This week the Supreme Court began a new term with an unprecedented vacancy on its bench, yet major broadcast news programs remained virtually silent.
In March, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia. Senate Republicans have spent the months since waging a historic blockade against the nomination, fueled by right-wing media. Meanwhile, major broadcast networks have stayed almost entirely silent. In the last six months, flagship morning, evening, and Sunday news programs on ABC, NBC, and CBS spent a total of less than six minutes discussing or reporting on Garland or the persistent Supreme Court vacancy.
Garland’s nomination has sat in the Senate without action for more than 200 days, shattering a record for obstruction previously held by Justice Louis Brandeis’ nomination (125 days passed between Brandeis’ nomination and his eventual confirmation by the Senate). Even in that instance, Brandeis was given a public hearing within two weeks of his nomination, while Senate Republicans have refused to hold any hearings for Garland.
According to the Congressional Research Service (CRS), of more than 40 Supreme Court nominations made since the Senate Judiciary Committee began the practice of holding public hearings to vet nominees in 1939, every nominee that was not withdrawn by the president received a public hearing or vote by the full Senate -- except, so far, Garland.
Garland is considered an uncontroversial nominee because of his moderate judicial record, and conservatives have praised him for years. And nothing in Senate tradition precludes his consideration: According to SCOTUSblog, six Supreme Court vacancies have been filled during election years. The unprecedented obstruction of Garland is also occurring against the backdrop of a historic Republican blockade against Obama’s nominations to the lower courts.
Media Matters conducted a Nexis search of transcripts for the major broadcast networks’ flagship morning, evening, and Sunday news shows for the last six months for any mentions of Garland or the Supreme Court vacancy.
During this six-month period, Garland’s nomination or the persistent court vacancy were mentioned in just nine news segments across flagship news programming on ABC, CBS, and NBC. The networks’ morning, evening, and Sunday news programs together spent less than six minutes reporting on or discussing any topics related to Garland or the vacancy.
Garland was mentioned by name in only seven of the segments. Details about Garland -- such as facts about his personal history or judicial record, or support for his nomination based on those facts -- were mentioned in only two segments, both on NBC’s Meet The Press.
Senate Republicans’ ongoing efforts to obstruct Garland’s nomination and prevent a confirmation hearing or vote were referenced in seven segments. The only segment to include discussion about Garland or the court vacancy that lasted for longer than a minute was a portion of an interview with Senate Majority Leader Mitch McConnell (R-KY) on CBS’ This Morning. In the interview, McConnell repeated his party’s misleading talking points that judicial vacancies have historically been left unfilled during presidential elections -- which right-wing media have consistently propped up -- despite pushback from host Dana Jacobson. McConnell did not mention Garland by name.
This lack of broadcast news coverage is all the more stark considering that within the six-month scope of Media Matters’ analysis, several high-profile Supreme Court cases resulted in split decisions or unusual actions spurred by the vacancy
On March 29, the court announced a 4-4 split vote in the public sector union case Friedrichs v. California Teachers Association, upholding a decades-old practice that allows the union to collect a smaller “agency fee” from nonmembers who benefit from the union's collective bargaining efforts but don't pay full membership dues.
On May 16, the court deadlocked in Zubik v. Burwell, a case examining religious groups’ legal challenge to the opt-out process for the Affordable Care Act’s contraception mandate, sending the case back to a federal appeals court for further consideration.
On June 23, the court issued a 4-4 split decision in United States v. Texas, keeping in place an injunction blocking an executive action by the Obama administration to shield millions of undocumented immigrants from deportation. Earlier this week, the eight-justice court neglected to reconsider the case, effectively leaving the injunction in place indefinitely.
Just three segments, together totaling 1 minute and 25 seconds, mentioned the persistent court vacancy in the context of a specific court case -- twice regarding Zubik v. Burwell, and once in passing during a report on the June 27 Whole Woman’s Health decision (which would likely not have been affected by the vacancy).
Broadcast news also ignored several vacancy-related events the week after Labor Day, including a press conference in front of the Supreme Court featuring former Garland clerks and U.S. senators, and Garland’s return to the Senate to meet with Sen. Patrick Leahy (D-VT), the Ranking Member of the Judiciary Committee.
Just this week, the president authored an opinion piece in The Huffington Post reminding Americans about the persistent vacancy as the court began its new term with just eight justices, and both The New York Times and USA Today published editorials condemning Senate Republicans for their continued obstructionism. The broadcast news programs included in this survey have yet to mention Judge Merrick Garland or the Supreme Court vacancy so far this week -- even though, as Obama noted, a judicial blockade of this magnitude hasn't occurred since the Civil War.
Media Matters conducted a Nexis search of transcripts for morning, nightly news, and Sunday news programs on ABC, CBS, and NBC from April 5 to October 5 for any mentions of the term “garland” or the term “vacancy” within 10 words of the phrase “supreme court.”
We included the following programs in the data: ABC’s Good Morning America, World News Tonight, and This Week; CBS’ This Morning, Evening News, and Face The Nation; and NBC’s Today, Nightly News, and Meet The Press.
We reviewed segments in which Garland or the court vacancy were mentioned and coded them by type of segment: teaser, host monologue, news report or news package, or discussion-based segment (interviews and panel discussions). If a single edition of a program included more than one type of qualifying segment, we coded them separately.
We coded qualifying segments for timing using iQ media. Media Matters reviewed and recorded time stamps for entire segments when the stated topic of the segment was related to Garland or the Supreme Court vacancy and for the portions of multitopic segments that featured any reporting, discussion, or mentions of these topics.
Two independent researchers reviewed all relevant segments to determine whether mentions or discussions of Garland or the ongoing court vacancy included statements about the following specific topics related to the issue:
- Merrick Garland’s personal history, judicial record, or judicial philosophy;
- ongoing obstruction efforts taken by Senate Republicans to prevent addressing the Supreme Court vacancy; or
specific court cases as they relate to the vacancy or to Garland’s nomination, i.e. past cases that could be overturned or re-examined in a new court term or new cases set to be heard in the coming term.
Segments could be coded for discussing more than one of the above topics when applicable.
Graphic created by Sarah Wasko.