kagan this year many in the press couldn't seem to identify any liberal ideology. The Media Research Center has produced a video compilation of examples to further demonstrate the obvious double standard. [Audio available here]

During ABC's live special coverage of Roberts's nomination on July 19, 2005, then This Week host and former Democratic operative George Stephanopoulos declared: "This is a very conservative man with a strong paper trail that proves it." NPR's Nina Totenberg could hardly contain her urge to label, using the word "conservative" several times during a July 23 appearance on Inside Washington: "John Roberts is a really conservative guy...he's a conservative Catholic....[President Bush] has given conservatives a hardline conservative."

The same labeling followed Alito's nomination months later. CBS's Bob Schieffer opened the October 31 Evening News by proclaiming: “Conservatives wanted a conservative on the Supreme Court, and said the President ought to risk a fight in the Senate to get one. Their wishes have been fulfilled.” Later that evening, on a special 7PM ET hour edition of CNN's The Situation Room, anchor Wolf Blitzer described: "...there is a new nomination and new controversy. A battle shapes up as the president picks a staunch conservative who could help reshape the U.S. Supreme Court."

Lord have mercy, even when it hits him in the face, the Associated Press's Mark Sherman won't concede the obvious:

"Cast doubt"? Is that what court rulings do now?

A USA Today item has it right:

Did you know that President Obama has nominated for a federal judgeship someone who believes a serial killer and rapist's "sexual sadism" should be a cause to give him a less serious punishment? Probably not, since the media have given it almost no coverage.

Robert Chatigny, nominated for the Second Circuit Court of Appeals, believes that sexual sadism should be what's known as a "mitigating factor" in determining guilt and punishment for murder and rape. Counterintuitive as it may be, he thinks sexual sadism should be cause for a lighter sentence.

On top of all this, today NewsBusters sister site CNS News reported that 13 years before Chatigny delayed the execution of one Michael Ross, a serial killer and rapist, he had served as Ross's private defense attorney. Apparently he forgot to recuse himself. Will the media report this tidbit?

Via the Associated Press (link may be dynamic and subject to change): 

A federal judge in New Orleans has blocked a six-month moratorium on new deepwater drilling projects that was imposed in response to the massive Gulf oil spill.

The White House says President Barack Obama's administration will appeal.

Several companies that ferry people and supplies and provide other services to offshore drilling rigs had asked U.S. District Judge Martin Feldman in New Orleans to overturn the moratorium.

This later paragraph from AP's breaking news report explains why I believe Ken Salazar's dissenting experts from the National Academy of Engineering may have influenced the judge's outlook on the case:

Feldman says in his ruling that the Interior Department failed to provide adequate reasoning for the moratorium. He says it seems to assume that because one rig failed, all companies and rigs doing deepwater drilling pose an imminent danger.

Feldman's take seems to mirror the language of the dissenting experts.

How committed is the Washington Post to its crusade to see Congress abridge free speech under the guise of "campaign finance reform"? So much that it's willing to be a political bedfellow with the National Rifle Association, a group it detests for its persistent advocacy of Americans' Second Amendment liberties.

In a June 17 editorial, the Post voiced its support behind a bill that Democrats and some liberal Republicans have been cobbling together since the Supreme Court struck down a portion of the McCain-Feingold bill earlier this year. But the bill itself contains language that was tailor-made to carve out an exemption for the National Rifle Association. That exemption was included, it seems, to get the NRA to back down from opposing the bill and hence to prevent it from throwing the ire of its grassroots backers into the mix.

While there are both leftists and conservatives angry about this unholy alliance for wildly different reasons, the Post defended its support of the bill with its typical sanctimonious language about battling "shadowy" interests:

The “deeply polarized confirmation process in the Senate” has “undercut Obama's effort to significantly infuse the federal courts with more women and minorities,” USA Today's Joan Biskupic fretted in a Wednesday front page article in which she refused to identify Obama's nominees as liberals as she attached the positive “diversity” patina to Obama's agenda without any regard for the irony such “diversity” is ideologically uniform.

She led her June 16 story, “Push for court diversity hits snag: Partisan rancor ties up action on Obama nominees,” however, by noting the ideology supposedly pushed by President George W. Bush: “President Obama came into office determined to stop the rightward shift of the federal courts -- after eight years of appointments by President Bush -- and to add more diversity to the bench.” She then outlined Obama's achievement:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

Borrowing a line from one of her Harvard colleagues, the Washington Post entitled its June 10 front-page profile of Supreme Court nominee Elena Kagan, "Her work is her life is her work."*

But the 60-paragraph story by staff writers Ann Gerhart and Philip Rucker shed barely any light on the judicial philosophy that Kagan's life work demonstrates. Instead, Gerhart and Rucker presented a gauzy profile that rehashed the usual trivia -- Kagan loves poker and the opera -- while painting Kagan as a workaholic who still has time to lend an ear or a shoulder to cry on to friends in distress:

She has arrived at the age of 50 in a blaze of accomplishment. But her achievements can obscure how relatively narrow her world has been. 

In his June 9 "case study" feature for Time.com, Adam Cohen, formerly of the New York Times editorial board and Time magazine, tackled the question "Are Liberal Judges Really 'Judicial Activists'?"

Cohen's short answer: yes, but so are conservative judges, and it's the conservatives on the Supreme Court that have been on an activist kick lately.

To bolster his argument, Cohen complained that judges must of necessity make judgment calls about vague elements of U.S. law and the Constitution.

You know, vague stuff like, wait for it, the First Amendment (emphases mine):

The Associated Press's Mark Sherman didn't try very hard to mask his true feelings on a couple of matters on which Obama Supreme Court nominee Elena Kagan was working on during the late 1990s.

The dictionary from which Sherman is working must have interesting definitions of "unsentimental" and "compassionate."

See for yourself in the first four paragraphs of the AP writer's report on what is known thus far from the documents provided by the Clinton Library relating to Ms. Kagan:

Good Morning America's George Stephanopoulos on Thursday touted Supreme Court collegiality from Justice Antonin Scalia as a real victory in the battle over Elena Kagan's nomination. Stephanopoulos enthused, "Justice Scalia, who is likely to be a conservative adversary if Kagan gets confirmed, pointed out that everybody on the bench now is a judge."

(Kagan is likely to be a conservative adversary? The ABC host appeared to be continuing the liberal talking point that the mind of Obama's nominee is somehow unknowable.)

Stephanopoulos eagerly quoted, "So, he went on to say, 'I'm happy to see that the latest nominee is not a federal judge and not a judge at all.' Of course, Kagan has gotten some criticism from some senators because she's not a judge."

President Obama's nominee to the United States Second Circuit Court of Appeals, Judge Robert N. Chatigny, holds a disturbing fringe opinion that sexual sadism should be a legal mitigating factor. In fact, Chatigny put this belief in action while presiding over the case against the "Roadside Strangler" where he did everything in his power to keep serial rapist and killer Michael Ross from getting the death penalty. (WARNING: DISTURBING CONTENT)

Make sure you read this post at the Eyeblast Blog for more details on Judge Chatigny.

Another day, another liberal meme.

Yesterday I tackled how Newsweek's Howard Fineman was attacking Kentucky Republican Senate nominee Rand Paul for picking a fight that the liberal media, in fact, was whipping up.

Today, it's Fineman colleague Ben Adler and his insistence that conservatives are fixated on smearing both Elena Kagan and softball players everywhere as gay.

Adler made his argument in his May 20 The Gaggle blog post, "What Is With Conservatives, Gays, and Softball" by picking apart a comment Fox Business Network's John Stossel made on Fox News Channel in which he defended Paul's comments regarding the Civil Rights Act of 1964.What annoyed Adler most was Stossel's quip that gay softball leagues, for example, should not be forced to admit straight players:

The gay softball team? The proverbial black student association has long been every anti-civil-rights pundit's favorite shibboleth, but why suddenly gay softball team? Do gay people have separate softball teams that don't allow straight people to play for them? If so, it's still an awfully random example. Oh wait, no it isn't, it's a dog whistle to everyone who thinks that women who play softball are gay, and that therefore Solicitor General Elena Kagan is gay. Stay classy, John. 

There are two problems with this. First and foremost, it was gay groups that first made a stink about an innocuous photo by the Wall Street Journal that was clearly selected as a clever tease for a story in the May 11 edition. The headline and caption for the Kagan-playing-softball photo were as follows:

Last Friday on TV, NPR legal reporter Nina Totenberg touted Obama Supreme Court nominee Elena Kagan as "spectacularly successful" -- twice. But that was mellow compared to her Tuesday report for Morning Edition, where she enthusiastically pitched her record as dean of Harvard Law School as a Superman legend (The audio valentine is here):  

NINA TOTENBERG: In some ways, the descriptions of Elena Kagan as dean sound a little bit like the beginning of the old "Superman" TV series.

INTRO TO OLD SUPERMAN TV SHOW: Superman, who can change the course of mighty rivers, bend steel in his bare hands!

TOTENBERG: Translate that to Harvard, and you can almost hear the music. (Superman music in background)

Kagan, who can raise money by the millions!

Kagan, who can end the faculty wars over hiring!

Kagan, who won the hearts of students!