Inside the Media's Double Standard on Supreme Court Nominees

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The justices of the U.S. Supreme Court. Thursday. June 1, 2017. Justices: Ruth Bader Ginsburg, Anthony M. Kennedy, John Roberts, Clarence Thomas, Stephen Breyer, Elena Kagan, Samuel Alito Jr., Sonia Sotomayor, and Neil Gorsuch. (AP Photo/J. Scott Applewhite)

President Donald Trump will nominate a Supreme Court justice to replace Anthony Kennedy on Monday night. The mainstream media will brand whomever he picks a “conservative.” This will likely be true, but the media doesn't treat liberal judges the same way.

Indeed, many mainstream media outlets hailed President Barack Obama's Supreme Court nominees as moderate — and occasionally even conservative, or at least not “liberal” enough.

“You know, for a Democrat [Sonia Sotomayor] has a pretty conservative record, a very much in the mainstream record,” NPR's Nina Totenberg declared on PBS's “Charlie Rose” in July 2009. “In fact, on a lot of criminal law issues, you could say that she's more conservative than some members of the Supreme Court, including Justice Scalia, perhaps.”

Sotomayor more conservative than Scalia?! Do tell. I'd love to hear about Sonia Sotomayor's originalist interpretation of the Constitution, and can't wait to see her fundamentally change her decisions going forward, which is totally going to happen, right? RIGHT?!

Totenberg wasn't the only one to call Sotomayor conservative. “Republicans argued her views on issues like abortion and gun rights, and her controversial speeches, proved Sotomayor was a liberal activist,” ABC's Jan Crawford Greenburg noted. “But Sotomayor — calmly, persistently, repeatedly — described herself differently, sounding almost conservative.”

If mainstream media outlets described Sotomayor as conservative, one might think they'd describe Neil Gorsuch as “almost liberal” or “more liberal than Ruth Bader Ginsburg,” right? That would be blatantly false, but at least it would be fair.

Instead, ABC, CBS, and NBC News analysts immediately called President Donald Trump's first Supreme Court pick “a predictable conservative.”

When President George W. Bush named Chief Justice John Roberts to the Court — yes, the same John Roberts who cast the deciding vote to save ObamaCare — he was described as “very, very conservative.” Again Totenberg came out swinging for the Democrats, tagging Roberts as “a hardline conservative.”

When George W. Bush named Samuel Alito to the Court in 2005, ABC, CBS, CNN, NBC, and others branded him “conservative,” “very conservative,” “deeply conservative,” and a “staunch conservative.” Meanwhile, many of those same talking heads described Ruth Bader Ginsburg — the liberal darling “notorious RBG” and a hardline abortion activist — a “moderate” and a “centrist” when Bill Clinton nominated her in 1993.

A Newsbusters analysis found that Roberts was given conservative labels 11 times, Alito 10 times, and Gorsuch 15 times. Meanwhile, Sotomayor had only 2 liberal labels, while Elena Kagan (Obama's other Supreme Court justice) received only one. Merrick Garland, Obama's last-ditch attempt to circumvent the Senate's decision to wait to replace Antonin Scalia, received a paltry 4 liberal labels.

When liberal media analysts decided not to praise Sotomayor or Kagan as “more conservative than Scalia,” they suggested that far-Left activists should be unhappy with these Obama nominees.

“The selection of Solicitor General Elena Kagan to be the nation's 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base,” New York Times reporter Peter Baker wrote in a May 11, 2010, front-page analysis.

This is the exact opposite of the truth. While liberals on the Court tend to vote in lock-step on political issues, justices appointed by Republicans often turn out to be far less conservative than advertised. After all, Justice Anthony Kennedy — appointed by Ronald Reagan — upheld Roe v. Wade in the decision Planned Parenthood v. Casey (1992), and reinterpreted the Constitution to force same-sex marriage in Obergefell v. Hodges (2015).

Even so, Baker warned, “Ms. Kagan is certainly too liberal for conservatives … [but] she does not fit the profile sought by the left, which hungers for a full-throated counterweight to the Court's conservative leader, Justice Antonin Scalia.”

“On the left, she may not be liberal enough — that's the complaint there,” Peter Alexander warned on MSNBC the same day. “Some progressives say she's too much of a blank slate to know how she stands on any issue.”

NPR's Nina Totenberg actually compared Kagan to Superman. “In some ways, the descriptions of Elena Kagan as dean sound a little bit like the beginning of the old Superman TV series,” Totenberg said. She played a clip: “Superman, who can change the course of mighty rivers! Bend steel in his bare hands!”

Then came the cringe-worthy comparison: “Translate that to Harvard, and you can almost hear the music,” Totenberg said, playing the “Superman” theme music in the background. “Kagan, who can raise money by the millions! Kagan, who can end the faculty wars over hiring! Kagan, who won the hearts of students!”

Can you even imagine Republicans comparing Neil Gorsuch to Superman? This hero worship is nauseating.

We can predict, with 100 percent certainty, that Trump's pick will be described as a “staunch conservative,” a “hardline conservative,” or a “predictable conservative.” Yes, even if he were to pick Merrick Garland.

Totenberg will not compare Trump's nominee to Superman, and many will warn that if this nominee is confirmed, that will signal the apocalypse — or the “Handmaid's Tale.” Meanwhile, the next Democrat Supreme Court nominee will be Captain America — or Black Panther.


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