In covering the Ricci case, reversing Judge Sonia Sotomayor's decision, media should not promote the myth that the reversal represents a "historic rebuke" or that Sotomayor's Supreme Court reversal rate is "high."
At Media Matters, we have noted media coverage of conservative attacks against Supreme Court nominee Sonia Sotomayor for supposedly being outside the mainstream or an activist, attacks that are often based on misrepresentations of Sotomayor's record. Rather than simply parroting these attacks, the public would be better served if the media reported that one justice on the Supreme Court has repeatedly demonstrated himself to be out of the Court's mainstream: Justice Clarence Thomas. Indeed, perhaps the media should be asking how progressive a new nominee has to be in order to counterbalance Thomas.
In recent days, Thomas has disagreed with all eight of his colleagues on two extremely important issues. On Monday, Justice Thomas asserted that Section 5 of the Voting Rights Act is unconstitutional. Section 5 requires that certain jurisdictions -- including several southern states -- with a history of racially discriminatory voting practices seek permission from the Justice Department or the courts before changing their voting laws. The Justice Department or the court has to ensure that the contemplated change in voting practices does not have a discriminatory purpose or effect. No other justice besides Thomas was willing to take the step of declaring the law -- which was reauthorized nearly unanimously by Congress in 2006 -- unconstitutional. But Justice Thomas was.
And that was just Justice Thomas' warm-up for the week. Today, the court dealt with the constitutionality of a school administrator's strip search of Savana Redding, a 13-year-old girl, after another girl accused her of giving out prescription-strength ibuprofen and over-the-counter Naproxen. Eight justices held that the strip search, which did not turn up any drugs, violated the Constitution's ban on "unreasonable searches."
But not Justice Thomas. In fact, Justice Thomas called the other justices' actions a "deep intrusion into the administration of public schools." He also listed examples of people who had concealed drugs in their underpants (almost all of them adults) as vindication for his view that the strip search was not unreasonable, saying that "Redding would not have been the first person to conceal pills in her undergarments." He added: "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school." Recall that Redding did not actually have "pills in her undergarments."
This is nothing new for Thomas. For instance, in 2004, eight justices held that Yaser Hamdi, an American citizen held in a brig in South Carolina after being declared an enemy combatant by President Bush, had the right to file a habeas corpus petition in federal court to challenge his detention. Thomas dissented, again without any colleagues joining him. Thomas asserted: "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision." Thus, Thomas believed that in time of war the president had the power to lock up American citizens without any "second-guess[ing]."
Rather than just cover the back and forth between Democrats and Republicans on the Sotomayor nomination, the media have a real chance to educate the American public about the justices and what effect a new justice might have on the court. The media can begin this process by noting how out of step Thomas is with his other colleagues.
Newt Gingrich claimed that Sonia Sotomayor "accepted the fact that, for clearly racial quota reasons," the white firefighters plaintiffs in the Ricci v. DeStefano case "shouldn't be promoted." In fact, the 2nd Circuit opinion Sotomayor joined stated that precedent -- not "racial quota reasons" -- led the court to rule as it did.
A McClatchy article misrepresented poll findings from Quinnipiac University to falsely claim that a "strong majority of the American people oppose" Judge Sonia Sotomayor's position in Ricci v. DeStefano. In fact, the poll question to which McClatchy referred did not ask about Sotomayor's position in the case.
On The Situation Room, Dana Bash falsely claimed that "a clause" of the economic recovery act "effectively made sure that the contracts that were in place for the past couple of years with companies like AIG -- why those had to stay in place and why AIG had to give the bonuses." In fact, the relevant provision in the recovery bill actually restricted the ability of companies receiving funds under the act to award bonuses in the future; it did not mandate that AIG -- or any other companies -- pay bonuses.
In a New York Times article, A.G. Sulzberger quoted without challenge Dick Cheney's assertion that Bush administration policies on detentions and intelligence gathering were "done legally" and "in accordance with our constitutional practices and principles." Sulzberger did not note that the Supreme Court has repeatedly rejected Bush administration policies regarding detentions, that the Justice Department has withdrawn Bush administration memoranda authorizing interrogation practices, and that the International Committee of the Red Cross has reportedly determined that interrogation practices used during President Bush's tenure in office amounted to torture.
Recently, many in the media have echoed the charge by the GOP that the White House is shining the spotlight on Rush Limbaugh in order to distract attention from the country's problems. In fact, Limbaugh and the GOP have demonstrated repeatedly over the years that they don't need assistance from Democrats for the spotlight to shine on Limbaugh. The party has honored and defended him repeatedly, the media have praised him, and Limbaugh has thrust himself into the spotlight countless times through his outrageous comments and conduct.
On the CBS Evening News, Randall Pinkston aired a clip of Catholic League president Bill Donohue saying that President Obama's selection of Kansas Gov. Kathleen Sebelius to be secretary of Health and Human Services "is an insult to Catholics." But Pinkston did not mention the support Sebelius has received from Catholics United and numerous other Catholics, or that one of the Republican U.S. senators from Kansas, whose support of Sebelius Pinkston noted, is Catholic.
In a Politico blog post about an ad attacking Sen. Barack Obama for abortion-related votes he cast as a state senator, Jonathan Martin wrote: "As a state senator, Obama opposed legislation that proponents said would protect legal protection to babies outside the womb." But Martin did not note that the suggestion that at the time Illinois law did not already provide "legal protection to babies outside the womb" is false. Additionally, the Illinois Department of Health reportedly said that the alleged actions cited as evidence that the bill was necessary were already illegal.