CyberAlert -- 12/13/2000 -- Thomas: Scalia's "Rubber Stamp"

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 intelligence."

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 whites."

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 Dickens.

1

Network morning shows found a "bitterly divided" Supreme Court with public relations damage.

-- 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 say, honorably."

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 night."

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 presidency?"

-- 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 Court?"

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?"

2

In "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."

3

The bitter 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 NBC.

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?"
Dershowitz: "It 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 judgment."

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.
Dershowitz: "I'm 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."
Dershowitz: "Well, no this is Dred Scott of the 21st Century."
Lash: "Oh, I disagree."
Dershowitz: "No, this is something that's not to be forgotten."
Gibson interjected: "Dred Scott is a decision that led us to civil war."
Dershowitz: "Well, 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?"
Jackson started 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 certify that...."

4

Dan 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 immediately.

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.

END Excerpt

To read all of McFadden's article, go to:
http://www.unionrecord.com/arts/display.php?ID=1104

For more of what Rather said and how it really did not display "penetrating intelligence," go to today's earlier CyberAlert:
http://www.mrc.org/cyberalerts/2000/cyb20001213.asp

5

It's 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:"
Cuomo: "This 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 28,000 votes."
Beckel asserted: "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.

6

"All 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 clause."

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.

7

Newsweek's 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 voted for."

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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