Supreme Bias: #1-30
- In its July 3 cover story, The Tipping Point?, Time detailed the multi-million-dollar finances of conservative groups seeking to sway the choice, but when it came to Ralph Neas' Alliance for Justice (not mentioning that Neas heads the uber-leftist People for the American Way), it did not detail the group's budget; instead, Time just described their Web site: "CLICK HERE to donate $ 10 and sign up 10 friends for the likely battle!" -- implying that unlike the Conservative campaign machines, Neas' little venture is a grassroots effort, which it is not.
- In the same story, Time ranked the current Supremes as follows:
RUTH BADER GINSBURG [Liberal-Moderate]What? No "staunch liberals?" All moderate liberals? Even Ruth Bader Ginsburg?
DAVID H. SOUTER [Liberal-Moderate]
ANTONIN SCALIA [Conservative-Staunch]
JOHN PAUL STEVENS [Liberal-Moderate]
CLARENCE THOMAS [Conservative-Staunch]
STEPHEN G. BREYER [Liberal-Moderate]
WILLIAM H. REHNQUIST [Conservative-Staunch]
ANTHONY KENNEDY [Conservative-Moderate]
- In an editorial, the Bradenton (FL) Herald wrote, "Indeed, in analyzing the decisions that preceded Roe vs. Wade, those [abortion] advocates warn that access to birth control could be limited or cut off with a new court balance." Don't they mean "access to abortion?"
- The Washington Post has come up with a "gravitas gap," that supposedly would give Dems an advantage in the Senate hearings:
But Democrats have an edge that may loom large in the highly visible, keenly politicized struggle: Their committee members are considerably more experienced and unified than the Republicans. All but two have participated in Supreme Court confirmations, and those two -- Charles E. Schumer (N.Y.) and Richard J. Durbin (Ill.) -- are glib, media-savvy lawyers.
By contrast, only three of the 10 Republicans have handled a Supreme Court nomination. Party veterans who oversaw past Supreme Court confirmations, such as Strom Thurmond (S.C.) and Alan K. Simpson (Wyo.), have been replaced by greener members. "The gravitas gap will be an issue if Democrats decide to go to the mat about somebody," said Howard M. Wasserman, a law professor at Florida International University in Miami.
Well, as Betsy put it, "The Dems have Leahy, Kennedy, Biden, Durbin, and Schumer and this guy thinks that there is a gravitas gap! Give me a break!"
- Watch out for "conservative judicial activism." Here's Michael Kinsley:
"it would be fair to say that the takings clause is the conservatives' recipe for judicial activism -- imposing their agenda through the courts rather than bothering with democracy..."
Conservative judicial activism? What's "activist" about wanting the Constitution interpreted as it was written? This gem appeared in an op/ed, where opinion is fair game -- but Kinsley is also the editorial editor of the LATimes, so will he stop this particular prejudice from entering the news stream there? (h/t Villainous Company)
Indeed, the very same issue of WaPo includes the following: "the [Left's SCOTUS) coalition has mounted a huge public relations and grass-roots mobilization campaign to prevent jurists it regards as right-wing judicial activists from ascending to the high court."
- Miscasting what "conservative" means is a close relative to number 5's "conservative judicial activism." In this case, it's painting liberal judicial philosophy with a conservative brush, a la this, from the LATimes:
But "conservative" can mean several things in a Supreme Court justice. It can mean one who believes strongly in stare decisis, the legal principle of not overturning established doctrines. Liberal enthusiasm for stare decisis in a conservative era is suspiciously convenient. If Earl Warren had embraced stare decisis, we wouldn't have had Brown vs. Board of Education.
Of course, we wouldn't have Roe if stare decisis had ruled.
- The Constitution-In-Excile: This phrase is beginning to crop up today (7/20) with mentions by Volokh of it appearing in the New Republic and PowerLine of it appearing in the reviled Strib. It refers to the pre-New Deal Hooverian Constitution, and the desire among some Conservative jurists to return to it. Trouble is, only one Conservative judge has every made even a passive mention of it -- and that judge's name was not Roberts, Scalia or Thomas.
- French Fries: A Nexis search the day after the nomination turned up 74 hits for the words "Roberts" and "french fry." Typical is this, from Agence France Presse:
And in another unanimous ruling last October, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl arrested inside a commuter train station in Washington for eating a french fry.
In that context, it makes Roberts sound like a harsh law and order guy. But as Hugh Hewitt points out, Roberts thought little of the action of arresting the girl, but ruled according to the law:
"The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm."
- Arroyo Toads: This one's close to home because many of my clients are struggling with the impacts of having this endangered toad on their lands. The NYTimes cited a Roberts action on the toad and concluded that Roberts ""dissented in an Endangered Species Act case in such a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional." Hugh said the quote "means that either the writers know zero about the law, or don't mind distorting facts to achieve their political ends." Why? Because, he points out:
Judge Roberts wanted the entire D.C. Circuit to hear the case because of the conflict that was apparent between the three judge panel's ruling and the approach taken by the 5th Circuit in a similar case. It was not a substantive decision in any way, and representing it as such is simply wrong.
- Roberts as Administration Stooge: AP headlined one of its day-after-the-nomination stories, "Roberts Has Backed Administration Policies."
There follows an already familiar list: His ruling on the status of Gitmo prisoners, keeping Cheney's energy task force procedings confidential. The District Court sided with Roberts unanimously on Gitmo and 7-2 on Cheney; he's hardly a renegade stooge. As PowerLine points out, "Of course, some observers would say that the AP's headline could more accurately have read, "Administration's Policies Generally Upheld In the Courts."
Now the question is whether Judge Roberts, if confirmed, will, like those two justices, commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.As Betsy puts it, "Omigosh! How amazingly terrible for a judge to want to be faithful to the 'original intent of the framers' rather than reflect currents of 'modern legal thought.' Her derision for the originalist view is so clear yet there is no reason given why this is so.
12. Roving Logic: On nomination night, Leftyblogs were already full of comments speculating that Bush rushed the announcement to provide cover to the "growing" (but not for long) Rove "scandal." In no time, the media chimed in, like this from the NYTimes:
Both Republicans and Democrats said that the speeded-up timing - administration officials had at one point told reporters to expect an announcement in the last week of July - would have the effect of pushing news of Karl Rove and a federal investigation into who leaked the identity of a C.I.A. officer off the front pages, at least for a time.Today on Michael Medved, White House Chief of Staff Andrew Card detailed how the announcement timing was worked out with Dem and GOP Senators to ensure confirmation before October. As the Captain (who gets a hat tip for this entry) said of people who think the Senate has plenty of time to confirm Roberts: "[T]hose people obviously did not watch Senator Pat Leahy speak with the press last night, along with his colleague Chuck Schumer. The two Judiciary Committee members made it clear that they will not allow this nomination to move forward expeditiously at all; both insisted that his earlier and overwhelming approval to the DC Circuit appellate bench made no difference at all."
13. The "issues list." This position, nicely stated by E.J. Dionne, Jr. in WaPo, is that fairness and talent aside, confirmation must be based on his "principles," and they must be "mainstream." What principles? Here's the list:
"The issues at stake are not abstract. They have to do with the government's power to protect the environment, to safeguard civil rights, including the rights of the disabled, and to provide protections for employees and consumers."It's the same list every time, and it's alway "government's power to protect." It's never "government's power to overstep." And the positions of the Souter's and Ginsberg's of the Court are always "mainstream."
14. The Dems are being nice. MSM reports, like this 7/21 LATimes piece, show how nice the Dems are being towards Roberts, with the headline "Democrats Forgo Discord on Court Pick, at Least for Now." Nice, nice Democrats. Patterico points out how wrong the characterization is:
15. O'Connor endorsement quoted out of context. Patterico caught this in the 7/21 LATimes. Here's the original quote from O'Connor on hearing of the nomination:
... the entire theme of the story, as indicated by the headline, is that Senate Democrats have not been critical of Roberts. But the story does not quote Dick Durbin, who sounded a bit critical in this Fox News story:
“The president had an opportunity to unite the country with his Supreme Court nomination, to nominate an individual in the image of Justice Sandra Day O’Connor. Instead, by putting forward John Roberts’ name, President Bush has chosen a more controversial nominee and guaranteed a more controversial confirmation process,” said Illinois Sen. Dick Durbin, D-Ill., who was one of three Democrats who voted against Roberts in 2003.
I guess not all Democrats have chosen to "forgo discord.”
Her first words were unequivocal: “That’s fabulous!” she said. She immediately described John G. Roberts as a “brilliant legal mind, a straight shooter, articulate, and he should not have trouble being confirmed by October. He’s good in every way, except he’s not a woman.”And here's the LAT take:
16. Federalist Society ... Not: Here's a partial list of the MSM outlets that incorrectly reported that Roberts is a member of the Federalist Society: AP, CNN, WaPo, Salon, BaltSun, SFChron, USAToday and this from BosGlobe, which is typical:
Some women’s groups said they were disappointed Bush had not named a woman to replace O’Connor.
Even O’Connor, the first woman to serve on the Supreme Court, expressed some discontent on that point.
On a fishing trip in Idaho, she told the Spokane, Wash., Spokesman-Review: “He’s good in every way, except he’s not a woman.”
Roberts is also a member of the Federalist Society, a fraternity of legal conservatives whose members often espouse the view that the Constitution should be interpreted literally and oppose "activist" judicial decisions that find implicit but unwritten rights in the document including the unwritten right to privacy from which abortion rights are derived.Why the interest in his alleged membership in the Federalist Society? Oh, sure, it might be a legit quest for information to flesh out his thin record. But if that were all there is to this little mistake, ask yourself if the media made such a big deal of Ruth Bader Ginsberg's true ACLU affiliation? And would they have written it up like this:
Ginsberg is also a member of the American Civil Liberties Union, a fraternity/sorority of liberals, mostly attorneys, whose members often espouse the view that the Constitution should not be interpreted literally and support "activist" judicial decisions that find implicit but unwritten rights in the document including the unwritten right to privacy from which abortion rights are derived.Update: This issue continues to capture MSM's attention with this 7/25 report that maybe he was a member of the Federalist Society.
17. Fashion Snarking: Bias isn't limited to the news pages; the fashion pages, especially with Robin Givhen at WaPo, are also rife with it, as Michelle Malkin so effectively points out. First a sampling of Givhen's snark attack:
It has been a long time since so much syrupy nostalgia has been in evidence at the White House. But Tuesday night, when President Bush announced his choice for the next associate justice of the Supreme Court, it was hard not to marvel at the 1950s-style tableau vivant that was John Roberts and his family.That's a nasty way to say they weren't all dressed in NARAL rally black, isn't it? (h/t Betsy)
There they were -- John, Jane, Josie and Jack -- standing with the president and before the entire country. The nominee was in a sober suit with the expected white shirt and red tie. His wife and children stood before the cameras, groomed and glossy in pastel hues -- like a trio of Easter eggs, a handful of Jelly Bellies, three little Necco wafers...
18. Sexuality Snarking: Related to #17 but so much worse is the Left's effort to read homosexuality into Roberts' resume. Granted, I haven't found this stated so vividly in the old media yet, but Wonkette is something of an MSM blog, and here she goes:
Why are Catholics always "repressed?" Hmmm. Well, it is interesting that her source's source was the NYT, which deliberately chose to put these paragraphs in its profile, butsmartly left them without Wonkettish commentary:
Wonkette operatives have alerted us to some details in John G. Roberts background. We're not making any conclusions here -- we wouldn't want to comment on an ongoing investigation -- we're just laying out the facts: He is a graduate of an all-boys Catholic school where, as a member of the wrestling team, he regularly grappled with other sweaty, repressed boys. That is when he wasn't the drama club playing Peppermint Patty, for God's sake. He was also an editor of the school newspaper, "The Torch."
And yet the Right still asserts that "he's no flame-thrower."
We like him more and more.
Besides being an academic star, he was a scrappy athlete, a captain of the football team despite his mediocre play, and competed in wrestling and track. In a small school of about 125 students, John Roberts was also on the student council executive committee (he lost the race for senior class president to his best friend), the student activities committee, the editorial board of The Torch student newspaper and the drama club.
The school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of "You're A Good Man, Charlie Brown."
19. Inventing Interest: The NYTimes ran a story on Roberts' wife's previous involvement with a pro-Life group under the headline: "Anti-Abortion Advocacy of Wife of Court Nominee Draws Interest." As Betsy, always the school teacher, puts it in finding the bias in this gem:
Note the indefinite modifiers. They don't even have anyone on record whose interest is being drawn. This is just a totally made up story so that the New York Times can talk about his wife on the front page. What shoddy journalism.20. Dems Were Surprised: WaPo picked up without criticism or illumination the official Dem line that they must be neutral because they the GOP did such a good job of keeping Roberts' nomination under the veil of secrecy:
By not reporting the obvious -- that Roberts was on highly publicized speculation short lists since even before O'Connor retired, WaPo is complicit in the Dem strategy: Appear reasoned for a moment, then be vicious.
"We were playing basketball blindfolded," said an aide to a senior Senate Democrat, who asked not to be identified to speak freely about internal planning. "The other side knew what moves they were making and we were necessarily reacting. . . . "
Many Democratic strategists concede that Bush won the opening round of the confirmation battle, through his choice of a nominee who has been praised for his intellect and temperament and by a skillful unveiling that kept everyone guessing about the nominee's identity until an hour or so before Bush and Roberts appeared in the East Room of the White House.
21. Giving The Last Word: Often a reporter will patch together a perfectly objective, fair-enough story, balancing Dem and Repub quote-for-quote paragraph after paragraph, waving the banner of reportorial objectivity -- only to let the true colors show in the last paragraph. Check out this stand-alone, biased close by AP reporter Jesse J. Holland, following 26 paragraphs of objectivity:
Excuse me? EXCUSE ME??
"Now, I hope Senator Leahy is not trying to demand documents that the president has not even seen as part of their lines of attack against the president," McClellan said.
"That's a big mistake," Sen. Joseph Biden, D-Del., said of the White House position. "There's precedent for these kinds of documents being released in the past.
"And why are they always looking for a fight?"
22. 4,000 Pages And You Get What?!: The NYT sent John Broder and Carolyn Marshall all the way to Simi Valley, CA, where they read through 4,000 pages of Roberts' decisions to give us insight into him. What do they come up with? In Reagan's White House, A Clever, Sometimes Cocky John Roberts. Instead of being enlightened, we are en-snide-d:
The article also takes Roberts to task for misspelling "Marielitos." Oh, my. A hat tip to Betsy, who commented, "Well, stop the confirmation hearings right now."
There was also the time he offered a snide analysis, in an internal White House memorandum, of a proposal from a member of the House, Elliott H. Levitas. After the Supreme Court struck down efforts by Congress to veto actions taken by the executive branch, Mr. Levitas, a Democrat from Georgia, proposed that the White House and Congress convene a "conference on power-sharing" to codify the duties of each branch of government.
Asked to comment on the congressman's proposal, Mr. Roberts mocked the idea, and him. "There already has, of course, been a 'Conference on Power Sharing,' " Mr. Roberts wrote in a memo to Mr. Fielding. "It took place in Philadelphia's Constitution Hall in 1787, and someone should tell Levitas about it and the 'report' it issued."
23. Croaking About Toads: In a SFChron article about Roberts' decision in the Rancho Mission Viejo arroyo toad case, reporter Bob Egelko led with overstatement, topping off his story with a couple quotes:
It wasn't until the very bottom of the article, 20 paragraphs later, that Egelco allowed any balancing to occur:
"This case calls into serious question his views on the scope of the (Constitution's) commerce clause ... which might have serious implications for other environmental laws and health and worker protection, civil rights and consumer laws,'' said Glenn Sugameli, a lawyer with the environmental advocacy
The issue Roberts raised is "huge in the broader context of all environmental laws,'' said John Leshy, a law professor at UC Hastings College of the Law in San Francisco. If the federal power over interstate commerce doesn't extend to protecting an isolated species within a single state, he said, then other questions arise: "Can the national government protect air in local communities or protect water in isolated rivers?''
Richard Epstein, a University of Chicago law professor and a leading property rights theorist, said the case was being overblown.
Even if Roberts forms part of a Supreme Court majority to limit the Endangered Species Act and other environmental laws, Epstein said, that would mean only that "some fraction of (environmental regulation) would be left to the states.''
24. Wishful thinking. When the press reported John Kerry's call for the White House to release all Roberts-related documents because "we cannot do our duty if either Judge Roberts or the Bush administration hides elements of his professional record," don't you think some mainstream reporter might have mentioned the repeated unanswered calls for candidate Kerry to release his military records?
25. Making an mockery of objectivity. How's this for a summation of Roberts' history in the solicitor's office? From an 8/2/05 story by AP:
Many of the memos paint a portrait of a politically savvy attorney who encouraged his bosses to restrict affirmative action, Title IX sex discrimination lawsuits and prisoner appeals in federal court, which he said "made a mockery of the entire criminal justice system."26. Where are the Roberts supporters? This AP story, also cited in #25, was headlined in the SacBee as, "Groups take Roberts campaign to voters." OK, that's fair enough; it should present what groups for and against the Roberts nomination are up to, right? Nope. Eleven of the 22 paragraphs in the story tell what MoveOn.org, NARAL, and People for the American Way are up to, comlete with quotes negatively characterizing Roberts. Four paragraphs, including the last two, cite the activities of supporting groups -- and their quotes are process oriented, not directed to the nominee's credentials.
27. When you don't like the evidence, ignore it. Eager to paint John Roberts in a negative light, papers like the WashPost are filing Freedom of Information Act lawsuits for papers that might allow them to show him as an idealogue.
But when memos come out showing Roberts represented gay issues, minority issues and was critical of anti-abortion extremists, here's what WaPo had to say of his record: "Pay it no mind. ... hardly surprising ... neither side seems to attach much importance to his diverse practice." You can't win with these guys.
28. Nothing is out of bounds. News that the NYT was researching the Roberts adoption records set of a blog tsunami, for good reason. There is absolutely nothing that could be found in such research that could possibly reflect on how he would perform as a judge. All I can think of is they are looking for favoratism, or evidence of marital weirdness, neither of which have any applicability. Here's the original Drudge report and great, link-rich posts on the subject from Hugh and Michelle.
29. The Starr Chamber. Patterico points out an interesting but unsurprising LATimes bias:
By the way, [David] Savage’s story appears to be an exercise in linking Roberts to [Kenneth] Starr, whom Savage clearly believes is hugely unpopular due to his involvement in President Clinton’s impeachment. If you want a good drinking game, read the article and drink a beer every time Savage uses the words “Roberts” and “Starr” in the same sentence. If you count the headline, you’ll blow through a twelve-pack before you’re done.
30. Setting up the "good cop." So Kennedy and Schumer will be the bad cops and Leahy will be the "good cop." In a profile of the particularly nasty Sen. from New Hampshire, the NYT said:
Just before Congress adjourned for August recess, two Democrats on the judiciary panel, Senators Charles E. Schumer of New York and Edward M. Kennedy of Massachusetts, challenged Senator Leahy after he made concessions to Republicans in exchange for a September hearing date.
"Pat is not a person that puts confrontation up front," Mr. Kennedy said in an interview.
Mr. Schumer put it this way: "At his core, Patrick is just a very decent, honorable man who wishes everybody could get along, and he tries to make that happen as best he can."
Who does the NYT think it's kidding? There are so many Nasty Leahy stories, it's hard to pick just one. How about this one, from NRO:
Leaking confidential FBI files. What a gentleman.
[Judge] Saad was nominated on November 8, 2001. He received a confirmation hearing before the Judiciary Committee on July 30, 2003. Democrats boycotted the hearing — and made no public reference made to any background problems. The committee approved Saad in a straight party-line vote on June 17, 2004.
Before the vote, on June 3, 2004, Sen. Patrick Leahy, who was angry that then-chairman Orrin Hatch was pushing the Saad nomination through the committee, and who had access to FBI material on Saad in his role as ranking Democrat on the committee, made a public reference to Saad's background check, saying it contained allegations of a "very serious nature." Leahy did not elaborate.
See also Scoundrel Chronicles, Cheat-Seeking Missile's list of 139 examples of media bias in MSM coverage 2004 election.