Wednesday's CBS This Morning turned to liberal attorney David Boies for his take on President Trump's nomination of Neil Gorsuch to the Supreme Court. However, the newscast failed to provide balance by bringing on a conservative legal expert. Boies twice asserted that Gorsuch was "not in...the mainstream of judicial thought." He also lamented that Senate Republicans blocked a vote on Merrick Garland, President Obama's final nomination to the Court: "I thought it was unfortunate that he wasn't confirmed." Anchor Norah O'Donnell later gushed over the "so smart" guest. [video below]
Anchor Charlie Rose touted the guest at the beginning of the interview: "David Boies has argued landmark cases in front of the Supreme Court. He represented Al Gore in the case deciding the 2000 presidential election. He also fought to overturn California's gay marriage ban, paving the way for marriage equality." Despite these left-of-center credentials, Rose and his fellow CBS hosts didn't specifically point out Boies's political views.
The journalist first wondered, "He is enormously brilliant as an attorney?" Boies confirmed that this was the case, but continued with his "somebody who is not in the ideological mainstream" spin about Judge Gorsuch. Co-anchor Norah O'Donnell followed up by asking, "Ideologically, where is he compared to Justice Scalia?" The liberal pundit replied, "He is probably comparable — maybe, a little more conservative on some issues than Justice Scalia."
Rose interrupted Boies as he tried to give a further take on the nominee: "Are you recommending that the Democrats not support him?" The attorney responded with his second statement about Gorsuch supposedly not being in the "mainstream." He also made his first reference to Judge Garland's failed nomination to the Court:
DAVID BOIES, BOIES SCHILLER FLEXNER CHAIRMAN: I think the Democrats have got to take a very careful look at him. This presents a dilemma, I think. You have somebody who is a brilliant legal mind — somebody who, if you had an academic test for judges, would pass all those tests. On the other hand, he is not in, what I believe, to be the mainstream of judicial thought. And one of the things that we learned from Justice — from Judge [Merrick] Garland is that it's not enough to be a brilliant judge. It's not enough to be a great judge. If that were true, there wouldn't be a vacancy. Judge Garland would be in that seat.
<<< Please support MRC's NewsBusters team with a tax-deductible contribution today. >>>
Later in the segment, Boies underlined that "what is important for the Supreme Court is that you do have ideological balance. You can't have a rule that only Republican presidents get to appoint Supreme Court justices; and the Democrats have to accept whoever the Republican puts up." However, this answer runs contrary to his previous statement about wanting Garland on the judicial body. It is undeniable that the "ideological balance" on the Court would shift to the left if the Obama nominee had been confirmed to replace Scalia.
Near the end of the segment, the guest repeated his call for "balance" on the Supreme Court. Anchor Gayle King replied, "David Boies, you have the last word. It's always good to have you at the table." O'Donnell chimed in with her "so smart" exclamation about Boies.
The full transcript of the David Boies interview on the February 1, 2017 edition of CBS This Morning:
CHARLIE ROSE: Attorney David Boies has argued landmark cases in front of the Supreme Court. He represented Al Gore in the case deciding the 2000 presidential election. He also fought to overturn California's gay marriage ban, paving the way for marriage equality. Boies is now chairman of the law firm Boies Schiller Flexner. We're pleased to have him. Welcome.
DAVID BOIES, BOIES SCHILLER FLEXNER CHAIRMAN: Good to be here.
ROSE: He is enormously brilliant as an attorney?
BOIES: I think absolutely — and as a judge. I think that President Trump was right last night when he said he is somebody with tremendous legal skills, a brilliant mind, outstanding discipline. I think all of those things are true about him. I also think he is somebody who is not in the ideological mainstream.
[CBS News Graphic: "Conservative Choice: Boies On President Naming Gorsuch To Supreme Court"]
NORAH O'DONNELL: Ideologically, where is he compared to Justice [Antonin] Scalia?
BOIES: He is probably comparable — maybe even — maybe, a little more conservative on some issues than Justice Scalia. He's got a wide variety of views, and we don't know all that much about him, because he's on — been on the Court of Appeals that doesn't yet — quite the same mix of cases—
[CBS News Graphic: "Supreme Court Justice Ideology: Liberal: Kagan, Ginsburg, Breyers, Sotomayor; Moderate Conservative: Kennedy; Conservative: Chief Justice Roberts, Thomas, Alito"]
ROSE: Let me just understand where you stand, David: would you be — are you recommending that the Democrats not support him?
BOIES: I think the Democrats have got to take a very careful look at him. This — this presents a dilemma, I think. You have somebody who is a brilliant legal mind — somebody who, if you had an academic test for judges, would pass all those tests. On the other hand, he is not in, what I believe, to be the mainstream of judicial thought. And one of the things that we learned from Justice — from Judge [Merrick] Garland is that it's not enough to be a brilliant judge. It's not enough to be a great judge. If — if that were true, there wouldn't be a vacancy. Judge Garland would be in that seat.
GAYLE KING: But you heard Lindsey Graham say a minute ago that he's 'mucho happy.' The Democrats appear to be mucho mad (O'Donnell laughs)—
BOIES: Exactly — right—
KING: It seems we're getting into, David, a tit-for-tat situation. The Democrats are still bruised because of what happened with Judge Merrick — Merrick Garland. Do you think that it's now becoming such a political issue, and not really about what's important for the Supreme Court?
[CBS News Graphic: "Dissenting Opinions: Boies On Likely Battle Over Gorsuch's Confirmation"]
BOIES: I think it's both. And I think what is important for the Supreme Court is that you do have ideological balance. You can't have a rule that only Republican presidents get to appoint Supreme Court justices; and the Democrats have to accept whoever the Republican puts up. I think it's unfortunate.
I was on this program a few months ago, and — talking about Merrick Garland — and I thought it was unfortunate that he wasn't confirmed. I think it's unfortunate that we've gotten into a situation in which people are looking at trying to appoint people that are a sure vote to the left or the right.
O'DONNELL: There's a lot of talk that this is about the second pick that President Trump gets to make — because, of course, Gorsuch would replace another conservative: Scalia. But there's a front-page piece in the New York Times that picking Gorsuch, since he had clerked for Justice Kennedy, would allow Kennedy the idea that, perhaps, he could retire — and that's the swing vote.
[CBS News Graphic: "Choosing Again? Boies On Potential President May Name Two Justices"]
BOIES: That would — that is the second — that's the second shoe to drop, and very — obviously, very important.
KING: Do you think it's maybe — one strategy I heard: let this one go, and really save your fight — save your fire for the potential Kennedy vote?
BOIES: I don't think people are going to see it that way. The Senate has got a responsibility to advise and consent. It requires sixty votes. If the Republicans want to abandon the sixty-vote requirement, they can do that; but there will be a time when the Democrats are in the majority, and that will come back—
ROSE: But here's what's interesting about this: when he was confirmed by the Senate for the Court of Appeals, it was almost a unanimous vote.
BOIES: Same thing with Justice — Judge Garland. People will be confirmed; it's a lower court judge—
ROSE: It always comes back to this: because you did this to Garland, we're going to do this to—
BOIES: I don't think it's that so much. It's not — it's not so much tit for tat. What it is, is that you've got to have balance; and if you don't have balance, you don't have a balanced Supreme Court. And so, you've got to have the same rules — Republicans and Democrats. If you don't do that, you don't have balance on the Supreme Court.KING: David Boies, you have the last word. It's always good to have you at the table—
O'DONNELL: Yeah — so smart — thank you—
BOIES: Good to see you — thank you.
