President Obama hasn't even named his nominee to fill the current Supreme Court vacancy, and already the toxic right-wing media attacks have begun on jurists thought to be under consideration for the highest court in the land.
Sizing up federal district judge Ketanji Brown Jackson, an African-American woman who graduated magna cum laude from Harvard-Radcliffe College and cum laude from Harvard Law School, National Review's Ed Whelan this week suggested Jackson just isn't smart enough to sit on the Supreme Court in the seat once occupied by the late Justice Antonin Scalia.
And last week, National Review smeared Eighth Circuit Court of Appeals Judge Jane Kelly, another judge reportedly under consideration to fill the vacancy. The attack centered around the fact that Kelly, who served as a federal public defender in Iowa for nearly 20 years, once arranged a plea deal for a client charged with receiving and possessing child pornography. National Review suggested that's disqualifying for Kelly.
Note: Public defenders are paid to advocate for clients and sometimes those clients are guilty. (The whole point of the job is written into the Constitution.) Attacking a jurist for previously serving the state by providing accused criminals their constitutionally mandated right to legal representation is, of course, a duplicitous cheap shot.
We've seen this guilt-by-association playbook used before when conservatives try to demean jurists promoted by Democrats. And according to Republicans, who have already vowed to block Obama's nomination and to not even hold hearings, the ugly attacks are only going to intensify when Obama's pick is announced. “I think they will bear some resemblance to a piñata,” Sen. John Cornyn (R-TX) said of the soon-to-be nominee. (A day after Cornyn's “piñata” remark, video was unearthed of Cornyn saying in 2006, “The current regime treats Supreme Court nominees more like piñatas than human beings. And that's something none of us should be willing to tolerate.”)
Early indications are those piñata attacks will be specious, mean-spirited, and detached from reality. And yes, Republicans will surely be working behind the scenes with the conservative media in an attempt to degrade the next high court nominee. So while Republicans obstruct in the Senate, the Fox News-led noise machine will likely be blaring out attacks and misinformation.
The third leg of the attack apparatus is made up of conservative groups like the Judicial Crisis Network and America Rising, which churn out hit pieces on Obama judicial picks that are repeated endlessly by the right-wing media. “Top Republican senators are also expected to meet with conservative groups involved in the strategy,” Politico recently reported.
True story: Under President George W. Bush, Judicial Crisis Network's name was Judicial Confirmation Network and its guiding principle was to “ensure that the confirmation process for all judicial nominees is fair and that every nominee sent to the full Senate receives an up or down vote.”
Today, not so much.
It's clear that with the GOP's radical blockade surrounding this nomination, we've already entered uncharted political waters. With the Republicans' refusal to even meet with Obama's nominee, the GOP has opted to systematically shred more than 100 years of Washington, D.C. protocol for Supreme Court nominations. But that doesn't mean the press should allow the conservative media to also rewrite the norms of the nomination process. And that shouldn't give the far-right press the power to dictate the public debate that will soon unfold.
Yet we're already seeing indication they are: “Obama's pick, in short, will get all the drawbacks of heightened scrutiny that comes with the nomination, but with little chance of actually getting the job,” according to Politico, mirroring GOP talking points that any Obama nominee faces a lose-lose scenario. (Note that Obama's pick could certainly get the job if a Democrat wins the White House in November and then re-nominates the same judge.)
The right-wing media smears are designed to generate controversy and throw nominees off-message. But politically, the campaigns only work if the Beltway press embraces and legitimizes them. Just look back at Obama's two previous Supreme Court nominations, we recall the 2009 nomination of Sonia Sotomayor, which was tarred by ugly smears launched by the far-right press and rather irresponsibly echoed in the Beltway media.
That controversy revolved around a then-seven-year old comment Sotomayor made in a speech about how a “Latina woman” judge might reach a “better conclusion” on the bench than her white male counterparts. But context was key: She was referring only to discrimination cases and stressing how diversity expands perspective.
Nonetheless, Rush Limbaugh immediately dubbed Sotomayor a "reverse racist" and the media adopted the storyline, but only by completely ignoring the “Latina woman” context.
As Media Matters noted at the time, Politico failed to provide context for the quote here, here, here, here, here, here, here, and here. So did Time, The Economist, Congressional Quarterly, The Dallas Morning News, USA Today, The New York Times, The Boston Globe, and the San Francisco Chronicle, among others.
On and one it went. The media pile-on got so bad that CBS's Bob Schieffer wondered if Sotomayor's quote would “keep her from being confirmed as a justice on the Supreme Court.” (She won her confirmation by a wide margin.)
But also recall the 2010 nomination of Elena Kagan, where underhanded conservative attacks were often ignored or dismissed by the D.C. press. The same GOP-driven attack machine tried to spin the tale that Kagan “banned” military recruiters from the Harvard Law School campus during her tenure as dean, which wasn't true. Rather than echoing the right-wing lie, the press provided important context that exposed conservatives' falsehoods about Kagan's record.
So yes, the good news was the Kagan smear campaign sputtered and wasn't echoed by the mainstream media. But in today's truly poisonous environment created by the GOP's Supreme Court blockade, who knows what claims and attacks will be unfurled in coming weeks.
Let's hope the trend continues towards responsibility and away from treating smears as news. It would be media malpractice to allow the conservative press to dictate the contours of this Supreme Court debate.