Who started the Supreme Court circus?

Brent Bozell
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Posted: Jul 06, 2005 12:00 AM

When Sandra Day O'Connor announced her intention to retire from the Supreme Court, Washingtonians gathered with one thought: The circus has come to town.

 Reporters quickly assured viewers this "titanic battle" that is guaranteed to be knock-down, drag-out, wall-to-wall ugly. They didn't wonder: Why does this always happen with Republican nominations, but not Democratic ones? In 1993, President Clinton nominated Ruth Bader Ginsburg, who was calmly approved by a vote of 96 to 3. In 1994, Clinton nominated Stephen Breyer, who was confirmed by a vote of 87 to 9. By contrast, all hell broke loose with Robert Bork and Clarence Thomas, with 58 senators against the one, and 48 votes against the other. The same pattern occurs with attorney general nominees: 42 votes against John Ashcroft, 36 against Alberto Gonzales, and zero against Janet Reno. Why?

 It's simple. Republicans have been willing to grant Democratic presidents their right to select nominees of their choice, while Democrats have used an explicitly ideological standard since the 1987 trashing of Robert Bork: If you're conservative, you're disqualified -- period.

 These Democrats are emboldened because on high-profile, non-electoral fights like this, liberal bias flies fast and furious in the newsrooms. A classic example can be found in the work product of staunchly liberal National Public Radio reporter Nina Totenberg, who has tried to ruin two conservative Supreme Court bids.

 In 1987, she took a bitter ex-girlfriend's diary and ruined Douglas Ginsburg's nomination by forcing him to admit marijuana use at Harvard in the 1960s and 1970s, after which a parade of politicians from Gingrich to Gore admitted the same, with no career damage. (The Didn't Inhale President came later.) In 1991, Totenberg took a bitter former employee (and according to some, wanna-be girlfriend) named Anita Hill and forced a new set of hearings around Hill's unsubstantiated tales of sexual harassment by Thomas. But when Paula Jones, Kathleen Willey and Juanita Broaddrick came forward with their (far more serious) charges against Bill Clinton, Totenberg's compassion was nowhere to be found.

 While partisans on both sides gear up for battle, everyone should acknowledge that the "mainstream" media are going to echo the sentiments of any liberal special interest group against whoever is nominated by President Bush. Even on the one relatively peaceful Republican nomination in recent times -- Papa Bush's awful 1990 selection of David Souter, now a solid liberal on the court -- liberals in the press sounded now-comical alarms. Dan Rather panicked with Sen. Paul Simon: "Is there any doubt in your mind that [Souter's] views pretty well parallel those of John Sununu's, which means he's anti-abortion or anti-women's rights, whichever way you want to put it?"

 The most perverse form of media slant emerges when "reporters" warn that conservatives have a "litmus test" for nominees, implying liberals have never voted strictly on an ideological basis. Those massive Republican majorities for Ginsberg and Breyer (and Reno) ought to rebut the idea that Republican senators are "litmus test" voters, but the media are a Ted Kennedy echo chamber -- boorish and predictable -- on this issue.

 In the first hours after O'Connor's retirement, CNN political analyst Bill Schneider was already implying only the right used a litmus test. In a story using a graphic titled "A Litmus Test," Schneider recounted how Republicans want no more David Souters: "Conservatives were outraged when he turned out to support abortion rights. Many liberals denounce the idea that a nominee should have to pass a litmus test on the abortion issue." Then came Ted Kennedy, supposed litmus-test hater, who said with a straight face (and no CNN rebuttal): "I don't set up a litmus test for any particular nominees. I have voted for judges which have been pro-life." Unmentioned by Schneider: Kennedy voted not only against Thomas, Ashcroft, Gonzales, and so on, but also against supposedly "anti-women's rights" Souter. (He was confirmed 90 to 9.)

 In 1994, the Media Research Center's Nexis research of the terms "litmus test" with "Supreme Court" in the three news magazines, as well as the Washington Post and New York Times, was eye-opening: 111 uses from 1987-1992, but only 10 uses in Clinton's time up to the Breyer confirmation process. Most of the disparity came from the newspapers: 54 to 3 in the Post, 44 to 5 in the Times. Translation: During the Reagan-Bush years, there was a defined ideological standard to be met by nominees. In the Clinton era, there was apparently no ideology to consider.

 In 1994, Nina Totenberg sat with anchor Ken Bode during live coverage of hearings on Stephen Breyer the "centrist," with Bode complaining Reagan and Papa Bush emptied "the law schools of very conservative Republicans." Totenberg replied "the Clinton administration, at least so far, has not done that at all."

 I bet you even Ted Kennedy laughed at that one.