Alito hearings double standard, part one

A frequent theme of media coverage of Supreme Court nominee Judge Samuel A. Alito Jr.'s nomination hearing has been that Democrats -- but not Republicans -- entered the hearing with closed minds, having already decided how they were going to vote.

CNN's Wolf Blitzer has been one of the most prominent proponents of this storyline. As Media Matters for America noted, Blitzer asked Sen. Edward M. Kennedy (D-MA) during a January 9 interview: “It sounded, based on your opening statement, as if you have already made up your mind. You are going to oppose this nominee. Is that right?” Yet, during a subsequent interview, Blitzer chose not to ask Senate Majority Leader Bill Frist (R-TN) whether he had made up his mind, despite Frist's effusive praise of Alito.

Blitzer was back at it two days later, declaring: “Some Democrats are delivering an early verdict on Alito's performance.” Blitzer did not mention the “early verdict” issued by Republican senators, including Lindsey Graham [R-SC], who used his opening statement to tell Alito: “It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines. I feel very comfortable with you being on the Supreme Court based on what I know.”

Blitzer wasn't the only one in the media to suggest that Democrats entered the hearings with a closed mind -- and he did at least ask one Republican, Sen. Arlen Specter [R-PA], whether he had made up his mind about the nominee before the hearing began. The Associated Press, for example, reported on January 11 that “Republicans complained that Democrats have already made up their minds about Alito.” True, Republicans have made that complaint -- but the AP should have told readers that several Republicans have made up their minds, making the Republican complaint more than a little hypocritical.

In repeatedly suggesting that Democrats had made up their minds about Alito before the hearing began -- and less frequently suggesting it of Republicans -- news outlets reinforced a claim often made by Republicans: Democrats would oppose anybody Bush nominated. And by focusing on the Democrats, the media let Republicans off the hook. In fact, the Republicans' job is no more to grease the wheels for Bush's nominee than the Democrats' is to decide in advance to oppose.

And left unexamined amid all this talk of who made up their mind when is the question of when it would make sense for a senator to make up his or her mind. Which is more defensible, a senator quickly deciding to oppose Alito, or to support him? Since it is conservatives who are pushing the “closed-minded” talking point, it might be assumed that a quick decision to oppose Alito is less defensible than a quick decision to support him. Indeed, it seems many in the media have reached this conclusion. But is it rational? Is it correct?

Not if you consider that one single fact about a nominee could be enough to justify opposing him or her -- but one fact isn't enough to justify supporting a nominee. To take an extreme example, if a senator found out that a nominee had murdered someone, nobody would expect that senator to wait until finding out the nominee's view of Griswold v. Connecticut -- or that such a view would matter.

But if the senator knew the nominee's view of Griswold, we wouldn't expect him or her to think that sufficient information on which to reach a decision on their nomination: the senator, one hopes, would still want to know the nominee's views on other legal issues, the nominee's ethical suitability for office, and whether the nominee was a murderer.

Alito hearings double standard, part two

In the wake of the bungling of the Hurricane Katrina response by Michael D. Brown, President Bush's former Federal Emergency Management Agency (FEMA) director, several news reports questioned how thorough Senate Democrats were during his nomination hearing when Brown was first nominated to work at FEMA in 2002.

CNN focused on the Brown hearing during the September 14, 2005, edition of Lou Dobbs Tonight. Dobbs introduced a segment by correspondent Ed Henry by saying, “It turns out many of the very people publicly blasting Brown's performance are the very same people who played a significant, critical role in his winning the job in the first place.” Henry began his report:

HENRY: Democrats have acted surprised and outraged that the president's FEMA director had next to no experience.

[...]

But Democrats were running the Senate when Brown was easily confirmed as FEMA's deputy director in June 2002. The Democrat in charge of the confirmation hearing, Joe Lieberman [D-CT], declared he would support Brown because of his, quote, “extensive management experience.”

Only four of 17 senators on the committee showed up for that hearing, which lasted only 42 minutes, with no tough questions about Brown's nine years running an Arabian horse association.

When pressed by CNN about whether he did a tough enough job scrutinizing Brown, Lieberman put the onus on the president.

Likewise, USA Today reported on September 28, 2005:

For all the criticism of Brown as being unqualified, the Senate had a shot at questioning his credentials in 2002, but it didn't. The confirmation hearing on Brown's nomination as FEMA's second-in-command lasted 42 minutes. Only four members attended. Sen. Joe Lieberman, D-Conn., then the confirmation committee chairman, promised support. The Senate confirmed Brown, who had been at the agency one year, by a voice vote. No hearing or vote was required when Brown was promoted in 2003 to run FEMA.

News organizations, in short, chided Democrats for not having conducted extensive hearings examining Brown's nomination to be deputy director of FEMA.

What does that have to do with Alito?

News organizations are now criticizing Democrats for being too aggressive in examining Alito's record -- and for virtually ignoring the fact that not only are Republicans not thoroughly examining Alito's background, they are actively trying to stop the public from finding out anything about him.

Fox News called Democrats “vicious”; CNN's Henry uncritically repeated Republican spin that Democrats are “just really hitting below the belt”; CBS News' Gloria Borger suggested that Democrats may have gone “a step too far” -- a statement echoed by NBC's Katie Couric.

CNN's Blitzer suggested that Democrats' efforts to examine documents relating to an organization Alito belonged to was “simply a fishing expedition designed to look for something that may or may not be there.” His CNN colleague, Bob Franken, declared that the Democrats' “questioning could turn to the desperate side.” Also on CNN, John King told viewers: “The Democrats are looking ... either for some way to trip him up on the way to nomination or for some -- perhaps a reason to justify a filibuster.” And Henry - who, just a few months earlier, had chided Democrats for not being aggressive enough in conducting confirmation hearings -- said: “Democrats signaled they were heading into the attack mode yesterday in their opening statements.”

To recap: News organizations chided Democrats for not spending much time examining the background of a nominee for deputy director of FEMA. Now, they accuse Democrats who ask a Supreme Court nominee -- a lifetime appointment to the highest court in the land -- questions about his background and his legal opinions of “demonization,” conducting a “fishing expedition,” being in “attack mode,” and being “vicious.”

Meanwhile, Republicans on the Judiciary Committee are actively trying to prevent an examination of Alito's qualifications and suitability for the court. They are not only failing to take their advice-and-consent role seriously, they are actually trying to stop the American public from learning about a nominee to the Supreme Court. They are working for the nominee and the Bush administration, not on behalf of their constituents or in accordance with their constitutional role.

Sen. John Cornyn [R-TX] specifically told Alito he thought it was not “fair” for other members of the Committee to ask Alito if there is a constitutional right to abortion: “I think in all fairness the question is not a fair one to ask you, whether the right to an abortion is written in this document.” But that was positively hard-hitting in comparison to a “question” Cornyn asked Alito:

CORNYN: Well, I wonder if you're aware of one thing that he [Judge A. Leon Higginbotham] was quoted as having said. This is out of the Los Angeles Times, comments he made about you to Judge Timothy Lewis. Quoted in the Los Angeles Times, quote, “Sam Alito is my favorite judge to sit with on the court. He's a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue.”

Were you aware that Judge Higginbotham had said that about you?

And the following is an actual exchange between Sen. Jeff Sessions [R-AL] and Alito:

SESSIONS: Judge Alito, you know the salary that a federal judge makes; is that right?

ALITO: I do, all too well.

SESSIONS: Do you know what it would be on the Supreme Court?

ALITO: I actually don't know exactly, no.

SESSIONS: A little more, I think. Not much. Do you think you can live on that?

ALITO: I can. I've lived on a federal judge's salary up to this point.

Well, good thing we cleared that up.

But while reporters have focused much attention on the supposed impropriety of Democrats using confirmation hearings to actually exercise some congressional oversight, very little media attention has been paid to the Republicans' decision to make a mockery of the hearings.

Put it all together, and what do you have?

• Democrats get criticized for lax oversight in conducting Brown's confirmation hearing.
• Democrats get criticized for aggressive oversight in Alito's confirmation hearing.
• Republicans make a mockery of the very notion of “congressional oversight” in their conduct of the Alito hearings -- and their conduct escapes media notice.

Chris Matthews: Presidential law-breaking just “part of the job”

An old sports cliché holds that it is far more difficult to defend a championship than to pursue one. That may be true, but 2005 Misinformer of the Year Chris Matthews showed this week that he won't give up his title without a fight.

On the January 12 edition of his MSNBC television show, Matthews declared that breaking the law might be part of the president's job:

MATTHEWS: We're under attack on 9-11. A couple of days after that, if I were president of the United States and somebody said we had the ability to check on all the conversations going on between here and Hamburg, Germany, where all the Al Qaeda people are, or somewhere in Saudi [Arabia], where they came from and their parents are, and we could mine some of that information by just looking for some key words like “World Trade Center” or “Pentagon,” I'd do it.

NSA WHISTLEBLOWER RUSSELL TICE: Well, you'd be breaking the law.

MATTHEWS: Yeah. Well, maybe that's part of the job. We'll talk about it. We'll be right back with Russ Tice. You're watching Hardball on MSNBC.

Somehow, presidential law-breaking seems inconsistent with the constitutional requirement that the president "shall take Care that the Laws be faithfully executed" -- though it does seem to be addressed directly by the provision stating that the “President ... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Also this week, Matthews declared during a discussion of the Jack Abramoff scandal that “you have to be a real ideologue, a real partisan to believe that one party's more crooked than the other.”

While it's safe to assume that there is little inherently corrupt about being either a Republican or a Democrat, and that the overwhelming majority of members of both parties are not corrupt, Matthews wasn't discussing party membership in the abstract, or among rank-and-file membership. He was discussing congressional leaders, in Washington, of the two parties. And in that context, it's abundantly clear on which side of the aisle crookedness -- or, to borrow a word National Review editor Rich Lowry used, “perfidy” -- predominates.

Media continues to spin Bush domestic spying operation

While most media figures haven't been quite as brazen in downplaying the Bush administration's apparently illegal domestic spying operation as Matthews has, misinformation about the program continues to run rampant.

Several news organizations, for example, reported Bush's January 11 assertion that he acted legally in authorizing the program -- without noting the program's legality is very much in dispute and, in fact, the nonpartisan Congressional Research Service and a former National Security Agency general counsel have both questioned Bush's legal defense of the wiretapping.

Others, like Rush Limbaugh, assert that “Americans were not spied on without a warrant.” But Limbaugh has no basis for that claim; the wiretapping program is controversial precisely because evidence suggests that Bush authorized the NSA to spy on people within the United States without obtaining warrants. It's worth noting that Bush has not said, “Americans were not spied on without a warrant.”