Thomas: Scalia's "Rubber Stamp"; Reagan Made Court Political; Rather's "Penetrating Intelligence"; Sudden Concern for Equality
-- Back to today's CyberAlert
1) Network morning shows found a
"bitterly divided" Supreme Court with public relations damage. But
they loved quoting from the dissenters, even misquoting, as ABC's Charles
Gibson asserted: "Justice John Paul Stevens saying that the loser in all
of this might be the rule of law." Bryant Gumbel hit Clarence Thomas:
"Does he do anything besides vote and rubber stamp Scalia?"
2) ABC reporter Karla Davis found that deep divisions on the
Supreme Court can be overcome when the goal is liberal. She identified Reagan
as the culprit: "The process of selection got very ugly, politicizing the
court. It was 1987, the Reagan nomination of arch-conservative Robert Bork..."
3) With little resistance from ABC's hosts, Alan Dershowitz
called the decision "the Dred Scott case of the 21st century" as
Diane Sawyer read an editorial which claimed "this will long be
remembered as an election decided by a conservative Supreme Court in favor of
a conservative candidate." On NBC, Jesse Jackson got a much tough
grilling from Katie Couric.
4) Tuesday night Dan Rather repeatedly insisted the Supreme
Court ruling did not mean Bush would become President, but the TV reviewer for
the Seattle Times praised Rather's "swiftness and penetrating
5) It's not over yet. NBC's Lisa Myers on Tuesday night
focused on efforts by Bob Beckel and Mario Cuomo to "hijack some of
Bush's electors" before they vote on Monday. "Democrats hope some
Bush electors might think Gore has been treated unfairly."
6) ABC's Charles Gibson mocked the Supreme Court's
"sudden" concern for equal protection for voters, "and yet when
it comes to capital punishment cases, they're not as worried about equal
protection and making sure that the same percentage of blacks are executed as
7) "If chads fall out all over the floor, that's good!
That means you can then tell who the person voted for," Newsweek's
Jonathan Alter argued to Geraldo Rivera.
Editor's Note: The first three items in
today's CyberAlert, about the morning shows, were prepared by the MRC's
Tim Graham with input from analysts Jessica Anderson, Brian Boyd and Geoffrey
morning shows found a "bitterly divided" Supreme Court with public
-- On ABC's Good Morning America on Wednesday, Gore beat reporter Terry
Moran portrayed a "wounding" court and a "dutiful" Gore:
"In a way, this
ruling almost opens up more wounds rather than closing them and for Gore to
fight on, almost in defiance of what was certainly the strong suggestion of
the per curiam holding of the Supreme Court that this is over, might just
exacerbate those wounds and that is something that aides say Gore is sensitive
to....It has been said that the most important speech in this race now will be
given by the loser. Aides say Al Gore has always done his duty: going to
Vietnam, falling on his sword for President Clinton during the impeachment,
and they expect him, if he makes the decision to get out, to get out, as they
Reporter Jackie Judd quoted from the dissent: "And
as Diane suggested earlier, the most widely quoted statement from the minority
opinions probably is the one from Justice Stevens, in which he says, 'Although
we may never know with complete certainty...the winner...[we know the loser.]
It is the nation's confidence in the judge as an impartial guardian of the
rule of law.' So what you have, Charlie, bottom line, is a deeply divided
court, a very bitter minority."
Charles Gibson them misconstrued the meaning of a
comment in a dissent: "As she mentioned, Justice John Paul Stevens saying
that the loser in all of this might be the rule of law. He also said, 'The
endorsement of the Bush position by the majority of this court can only lend
credence to the most cynical appraisal of the work of judges throughout the
land.' So it's a, as we say, it's a deeply divided court."
Stevens was complaining about how the court's majority
had unfairly tarnished the reputation of the Florida Supreme Court's ability
to interpret law. He did not say "the rule of law" was the loser.
-- Over on The Early Show, CBS reporter Diane Olick
found the ruling was dangerous: "That disagreement as to how a recount
would be carried out was split at a politically dangerous 5 to 4, with the
majority calling for the Florida Supreme Court to come up with statewide
standards for a recount. The hitch was they had to do that by the end of
December 12, that is about two hours after the ruling came down last
In an interview with new CBS legal analyst Jonathan
Turley, Bryant Gumbel began by attacking Clarence Thomas:
"And we can't let
Justice Thomas pass on this, there's no opinion of his in here, he doesn't ask
questions in court, does he do anything besides vote and rubber stamp Scalia?"
He next wondered: "Short and long term, what are
the ramifications of this for George Bush?" Turley offered the liberal
spin: "This is extremely damaging, if there was a concern about
legitimacy it's been magnified as of last night. It look's like Al Gore was
given a bum's rush by five very conservative justices."
Gumbel did offer a less liberal take in interviewing
Sen. Robert Torricelli: "Once the court took this case was there anyway
the court could have come out looking any better than it did?" He also
asked: "Well, as you talk of the legitimacy of his presidency, you know
as well as I do that there are a number of groups looking to use the Freedom
of Information Act to complete the recount in Florida. Do you think that wise,
is that warranted when really all it can do is undermine a Bush
-- On NBC's Today, Matt Lauer interviewed liberal
professor Burt Neuborne and moderate legal writer Stuart Taylor, and quoted
twice from the dissenters. "Let me read you something, Burt. Justice
Breyer wrote in his dissent, 'The Florida Supreme Court thought that the
recount could be completed on time. And within hours the Florida Circuit Court
was moving in an orderly fashion to meet the deadline. This Court
improvidently ordered a stay. As a result, we will never know whether the
recount could have been completed.' Basically what Justice Breyer is saying
is you say we ran out of time but we're the reason we ran out of time!"
Lauer added: "Do you think they mouse-trapped the Florida Supreme
He asked Taylor: "Stuart, how do we move forward,
look back at the Supreme Court and not say this was a partisan vote?"
When Neuborne expressed his respect for the majority
despite his disagreement, Lauer raised the Stevens dissent: "So do you
agree with Justice Stevens when he wrote, 'Although we may never know the
identity of the winner of this year's presidential election, the identity of
the loser is perfectly clear. It is the nation's confidence in the judge as
an impartial guardian of the rule of law. I respectfully dissent.'"
(Both dissenter quotes were also put up on the screen.)
When that interview was done, Katie Couric queried Tim
Russert: "Tim, ouch, Stuart Taylor and Burt Neuborne delivering some
pretty powerful body blows to the U.S. Supreme Court and the ultimate
decision. How badly damaged is the high court in the wake of this?"
Unlike Gumbel, Couric played up the post-concession
recount scenario: "Alright Tim. Let's talk about the worst possible
future scenario possibly for George W. Bush. What if under the Florida
sunshine law somebody gets a hold of these under-votes. And granted the
standards may be controversial but under even sort of the, the strictest
standards discovers that Al Gore had enough votes to overcome George W. Bush
doesn't that keep a terrible cloud over George W. Bush's presidency?"
"search of perspective," ABC reporter Karla Davis found that deep
divisions on the Supreme Court can be overcome when the goal is liberal.
Diane Sawyer introduced her GMA story: "Well, in
search of perspective this half hour, we're going to take a look now at how
this Supreme Court decision really relates to the pattern of Supreme Court
decisions in difficult moments."
Davis offered up rulings which pleased liberals at the
time: "In the past, even when this country was most deeply divided,
somehow, some way members of its highest court found common ground. 1954,
Brown v. the Board of Education, the court's unanimous ruling eventually
desegregated public elementary schools. 1971, the court rules to allow the
publishing of a confidential Defense Department study of U.S. involvement in
Vietnam, the Pentagon Papers. Freedom of the press is honored above Nixon's
politics. In 1974, eight justices voted to force President Nixon to turn over
the infamous Watergate tapes. Justice Rehnquist, a Nixon appointee, abstained.
Even though five of the eight were Republican appointees, they seemed to rise
high above politics, only to surprisingly plummet."
What went wrong? Reagan began nominating conservatives:
"The process of selection got very ugly, politicizing the court. It was
1987, the Reagan nomination of arch-conservative Robert Bork: the grilling,
the partisanship, Bork's ultimate rejection....Next, Reagan's more liberal
choice would be rejected as well, followed by years of vendettas. The end
result -- a failed nomination and new attention to the politics of the highest
court. The bitter, sexually graphic fight over Clarence Thomas ended with him
on the bench, firmly seated in the conservative bloc with Justices Rehnquist
and Scalia. But this court has also had its more transcendent moments, like in
June of this year, a more liberal ruling, a seven to two vote upheld a
person's right to a Miranda warning before being interrogated by police."
Davis concluded by forwarding the take of the New York
Times: "Last night, the justices wrote of their quote 'unsought
responsibilities' in this presidential election. This morning The New York
Times says, 'This will long be remembered as an election decided by a
conservative Supreme Court in favor of a conservative candidate.' It seems
like just six months ago that perhaps the court might be finding some common
ground, but today, of course now they are facing warnings about the dangers of
mixing politics and justice....Just a few days ago, actually, an ABC News poll
asking the public's opinion about the court, their confidence in the court,
and their overall marks for handling the case were marginally positive, with
51 percent approving and 40 percent disapproving. Of course, there could be
some slippage because of this."
aftermath wouldn't be complete without bitterness from Alan Dershowitz on
ABC's Good Morning America and Jesse Jackson on NBC's Today, but ABC gave
Dershowitz a far warmer reception for his diatribes than Jackson received on
On ABC Dershowitz first complained that the court's
conservative bloc's equal-protection vote showed the vote wasn't
ideological, but political. Diane Sawyer replied: "So what are you
saying? You're saying they strained, you really believe they strained for
political reasons to do this?"
Dershowitz charged: "They strained, they determined
first they wanted a Republican President, then they went into the array of
arguments available and they pulled some out which they never ever use, and by
the way will never use again -- we're never going to see Scalia and Rehnquist
and Thomas strike something down on equal protection grounds based on race.
They simply decided the case not on ideological grounds, on partisan,
political, Republican-Democrat grounds, period, and if you fall for anything
else, I got a bridge to sell ya."
Charles Gibson just prompted him for more: "Which
does what, in your opinion, to the national opinion of the Court?"
takes the Supreme Court and it puts it in the same category as legislatures
and the executive, and it takes them out of the role of moral imprimatur....
So would Gibson give fellow guest William Lash, a George
Mason University law professor, an easy question. No: "Bill, let me make
a point. They say in this decision, 'Look, you can't on any constitutional
grounds come up with a fair recount that can be done by December 12th.' Who
was it who stopped the recount? They were going to get it done before December
12th. It was the Supreme Court itself that said, 'Stop.'"
Sawyer tried to be tougher with Dershowitz: "But
let me ask Alan, too, about the fact that there were seven justices, not just
five, but seven justices who felt there was real problem with the way they
were recounting and the diverse standards, not just within counties but within
small parts of counties."
Dershowitz found corruption: "They wanted a
particular result in this case. Look, four of the five justices have material
benefits. Their sons work for the law firm; their wife helped recruit;
O'Connor and Rehnquist have said publicly they want to resign only if there's
a Republican. These are material considerations which influenced their
Sawyer turned again to the New York Times: "Bill,
let me ask you about the New York Times editorial this morning. As we know,
The New York Times endorsed Al Gore, so we come to it knowing that."
[Lash gibed: "What did the New York Post say?"] Sawyer continued:
"But it's a question not just about justice, about the fact that there
has to be a perception of justice at the same time. It said, 'This will long
be remembered as an election decided by a conservative Supreme Court in favor
of a conservative candidate, while the ballots that could have brought a
different outcome, could have, went uncounted in Florida.' Do you worry at
least about this perception?"
As the segment wound down, Dershowitz and Lash started
debating each other.
suggesting the Supreme Court is a political, partisan institution and it ought
to be judged that way and we should not give it the moral respect that we used
to give it."
Lash: "If this was
Dred Scott, I would concur with you. But this is not Dred Scott."
no this is Dred Scott of the 21st Century."
Lash: "Oh, I
this is something that's not to be forgotten."
"Dred Scott is a decision that led us to civil war."
this has led us to a de-ligitimization of the authority of the Court."
On NBC, Katie Couric's interview with Jesse Jackson
was much tougher, a textbook example of posing questions from the opposition.
After asking for Jackson's basic reaction, Couric
followed up: "And yet wasn't this, Reverend Jackson, the end of the road?
Even Al Gore has said in the past that he will basically obey what the Supreme
Court decides. And isn't this a nation of laws? And if we don't respect the
highest court in the land, no matter how controversial the decision, won't
there possibly be anarchy in this country?"
Jackson reached into the 19th century: "No. Al Gore
may very well do that. But the highest court has had some very low moments. In
1857 the Supreme Court in the Dred Scott decision had their low moment. It
disenfranchised Americans. In 1896 it had a low moment, it disenfranchised
Americans. And last night had their low moment, it disenfranchised Americans.
And what's going to happen, what's going to happen..."
When Jackson insisted a
media recount would show a victorious Gore, Couric replied: "You know
many people will say there will be a cloud over a George Bush presidency but
Reverend Jackson won't there be a cloud over that recount as well? Given the
fact that there is no specific standard and it varies from county to county
and how will anyone truly believe the results of a recount?"
Couric also demanded: "Do you really compare this
to the Dred Scott decision?"
Jackson: "Indeed I do because in the Dred Scott
decision you simply had a court that decided against the franchise of an
American. In 1896 they decided against a franchise of an American. Here you'll
find that in, in, in Duvall County, where 27,000 votes were held back at the
protest. 18,000 African-Americans lost their vote. They lost their franchise.
In West Palm with a ballot in the paper different than the ballot in the
booth, 32,000 lost their franchise. I submit to you that voters matter. We
cannot export this flawed Florida democracy around the world. It hurts us as a
nation. I submit to you..."
Couric followed up:
"But Reverend Jackson what about the, the argument by Sandra Day O'Connor
that it is the voter's responsibility to vote correctly?"
She did toss one softball: "In your view he is and
always will always be an illegitimate President?"
comparing Bush to Slobodan Milosevic: "Well if, if, if legitimacy comes
from the consent of the governed he did not get that. It was...You know if you
were in Yugoslavia and coming into the last campaign Milosevic was losing but
in his brother's state the machinery of state broke down and through some
machinations the winner, the loser became the winner, we would not want to
Rather's "swiftness and penetrating intelligence"? Over
a half hour after the Supreme Court ruling was released Tuesday night,
CBS's Dan Rather insisted: "We want to underscore the word may,
this may mean that George Bush is going to be the next President, but
that's by no means clear..." Earlier, as detailed in this
morning's CyberAlert, Rather reported on the court decision: "What
it does not do is in effect deliver the presidency to George Bush. It does
not do that. That's one of the things it doesn't do."
Despite all that, Seattle Times TV reviewer Kay
McFadden praised Rather's performance, including his recitation of the
Stevens dissent. The MRC's Rich Noyes alerted me to the article listed
by Jim Romenesko's MediaNews (http://www.poynter.org/medianews/)
posted on the Seattle Union Record site, the Web site produced by the
striking reporters from the Seattle Times and Seattle Post Intelligencer.
An excerpt from McFadden's analysis of network
coverage of the Supreme Court decision:
Given how relentlessly cable news channels have pursued the election
story since Nov. 7, you would expect at least one of them to get a quick
handle on what transpired. Yet it was an old-fashioned network that
achieved the apex of both swiftness and penetrating intelligence, courtesy
of the man for whom such occasions seemed tailor-made: CBS's Dan Rather.
Although he told viewers early on, "We're having trouble
figuring out what this means" -- hallelujah, a TV anchor who admits
fallibility! -- Rather grasped the ramifications of the ruling almost
In this effort, he had great assistance from CBS legal analyst Jonathan
Turley. When Rather asked Turley if the Supreme Court justices had in
effect ended Gore's chances without directly saying so, Turley
concurred: "It's like stripping a man naked, throwing him in a snow
bank and leaving him to the elements."
And let the record books note it was Rather who anticipated the
divisive implications of the decision by reading aloud from Justice John
Paul Stevens' dissent: "Although we may never know with complete
certainty the identity of the winner of this year's presidential
election, the identity of the loser is perfectly clear. It is the
nation's confidence in the judge as an impartial guardian of the
law." Shortly afterward, the same quote was echoed on other cable
channels and networks.
To read all of McFadden's article, go to:
For more of what Rather said and how it really did
not display "penetrating intelligence," go to today's earlier
not over yet, NBC's Lisa Myers cautioned in a Tuesday night story on
Democratic efforts to "hijack some of Bush's electors" before
they vote on Monday, December 18. She began her December 12 NBC Nightly
News report with this declaration from former New York Governor Mario
Cuomo: "Why should he concede as long as it's still possible that
electors might change their mind, which they're free to do?"
Myers explained how with Florida in Bush's column
he'd have 271 electoral voted compared to 267 for Gore, so all Democrats
need to do is get three to switch. Leading into another clip from Cuomo,
Myers relayed: "Democrats hope some Bush electors might think Gore
has been treated unfairly and say to themselves:"
isn't the right thing. I should do the right thing. I will vote for Al
Gore even though it was previously thought I was going to vote for Bush.
And if three people did that, then Gore would win anyway."
Myers painted a
roadmap: "Of the 29 states which Bush won, 14 do not bind electors to
vote for the candidate who carried the state. Long-time Democratic
operative Bob Beckel says he'll send Bush electors a statistical
analysis next week he claims shows Gore really won Florida by more than
"If nothing else, I would like to have it on their conscience when
they cast their vote for Bush."
Myers concluded by noting that Gore disavowed such
efforts but that Bush operatives are keeping tabs on their electors.
of a sudden these guys are interested in equal protection in voters from
district to district," ABC's Charlie Gibson opined Tuesday morning
in mocking the position of conservatives on the Supreme Court since,
"when it comes to capital punishment cases, "they're not as
worried about equal protection and making sure that the same percentage of
blacks are executed as whites."
MRC analyst Jessica Anderson caught Gibson's
December 12 remark on ABC's Good Morning America after comments from
Alan Dershowitz and another lawyer.
Dershowitz attacked the moderate and conservative
Supreme Court justices: "But remember these are the same five
justices in the majority where if you make an equal protection claim about
who's being executed, discrimination against blacks on death row, they
say, 'Oh, wait a minute. We don't take seriously equal protection --
you're inevitably going to get different standards on who gets executed,'
but suddenly these guys have gotten religion on the equal protection
William Lash, a George Mason University law
professor, tried to defend the justices, but Gibson countered: "Alan
raises a very interesting point. All of a sudden these guys are interested
in equal protection in voters from district to district, and yet when it
comes to capital punishment cases, they're not as worried about equal
protection and making sure that the same percentage of blacks are executed
as whites are, or whatever. How do you answer that?"
Maybe the same percentage of blacks and white do not
commit capital offenses.
Jonathan Alter took on the Supreme Court's equal protection argument as
he wondered why "there's no equal protection violation to have all
these variations by state? The fact that Texas has a dimpled chad standard
and California does not." He asserted: "If chads fall out all
over the floor, that's good! That means you can then tell who the person
Alter's comments came on Monday's Rivera Live on
CNBC and were taken down by MRC analyst Geoffrey Dickens.
Alter: "I'm, I'm really struck by, by some
of these arguments about degradation of the ballot. What does that mean?
That chads are falling out? If chads fall out all over the floor, that's
good! That means you can then tell who the person voted for because the
hanging chad has fallen off because it has been run through the machine
again for sorting or what have you."
Geraldo Rivera asked: "But is that altering the
intent of the voter?"
Alter replied: "No, because a chad doesn't
fall off unless somebody has punched it. They've tried, on MSNBC they
were running over, using cars to run over them. You cannot dislodge a chad
unless somebody has punched through. So this whole degradation of the
ballot issue makes no sense. And as for the standards question I'm
really puzzled by why it's somehow an equal protection violation to have
variations by county. But there's no equal protection violation to have
all these variations by state? The fact that Texas has a dimpled chad
standard and California does not. There are variations across the country.
Are they saying that counties are somehow inferior? That the people who
are measuring their neighbor's ballots are less well equipped to make
that determination as to intent?"
May this be the last CyberAlert to use the term
"dimpled chad." -- Brent Baker
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