Presswatch/Taking Liberties
Eastland, Terry
PRESSWATCH TAKING LIBERTIES In late July, Associate Justice William Brennan surprised everyone by retiring after thirty-four years on the Court. How did the media respond? Let's go to the...
...This will work well enough, provided Souter remains non-controversial and substantively anonymous...
...The President said there was "almost a certain recusal on the part of Governor Sununu on this...
...ABC's Tim O'Brien plummeted to the occasion, filing a piece that assumed the praiseworthiness of Brennan's judicial legacy and worried about how it might be dismantled...
...Nor did any observe the contradiction of Sununu going public to explain a process he had not been involved in...
...Morton himself left little doubt that he thought highly of the man...
...Also seen at risk [by whom?] in a Court without Brennan are the limits of individual freedom [do you mean to imply that individual freedom is never to be limited?] . . . Civil libertarians [again, which ones?] also worry that a whole range of protections for a criminal defendant may come under fire [others think this is goat where are they?] . .. " T he pap served up by Crowley, 1 Brennanite high priestess of the hot media, is unlikely to appear in the news pages...
...wally, speaking of justices, on an 1' edition of ABC's "Prime Time Live" Justice Thurgood Marshall told Sam Donaldson that he considered Bush "dead" and that Chief of Staff Sununu was "calling the shots" at the White House...
...Would Carlson write of someone's liberal philosophy that it "is a reminder that the label does not belong only to Tom Hayden or Mayor Barry...
...Failing to ask how the Justice went about the crucial task of interpreting the Constitution, Morton ventured that Brennan simply "loved" the nation's charter...
...Its unauthorized intrusion into areas previously reserved for the people to decide, either privately or through the states or Congress, has turned it into a much more visible-and controversial-political institution...
...And I'll bet Sununu was behind the idea—put out anonymously on the same news cycle as the Brennan retirement stories—that renominating Robert Bork also was under consideration...
...Still, the print coverage tended to portray Brennan in terms he would have liked—as the great champion of rights and liberty...
...Then there was Candy Crowley of Cable News Network...
...But if there is no media firestorm in the first few days of a nomination, there will generally be none later on, and four days after Souter's nomination, the Washington Times reported that "hard-digging reporters" were finding their "shovels bare" on the Souter beat...
...Of course, virtually any headline or news account will provide evidence for my point, which is that journalism invariably talks about the Court in "liberal" and "conservative" terms...
...Writing against deadline the day Brennan stepped down, David Lauter of the Los Angeles Times detailed Brennan's performance in Baker v. Carr (1962), the landmark redistricting case, illustrating the activist Justice's willingness to push his colleagues to focus on matters other than the law itself in deciding cases...
...But in newspaper accounts appearing soon thereafter, Sununu freely discussed his role, telling the Washington Post that THE AMERICAN SPECTATOR OCTOBER 1990 35 he was "not shy" about endorsing Sou-ter...
...Linda Greenhouse of the New York Times included opponents as by Terry Eastland well as supporters in her retrospective on Brennan...
...If this is "almost a certain recusal," I'd like to know what George Bush thinks a real recusal is...
...The hearings on the man nominated to replace Brennan, David Souter, will be gaveled down approximately with the arrival of this issue of TAS, assuming the media reports nothing controversial that might lead to postponement-or worse...
...Justice Brennan's approach chooses one of them as the constitutional imperative, on no apparent basis except that the unconventional is to be preferred...
...Neas called Brennan's departure "a tragedy for all those who care about civil rights...
...It would have been fairer, for example, for Curtis Sitomer to have written that Brennan "understood himself as keeping the flame of individual rights, even though some critics say they are not found in the Constitution...
...Justice Antonin Scalia made this point in his plurality opinion for the Court in Michael H. v. Gerald D. (1989...
...I fault not journalism but the Court itself...
...Crowley baked a cake of such liberal bias that I reproduce some of it here, with bracketed questions that someone at CNN should have posed: "The Brennan departure has .. . caused concern [where?] over the survivability of affirmative action programs...
...O'Brien ticked off the issues that he said were "certainly to be affected" by the change at the Court—abortion, affirmative action, freedom of speech and press, and "strict separation of church and state...
...Such descriptions are fine for editorial pages, but not the news columns...
...My guess is that it was a serious proposal, not merely Sununu's way of mooning anti-Bork liberals...
...Leaving aside the vital question of judicial authority to enforce extra-constitutional rights, judicial defense of such liberties can also infringe upon the liberties of others...
...Or is it somehow impertinent to probe what motivates a Justice to say such things, to ask a question or two...
...Bare, and bent...
...In civil rights circles [which ones?] there is fear that a Supreme Court with a philosophical scale weighted to the right will no longer be on course for social change [why do you assume this is the court's role...
...This bit of"news" appeared in the ninth paragraph of the Post's story...
...Even Brennan conceded that not all the rights and liberties he defended were found in the text or history of the Constitution...
...At his press conference announcing Sou-ter, President Bush was asked about Chief of Staff John Sununu's role in the selection...
...Nor didanyone else in the Washington media, except the New Republic, which acidly observed that Marshall "showed what happens when he gives an opinion without help from his clerks...
...Is journalism afraid of taking on the first and only black on the Court...
...Drinan opined that Brennan's churchand-state jurisprudence will be "one of his great monuments...
...It seems to us that it reflects the erroneous view that there is only one side to this controversy—that one disposition can expand a "liberty" of sorts without contracting an equivalent "liberty" on the other side...
...If the strongly pro-life Edith Jones, the only other person President Bush interviewed, had been nominated, there would have been a ruckus immediately...
...Let's go to the videotape: Terry Eastland is resident fellow at the Ethics and Public Policy Center in Washington, DC Bruce Morton of CBS interviewed several of Brennan's former clerks, who had nothing but praise...
...If he does come under attack, the White House will have to cobble together a public affairs plan with the President taking the rhetorical lead, ex-actly what the Reagan White House lacked when Bork drew fire...
...A reporter on a search-and-findnothing mission to Souter's hometown of Weare, New Hampshire, told me that between the Brennan retirement and the Souter nomination she got plenty of calls from people wanting to say negative things about Jones, a federal appeals court judge...
...Gone are the good old days of thirty-four years ago, when Time magazine needed only to report, in a small box, no more, the nomination of William Brennan...
...Now the Happy Irishman can read about what a liberal he was...
...By the way, the headline in that box bore the notably apolitical headline, "A Happy Irishman...
...Donaldson didn't criticize Marshall for these outrageous remarks...
...Unfortunately, the journalism in the wake of Brennan's departure only confirmed the tendency of the media to see the Court in political terms...
...So did Fred Barbash of the Washington Post...
...There is occasional bias in the re-1 porting on Souter...
...In any event, Sununu had to have been involved...
...Stephen Wermeil of the Wall Street Journal characterized the Justice as "the Court's most ardent defender of individual rights and liberties...
...And he interviewed three liberals—Ralph Neas, Floyd Abrams, and Robert Drinan—who served up the appropriate atmospheric comments...
...Curtis J. Sitomer of the Christian Science Monitor called him the keeper of "the flame of individual rights...
...Since Brennan helped push the Court into such matters as abortion, it is fair to say that the terms in which the Court and its work are reported today owe much to his tenure...
...no chief of staff isn't in a matter as important as a Supreme Court nomination...
...34 THE AMERICAN SPECTATOR OCTOBER 1990 Indeed, the Brennanite vision of the Court as the keeper of the flame of individual rights lies at the heart of the controversy over constitutional interpretation and judicial authority in our time...
...Our disposition does not choose between these two "freedoms" but leaves that to the people of California...
...He also belittled David Souter, saying that he had called his wife and asked, "Have I ever heard of him...
...Indeed, he made it at the expense of Brennan: We do not accept Justice Brennan's criticism that this result "squashes" the liberty that consists of "the freedom not to conform...
...Why do the daily media indulge this Justice...
...Administration officials have no strategy for getting Souter confirmed, unless answering no questions and sending out no information counts as a strategy...
...This is hardly the first time Marshall has said amazing things to the press, though it is the first time he has said a President is "dead" and dumped on someone soon to be his colleague...
...Time's Margaret Carlson, in her cover piece on the nomination, wrote: "Souter's conservative philosophy alternatively pleases and confuses both ends of the political spectrum and is a reminder that the label does not belong only to Jerry Falwell and Jesse Helms"-as though the latter two were fully representative of American conservatism...
...Consider the Washington Posts leading headline: "Liberal Justice Brennan Quits Supreme Court/Giving Bush Chance to Buttress Conservatives...
...Whether or not one agrees with Scalia, to see Brennan as the great champion of rights and liberties is simplistic...
...Of course, there are dissenting views, but they were not heard on ABC...
...Are the media napping, or what...
...Whether or not Bush gets the jurisprudence he wants from Souter, he at least is getting a non-news story during the nomination phase...
...Such a happy choice is rarely available...
...Would he havetreated a retiring William Rehnquist so uncritically...
Vol. 23 • October 1990 • No. 10
