Tim Russert revived his prior false claim that Ruth Bader Ginsburg and Stephen Breyer were perceived as very liberal when they were nominated to the Supreme Court and that their confirmations indicate that Alito should also be easily confirmed.
In an interview with Sens. Charles E. Schumer (D-NY) and John Cornyn (R-TX) on the January 8 broadcast of NBC's Meet the Press, host Tim Russert revived his prior false claim that justices Ruth Bader Ginsburg and Stephen G. Breyer had the reputation and record of liberal judges when they were nominated to the Supreme Court. Russert used the falsehood to reiterate the argument that because Republicans voted overwhelmingly to confirm the two, Democrats should extend the same courtesy to current Supreme Court nominee Samuel A. Alito Jr.
Specifically, Russert suggested that Senate Republicans had set aside their ideological differences with the "liberal judicial philosophies" of President Clinton's Supreme Court nominees, Ginsburg and Breyer, because "it was a Democratic president who had the right to make that nomination." Russert noted that Ginsburg had served as chief counsel for the American Civil Liberties Union (ACLU) and that Breyer had worked as a staffer for then-Senate Judiciary Committee chairman Edward M. Kennedy (D-MA). Russert further asserted that while Alito's "philosophy may be conservative ... it's no more conservative than Ginsburg and Breyer's were liberal." In fact, both Ginsburg and Breyer were widely viewed as moderates and -- unlike Alito -- were consensus nominees reportedly recommended for nomination by the senior Judiciary Committee senator in the minority party.
Schumer responded by noting that "everyone conceded that Breyer and Ginsburg were" in the "mainstream," and that "most people didn't think Breyer was much of a liberal," adding, "They thought he was a moderate."
Later in the interview, Russert failed to challenge Cornyn when he misleadingly equated Alito's stated personal belief that "the Constitution does not protect a right to an abortion" with statements made by Ginsburg.
From the January 8 broadcast of NBC's Meet the Press:
RUSSERT: But here's the situation, as many people see it. When Ruth Bader Ginsburg was put forward by Bill Clinton, she had been general counsel for the ACLU. Steven Breyer has worked for Ted Kennedy, and yet they were overwhelmingly confirmed because they had competence and temperament, as you say.
RUSSERT: And even though they had a more liberal judicial philosophy than many members of the Senate, it was a Democratic president who had the right to make that nomination. If, in fact, Republicans supported Ginsburg and Breyer, why shouldn't Democrats support Alito, who's been rated well qualified, the gold standard of the ABA [American Bar Association], and whose philosophy may be conservative, but it's no more conservative than Ginsburg and Breyer were liberal?
SCHUMER: Well, that's the $64,000 question. If Alito is within the judicial mainstream, as everyone conceded that Breyer and Ginsburg were -- most people didn't think Breyer was much of a liberal; they thought he was a moderate -- if he is within the mainstream, even if he's a conservative, he will be approved. Some people may vote against him, because they say, "He's not my philosophy," but there'll be no attempt to block him.
RUSSERT: Senator Cornyn, let me pick up on the point Senator Schumer raised about the right of abortion in the Constitution. As you well know, when Samuel Alito applied for a position to be deputy assistant attorney general -- and here is his job application. There you see it, Alito, Samuel A., he wrote this: "... it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued ... that the Constitution does not protect a right to an abortion."
That seems very clear, his personal view and his legal view, arguing that the Constitution does not provide a right to an abortion. Why can't Judge Alito come forward and say, "This is my view. I don't find the right of abortion in the Constitution"? Why doesn't he just say it?
CORNYN: Well, Tim, the -- obviously Judge Alito joins other groups of distinguished legal scholars and jurists who have questioned the decision in Roe v. Wade. Ruth Bader Ginsburg and [Harvard law professor] Laurence Tribe and others have said it's a poorly reasoned decision.
By citing the confirmations of Ginsburg and Breyer as examples of Republican senators setting aside ideological considerations to support the president's nominees "because it was a Democratic president who had the right to make that nomination," Russert was reviving the so-called Ginsburg precedent. According to this deceptive argument -- hatched shortly after the nomination of Chief Justice John G. Roberts Jr. -- Senate Republicans responded to Ginsburg's 1993 nomination by putting aside their ideological differences, not requiring her to answer questions that would signal how she would decide future cases, and voting overwhelmingly for her confirmation, thereby establishing a precedent for the opposition party's handling of future Supreme Court nominees.
Russert previously raised this argument in a November 13 interview with Democratic National Committee chairman Howard Dean. At the time, Media Matters for America noted that the Ginsburg and Breyer nominations actually differ from Alito's in key respects. First, Sen. Orrin Hatch (R-UT) -- then the ranking minority member of the Senate Judiciary Committee -- has claimed credit for recommending both of Clinton's Supreme Court nominees. In his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), Hatch wrote that he had suggested both Ginsburg and Breyer in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt to the Supreme Court:
Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg [sic].
I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.
In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease. (Page 180.)
In her November 15 Washington Post column, Ruth Marcus pointed out that "then-Judge Ginsburg was a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight."
Moreover, Ginsburg had a reputation as a moderate on the U.S. Court of Appeals for the District of Columbia Circuit. A June 15, 1993, Washington Post article reported that Ginsburg had "straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years" and that her "pragmatic, non-ideological approach" would most likely put her in league with such "centrist-conservatives" as justices Sandra Day O'Connor and David H. Souter. The Post article cited a Legal Times study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats. Hatch made the same point in a footnote in Square Peg, writing of Ginsburg: "Not many people realize this, but her voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia." (Page 263.)
Breyer was also frequently described as a "centrist" and a "moderate" during his confirmation process. In a July 8, 1994, New York Times article, Neil A. Lewis wrote:
President Clinton has shown no inclination to try any judicial counter-revolution. He has not emptied the academies of liberal scholars to fill the courts, and his first two nominees to the Supreme Courts were moderate enough to please many Republicans.
So, when Judge Breyer is questioned by the Judiciary Committee members about his views on abortion, for example, his answers will be remarkably like those of Justice Ginsburg. And in this new low-key era, don't expect even the conservative Republicans on the panel to raise any serious objections.
In a May 14, 1994, appearance on CBS' Face the Nation, Hatch cited Breyer's Judiciary Committee work, referring to Breyer as "moderate" and "reasonable":
HATCH: Well, I think Breyer is going to bring a tremendous legal intellect, of broad-based experience. He -- he -- he, believe it or not, is a person who -- who can work very politically well. For instance, when he was chief counsel of the Judiciary Committee, he was able to bring together Republicans and Democrats in one of the most contentious committees on Capitol Hill, and he did it with aplomb because he was honest, he was decent, he was moderate, he was reasonable in his approach. And when it came time to put him on the First Circuit Court of Appeals -- Reagan had been elect -- elected, the Republicans had stopped any further Democrat judges. And because of the esteem of everybody on that Judiciary Committee, including myself, we put him on the First Circuit Court of Appeals.
Even The Wall Street Journal editorial board supported Breyer's nomination, which, the Journal said, "reflects the political philosophy that some of us, including centrist Democrats, had hoped we'd see as a matter of course from the Clinton presidency." On May 23, 1994, the Journal wrote, "We suspect Mr. Breyer is no Robert Bork, but his writings suggest he is at least someone Mr. Bork could have a discussion with." The Journal approvingly cited opposition to Breyer from Ralph Nader and then-Sen. Howard Metzenbaum (D-OH) and praised Breyer's work in support of airline deregulation.
Also during the January 8 interview, Russert quoted from a 1985 job application in which Alito wrote about his personal belief "that the Constitution does not protect a right to an abortion."
From Alito's 1985 job application:
Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.
In response, Cornyn claimed that "obviously Judge Alito joins other groups of distinguished legal scholars and jurists who have questioned the decision in Roe v. Wade" -- the Supreme Court ruling establishing a woman's constitutional right to an abortion. Cornyn then asserted that Ginsburg had said Roe is "a poorly reasoned decision." Russert did not challenge Cornyn's assertion, which falsely equated the position that Roe was wrongly decided because there is no constitutional right to abortion with the position that Roe was correctly decided, but incorrectly reasoned.